The defeated first defendant is the appellant herein.
2. The plaintiff filed the suit, in O.S.No.101 of 2001, before the learned Principal District Munsif, Karur, for direction directing the first defendant to pay a sum of Rs.500/- per month towards maintenance till her lifetime and Rs.3000/- per year towards dress materials and for a consequential relief of creating charge over 1/4th share of the first defendant in B1 and B2 suit schedule property and also for the costs of the suit.
3. After contest, the learned Principal District Munsif, Karur, by Judgment and Decree, dated 18.03.2005, the Trial Court directed the first defendant to pay a sum of Rs.700/- per month towards maintenance, Rs.3000/- per month towards rent and Rs.2000/- per year towards dress materials from the date of filing the suit and also created charge over the suit schedule property as prayed for.
4. Aggrieved by the Judgment and Decree passed by the learned Principal District Munsif, Karur, the first defendant preferred an appeal, in A.S.No.12 of 2005, before the learned Subordinate Judge, Karur, wherein the plaintiff also filed a cross-objection.
5. After contest, the learned Subordinate Judge, Karur, by Judgment and Decree, dated 30.11.2005, dismissed the appeal as well as the cross-objection and confirmed the Judgment and Decree passed by the learned Principal District Munsif, Karur.
6. Challenging the correctness of the Judgment and Decree passed by the learned Subordinate Judge, Karur, the defeated first defendant has preferred the present second appeal.
7. The brief averments of the plaint that are necessary to decide this appeal are as follows:
The marriage between the plaintiff and the first defendant was solemnized on 11.11.1988, in the presence of the elder people, in Veerakumar Marriage Hall at Chinnatharapuram. They have blessed with a female child, namely, Rajasuganthi. On 01.08.1992, the first defendant was admitted in Hospital due to fracture of leg bone. The first defendant tortured the plaintiff by asking money and jewels. The first defendant was having drinking habit. Unable to bear the torture, the plaintiff returned back to her parental home along with her child. On 09.11.1997, the plaintiff lodged a complaint before the All Women Police Station, Karur, against the defendants. It is very difficult for the plaintiff to meet the expenses. Hence, the suit.
8. The brief averments of the written statement filed by the first defendant that are necessary to decide this appeal are as follows: It is an admitted fact that the first defendant and the plaintiff are living separately from 1994. Though the first defendant intimated the plaintiff his willingness to live together, she refused the same. On 01.08.1991, the first defendant met with an accident and lost his right leg and living with single leg only. It is an admitted fact that they have blessed with a female child, namely, Rajasuganthi. He never tortured the plaintiff as alleged by her. It is a fact that the plaintiff had never led joint family with the defendants 1 and 3. It is an admitted fact that though the first defendant sent a legal notice, she refused to accept the advice of the elders. On 09.11.1997, the plaintiff and her parents came to the house of the defendants and attacked them to transfer the properties in the name of the plaintiff. The defendants 1 and 2 partitioned the joint family properties under a Partition Deed, dated 03.07.1996. The plaintiff has not impleaded the necessary parties. Hence, the suit is liable to be dismissed.
9. The brief averments of the written statement filed by the fifth defendant and adopted by the fourth defendant that are necessary to decide this appeal are as follows:
The defendants 1 and 2 partitioned the family properties and whereby and whereunder the suit A-Schedule property was allotted to the second defendant. The second defendant taken possession of the property allotted to him. The first defendant has no right over the property allotted to the second defendant. The plaintiff cannot claim any right over the property sold by the second defendant to the defendants 4 and 5. The partition effected between the defendants 1 and 2 is not a partial partition. The plaintiff clan claim right over the property allotted to the first defendant and not others. Therefore, the suit is liable to be dismissed.
10. Based upon the above pleadings, the Trial Court had framed four issues for consideration.
11. On the side of the plaintiff, P.W.1 was examined and Ex.A1 was marked and on the defendants side D.Ws.1 to 4 were examined and Exs.B1 to B7 were marked.
12. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court directed the first defendant to pay a sum of Rs.700/- per month towards maintenance and to pay a sum of Rs.3000/- per month towards rent and Rs.2000/- per year towards dress materials from the date of filing the suit and also created charge over the suit schedule property as prayed for.
13. As stated supra, aggrieved by the Judgment and Decree of the learned Principal District Munsif, Karur, the first defendant preferred first appeal in A.S.No.12 of 2005, before the learned Subordinate Judge, Karur, wherein the plaintiff also filed cross-objection seeking enhancement of quantum of maintenance and the learned First Appellate Judge, after contest, dismissed the appeal as well as the cross-objection and confirmed the Judgment and Decree passed by the learned Trial Judge. Hence, the second appeal.
14. At the time of admission, the following substantial questions of law were framed for consideration:
(i) Is the learned Subordinate Judge right in decreeing the suit for maintenance without framing an issue with regard to the husband's income and without deciding that issue it is not possible to arrive for the quantum of amount to be paid towards maintenance? And
(ii) Is the learned Subordinate Judge right in decreeing the suit for maintenance without giving a finding with regard to the eligibility of the wife to receive maintenance from her husband, when it is specifically pleaded by the husband that the wife is living separately with her father by leaving the matrimonial home without any valid reason?
15. For the shake of convenience, the appellant/first defendant is referred to as husband and the first respondent/plaintiff is referred to as wife and second and third respondents are referred to as father-in-law and mother-in-law respectively while the respondents 4 and 5 are referred to as purchasers.
16. The admitted factual matrix of the case are as follows:-
The marriage between the appellant/first defendant and the first respondent/plaintiff was solemnized on 11.11.1988 and out of the said legal wedlock, a female child, named Rajasuganthi was born. On 01.08.1991, the appellant/husband met with an accident resulted in amputation of right leg just above knee. From the records, it is seen that the suit was originally filed as Pauper Original Petition in P.O.P.No.8/97 on 08.12.1997 and subsequently, numbered as Suit on 12.02.2001. According to the first respondent/wife, after the accident, the appellant/husband has ill-treated her, forced her to leave the matrimonial house to her parental house and when she started demanding maintenance, the appellant/husband and the second respondent/father-in-law had fraudulently created a Partition Deed. Since the appellant/husband neglected to maintain the first respondent/wife, the suit was filed for maintenance and also for creating the charge over the schedule property.
17. Per contra, the appellant/husband had filed written statement alleging that after the rail accident on 01.08.1991, resulting in amputation of his right leg, the first respondent/wife neglected to discharge the matrimonial obligations as a dutiful wife and left the matrimonial home. In spite of the best advice by the family members, she has not returned to the matrimonial home and therefore, he issued a legal notice for re-union on 09.06.1994. Further, he and his father entered into a family partition under Ex.B.1-Partition Deed dated 03.07.1996 vide 'B' schedule property was allotted to him and subsequently, his father, in the separate property allotted in the partition deed has sold two portions of the property in favour of the fourth defendant under Ex.B.6-Sale Deed dated 12.06.1998 and another Sale Deed in favour of the fifth defendant under Ex.B.7 dated 12.06.1998.
18. On consideration of both oral and documentary evidence and also taking into account the plea raised by the appellant/husband that the first respondent/wife is living with her parental house and her father is having lot of property and earning good income, the trial Court came to a conclusion that the first respondent/wife is entitled for maintenance and accordingly, awarded Rs.700/- per month towards food and Rs.300/- per month for shelter and Rs.2,000/- per annum for clothes and also created a charge in respect of 'A' and 'B' schedule properties to an extent of 1/4th and 1/2 share respectively. The Lower Appellate Court an independent analysing of the evidence and also taking note of the fact that the properties are alleged to have been owned by the father of the first respondent/wife and also the income and capacity of the appellant/husband and also the fact that the only daughter born out of the legally wedlock is staying in a hostel being maintained by the father, confirmed the quantum of maintenance awarded by the Trial Court and rejected the appeal filed by the first respondent/wife.
