SENNIAPPA GOUNDER Vs. V K VENKATARAMAN

JUDGEMENT

(1.) SETHURAMAN, J. - The two appeals arise out of the judgment of the Additional Subordinate Judge of Erode in O. S. No. 166 of 1966. A. S. No. 647 of 1976 has been filed by the first defendant in the suit and A. S. No. 1025 of 1980 has been filed by the plaintiff. The civil miscellaneous petitions have been filed, one for dismissal of the appeal as not maintainable and the other for the reception of certain documents as additional evidence. We shall deal with the two civil miscellaneous petitions in due course.

(2.) THE suit properties belonged absolutely to the first defendant. THE second defendant is the wife and defendants 3 and 4 are his daughters. In or about 1946 the first defendant married the second defendant. On account of some misunderstanding, the second defendant was living separately from the first defendant from 1952. Her parents are said to be in affluent circumstances and she was residing in her parents- place. She filed a suit O. S. No. 664 of 1953 on the file of the District Munsif-s Court, Gobi, claiming maintenance from the first defendant. On 10th January, 1954, the suit was decreed and she was granted maintenance with a charge over the properties, at the rate of Rs. 35 per month along with a sum of Rs. 400 per annum for her residence. THEre was an appeal (A. S. No. 153 of 1954) in the Sub-Court, Coimbatore, by the first defendant and by the judgment dated 18th January, 1955, the maintenance allowance was increased by Rs. 2, making up a sum of Rs. 37 per mouth and the sum of Rs. 400 provided for residence was deleted. As a result of the marriage, there were three children of whom one died when it was about 10 months old. THE other two children lived with the husband. THE sixth defendant is a concubine of the first defendant and they have a son by name Muthusami, who is the fifth defendant in the suit.

(3.) ACCORDING to the plaintiff, when the second defendant and her relations came to know of the agreement dated 16th March, 1964, (Exhibit A-2) they began to intervene and induce the first defendant to resile from the contract and appropriate the properties to themselves. It was alleged that the first defendant then began to demand a higher price for abiding by the agreement. As the plaintiff did not agree to pay the higher price demanded and had insisted on the contract being performed as agreed, the first defendant-s daughter with the help of their maternal uncle filed O. S. No. 54 of 1964 on the file of the Sub-Court, Erode, on 31st March, 1964 for their maintennance and marriage expenses. An injunction restraining the plaintiff from enforcing the agreement was obtained in the said suit. The plaintiff issued a notice on 6th April, 1964, to the first defendant and also to the next friend (maternal uncle of defendants 3 and 4). But the first defendant evaded the service of the same. It is alleged by the plaintiff that the first defendant made a pretence of contesting the said suit and collusively allowed it to be decreed as prayed for with a charge over the properties. On 5th June, 1964, the sixth defendant, as the guardian and next friend of the fifth defendant, filed O. S. No. 78 of 1964 on the file of the Sub-Court, Erode, impleading the plaintiff as the second defendant, attacking the agreement for the purchase of the suit properties. Thereafter the second defendant at the alleged instigation of the first defendant claimed enhanced maintenance and filed O. S. No. 500 of 1966 on the file of the District Munsif-s Court, Gobi, at the rate of Rs. 213 per mensem and the suit was got collusively decreed ex parte with a charge over the suit properties. The suit properties were also attempted to be brought to sale by the second defendant in execution of her maintenance decree and the plaintiff had to deposit a sum of Rs. 1, 107 into Court to avert the sale. The plaintiff expressed his readiness and willingness to deposit the balance of consideration into Court and to meet the cost of sale. The first defendant had to remove the encumbrances and give a good title to the plaintiff. The suit was, therefore, filed by the plaintiff with a prayer for directing the first defendant to execute a conveyance of the suit properties in his favour within a time to be fixed by the Court and in default to get the conveyance executed through an Officer of the Court after declaring that the judgment was binding on all the defendants. There was also a prayer for possession of the properties and future mesne profits.