TIRUVANNAMALAI ANIMAL Vs. SADASIVA MUDALI AND ORS.

JUDGEMENT

(1.) THE appellant is the second wife of one Sadasiva Subbaraya Mudaliar, the fifth respondent herein, whose sons through the third wife are respondents 1 to 4 herein. The appellant herself has a son through the fifth respondent. She filed O.S. No. 27 of 1954 on the file of the Subordinate Judge's Court, Chittoor, as next friend and guardian of her minor son, for partition of his share and maintenance for herself. During the pendency of the suit, the appellant's son became a major and he settled his claim with the fifth respondent and obtained his share from the family properties, and the appellant herself withdrew her claim for maintenance with liberty to file a separate suit for that purpose. The appellant thereafter filed O.S. No. 13 of 1958 on the file of the Court of the District Munsif, Tiruttani, and on 31st August, 1959, she obtained a decree for maintenance at the rate of Rs. 15 per month and a sum of Rs. 10 per year towards clothing and the amount decreed in her favour was charged against certain items of joint family properties mentioned in that decree. Thereafter respondents 1 to 4 herein filed the present suit for partition of their 4/5ths share in the joint family properties impleading their father the fifth respondent and the appellant herein as defendants. In paragraph 7 of the plaint they contended as follows:

(2.) THE sole question that arises for determination in this appeal is whether the charge decree created in favour of the appellant in O.S. No. 13 of 1958 stands automatically modified or is liable to be modified so as to affect only the share to be allotted to the first defendant in the present partition suit releasing the shares to be allotted to respondents 1 to 4 herein from the said charges.

(3.) MR . A. Ramachandran, the learned Counsel for the appellant, contended that the decree obtained by the appellant against the fifth respondent in O.S. No. 13 of 1958 was obtained against him in the capacity of the manager of the joint family and the charge was created rightly against the joint family properties and that charge cannot be modified or restricted in the present proceedings. The contention on the other hand of Mr. Chandramouli, the learned Counsel for respondents 1 to 4 herein, is that respondents 1 to 4 herein were not eo nomine parties to O.S.No. 13 of 1958 and consequently they were not bound by the decree in that suit and their share of the joint family property was not affected by the charge created in that suit and in any event, once they filed the present suit for partition, there has come into existence a division in status as between them on the one hand and the fifth respondent on the other and under the Hindu Law, the liability to maintain the appellant being exclusively that of the fifth respondent, the charge must be deemed to operate only in respect of the share of the fifth respondent.