19. The above Second Appeal has been admitted on the above substantial questions of law.
20. The learned counsel for the appellant made submissions on the lines of the substantial questions of law and the learned counsel for the first respondent made submissions in support of the judgment of the Lower Appellate Court confirming the judgment of the Trial Court and relied upon the decisions reported in AIR 1981 Karnataka 24 [Siddegowda Vs. Lakkamma and others] and AIR 2002 Gujarat 209 [Narendrabhai Chhaganbhai Bharatia Vs. Gandevi Peoples Co-op. Bank Ltd., and others]
21. As stated supra, the solemnisation of marriage between the appellant/first defendant and the first respondent/plaintiff and the birth of the female child by name Rajasuganthi and happening of the accident in the year 1991 wherein the appellant/first defendant has lost his one leg are not in dispute. From the evidence of P.W.1, the wife, it is seen that after the accident, the attitude of the husband was changed and he demanded money and she was subjected to cruelty. Further, in the year 1996, in order to defeat the maintenance right of the legally wedded wife, the husband and his father have partitioned the property and they have entered into a Partition Deed under Ex.B.1 dated 03.07.1996.
22. The learned counsel for the first respondent/wife has submitted that the said Partition Deed is non est in law and it is created with a view to defeat the legitimate right of the legally wedded wife of the first defendant. On the date of partition, there is a minor daughter, who is entitled for a share in the property as per the Hindu Succession Amendment Act, TN Act 1/1996 and therefore, Ex.B.1 is non est in law and it is only to defraud the plaintiff/wife, the Partition Deed has been brought on record. A similar argument has been placed before both the Courts below and in the decision reported in AIR 1981 Karnataka 24 [Siddegowda Vs. Lakkamma and others] it is held as follows:-
"Property sold by husband to avoid claim of wife property can be charged for ensuring payment of maintenance.
Where a transaction of sale of immovable property was entered into by the husband after coming to know that the wife was going to present a suit for maintenance, the same could not be said to be bona fide transfer without notice and therefore the property could be charged for ensuring payment of maintenance without voiding the sale deed."
23. Further, in the decision reported in AIR 2002 Gujarat page 209 [Narendrabhai Chhaganbhai Bharatia Vs. Gandevi Peoples Co-op. Bank Ltd., and others], it is held as follows:-
"Transfer of property Act - Fraudulent transfer - Plaintiff must prima facie establish that either sale is sham or if a real one was a fraud on him
- plaintiff x prima facie establishing fraudulent intention - onus shifts on transferee to prove his good faith."
24. Both the Courts below have come to the concurrent finding that under Ex.B.1-Partition Deed dated 03.07.1996 'A' schedule property was allotted to the second defendant/father of the husband while 'B' schedule property was allotted to the appellant/husband wherein it is found that 'B' schedule property which was allotted to the appellant/husband is dry and non cultivable lands while 'A' schedule property which has gone to the share of the appellant's father is fertile land. Thereafter, he second defendant has sold two portion of the lands under Exs.B.6 and B.7 and accordingly, relying upon the aforesaid two decisions, both the Courts below have come to the concurrent finding that Ex.B.1-Partition Deed executed between the appellant/husband and his father in respect of the joint family property without including the minor daughter of the appellant is created with a view to defeat the legitimate maintenance right of the first respondent/plaintiff- wife and the said finding is well considered and well merited and it does not warrant any interference by this Court.
25. It is to be stated that the Trial Court as well as the Lower Appellate Court have taken note of the Partition Suit in O.S.No.225 of 2001 filed by the daughter of the first respondent/plaintiff viz., Rajasuganthi challenging the Partition Deed-Ex.B.1 and hence, both the Courts below have concurrently held that with regard to the share and validity of the said partition, the same can be gone into only in the partition suit and the same is held to be just and proper. Further, for the purpose of determining the quantum of maintenance to be awarded to the first respondent/plaintiff-wife to that limited extent, both the Courts below have held that Ex.B.1 is created only to defeat the maintenance right of the appellant/first defendant. Both the counsel have stated that during the pendency of the suit, the appellant/husband had issued a legal notice calling upon the first respondent/wife for re-union on 09.06.1994. The appellant/husband has filed a petition in HMOP No.8/1997 for divorce and subsequently, decree of divorce was granted on 05.11.2001. However, on an appeal, the CMA preferred by the wife was allowed and CMSA preferred by the husband was dismissed.
