MUTHUPERUMAL PILLAI Vs. PECHI AMMA
HIGH COURT OF KERALA
Click here to view full judgement.
(1.) The 5th defendant is the appellant. The plaintiffs suit is for maintenance. She is the widow of one Krishna Naicker who died in 1086. Krishna Naicker had two brothers, Chinnarulappa Naicker the father of the 1st defendant and Aundi Naicker, the father of defendants 2 and 3. The parties are governed by the Hindu Mitakshara Law and the plaint properties are the ancestral properties of these three brothers. The plaintiffs husband died without effecting a partition of the family properties and without leaving any issue behind him. In 1095 the two brothers partitioned the family properties under Ext. A or V. Though no provision had been made in that for the maintenance of the plaintiff, she was being maintained by the surviving members of the family out of the family income till the two brothers of her husband died. After their death, the plaintiff was not given any maintenance. The plaintiff stated that she was entitled to get past maintenance for three years and future maintenance at the rate of one Kotta of paddy a month though she was entitled to get more in view of the income from the family properties. Plaint items 1 to 3 are in the possession of defendants 2 to 4 and items 4 to 9 are in the possession of the 5th defendant under the 1st defendant. Even after repeated demands, defendants 1 to 3 had not paid any sum for the plaintiffs maintenance. The suit is therefore for a declaration that she was entitled to maintenance from the family properties at the rate of one Kotta of paddy or Rs. 25 a month whichever was less. She also wanted a charge on the family properties scheduled in the plaint for this sum to be decreed to her. Plaint item 10 is the family house and she also wanted a declaration that she was entitled to reside there.
(2.) The 1st defendant remained ex parte. Defendants 2 to 4 admitted the status of the plaintiff alleged in the plaint and the right of the plaintiff to receive maintenance. They admitted the partition deed Ext. A; but stated that the plaintiff was not entitled to any arrears of maintenance as no demand for the same had been made. According to them on the date of Ext. A there was a debt in the family to the extent of 23,500 fanams under a mortgage deed. According to this mortgage the mortgagees were in possession of the northern 1 acre and 10 cents of item 1 and the southern 2 acres and 11 cents in item 3. The annual profits from these properties excluding the said properties outstanding on mortgage would come to only 8 Kottas of paddy a year. The plaintiff had not included all the family properties and all the persons in possession of such properties and so the suit was not maintainable. The price of paddy claimed in the plaint was excessive and according to them not more than one half of a Kotta of paddy a month was to be decreed for her maintenance. The annual profits from the properties in the possession of defendants 2 to 4 would only be ten Kottas of paddy and out of such profits the plaintiff was entitled to two Kottas of paddy for her maintenance. The defendants were willing to pay their share of the maintenance legitimately due to the plaintiff. The 5th defendant admitting the relationship of the parties and the partition deed Ext. A, stated that plaint items 4 to 9 which had been allotted to Chinnarulappa Naicker were mortgaged by him in 1104 to one Ganapathy for 28,000 fanams. On 1.9.1118 the 1st defendant executed a sale deed for the equity of redemption of these properties to the 5th defendant reciting the said mortgage and other debts. Accordingly he discharged the debts mentioned in the sale deed. He took the sale deed as a bona fide purchaser for value and it was supported also by necessity. The plaintiff was not entitled to get any relief so far as plaint items 4 to 9 were concerned and he pressed for the dismissal of the suit so far as himself and the properties in his possession.
(3.) In the replication the plaintiff stated that the family debt came to only Rs.100 and that the annual mesne profits from the properties in the possession of defendants 2 to 4 would come to 16 Kottas of paddy a year. She stated that the demand made by her was reasonable and that she was to get a decree for that.;
Copyright © Regent Computronics Pvt.Ltd.