PUPPALA RAMAMURTHI Vs. KANDULAPATI KANAKARATNAM AND ORS.

JUDGEMENT

(1.) THIS appeal is by the third defendant in a suit for maintenance filed by the first respondent, the junior widow of one Gopalam, who died on the 8th June, 1931. Gopalam's senior widow, Mahalakshmamma, is alive, but is not a party to the suit or appeal. The first defendant was adopted to Gopalam by Mahalakshmamma on the 20th October, 1931. Shortly after Gopalam's death there were disputes between his widows culminating in a suit for partition (O.S. No. 578 of 1931) on the file of the District Munsiff's Court of Ellore. The present first respondent was the plaintiff in that suit and the senior widow was the defendant. The adoption of the present first defendant would appear to have been made during the pendency of that suit, to which, however, the adopted son was not a party. That suit resulted in a decree in favour of the first respondent for a half share in Gopalam's estate. Possession in pursuance of the decree was given to her on 17th May, 1936. From 1931 to 1936, the estate was in the possession of a receiver appointed by the Court. The present first defendant filed O.S. No. 40 of 1937 in the Court of the Subordinate Judge, Ellore, against the two widows and certain others for recovery of possession of Gopalam's estate as Gopalam's adopted son. A decree was passed in his favour and he obtained possession of the estate on 23rd November, 1938, and 25th November, 1938. The principal contestant in that suit was the present first respondent. There was an appeal to the High Court against the decree in O.S. No. 40 of 1937 which was finally dismissed in 1941 vide, I.L.R. 1942 Mad. 173 . The present suit was filed by the first respondent in forma pauperis on 12th April, 1943, claiming maintenance at the rate of Rs. 200 per month from the date of suit, arrears of maintenance at the rate of Rs. 100 per month from 1931, Rs. 500 for Vrathams and pilgrimages and Rs. 300 for value of utensils and a provision for her residence. There was also a claim for certain jewels which was rejected by the lower Court. There is no appeal or memorandum of cross -objections with regard to that claim. As already stated the first defendant is the adopted son, the truth and validity of whose adoption was established in the previous litigation. The second defendant is his minor son and the fourth defendant is his wife. The third defendant, the appellant in the present appeal, claims to have purchased items 1 to 8 of the plaint schedule for Rs. 6,000 under Ex. D -9 dated 25th March, 1939, during the minority of the first defendant from his natural mother who is said to have been his guardian -de -facto. This sale was ratified by the first defendant after attaining majority by a deed dated 25th September, 1940 (Ex. D -10). The third defendant also obtained a mortgage (Ex. D -11) for Rs. 4,000 in respect of the suit items 9 to 19 on 4th August, 1941, from the first defendant after he attained majority. Defendants 4 to 7 were impleaded on the ground that items 20 to 25 of the plaint schedule were alienated to them. But none of them attempted to support those alienations in the lower Court which treated them as volunteers and held that the properties alleged to have been alienated to them would be liable for the plaintiff's maintenance.

(2.) APART from the plea that the maintenance claimed by the plaintiff is excessive and that the plaintiff would not be entitled to arrears for a portion of the period for which they are claimed, the principal contest on behalf of the third defendant is that the properties sold to him in 1939 were altogether exempt from the plaintiff's claim and that the properties mortgaged to him in 1941 can be made liable for the plaintiff's maintenance only subject to his mortgage. The lower Court held that the third defendant was aware of the plaintiff's claim for maintenance and " that he did not really obtain these alienations and that the documents were simply written up to defeat and delay as far as possible the plaintiff's claim even for her maintenance." This finding is challenged on the third defendant's behalf.

(3.) IT is argued for the appellant with some plausibility that the first defendant was out of possession of the estate till 1938, that he had to conduct a costly litigation for the purpose of establishing his rights between the years 1937 and 1941 and that money must therefore have been borrowed for the expenses of litigation, for his own maintenance and for paying the kist due to the Government on his lands. It must be noticed, however, that his adoptive mother was in possession of a half portion of the estate in 1936 and 1937 and that she was, besides, being paid between 1931 and 1935 by the receiver who was then in possession, certain amounts which amounted approximately to a half share in the income of the estate, and that the defendant himself obtained possession of the entire estate in November 1938. Apart from this, it seems to us that it is idle to speculate as to whether there was any borrowing, and if so, from whom, when we are unable for reasons already given to accept the case put forward by the third defendant, namely, that considerable amounts were advanced by D.W. 7 and D.W. 8.