THANKAM Vs. RAJAN

JUDGEMENT

(1.) This appeal is preferred by the plaintiff in O.S. No. 485/88 on the file of the Subordinate Judge's Court, Thrissur. The suit was filed for recovery of possession of the plaint schedule property from the defendant. The case of the plaintiff was that the plaintiff had married one Rajendra Prasad, the brother of the defendant. With regard to the properties inherited by the defendant and his brothers from their father, they entered into a partition deed in 1984 and 'B' schedule properties were allotted to the plaintiff's husband Rajendra Prasad. The 'B' schedule properties were being looked after by the defendant. The relation between the plaintiff and her husband was not cordial and even though they agreed to divorce, that divorce was not granted, because before the order was passed, the plaintiff's husband died. Thus, at the time of the death of Rajendra Prasad, the plaintiff was his wife and as per the Hindu Succession Act, she was entitled to succeed to his properties. After the death of her husband,the plaintiff issued notice to the defendant to return the properties to her. But since the defendant showed his unwillingness and was raising untenable contentions, the suit was filed for recovery of possession.

(2.) On behalf of the defendant, it was contended that the plaintiff was not the wife of Rajendra Prasad at the time of his death. From 1986 onwards, the plaintiff and her husband were living apart because of incompatibility of temperament. Mediators intervened and as per the mediation, the plaintiff agreed for divorce on certain conditions. These conditions were satisfied. It includes the transfer of property in the name of the plaintiff by her husband. Both the plaintiff and her husband had filed petitions for divorce, under Section 13B of the Hindu Marriage Act. As per Section 13B of the Hindu Marriage Act (hereinafter called as 'the Act'), an interval of six months has to elapse before the Court passes the order of divorce. But before the expiry of six months period, Rajendra Prasad died. But even then, according to the defendant, the plaintiff was a divorced woman. Further he contended that by receiving Ext. B1 properties from her husband, the plaintiff was estopped or waived her right to 'B' schedule properties. It was further contended that after the death of Rajendra Prasad, the plaintiff had remarried and hence in any event, she is not entitled to succeed the properties of deceased Rajendra Prasad. It was further contended that Rajendra Prasad took a loan of Rs. 20,000/- from the defendant and had executed Ext. B2 mortgage in favour of the defendant. The defendant is entitled to realise that amount. He also submitted that Rajendra Prasad received Rs. 40,000/- and was about to execute a mortgage document. But before that he died. Thus, the defendant submitted that in case it is found that the plaintiff is entitled to the property, he is entitled to the amount from her husband, as per Exts. B2 and B3.

(3.) On the above pleadings, the Court below raised the following issues :(1) Is the plaintiff having any title to the suit properties ?(2) Whether the plaintiff is entitled to recover possession of the plaint schedule properties?(3) Whether the defendant is entitled to get the benefits under Section 53-A of Transfer of Property Act ?(4) Whether the suit is properly valued for the purpose of Court-fee ?(5) Whether the Court-fee paid is correct ?(6) What are amounts due to the defendant in the event of recovery of possession ?(7) What order as to reliefs and costs ?Addl. (8) Has the plaintiff relinquished her right over the properties of deceased Rajendra Prasad ?(9) Is the plaintiff estopped from claiming right, title and interest over the plaintiff schedule properties ?On behalf of the plaintiff, she was examined as PW 1. The defendant was examined himself as DW1 and he examined two witnesses Ramanathan and Sankaranarayanan as DWs 2 and 3. While Exts. A1 to A7 were marked on the part of the plaintiff, Exts. B1 to B5 were marked on the side of the defendant. The Court below considered issues 1, 2, 3 and additional issues 8 and 9 together. It came to the conclusion that the plaintiff was estopped from claiming any right over the plaint schedule property. This finding was derived from the conduct of the plaintiff in filing the applications for divorce and also believing the evidence of DWs 1, 2 and 3 that the plaintiff had agreed for divorce and had obtained properties evidenced by Ext. B1 as a consideration for not claiming any other properties of her husband. Regarding the issue whether the defendant was entitled to get the benefit of Section 53A of the Transfer of Property Act, the Court held that the defendant did not press the benefits of the Act. But it did not decide the issue whether amounts are due to the defendant in the event of recovery of possession. So also it did not determine the mesne profits.