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Judgment
T.V. Masilamani, J.—The appellant is the second defendant in the suit in O.S. No. 20 of 1988 on the file of the District Munsif. Namakkal.
The respondents 1 to 3/plaintiffs 1 to 3 filed the suit for maintenance against both the 4th respondent/first defendant and the appellant
herein/second defendant claiming maintenance with charge over ''B'' schedule property. The first defendant, husband of the first plaintiff and father
of plaintiff 2 to 3. resisted the suit by filing a separate written statement and contended inter alia that the suit ''B'' schedule property was sold in
favour of the second defendant to discharge his pressing liability. The second defendant has also filed a separate written statement contending inter
alia that he is the purchaser of the suit ''B'' schedule property for valuable consideration without notice of the claim for maintenance made by the
plaintiffs.
The trial court having analysed the evidence on record and upon hearing the arguments of both sides decreed the suit in so far as the claim of
maintenance was concerned and rejected the claim for a charge over the suit ''B'' schedule property. Aggrieved by the said judgment and decree,
the plaintiffs preferred the appeal before the Subordinate Court, Namakkal in A.S. No. 20 of 1992. The learned Subordinate Judge had in turn
having examined the records and the evidence and upon hearing both sides allowed the appeal and granted a decree for a charge of the
maintenance claim of the plaintiffs over the suit ''B'' schedule property. Hence the Second Appeal.
The averments in the plaint filed by the respondents 1 to 3 herein as plaintiffs are briefly as follows:-
(a) The marriage of the first plaintiff and the first defendant had been solemnised about 10 years prior to the suit and out of such wedlock, plaintiffs
2 and 3 were born to them. While so, the first defendant became addicted to liquor from the very beginning of the wedded life and he was treating
the first plaintiff cruelly by beating her whenever she defendant money for family expenses. Subsequently, he deserted the first plaintiff and drove
her along with the children away from the marital home about 7 years ago in or about the Tamil month Masiin 1980.
(b) The first plaintiff was constrained to file the maintenance case before the First Class Magistrate, Salem and since the said case was dismissed,
she preferred an appeal to the District Court, Salem. In the appeal the maintenance claim was allowed and the first defendant was directed to pay
Rs. 100/- to the first plaintiff and Rs. 25/- to the plaintiffs 2 and 3 herein by way of monthly maintenance. Subsequently, when the first defendant
shifted his residence to a place within the jurisdiction of Second Class Magistrate, Namakkal, the first plaintiff filed the petition to enforce the said
order for maintenance before the 11 Class Magistrate. Namakkal and thereupon the first defendant obtained a stay order from the High Court,
Madras in the said proceedings. Some time thereafter, the order of stay was vacated and thereupon the first defendant paid a sum of Rs. 500/-
towards arrears of maintenance, but failed to pay any amount for the last 7 years.
(c) While the marriage with the first plaintiff is subsisting, the first defendant contracted second marriage with one Rajeswari and both of them were
living as husband and wife. The said marriage is not legally valid. Moreover, he has alienated ''B'' schedule property in favour of the second
defendant by means of a fraudulent transfer dated 9.5.1985 to defeat the right of the plaintiffs. The second defendant obtained the sale deed with
full knowledge of the plaintiffs'' claim for maintenance from the first defendant and therefore he is not a bona fide purchaser for value without
notice. In fact, the first defendant is in possession and enjoyment of the ''B'' schedule property even after the said sale deed.
(d) The first defendant is a lorry driver earning Rs. 1,000/- per month and he is not indebted to any one as alleged. Therefore the plaintiffs are
entitled to each Rs. 100/- per month as maintenance from the first defendant with charge over the suit ''B'' schedule property. The plaintiffs are
entitled to past arrears of maintenance from April, 1984 to April 1987 for the last three years.
The contentions of the 4th respondent/first defendant in his written statement are briefly as follows:-
(a) It is true that this defendant married the first plaintiff and out of such wedlock plaintiffs 2 and 3 were born to them. But on the other hand, it is
false to allege that on account of addiction to liquor this defendant ill-treated and drove the plaintiffs away from the matrimonial home. In fact, the
first plaintiff was instigated by her mother to desert this defendant to leave the matrimonial home.
(b) The claim of the plaintiffs for maintenance is excessive. However, this defendant is willing to take back the plaintiffs and maintain them. The
allegation that he married another wife by name Rajeswari and that they are living as husband and wife is denied as false.
(c) Similarly, the contention that this defendant sold ''B'' schedule property to the second defendant to defeat the rights of the plaintiffs for
maintenance is also denied as incorrect. On the contrary, he sold the property in order to discharge the family debt and he had in fact discharged
the liability out of the sale proceeds. Therefore the second defendant is a bona fide purchaser for value without notice of the plaintiffs'' claim.
