SAMPOORNA AMMAL Vs. ASOKAN

JUDGEMENT

(1.) These Letters Patent Appeals have been filed against the common judgment of a learned single Judge of this Court dismissing the appeals, A. S. Nos. 574 of 1972 and 522 of 1974 filed by the 4th defendant in O. S. No. 191 of 1967 and O. S. No. 3 of 1968 on the file of the Court of the Subordinate Judge of Erode. One Chinnaswami Gounder had two minor sons Asokan and Prithiviraj and a minor daughter Jothi by his wife Thangammal. Admittedly, the suit properties were joint family properties in the hands of Chinnaswami Gounder. While so, Chinnaswami Gounder, sold the plaint A schedule property to the appellant Sampoornammal for a sum of Rs. 15, 000 under a sale deed, dated 29th November, 1965. Asokan and Prithiviraj represented by next friend filed O. S No. 191 of 1967 on the file of the Court of the Subordinate Judge, Erode for a declaration that the sale deed, dated 29th November, 1965 executed by the father Chinnaswami Gounder in favour of Sampoornammal was not binding on their 2/3rd share and for partition and separate possession of 2/3rd share in the suit properties. The mother of the plaintiffs is the second defendant in the suit. The plaintiffs sister is the third defendant. The alience Sampoornammal the appellant before us, is the 4th defendant. The case of the plaintiffs is that the father was given to immoral ways and was leading a reckless life without, in the least, caring for his wife and children. As early as on 16th August, 1965 he drove his wife and children out of the house. Thereafter, the second defendant, the mother went to her mothers house with the children. Even then it was apprehended that in order to meet his immoral necessities, the first defendant was about to dispose of the property to one Muthuswami Gounder who is none other than the father of the appellant. The second defendant therefore issued a notice to the said Muthuswami Gounder stating that there was no family necessity for the first defendant to sell the property and that in case Muthuswami Gounder purchased the property the sale would not be binding on the share of the minor plaintiffs. To circumvent this notice, subsequently, on 29th November, 1965, the first defendant sold plaint A schedule property of an extent of 1.80 acres to the appellant. This extent of 1.80 acres is the l/4th share belonging to the joint family out of the total extent of 7.23 acres comprised in T. S. Nos. 1424 and 1425. Apart from this property, the first defendants family owned a residential house in Kollampalayam described in the B schedule. It has also an extent of 37 2/6 cents of dry land in O. S. No. 1164. The plaintiffs case is that the sale deed is no! supported by consideration and family necessity and that the debts recited in the sale deed were not binding on them. The appellant defended the suit on the ground that the first defendant had incurred debts which were binding on the family. After the debts were discharged a sum of Rs 2,800 had been paid to the defendant. The balance of Rs. 6,000 had been deposited in a bank for the benefit of the minors. She therefore pleaded that the sale deed was not liable to be declared void.

(2.) O. O. No. 3 of 1963 was filed by the second defendant wife and her minor daughter the third defendant for maintenance from the first defendant. She also claimed a charge on the suit property The appellant who is also the 4th defendant in the suit contended that the sale in her favour was in discharge of the antecedent debts and that she was a bona fide purchaser for value and in the circumstances the plaintiffs could not claim any charge on the A Schedule properties

(3.) The learned single Judge found that the sale deed which is marked as Exhibit B-l is not binding on the 2/3rd share of the minor plaintiffs and passed a preliminary decree for partition and separate possession in O. S. No. 191 of 1967. The learned Judge also decreed O. S. No. 3 of 1968 and granted maintenance at the rate of Rs. 30 per month for the wife and Rs. 20 per month to the minor daughter and created a charge over the l/3rd share of the first defendant in the said properties. On appeal by the appellant the learned single Judge of this Court confirmed the findings of the learned Subordinate Judge and dismissed both the appeals. The cases were posted for being mentioned. The learned single Judge stated that the plaintiffs would be bound to bear the 2/3rd share of the liability of the debts which were found to be binding on the estate and the interest thereon. In this view, the learned Judge directed that the appellant would be entitled to get 2/3rd share of the interest due on the said debts alongwith 2/3rd share of the principal debt. As regards maintenance the learned Judge held that the maintenance would not be a charge on the l/3rd share of the property in respect of which the alienation has been upheld.