Decided on March 04,1977

RAJA Respondents


- (1.) THE plaintiff in O. S. No. 11 of 1968 on the file of the Court of the subordinate Judge of Tirupattur, North Arcot, who failed before the trial Court, is the appellant herein. She filed the said suit against her husband, the defendant, for maintenance at the rate of Rs. 250/-per mensem and for the recovery of Rupees 24,000/- as arrears of past maintenance and for a charge over the plaint schedule properties. According to the plaint allegations, she was married to the defendant in 1931 and begot a child in 1940 which, of course, died. Thereafter, differences arose between them, which led to the plaintiff filing O. S. 15 of 1943 in the trial Court for maintenance, in which she also obtained a decree dated 4-3-1944 for maintenance at the rate of Rs. 10/-per mensem, Rs. 2/- for residence and Rs. 20/-per annum for clothing, along with arrears of maintenance coming to Rs. 457-3-0. On a fresh trial after remand, a charge over the defendant's 1/12 share of the joint family properties (coming to 441/2 cents) was also granted in her favour. The plaintiff filed E. P. 6 of 1952 for recovery of Rs. 1,936-11-0 and in the said execution proceedings, the charged properties were sold for Rs. 401/ -. With a view to prevent the plaintiff from realising the balance of the decree amount, the defendant's father executed a registered will on 27-6-1953 under the original of Exhibit A-2, conveying all the properties nominally in the name of his son-in-law, one R. K. Gopalakrishna Gounder, thereby putting the plaintiff in a destitute position. Because Of the deadlock created by the defendant, his brothers, his brother-inlaw and his father and due to her helpless position, she was on 6-8-1954 made to compound her claim with them and receive Rs. 500/-in full quit of the entire decree debt of Rs. 2. 000/- and also reconvey the 1/12 share purchased in Court auction in favour of the defendant's father. Thereafter, the defendant's father, on 20-3-1955 under the original of Ex. A-3 has cancelled the will under the original of Ex. A-2. On his death, the defendant and his brothers and their mother divided all the family properties on 2-7-1958 under the original of Ex. A-4 and this conduct of theirs really proves the real character of the properties as joint family properties. On 5-11-1964 the defendant has sold an extent of 49 cents out of 1 acre 28 cents comprised in S. No. 206/2 in favour of one Meda krishna Chettiar. In the above circumstances, the plaintiff is entitled to maintenance under Section 18 of Act 78 of 1956, as he had abandoned her without reasonable cause and neglected her. He is also afflicted with leprosy. Hence the suit for maintenance at the rates mentioned above. The plaintiff claimed that her suit is not barred because of the proceedings in the previous suit which ended in 1954. The arrears of maintenance have been claimed from 21-12-1956 when Act 78 of 1956 came into force.
(2.) THE defendant filed a written statement contending as follows: He admits that the plaintiff was married to him and that there were misunderstandings. But, he denies that he or anybody in his family wanted to get rid of the plaintiff or that they ill-treated her or drove her out of the house. As the defendant was afflicted with leprosy, the plaintiff did not want to live with him and she resorted to questionable ways of living, which the defendant's family resented. Due to a mediation effected at the instance of the relations, the plaintiff entered into full satisfaction of the decree in O. S. No. 15 of 1943 under the original of Ex. B-2 dated 6-8-1954 after receiving a sum of Rs. 500/-having regard to the. circumstances, and she agreed not to claim any future maintenance from the defendant and thus she is estopped from making the present suit claim. Now, in order to grab the property which fell to the defendant's share in the partition after his father's death, the plaintiff has filed this suit at the instance of the defendant's enemies. The suit properties are worth Rs. 10,000/- the net annual income there from being not more than Rs. 500/- or Rs. 600/- out of which he has to spend for his treatment. Because of the lump sum payment in full quit of her past and future claim of maintenance, her right has become extinguished. In view of the said full satisfaction of the decree in O. S. No. 15 of 1943, Ss. 18 and 25 of the Hindu Adoptions and Maintenance Act, 1956 are not applicable. The suit without seeking to set aside the full satisfaction memo is not maintainable. The suit is also barred by limitation. There is no cause of action for the suit and it should be dismissed. In any event, the maintenance claimed is excessive.
(3.) ON the above pleadings the following issues were framed by the trial Court: 1. Whether the plaintiff was defrauded and compelled by fraud and misrepresentation, to enter satisfaction of the decree in O. S. No. 15 of 1943 ? 2. Whether the plaintiff is estopped from claiming future maintenance? 3. Whether the plaintiff's claim, even if true, is barred by limitation ? 4. In any event, whether the amount claimed is far too excessive ? 5. What is the value and income from the suit properties ? 6. Whether the plaintiff is entitled to any, if so, what maintenance? 7. Whether the plaintiff is entitled to any charge and if so on what properties ? 8. To what relief, if any, is the plaintiff entitled? The plaintiff marked Exs. A-1 to A-6 and examined herself as P. W. 1, her brother as P. W. 2, and two other witnesses. The defendant marked Exs. B-l to B-5 and examined himself as D. W. 1 and six other witnesses. The learned Subordinate Judge found that the plaintiff had failed to prove that the full satisfaction memo in O. S. 15 of 1943 under Ex. B-2 was vitiated by fraud, misrepresentation or coercion, that the plaintiff did not have any subsisting right to claim future maintenance, that she was estopped from making such claim and that the said claim is barred by limitation under Art. 59 of the Limitation act. The Court also held that even if the plaintiff be entitled to any past maintenance, her claim for any period beyond three years prior to suit was barred by limitation. On Issues 4 and 5, it was found that the defendant gets Rs. 3,000/- from his lands in Peddur village and bheemkulam Village and that therefore the amount claimed by the plaintiff is excessive. Thus, the plaintiff was held not entitled to any maintenance and even if she is so entitled, she was entitled only at rs. 100/- per mensem. On Issue 7, it was held that if at all the plaintiff was entitled to any charge, she was entitled to such a charge over the plaint schedule properties less 1-95 acres sold to strangers. The suit was therefore dismissed with costs. Aggrieved by this dismissal, the plaintiff has filed the present appeal.;

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