LAKSHMI Vs. VALLIYAMMAL

JUDGEMENT

(1.) The second defendant in a suit for recovery of maintenance filed by the respondents herein, is the appellant in this appeal. The first respondent claimed to be the wife of one Chidambaran Nayanar and respondents 2 and 3 claimed to be his children through the first respondent. The first respondent had earlier initiated proceedings under S.125 of the Criminal Procedure Code against Chidambaran Nayanar wherein Chidambaran Nayanar disputed the status of the first respondent. After trial the contentions of Chidambaran Nayanar were overruled and it was found that the first respondent was the wife of Chidambaran Nayanar and that she was entitled to an order for maintenance under S.125 of the Code of Criminal Procedure. The order for maintenance marked as Ext.Al in this proceeding was passed in her favour.

(2.) While the said proceedings were pending Chidambaran Nayanar purported to execute a gift in respect of the only property held within the State in favour of the appellant second defendant. Chidambaran Nayanar did not honour the order for maintenance made against him under S.125 of the Code of Criminal Procedure. The respondents therefore filed the suit for recovery of arrears of maintenance from him charged on the plaint schedule property, the only properly he possessed within the jurisdiction of the court. The appellant came forward with a contention that there was a gift in her favour of that property under Ext.Bl dt.29-10-1984 and that the said property could not be proceeded against. Meanwhile Chidambaran Nayanar died and the respondents impleaded the appellant second defendant as an intermeddler in the estate on a plea that purporting to be under a deed of gift she has taken possession of the property of Chidambaran Nayanar. The appellant contended in the suit that the property had been validly gifted to her by Chidambaran Nayanar prior to the present suit and that therefore the respondents are not entitled to a charge on the property for the alleged arrears of maintenance due from Chidambaran Nayanar.

(3.) In the Trial Court the first respondent got herself examined as PWl and marked the order of the Magistrate as Ext. A1 The appellant got herself examined as DW1 and marked the deed of gift dt.29-10-1984 as Ext.Bl and Exts.32 and B3 in an attempt to show that she had a status as the wife of Chidambaran Nayanar. The Trial Court accepted the evidence of PWl corroborated by the finding in Ext.Al and held that the first respondent was the legally wedded wife of Chidambaran Nayanar and respondents 2 and 3 were his children. The Trial Court proceeded on the basis that the property was gifted by Chidambaran Nayanar to the appellant under Ext.Bl to hold that since the legally wedded wife and children could claim a charge over the property for the maintenance due to them, the property claimed by the appellant by way of gift from Chidambaran Nayanar was liable to be charged for the maintenance claimed. The Trial Court therefore passed a charged decree in favour of the respondents 1 and 3 only as in the meanwhile respondent No.2 had got married and gone away. This appeal is filed by the second defendant challenging the decree passed by the Trial Court and especially the charge provided for over the plaint schedule property which according to her belongs to her by way of a gift made even prior to the suit.