IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 SA.No. 157 of 1996() -------------------- AS.63/1988 of SUB COURT, CHERTHALA OS.483/1985 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANT:- IST RESPONDENT – 2ND DEFENDANT -------------- SARASWATHY AMMA, RESIDING AT MINI NIVAS, C.M.C WARD NO.5, THEKKUM MURI, CHERTHALA SOUTH VILLAGE BY ADV. SRI.THOMAS JOSEPH RESPONDENT(S): APPELLANT – 5TH RESPONDENT PLAINTIFF – IST DEFENDANT --------------- 1. M.G.UDAYAN RESIDING AT VANCHIPURAKKAL VADAKKUM MURI, CHERTHALA NORTH VILLAGE 2. M.G.PREMACHANDRAN, MINI NIVAS, C.M.C WARD NO.5, THEKKUM MURI, CHERTHALA SOUTH VILLAGE. R1 BY ADV SRI.JOHN JOSEPH R2 BY ADV G ANIL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2011, ALONG WITH SA NO. 158 OF 1996. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KKJ P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - S.A. Nos.157 & 158 of 1996 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of July, 2011 J U D G M E N T Two suits namely O.S.No.744/1984 & O.S.No.483/85 were jointly tried and disposed of by the common judgment by the Munsiff Court, Shertallay. The Munsiff court dismissed O.S.No.483/1985 and decreed O.S.No.744/1984. 2. The appellants are the plaintiffs in O.S.No.744/1984. They were the defendants in O.S.No. 483/1985. Since O.S.744/1984 was treated as the leading case, the facts and parties are hereinafter referred to as they are available in the said suit. 3. The plaintiffs in the suit are the wife and children of the first defendant. The Second and third defendants in the said suit are the assignees from the first defendant. The plaintiff laid the suit challenging Ext.A9 and A10 assignments on the ground that they are entitled to maintenance and the assignments are made to defeat the claim of the maintenance. 4. The first and second defendant contested the suit. The third defendant remained exparte. 5. Since the appeals can be disposed of on a short ground, it is unnecessary to refer the details with the contentions raised :2: S.A. 157 & 158 of 1996 by the contesting defendants in the suit. 6. Suffice to say that the trial court held the assignments covered by Ext. A9 and A10 are bad in law. It may be noticed here that Ext.A9 document with regard to plaint item No.1 was in favour of the second defendant executed by the first defendant. As regard to the item No.2 it is covered by Ext.A10 executed by D1 was in favour of the 3rd defendant. 7. The second defendant in O.S.No.744/1984 had laid O.S.No.483/1985 seeking to evict the defendants there from property assigned to him. He claimed that the assignments by the first defendant in his favour evidenced by Ext. A9 is good in law and is not liable to be interfered with. The plaintiff in O.S.No.744/1984 who were the defendants in O.S.No. 483/1985 contested the suit. 8. On the basis of the above pleadings issues were raised. Evidence consists of testimony of PW1to3 and Exts. marked A1 to A16 from the side of the plaintiff. Defendants examined DW1 and DW2 and had exhibits B1 to B8 marked. On appreciation of evidence the trial court dismissed OS.No.483/1985 and decreed O.S.No.744/1984. :3: S.A. 157 & 158 of 1996 9. Two appeals were preferred by the second defendant. He preferred A.S.No.63/1988 against decree in O.S.No. 483/1985 and A.S.No. 62/1988 against decree in O.S.No.744/1984. The lower appellate court allowed the appeals setting aside the judgment and decree of the lower court O.S.No. 483/1985 was decreed and as regards O.S.No.744/1984 was concerned the claim of the plaintiff was limited to a charge on the property assigned to the 3rd defendant. Aggrieved by the said judgment and decree of the lower appellate court, the plaintiff in O.S.No.744/1984 have come up with this appeal. A.S.157/1996 is directed against the judgment and decree in O.S.No. 483/1985 as modified . S.A. 63/1988 and SA 159/1996 is against judgment and decree in O.S. No.744/1984 as modified by S.A. 62/1985. Notice is seen on the following questions. 10. It is unnecessary to go into the details for simple reasons, that these appeals can be disposed on a short ground. During the pendency of these appeals, it was pointed out that first defendant in O.S.No.744/1984 passed away and the second defendant in the suit has executed a sale deed in favour of the plaintiff as regards the said property in S.A.483/1985. Therefore :4: S.A. 157 & 158 of 1996 as regards the appeal against O.S.No.744/1984 is concerned the relief against the second defendant has become infructuous. As far as the third defendant is concerned, the lower appellate court is right in holding that the plaintiffs was only entitiled to seek charge over the property for the maintenance due to them. It cannot be said that the findings of the Lower Appellate Court is either faulty or in contrary to law in that respect. Going by the section 39 of the Transfer of property act, this transfer is not invalid but only a charge to the extent of maintenance due is available. Nothing remains to be considered in these two appeals. Accordingly these two appeals are dismissed on the basis of above findings . There will be no order as to costs. P.BHAVADASAN JUDGE kkj