GURUSWAMI MUDALIAR Vs. ANGAIYARKANNI AMMAL

JUDGEMENT

(1.) THE second defendant in O. S. No. 74 of 1962, on the file of the court of the additional Subordinate Judge II, Chingleput, is the appellant herein. There were two brothers by name Arunachala Mudaliar and Kandaswami Mudaliar and arunachala Mudaliar dies on 20-6-1944 leaving behind the plaintiff in the suit, his widow. Defendants 1 and 2 are the sons of kandaswami Mudaliar. The third defendant is the widow of Kandaswami Mudaliar while the fourth defendant is the daughter of Kandaswami Mudaliar. Kandaswami Mudaliar himself died in the year 1956 leaving behind defendants 1 to 4 as his heirs. One Panchakshara Mudaliar filed a suit for partition in O. S. No. 36 of 1946 and a preliminary decree was passed on 12-1-1948, and a final decree was passed on 17-1-1950. The suit properties which are covered by Schedules A to H are the properties that were allotted to the branch of Kandaswami Mudaliar and others in the said suit is O. S. No. 36 of 1946. The A Schedule property is a house property, while the B to H schedule properties are agricultural lands. The suit was instituted by the plaintiff as the widow of Arunachala Mudaliar for partition of her half share in the A schedule property and for payment of past profits of Rs. 1080/- for plaintiff's share for three years in respect of the Schedule A property by defendants 1 to 4 and also future profits till delivery of possession. She also claimed past maintenance at Rs. 1,000/- per annum for twelve years prior to suit and further maintenance at Rs. 1,500/- per annum payable by defendants 1 to 4 and prayed for charge for the said payments over plaint Schedules B to H properties and the half share of defendants 1 to 4 and prayed for charge for the said payments over plaint Schedules B to H properties and the half share of defendants 1 to 4 in plaint schedule A property. The prayer in this form came to be made in view of the fact that at the time of the death of Arunachala Mudaliar the Hindu Women's Rights to property Act, 1937 enacted by the Central Legislature was held to apply only to non-agricultural property since agricultural property was included in the provincial list in the Government of India Act, 1935 and the Provincial Legislature extended the Act to agricultural lands only in 1946. The other defendants are said to be alienees of the suit properties from defendants 1 to 4, and the plaintiff contended that the said alienations were not binding on her.

(2.) THE defence of defendants 1 to 4 was that till the death of Kandaswami mudaliar in 1953 (56?) the plaintiff was residing in the family house and was being maintained by him and she used to visit her parent's house only now and then; after Kandaswami Mudaliar's death, she was living separately; from the time of kandaswami Mudaliar's death, the plaintiff was being paid regularly for her maintenance and other requirements fifteen bags of paddy per year and Rs. 15/per month as per arrangements made by relations and mediators in full quit of her interest in the family properties; in or about the end of 1950 (?) there was an arbitration because the plaintiff claimed more and it was settled by the arbitrator that the plaintiff should in lieu of her share and the interest in the family properties be paid Rs. 15/- per month and 160 marakalas or 20 bags of paddy every year and also be given a gold chain of ten sovereigns. This agreement has been reduced into writing as per Exhibit B-1 dated 15-11-1959. The defendants further contended that the plaintiff issued notice in March 1960 demanding share in the properties and making other claims and since the claim was untenable, a suitable reply was given. The defendants challenged the correctness of the incomes from the properties as alleged in the plaint and put forward the contention that they were exaggerated and gave their own version as to what the income from the properties would be. They further contended that they have not taken possession of all the properties allotted to Kandaswami Mudaliar's branch in o. S. No. 36 of 1946 and they have taken possession only of the lands in guduvancheri village and had not taken possession of the other lands. Yet another contention put forward by them was that a sum of Rs. 6,000/- was due from the family to third parties in the form of expenses incurred by defendants 1 to 4 in litigations initiated by Panchakshara Mudaliar referred to above. On the basis of these pleadings, the learned trial Judge framed the following issues-

(3.) THE learned Second Additional Subordinate Judge, Chingleput, held that the family arrangement pleaded by defendants 1 to 4 was not true, but the arrangement as evidenced by Exhibit B-1 was true. Notwithstanding this, the learned Judge came to the conclusion that Exhibit B-1 itself contained a clause that if the defendants failed to perform any of the obligations in Exhibit B-1, the document would become void and the plaintiff would be entitled to enforce her original rights. The finding of the learned Judge in this behalf was that the defendants the court held that the concerned sale deeds had not been produced and the alienees had not come forward to support the alienations and therefore they said alienations were not true and in any event, were not binding on the plaintiff. With regard to the quantum of profit in respect of A Schedule property, the learned Judge arrived at the sum of Rs. 150/-per year and granted a decree for past profits for a period of three years for Rs. 450/-and further profits at the rate of Rs. 150/- per year. With regard to the quantum of maintenance referable to B to H Schedule properties, the learned Judge determined the future maintenance at Rs. 1,000 per year and the past maintenance at Rs. 625/-per year and awarded past maintenance for a period of twelve years and created a charge in respect of the same as prayed for by the plaintiff. To give effect to the above conclusions and the findings, a decree was passed on 26th April, 1966. It is as against this decree and judgment, the second defendant had preferred the above appeal.