THE HON'BLE SRI JUSTICE P.S.NARAYANA C.M.A.No.753 of 2005 17th June, 2010 Between :- Varada Gangamma and another .. Appellant And Varada Subhadramma and another .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA C.M.A.No.753 of 2005 ORDER:- This Court made the following Order on 8-7-2002:- “The sole appellant died. The petitioner wants to come on record as the sole legal representative of the deceased, basing on a will said to have been executed by the deceased in his favour. As there is a delay in filing the L.R. application, one petition to set aside the abatement and another petition to condone the delay in filing the L.R. Application are filed. The respondents did not file any counter, though time was granted to them to file the counter. The learned Counsel for the respondents contended that the sole appellant filed the suit for maintenance, in the appeal the decree in her favour was set aside and the suit itself was remanded to the trial Court and therefore, there is no question of legal representative being permitted to come on record in the appeal. I make it clear that at the time of hearing of the main appeal, the question whether the legal representative, who came on record on behalf of the deceased, can prosecute the suit in view of the death of the plaintiff in the suit will be considered. Regarding the appeal, as no counter is filed and in view of the circumstances mentioned in the affidavit, I take a liberal view and condone the delay in filing the L.R. petition. Hence, these petitions are allowed. Admittedly, the Second Appeal is not maintainable and only C.M.A. is to be filed against the order of the lower Appellate Court, remanding the suit to the trial Court. Therefore, the petition is allowed and permission is accorded to the appellant to convert the Second Appeal into C.M.A.” 2. In the light of the order made by this Court specified above, the said S.A.No.450/93 was numbered as the present C.M.A. This C.M.A. is filed as against an order made in A.S.No.4/90 on the file of the Subordinate Judge, Narasapur. 3. Sri Chandrasekhar, the learned Counsel representing the 2nd appellant who was brought on record as legal representative of the deceased 1st appellant had taken this Court through the Grounds of Appeal and would maintain that in the facts and circumstances of the case the order of remand cannot be sustained. 4. Sri T.S.Anand, the learned Counsel representing the contesting respondents however would maintain that the cause itself does not survive and the learned Counsel also would maintain that this question whether the legal representative can come on record on behalf of the deceased in a suit of this nature also may have to be considered especially in the light of the order made by this Court on 8- 7-2002. 5. Heard the Counsel on record. 6. In the light of the submissions made by the Counsel on record, the following points arise for consideration in this C.M.A.:- 1) Whether the findings recorded by the appellate court – the learned Subordinate Judge, Narasapur, be sustained or to be set aside in the facts and circumstances of the case? 2) If so, to what relief, the parties would be entitled to? 7. Point No.1:- For the purpose of convenience the parties would be referred to as plaintiff and defendants as shown in original suit O.S.No.601/84 on the file of the District Munsif, Palakole. The present appellant – plaintiff who is no more filed the suit for arrears of maintenance. 8. The averments made in the plaint are as hereunder:- “The husband of the plaintiff passed away during her early age without any issues. The plaintiff’s father-in-law late Mallayya executed a maintenance deed on 29-4-41 and registered it on 30-4-41 with the following terms creating a charge over the plaint schedule property:- a) Late Mallaiah, his heirs and decendants have to pay 10 bags of paddy and Rs.12/- to the plaintiff at Palakol on or before Pushya Bahula 30th of every year. b) The plaintiff shall not claim to enhance the maintenance; and c) The plaint schedule property shall be the first charge for maintenance of the plaintiff is at liberty to file suit for recovery of arrears of maintenance with a charge over the plaint schedule property. Father-in-law of the plaintiff died in 1964 or 1965 and till his death, he paid maintenance. After the death of the plaintiff’s father-in-law the husband of the 1st defendant who inherited the property paid the maintenance to the plaintiff till his death, and after his death, the 1st defendant paid the maintenance due by 1982 and 1983. After the death of the husband of the plaintiff, the husband of the 1st defendant sold away the schedule property to the father of the 2nd defendant. The father of the 2nd defendant and 2nd defendant are fully aware that the plaint schedule property is subject to the rights and charges of the maintenance of the plaintiff. The property which is now in possession of the 2nd defendant is liable for charge for the suit amount and for future maintenance and also Rs.12/- due by Pushya Bashula, 1984 which falls on 1st January, 1984 and 1st defendant is fully aware that she is liable to pay the maintenance. The plaintiff got issued a registered notice dt.27-4-84 to the defendants, they gave reply with false