PUPPALA RAMAMURTHI Vs. KANDULAPATI KANAKARATNAM

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 8 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 20 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 17 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 23 November, 1938, and 25 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 25 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 25 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 4 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.) The sale deed in favour of the third defendant recites five items of consideration. The first three are certain sums paid for the discharge of debts alleged to have been borrowed during the minority of the first defendant by his natural mother for the expenses of litigation, for his maintenance and for the payment of kist. The creditors, who are said to have advanced the amounts as per items 1 and 2 are examined as D. Ws. 7 and 8 respectively. They are described as maternal uncles of the first defendant. One of them perhaps is the first defendant's mother's cousin and not her brother, but that is immaterial. These two items which are Rs. 2,391-1-0 and Rs. 2,593-13-q respectively constitutes the bulk of the consideration for the sale deed. They are sought to be proved by the production of Exs. D-20 and D.19 which are said to have been the accounts maintained by these two creditors for the amounts which they respectively advanced to the first defendant's natural mother during the minority of the first defendant. Two receipts, Exs. D-14 and D.-15 were passed by the creditors in favour of the vendee in token of the amounts recited in the sale deed having been paid to them. The learned Subordinate Judge was not impressed with the evidence of these witnesses and they do not impress us either. They both admit that they maintain accounts in their respective trades ; but admittedly those accounts would not show the lending of any money to the first defendant's mother. Each of them asserts that he is carrying on trade in tobacco to the extent of about Rs. 10,000. There was some cross-examination with a view to elicit that they do not have the capacity to lend the amounts which are alleged to have been lent by them. Apart from this, however, it is, in our opinion, rather unbelievable that if fairly large amounts were withdrawn from trade there would not be any entries in their trade accounts in token of such withdrawals and that separate accounts would be maintained for the purpose of showing the loans given to the first defendant's mother. Exs. D-19 and D-20 consist each of a few sheets of papers stitched together. They do not contain any entries relating to any transactions with persons other than the first defendant's mother. From time to time the first defendant's mother's thumb impression was obtained in these accounts and finally all these loans were totalled up and an entry was made that the creditors received payments from the vendee of the entire amounts lent by them. These accounts do not impress us as accounts kept in the regular course of business and having regard to the circumstances already referred to we are in substantial agreement with the learned Subordinate Judge in his view as to these two items. The third item of consideration is the payment of a debt alleged to have been advanced by one Seerla Subba Rao who, however, has not been examined about the loan. This borrowing is sought to be proved by the production of an account book, Ex. D-21, which is just like Exs. D-19 and D-20 and the receipt Ex. D-16 is said to have beenpassed by Subba Rao in favour of the third defendant when his loan was discharged. The truth of this loan again has not in our opinion been satisfactorily established. The fourth item of consideration for the sale deed is the discharge of Ex. D-17 a promissory note for Rs. 300 executed on 12 August, 1938 in favour of one Varanasi Suryakanthamma by the natural mother of the first defendant as his guardian. There is an endorsement of discharge dated 29 March, 1939 on this promissory note reciting a payment of Rs. 300 to Suryakanthamma towards the principal amount of the promissory note in full satisfaction of it. This endoresement is attested by Y.S itaramayya who, we are told, is a pleader. The creditor would appear to have remitted the interest which had accrued, so that though a provision was made in the sale deed for the payment of Rs. 311-9-9 to Suryakanthamma, only Rs. 300 was paid to her and the balance of Rs. 11-9-9 was Paid to the first defendant's natural mother who passed a receipt for it (Ex. D-18). There is no reason to doubt the genuineness of this item of consideration ; but it obviously forms a small and unimportant part of the consideration for the sale- deed. The fifth item of consideration is a sum of Rs. 345-5-6 said to have been settled to be paid to the vendor before the Sub-Registrar at the time of the registration of the sale deed. This amount is said to be for expenses in the High Court. It does not appear whether this amount was actually paid to the vendor or not. In any view this item like the previous item forms a minor part of the consideration. The property sold under the sale deed is 19 acres of delta wet land in the West Godavari District, and even assuming that part of it is liable to submersion under the Kollair, there is considerable suspicion whether the amount of Rs. 6,000 recited as consideration in the sale deed is not an undervalue. It is again not possible to avoid the impression that this is part of an attempt to render a large slice of the property unavailable for the satisfaction of the plaintiff's claim for maintenance. That the third defendant was interesting himself in the affairs of the first defendant and his adoptive mother is evident from the fact that he obstructed the receiver appointed in O.S. No. 578 of 1931 from taking possession of the estate. The receiver who is P.W. 5 deposes to this and we have no hesitation in accepting his evidence in preference to the denial of the third defendant. The third defendant is also related to Gopalam though the details of the relationship do not appear. He is the first defendant's neighbour and as the first defendant himself deposes, the third defendant knew well about the family affairs of the first defendant. We do not attach any importance to the deed of ratification executed by the first defendant concerning the sale having regard to the view that we are inclined to take in respect of the latter.