P S MUTHUKRISHNA CHETTIAR Vs. MEENAKSHI AMMAL

JUDGEMENT

(1.) THIS is a second appeal against the judgment and decree in A. S. No. 310 of 1954, on the file Of the District Court, South Arcot confirming the decree in O. S. No. 83 of 1953 on the file of the Court of the Subordinate Judge, Cuddalore.

(2.) MEENAKSHI Ammal, the plaintiff in the suit, O. S. No. 83 of 1953, sued her husband, the first defendant and his brother, he second defendant for partition and separate possession of a half share in the suit properties and for past and future mesne profits. In an earlier suit O. S. No. 137 of 1950, on the file of the sub-Court, Cuddalore, Meenakshi claimed separate maintenance from her husband, the first defendant alleging desertion on his part. That suit ended in a compromise between the two spouses and a compromise decree was passed on 21-12-1951. The amount of maintenance payable by the husband to the wife was fixed oral Rs. 150, per mensem and a charge on the properties in that suit was created in favour of the wife for the due payment of the maintenance amount The razinama between the parties also provided that the properties comprised in that suit, O. S. No. 137. of 1950 were to be enjoyed in common by the husband and the wife as co-owners and that the income should be utilised for the maintenance of the wife as well as for the maintenance of the husband. The compromise further provided that if the husband and the wife could not amicably enjoy the properties in common, the wife could have a division of the properties effected by metes and a division of the properties e bounds and obtain a moiety thereof. The parties to the compromise also agreed that neither of them could alienate any item of the properties without the concurrence of the other. All the terms of the razinama were reduced to writing and were incorporated as part of the razinama decree. But the operative part of the decree however only ran as follows:. . . . . . . . . . . . this court both in pursuance of the said deed of compromise order and decree among other terms contained in the compromise set out below as follows: 1. That the maintenance payable by the first defendant to the plaintiff is fixed at Rs. l50 per mensem and the same shall be paid from 5-7-1950 by first defendant. 2. That the properties mentioned in the compromise and also the properties of the first defendant alienated to the various persons shall he a charge for the payment of the above maintenance. 3. That the properties in the hands of defendants (2 and 3) be proceeded against lest in case there is any need for realising the maintenance from those properties. "

(3.) THE suit out of which this appeal arises was filed by Meenakshi to enforce partition as per one of the term of the razinama alleging that she could no longer continue amicably with her husband.