(d) Though the defendant is a lorry driver, he is not earning Rs. 1,000/- per month as alleged and he used to get about Rs. 500/- per month and
therefore he is not liable to pay past maintenance for three years as claimed in the plaint.
The contentions put forth by the appellant/second defendant in the written statement are briefly as follows:-
This defendant is not aware that the plaintiffs are living away from the first defendant and that the latter married a second wife after deserting the
first wife and children. It is false to contend that the first defendant executed the sale deed in respect of the ''B'' schedule property to this defendant
as a consideration for the second marriage. Similarly, the allegation that this defendant purchased the property with the knowledge of plaintiffs''
claim for maintenance is also denied as incorrect. In fact he purchased the suit B'' schedule property for consideration of Rs. 3,000/- and therefore
he is a bona fide purchaser for value without notice of the maintenance proceedings. He has also constructed a house in the suit property at a cost
of Rs. 50,000/- and he is residing in the said house in his own right by paying electricity charges etc. Hence the suit is liable to be dismissed as
against this defendant.
On the above pleadings, the following issues were framed by the trial Court:-
(i) Whether the second defendant is a bona fide purchaser for value without notice of the plaintiffs'' claim for maintenance,
(ii) Whether the first defendant treated the first plaintiff cruelly and drove away and deserted the plaintiffs as alleged in the plaint?
(iii) Whether the first defendant has married the second wife as claimed in the plaint?
(iv) Whether the plaintiffs are entitled to the maintenance as prayed for and if so, to what amount the plaintiffs are entitled to?
(v) To what relief the plaintiffs are entitled to?
On the side of respondents 1 to 3, the first plaintiff was examined as P.W.1 and another witness as P. W.2. Besides the oral evidence. Ex.A-1
was marked on the side of the plaintiffs. The defendants 1 and 2 were examined as D.W.I and D.W.3 respectively and two other witnesses as
D.W.2 and D.W.4 and six documents were marked as Exs.B-1 to B-6 on the side of the defendants.
On the basis of the evidence both oral and documentary and the arguments of both sides, the trial court held with reference to the above issues
that since the first defendant treated the first plaintiff cruelly and deserted the plaintiffs from the matrimonial home, he is liable to pay maintenance at
the rate of Rs. 100/- per month to the first plaintiff and Rs. 50/- per month to the plaintiffs 2 and 3.
The trial court further rendered a finding that the second defendant is a bona fide purchaser of the suit property for value without notice of the
plaintiffs'' claim and therefore held that the plaintiffs are not entitled to have a charge of the maintenance claim over the suit ''B'' schedule property.
The respondents 1 and 3 herein as plaintiffs preferred the appeal before the Subordinate Court, Namakkal questioning the legality of the
judgment and decree passed by the trial Court with reference to the quantum of maintenance awarded as well as the finding that the second
defendant is a bona fide purchaser of the suit ''B'' schedule property for value without notice of the plaintiffs'' claim for maintenance. The learned
Subordinate Judge held on the basis of recorded evidence and the arguments of both sides that the second defendant was not a bona fide
purchaser of the suit property for value without notice of the plaintiffs'' claim and therefore it was held that the plaintiffs are entitled to have charge
of their maintenance claim over the suit ''B'' schedule property. However, the learned Subordinate Judge found that the quantum of maintenance
awarded by the trial Court is reasonable and ultimately the appeal was allowed only in so far as the claim for charge over the suit ''B'' schedule
property and in other respects it was dismissed.
In the above circumstances, the following question of law was formulated on 6.10.1993 for consideration by this Court:-
Whether the lower appellate court is right in law in holding that the maintenance will be a charge over the ''B'' schedule property?
Heard Mr. P.G. Xavier, learned counsel appearing for the appellant and Mr. S. Ayyadurai, learned counsel appearing for the respondents 1 to
3.
The learned counsel for the appellant/second defendant has submitted that the lower appellate court failed to consider the legality of the sale
deed Ex.B-5 in deciding the issue. Similarly, he has contended that the learned Subordinate Judge failed to consider the evidence both oral and
documentary to arrive at the right conclusion that the second defendant is a bona fide purchaser of the property for value without notice of any
claim by the plaintiffs.
Admittedly, the respondents 1 to 3, namely, wife and children of the 4th respondent are living away from him for about 7 years prior to the
suit. Similarly, the plaintiffs 1 to 3 have not preferred any separate appeal or cross-objection in this appeal regarding the quantum of maintenance
awarded by the trial court and confirmed by the first appellate court and hence such finding of both the courts has become final.
