PERUNDEVI AMMAL Vs. AMAVASIKAN

JUDGEMENT

(1.) THE plaintiff appellant instituted a suit for maintenance O. S. No. 479 Of 1940 on the file of the District Munsif's Court of Aral, against her husband Bhashyam aiyangar and obtained a decree on 21-3-1942. The grounds on which separate maintenance was granted, were cruelty, neglect and abandonment by the husband and that he was also keeping a concubine. On 27th July 1943 Bhashyam Aiyangar sold the suit property which was charged with the maintenance decree. The sale was for the purposes of paying off the marriage expenses of Ehasham aiyangar's daughter who instituted a suit O. S. No. 481 of 1949 and obtained a decree, Bhashyam Aiyangar, in executing the sale in favour of the first defendant, did not disclose that the property was charged with a decree for maintenance in favour of his wife and the sale was free from any encumbrance. But there can be no doubt that the property was charged with the maintenance under the decree in o. S. No. 479 of 1940 and the property purchased by the first defendant must therefore be subject to the charge in favour of the plaintiff. The plaintiff executed her decree by filing E. P. No. 660 of 1948 for attachment and sale in enforcement of the charge decree and in execution the plaintiff herself purchased the suit property in court auction on 5th January 1949, and also purports to nave obtained delivery of possession.

(2.) THE present suit out of which this appeal arises is instituted by the plaintiff for recovery of possession of the property on the ground of trespass by the first defendant. The action was resisted on the ground that the plaintiff resumed cohabitation with her husband prior to the execution petition E. P. No. 660 of 1948, that they were living as husband and wife for four or five years and that she even gave birth to a child on 16th December 1948 as established by Ex. B. 2, an extract from the birth register. The contention is that on resumption of cohabitation the maintenance decree became wined out and it does not therefore become executable and any sale to the plaintiff in pursuance of such a decree would not confer any rights on the plaintiff to the suit property. The decision in Venkayya v. Raghavamma, AIR 1942 mad 1 (A), was relied on in support of the defence. The trial court did not accept that mere resumption of cohabitation without the removal of the grounds for obtaining the separate maintenance, would be sufficient to make the decree ineffective and unenforceable and found that the husband visited the wife at her aunt's place twice or thrice occasionally in ten days or a fortnight in between during which period she had physical union with him, resulting in the birth of the child. and that it would not be sufficient resumption of cohabitation having the effect of nullifying the maintenance decree. In appeal the learned District Judge took a different view and held that mere resumption of cohabitation with the husband would be sufficient to render the decree ineffective and that was the effect of the decisions relied upon and it was not necessary further to show that the causes which rendered it necessary for a separate maintainance should be shown to have been removed, and that the effect of the resumption of cohabitation by the wife puts an end to the very basis of the de-cree and puts the parties back precisely where they were before the decree was granted. The learned Judge also cited in support of his conclusion the judgment of Basheer ahmed Sayeed J. in Kallammal v. Nachammal. 1951-2 Mad LJ (S. N.) 4 (B ). where the learned Judge held that the entire decree becomes wiped out by reason of the resumption of cohabitation.

(3.) IN AIR 1942 Mad 1 (A), after the wife obtained a maintenance decree against her husband they decided to live together happily and the wife returned to the husband and they lived so for over five years. During this period the wife bore a son to her husband. Five years thereafter she applied for execution of the decree which she had obtained originally and that execution application was opposed on the ground that there was cohabitation, that the husband and wife Iived together ror five years and that the decree had become a nullity. The principle laid down by Lord Eldon in Bateman v. Countess of Ross, (1813) 3 er 684 (C), that a reconciliation after a separation entirely did away with the effects of the separation and appeared in Haddon v. Haddon, 1887-18 QB 778 (D)and Williams v. Williams, (1904) 20 TLR 213 (E) was held to be applicable to a case of resumption of cohabitation alter a maintenance decree was pass ed as in the present case. In 1887-18 QBD 778 (D), after an order for payment of a weekly sum for the wife's maintenance was passed under Section 4 of the Matrimonial Causes' Act of 1873, the wife resumed cohabitation with the husband but they did not continue to live permanently. The Question arose as to whether she was entitled to enforce the order for weekly maintenance which was obtained before the resumption of cohabitation. It was held that the order for payment of maintenance was annulled by reason of the subsequent resumption of cohabitation and therefore had become unenforceable and that her only remedy was to apply for a new order and not rely on the earlier order. The contention was that the English decisions had no application because the provisions of the Indian Divorce Act cannot be applied to them and a Hindu wife was not then entitled to sue for judicial separation and the learned Judges observed that a decree obtained by a Hindu wife against her husband for maintenance differs in no important respect from an order for permanent alimony embodied in a decree for judicial separation and held that the decree which she had obtained prior to the resumption of cohabitation must be regarded in the circumstances as having been ineffective. An argument which was also advanced in the present case that the decree continued to remain in force under the Civil Procedure Code unless it has been satisfied or adjusted and satisfaction or adjustment has been recorded and a sale in pursuance of that action cannot therefore be considered to be set aside unless set aside by an order of court under the Civil Procedure Code, was advanced. " leach C. J. observed, "the question is whether the court is to disregard a sound principle of law and enforce a decree the basis of which has by the action of the parties themselves been demolished. " The result of the resumption of cohabitation is that there is a reconciliation and the basis on which the decree was passed being demolished, the decree becomes ineffective.