VELLAYAMMAL Vs. SRIKUMARA PILLAI

JUDGEMENT

(1.) This second appeal is preferred against the decree and judgment of the learned Subordinate Judge of Dindigul in A. S. No. 34 of 196, reversing the well-considered judgment of the learned District Munsif of Dindigul in O. S. No. 48 of 1954.

(2.) The established facts are: The plaintiff Vellayammal was married to the first defendant Ramaswami Pillai in 1940. One child was born of this union but it died. The families of the plaintiff and the first defendant fell out. The first defendant started neglecting the plaintiff and she had to go to her father's house and stay there. The second defendant is practically the next door neighbour distant relative of the parties well acquainted with the affairs of these families. In these circumstances the 2nd defendant took a sale of all the properties of the first defendant, excepting the family residential house, under two sale deeds Exts. B. 1 and B. 2 for Rs. 500 and Rs. 200 respectively. The consideration was made up of the execution of a promissory note by the second defendant to the first defendant for Rs. 200 and alleged hand loans of Rs. 150 said to have been given for meeting the karumathi expenses of the first defendant's father and moneys borrowed to meet the sundry debts due to Rajalingam Pillai, Perumal Pillai, Sangu Pillai and Maniappa Pillai. These sales are said to have been taken by the 2nd defendant from the first defendant after the second defendant enquiring as to why the first defendant was disposing of his properties and to whom he was indebted and for which the answer said to have been given by the first defendant was that he (second defendant) need not worry about it and that he (first defendant) would himself discharge the debts. In fact the second defendant has gone to the extent of saying that he did not know if the first defendant was married at all and that he did not even enquire if he had any issue. The learned District Munsif who saw the witnesses in the box stated that he was unable to accept the version of the second defendant and that he did not believe that the second defendant was a bona fide purchaser for value.

(3.) The plaintiff Vellayammal filed the suit, out of which this second appeal arises, in the pauper form for separate maintenance with a charge on the plaint A schedule properties, i.e., properties sold to the second defendant. The defendant raised all sorts of frivolous objections. The first defendant contended that his wife is much older than himself, that they never lived together as husband and wife, that the plaintiff has been in illicit intimacy with one Marudainayagam Pillai, that ten years earlier Panchayats were held, that the plaintiff refused to come and live with him and preferred to remain with Marudanayagam Pillai and that therefore she is not entitled to separate maintenance. In regard to the sale deeds he stated that the lands were sold for proper consideration for discharging debts. The second defendant contended that he was a bona fide purchaser for value without notice of the plaintiff's claim for maintenance. The learned District Munsif found that the allegations made by the first defendant to defeat the claim of the plaintiff for separate maintenance were false and that the second defendant had purchased the properties with notice of the charge and the transfer itself is a gratuitous one, and that the plaintiff was entitled to separate maintenance at Rs. 8 per month with past maintenance of Rs. 75 and erected the same as a charge on the A schedule properties. There was an appeal and the learned Subordinate Judge following the decision of Chandrasekhara Aiyar J. in Pavayamal v. Samiappa Gounden, 1947-1 Mad LJ 329: (AIR 1947 Mad 376), dismissed the suit as against the second defendant and hence this second appeal by the defeated plaintiff.