The only question that remains to be considered is whether the sale deed executed by the 4th respondent/first defendant in favour of the
appellants/second defendant marked as Ex.B-5 dated 9.5.1985 was a bona fide transaction entered into by the second defendant for valuable
consideration without notice of the plaintiffs'' claim for maintenance against the first defendant. In this context, the learned counsel for the appellant
has drawn the attention of this Court to the evidence of D.W.I, the first defendant and D.W.4, creditor that the debt had been discharged by the
second defendant from the sale proceeds to the tune of Rs. 3,600/-being the consideration passed under the sale deed Ex.B-5 and based upon
such evidence on record, the learned counsel for the second defendant would contend that the finding rendered by the first appellate court in this
regard has to be set aside.
But, on the contrary, the learned counsel for the respondents would contend that in view of the prior proceedings for maintenance before the
Judicial Magistrate as seen from EA.B-3, subsequent sale deed under Ex.B-5 had been executed by the first defendant in favour of the second
defendant who could have had reasonable notice of the earlier proceedings initiated by the plaintiffs for maintenance. It is seen from Ex.B-3 that
the proceedings for maintenance had been initiated by the plaintiffs in the year 1983 and therefore according to the learned counsel for the
plaintiffs, the sale deed executed by the first defendant in 1985 could have been executed to the second defendant to defeat the claim of
maintenance.
In this context, the evidence of D.W.3, the second defendant himself is to the effect that he has not questioned about the marital life of the first
defendant, even though he would deny that he had knowledge of the prior proceedings between the plaintiffs and the first defendant in the criminal
court. He would admit that he is a friend of the first defendant. Further the learned counsel for the plaintiffs has pointed out his further admission as
D.W.3 that he had not enquired anything about the wife and children of the first defendant before ever he entered into the transaction under Ex.B-5
and that when he inspected the suit property, he found the first defendant residing therein.
As has been rightly pointed out by the learned counsel for the plaintiffs, the learned Subordinate Judge having analysed the evidence on record
rendered a categorical finding on the factual aspect that the second defendant failed in his duty as a prudent purchaser of the ''B'' schedule property
in enquiring whether the first defendant has got absolute right and title to the same and whether any claim for maintenance was likely to be charged
on the property. Therefore having regard to the normal course of human conduct and in view of the evidence of D.W.3, this Court is of the
considered view that the second defendant had constructive notice of the plaintiffs claim for maintenance as against his vendor, the first defendant
herein.
In this context, the learned counsel for the plaintiffs has drawn the attention of this court to the decision Ram Niwas (Dead) Through Lrs. Vs.
Smt. Bano and Others, in support of his further argument that with reference to Section 3 Explanation II of the Transfer of Property Act. 1882 that
the term ''notice'' has got wider import than the word ''knowledge'' and therefore as per the ratio laid down therein a statutory presumption of
notice regarding the plaintiffs'' claim for maintenance as against the first defendant arise in this case also.
The principle laid down by the Hon''ble Supreme Court in the said decision reads as under:-
From the definition of the expression ""a person is said to have notice"" in Section 3 of the Transfer of Property Act, it is plain that the word ""notice
is of wider import than the word ""knowledge"". A person may not have actual knowledge of a fact but he may have notice of it having regard to the
aforementioned definition and Explanation II thereto. If the purchasers have relied upon the assertion of the vendor or on their own knowledge and
abstained from making inquiry into the real nature of the possession of the tenant, they cannot escape from the consequences of the deemed notice
under Explanation II to Section 3 of the Transfer of Property Act. On this point, the purchasers will be deemed to have notice of Ext. 1; should it
be found to be true and valid.
A careful reading of the law laid down by the Apex Court on this aspect of the matter referred supra would indicate clearly that the second
defendant should be held to have had notice of plaintiffs'' claim for maintenance as against the first defendant and the consequent charge over the
suit ""ET schedule property before ever he obtained the sale deed in his favour from the first defendant.
Having regard to the facts and circumstances of the case in the light of the evidence, both oral and documentary adduced on either side, this
Court is of the considered view that the lower appellate court was correct in holding that the plaintiffs are entitled to have a charge over the suit ''B''
schedule property in respect of the claim for maintenance as against the first defendant.
Finding no illegality or perversity in the judgment of the lower appellate Court, this Court finds no reason to interfere with the same. Therefore,
the judgment and decree rendered by the Subordinate Judge, Namakkal in A.S. No. 20 of 1992 dated 15.9.1992 are sustained. For the aforesaid
reasons, the appeal is dismissed but without costs. Consequently, C.M.P. No. 12842 of 1993 is closed.