KARE MORE SHARABANNA RUDRAPPA Vs. BASAMMA

JUDGEMENT

(1.) The facts relevant for the purpose of deciding the question of law urged in this appeal are the following: The first plaintiff is the wife of the third defendant. Plaintiffs 2 and 3 are the minor children of the third defendant and the first plaintiff. In the suit, the plaintiffs have claimed maintenance from the third defendant and they have sought a charge on the suit properties for the maintenance that may be decreed in their favour. The Courts below have held that the plaintiffs are entitled to claim maintenance from the third defendant. That finding is not challenged in this Court. The first appellate Court granted the first plaintiff maintenance at the rate of Rs. 600/- per year and for plaintiffs 2 and 3 at the rate of Rs. 200/- each, per year.

(2.) Sri K. R. Gopivallabha Iyengar, the learned counsel for the appellants contend that the rate at which the maintenance was granted to the plaintiffs is excessive. We do not think that this contention is correct. As found by the Courts below, the net amount income of the third defendant was Rs. 2000/-. The only persons who are entitled to be maintained by him are the plaintiffs. That being so, it cannot be said that the rate fixed by the first appellate Court is excessive.

(3.) The more important question for decision is whether the plaintiffs are entitled to a charge over the suit property for the maintenance decreed in their favour. The Courts below have granted the charge prayed for. Before proceeding to consider the correctness of that decision, it is necessary to set out a few more facts. The third defendant was a member of an undivided family till 20-5-1952, on which day it is alleged that be separated from the other co-partners. The first defendant is the father of defendants 2 and 3. The second defendant is the elder brother of the third defendant. After that partition, the third defendant purported to gift all his properties in favour of defendants 4 and 5 who are the sons of the second defendant. The Courts below have come to the conclusion that the partition in question was effected with a view to defeat the claims of the plaintiffs and that the plaintiffs had been compelled to leave the house sometime prior to that partition. They have also come to the conclusion that the Gift Deed Exhibit B-2 (dated 23-5-1952) in favour of defendants 4 and 5, the sons of the second defendant, was also executed with the same object in view. In the opinion of the first appellate Court, despite the gift under Ex. B-2, the plaintiffs are entitled to a charge over the properties gifted in view of S. 39 of the Transfer of Property Act. The Courts below did not set aside either the partition deed or the gift deed as the transactions covered by those deeds had been voluntarily entered into by the third defendant whatever might have been his motive in so doing. Therefore, all that we have to consider in this appeal is whether the provisions contained in S. 39, T.P. Act can be availed of in justification of the charge granted by the Courts below.