26. On perusal of records, it is seen that under Ex.A.1, the first respondent/plaintiff has filed a complaint before the All Women police station on 09.11.1997 alleging the harassment made by the appellant/husband and she has filed the Pauper Original Petition in P.O.P.No.8/1997 on 08.12.1997 which was subsequently, numbered as O.S.No.101/2001, the present suit. Pending the Pauper Original Petition, it seems that the second defendant viz., the father of the appellant/husband seems to have effected Exs.B.6 and B.7 Sale Deeds whereby, fertile and cultivable lands of higher quality was sold by the appellant's father on the strength of Ex.B.1- Partition Deed dated 03.07.1996. Therefore, in the factual matrix of the case, both the Courts below correctly relied upon the legal decisions referred above and accordingly, held that to defeat the legitimate right of wife to claim maintenance, the sale has been effected. As stated supra, pending pauper O.P. for maintenance by wife, sale was effected under Ex.B.6 and Ex.B.7, goes to show that the transaction of sale immovable property was activated by the husband after coming to know about the institution of Civil Suit for maintenance and hence, the said sale transaction could not be said to be bona fide transfer without notice and therefore, the property covered under mala fide transaction could be charged for ensuring payment of maintenance to the wife and hence, this Court finds that the same does not warrant any interference by this Court.
27. The learned counsel for the appellant/first defendant contended that there was no specific issue framed regarding the income of the appellant/ husband and issue was not decided. This Court is unable to subscribe the above view for more than one reason. Based upon the written statement filed by the appellant/husband, necessary issues have been framed and both the parties have let in relevant evidence touching upon the point and based upon the facts and circumstances of the present case in hand and taking note of Ex.B.1 alleged partition deed 03.07.1996 and also taking note of the subsequent Sale Deed executed by the second defendant in favour of the 4th and 5th defendants under Exs.B.6 and B.7, necessary additional issues have also been framed on 22.11.2004 and those issues are comprehensive in nature dealing with the relief sought for by the first respondent/wife and the defence raised by the appellant/husband and hence, this Court finds that the quantum arrived by the Trial Court is well considered and the same is held to be just and proper and hence, the substantial question of law No.1 is answered in negative against the appellant/husband. With regard to the second substantial question of law touching upon the alleged financial soundness of the first respondent/wife, both the Courts below have come to the conclusion that since it was pleaded and alleged by the appellant/husband that the plaintiff/wife has sufficient means to maintain herself, it is for him to prove the same and accordingly, placed the burden of proof on the appellant/husband. Since the appellant/husband has failed to adduce any legally acceptable evidence, much less any evidence to show and substantiate the said allegation, he cannot be permitted to say otherwise in the appellate stage. Both the Courts below have concurrently and rightly held that the burden of proving the alleged income of the first respondent/wife is on the husband and since he has failed to discharge his burden, correctly came to the conclusion that there is no legally acceptable evidence available on record to show the alleged income of the first respondent/wife and awarded the above said amount and hence, this Court has no other option but to reject the contention of the learned counsel for the appellant/husband on the second substantial question of law and substantial question of law No.2 does not arise, since he has not filed any evidence to substantiate the same and hence, the substantial question of law No.2 is answered in negative against the appellant/husband. Both the substantial questions of law have been held against the appellant. Consequently, the Second Appeal is devoid of merits and liable to be dismissed and accordingly, the Second Appeal is dismissed. However, there is no order as to costs. The judgment and decree passed by both the Courts below are hereby confirmed. Consequently, the connected miscellaneous petition is closed.
To:
1.The Subordinate Judge, Karur.
2.The Principal District Munsif, Karur..