THAYAMMAL Vs. MUTHUSWAMI GOUNDER

JUDGEMENT

(1.) THIS appeal is preferred in forma pauperis by the plaintiff in the suit for past and future maintenance against the judgment of the Subordinate Judge, Coimbatore.

(2.) THE plaintiff filed the suit claiming a sum of Rs. 72,000/- by way of arrears of maintenance upto the date of suit, and sum of Rs. 24,000/- per annum by way of future maintenance and for a charge over the suit properties for payment of arrears and future maintenance. The plaintiff is the widow of Ramaswami gounder. Defendants 1 and 2 are the brothers of the plaintiff's husband. Defendants 3 and 4 are the sons of the second defendant and defendants 5 to 7 are the sons of the third defendant. Pending appeal in this Court, the third defendant died and his legal representatives were brought on record. Defendants 1 and 2 and the plaintiff's husband were members of the Hindu joint family. Plaintiff's husband died about twelve years before suit without any issues. The family owned about 370 acres of land in Kerala State and about 130 acres in pollachi Taluk. According to the Plaintiff till about 1952, she lived along with defendants 1 and 2 when due to certain misunderstandings between her and defendants 1 and 2, she was driven out from the joint family house. According to the plaintiff the reason for being driven out is that her mother filed a suit for maintenance against the sister's husband of defendants 1 and 2, and she could not induce her mother to come to terms as per the wish of defendants 1 and 2, and as she herself wanted to adopt a son to her husband and asked the consent of defendants 1 and 2. She further stated that she waited till the suit filed by her mother was disposed of, and in December, 1959, she gave notice claiming maintenance. The defendants resisted the suit and pleaded that till the end of november, 1959, the plaintiff was being maintained by the defendants. As amongst the defendants there was a partition of the Kerala properties on 9th october, 1954, and in November, 1959, it was stated that there was a family arrangement by which with the consent of the plaintiff, the Madras State properties were also divided making suitable provision for the maintenance of the plaintiff. A partition deed and a settlement deed in favour of the plaintiff were executed on 30th November, 1959; but later on the plaintiff declined to register the documents. The defendants pleaded that the family settlement dated 30th November, 1959, made ample provision for her maintenance and therefore she was not entitled to any maintenance, much less maintenance before 1959 upto which year the plaintiff continued to stay in the joint family house. The learned Judge of the Court below found that the plaintiff never gave her consent to the settlement Exhibit B-3 dated 30th November, 1959 executed in her favour and therefore the defendants cannot resist the suit for maintenance on the ground that she had accepted the family arrangement. After considering the evidence of defendants 1 to 4 to the effect that the plaintiff gave her consent to Exhibit B-3, the learned Judge observed that if the plaintiff had really given her consent, her consent in the writing would have been obtained. Exhibit B-2 the partition deed of the same date was also not attested by the plaintiff. The plea that after consenting to the terms of Exhibit B-3, she declined to present it before the Registrar, for registration was rejected by the Court below. On the evidence adduced on behalf of the plaintiff the lower Court came to the conclusion that there is no satisfactory evidence to show that the plaintiff gave her consent to Exhibit B-3. This finding was not seriously challenged before us. As the plaintiff was not even an attesting witness in Exhibit B-3 and as the consent is stated to have been obtained on 30th November, 1959, three days before the suit notice was issued by the plaintiff, we are satisfied that the settlement deed Exhibit b-3 was not executed with the consent of the plaintiff we confirm the finding of the court below that Exhibit B-3 was not executed with the consent of the plaintiff. There can therefore be no doubt that the plaintiff is entitled to maintenance from out of the joint family properties.

(3.) THE plaintiff has claimed maintenance from 1952, It is stated that she was driven out of the family house in 1952 as she could not induce her mother to compromise a suit filed by her for maintenance against the sister's husband of defendants 1 and 2 on the terms suggested by defendants 1 and 2 and as the plaintiff wanted to adopt a son to her husband. In 1954, the Kerala properties were partitioned as amongst the defendants, and the plaintiff did not protest against such partition without providing maintenance for her. In the plaint it is not alleged that defendants 1 and 2 asked the plaintiff to induce her mother to withdraw the maintenance suit. This would indicate that the plea that defendants 1 and 2 compelled her to induce her mother to withdraw the suit is an after-thought.