allegations. It is also stated that to pass decree for the suit amount of Rs.1266/- with costs and interest with a charge over the plaint schedule property and in default of payment of arrears of maintenance, the plaintiff may be permitted to bring the plaint schedule property to sale.” 9. The 1st defendant filed written statement with the following averments:- “This defendant is the wife of Varada Veeranna. The relatlionship is not admitted. Late Varada Veeranna and late Varada Mallayya were not members of the joint family. They never lived accordingly. The allegation that late Mallayya has executed a maintenance deed dt.29-4-41 and registered it on 30-4-41 is false. This defendant is not aware of the said execution and registration of the document. The said maintenance deed will not bind this defendant. It is personal agreement. His heirs are not liable under the agreement. This defendant is not heir of late Mallayya. This defendant did not either inherit or succeed to any of the properties of the late Mallayya. The maintenance deed was never handed over to the plaintiff as it was not intended to be acted upon. The original document was not filed. It is false to alleged that the husband of this defendant used to pay maintenance to the plaintiff and this defendant used to pay maintenance to the plaintiff and this defendant paid maintenance to the plaintiff for the alleged maintenance deed, the plaintiff has to keep safe ornaments weighing about 40 Tulas of gold and other valuables to be delivered to the heirs of Mallayya. The plaintiff sold away the said ornaments and valuables and as such she is not entitled to any maintenance. The plaintiff got issued registered notice, and this defendant got issued reply with correct facts. The plaintiff is snot entitled to any relief and High Court the suit may be dismissed with costs.” 10. On the strength of these pleadings, the following issues were settled:- 1) Whether the maintenance deed dt.29-4-41 is true? If so, whether it was ever acted upon? 2) Whether the plaintiff is entitled to maintenance even after the death of execution of the maintenance deed? 3) Whether the plaintiff is not entitled to interest? 4) Whether the plaintiff is not entitled for a charge over the schedule property? 5) To what relief? On behalf of the plaintiff, P.W.1 and P.W.2 were examined and on behalf of the defendants, D.W.1 was examined. Ex.A.1 to Ex.A.4 and Ex.B.1 were marked. The trial Court after recording reasons ultimately came to the conclusion that the plaintiff is entitled to a Decree with costs for a sum order Rs.1266/- with subsequent in at 6% per annum on Rs.1200/- with first charge over the plaint schedule property. Aggrieved by the same, the 1st defendant had preferred appeal A.S.No.4/90 on the file of the Subordinate Judge, Narasapur. The appellate court after formulating the point for consideration at para 8, recorded reasons from pars 9 to 13 and ultimately allowed the appeal setting aside the Decree and Judgment of the Court of first instance and remanding the matter for trial for fresh disposal in accordance with law after giving specific findings on issue No.1 by giving opportunity to both the parties in the light of the observations made in the Judgment. The appellate court was mainly guided away by the fact that the original of Ex.A.1 was not filed and further certain observations were made relating to the presumption available under Section 90 of the Indian Evidence Act. 11. In the light of the facts and circumstances, this Court is of the opinion that the said findings are unsustainable findings. The trial Court in fact recorded reasons in elaboration and ultimately granted Decree. Be that as it may, though the order of remand made by the appellate court i.e., the learned Subordinate Judge,Narasapur, cannot be sustained. In the light of the order made by this Court on 8-7-2002 while dealing with L.R. Application, this Court is of the considered opinion that the question whether the present 2nd appellant – the legal representative of the 1st appellant can maintain the appeal and if so whether the 2nd appellant – the legal representative of the 1st appellant is entitled to recover any amount whatsoever. These questions may have to be gone into. In view of the fact that the order of remand is being set aside by this Court, it is needless to say that the learned Subordinate Judge, Narasapur to decide the matter afresh in the light of the order made by this Court dt.8-7-2002 which had been specified supra. However it is made clear that the findings recorded by the appellate court relating to Ex.A.1 and the presumption available under Section 90 of the Indian Evidence Act, these being unsustainable findings, these are hereby set aside. Accordingly, the order under challenge is hereby set aside to the extent indicated above. 12. Point No.2:- In the result, the C.M.A. is hereby allowed. Let the learned Subordinate Judge, Narasapur, West Godavari District decide the appeal on its own merits in the light of the observations made by this Court and also in the light of the order made by this Court on 8-7- 2002. Accordingly, the C.M.A. is allowed to the extent indicated above. No costs. _____________________ Justice P.S.Narayana 17th June, 2010 smr