*HON’BLE SRI JUSTICE P.S. NARAYANA +SECOND APPEAL No.295 of 2008 % 1 4 - 0 6 - 2 0 1 0 # Muppala Badari Narayana. … Appellant V s . $ Muppala Atchimamba. … Respondent * * * ! C o u n s e l f o r a p p e l l a n t : S r i N . G o p i ^ C o u n s e l f o r r e s p o n d e n t : S r i K . J y o < G I S T : > H E A D N O T E : ? C A S E S R E F E R R E D : - 1. I.L.R. 1942 Nagapur 159 2. AIR 1979 Madras 200 3. AIR 1967 Calcutta 603 4. AIR 1967 Madras 457 5. 2004 (1) ALD 77 (DB) 6. AIR 1928 Privy Council 187 7. AIR 1985 Delhi 491 HON’BLE SRI JUSTICE P.S. NARAYANA SECOND APPEAL No.295 of 2008 Date: June 14, 2010 Between: Muppala Badari Narayana. … Appellant And Muppala Atchimamba. … Respondent * * * HON’BLE SRI JUSTICE P.S. NARAYANA SECOND APPEAL No.295 of 2008 JUDGMENT: This Court, on 25.4.2008, made the following order: “Admit on the following substantial questions of law: 1. When the suit is filed in forma pauperis, without first enquiring into the pauperism, whether the plaintiff can be permitted to amend the plaint? 2. Whether the Court at Rajahmundry will have jurisdiction to entertain the suit initially filed to create a charge over the suit schedule property, which is situated outside the jurisdiction of the Court?” 2. In S.A.M.P. No.701 of 2008 this Court made the following order on 25.4.2008. “Interim stay on condition of the petitioner-appellant depositing half of the arrears of maintenance awarded on or before 16.6.2008 and the monthly maintenance of Rs.5,000/- for the month of April shall be paid on or before 10t of May and he shall continue to pay the same on or before 10th of every succeeding month. In default, interim stay shall stand vacated without further reference to the Court and the respondent-decree holder is entitled to execute the decree.” It is stated that the said conditional order also is not being complied with. 3. Sri N. Gopichand, learned counsel representing appellant had pointed out to the substantial questions of law on the strength of which second appeal had been admitted and also further pointed out to the grounds raised in the memorandum of the grounds of second appeal and would maintain that since the court of first instance and also the appellate court had totally erred in decreeing the suit, the same to be set aside by this Court in second appeal. The learned counsel also had taken this Court through the findings recorded by the court of first instance and also the appellate court and would maintain that the appellate court totally erred in granting charge over the properties which are not within the limits of the concerned courts. The learned counsel also pointed out to the findings recorded by the court of first instance in this regard and further specifically had drawn the attention of this Court to Section 16 of the Code of Civil Procedure. While further elaborating his submissions the learned counsel would maintain that the findings of the competent criminal courts have to be taken as binding on the civil court and the courts below totally erred in appreciating the evidence available on record. The learned counsel also had taken this Court through the relevant portions of the evidence and would maintain that in the light of the same since the desertion was on the part of the wife and not on the part of the husband, on this ground also the second appeal to be allowed. The learned counsel also placed reliance on several decisions. 4. Per contra, Sri K. Jyothi Prasad, learned counsel representing respondent would maintain that the relationship between the parties is not in controversy at all. The learned counsel also would explain the findings recorded in O.P. No.49 of 2003 on the file of the Principal Senior Civil Judge, Rajahmundry, and would maintain that inasmuch as the said findings had been confirmed even in the C.M.A. filed by the appellant, again the said question whose conduct is blameworthy in the context of ground of desertion cannot be gone into. Even otherwise predominantly these findings being factual findings in the light of the concurrent findings recorded by the court of first instance and also the appellate court, this is not a fit matter to be interfered with. The learned counsel also would maintain that the conduct of the appellant-husband also to be taken into consideration. The appellant had not complied with the conditional order and the respondent is unable to realize any amount, whatsoever, though a decree for maintenance had been granted. 5. Heard the counsel, perused the oral and documentary evidence available on record, the findings recorded by the trial court and also the findings recorded by the appellate court as well. 6. For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendant as shown in O.S. No. 65 of 2001 on the file of the Principal Senior Civil Judge, Rajahmundry. 7. Plaintiff is the wife and defendant is the husband. The unsuccessful defendant in O.S. No.65 of 2001 on the file of the Principal Senior Civil Judge, Rajahmundry, and in A.S.No.258 of 2005 on the file of I Additional District Judge, East Godavari at Rajahmundry, is the present appellant. 8. The plaintiff filed the suit for recovery of Rs.1,80,000/- from the defendant towards maintenance. The defendant filed O.P. No.49 of 2003 praying for dissolution of marriage on the grounds of cruelty and desertion. The learned Principal Senior Civil Judge, Rajahmundry, by a common judgment dated 06th day of October 2005, on appreciation of evidence available on record partly decreed the suit granting maintenance of Rs.5,000/- per month from the date of filing of the suit with proportionate costs and O.P. No.49 of 2003 was dismissed. Aggrieved by the judgment and decree made in O.S. No.65 of 2001 aforesaid, defendant preferred A.S No.258 of 2005 on the file of I Additional District Judge, East Godavari at Rajahmundry and the appellate court dismissed the appeal by judgment dated 31st day of October 2007 further creating a charge over the plaint schedule properties as well. Aggrieved by the same, the present second appeal had been preferred. 9. The brief averments made in the plaint are that the plaintiff is the wife of the defendant. The marriage having been celebrated on 29.4.1983 at Rajahmundry. The demands made by the defendant and his parents had been complied with and Silver and Gold had been given. The parents of the plaintiff also gave Rs.4.00 lakhs of cash and 100 sovereigns of gold and 2 kgs. of Silver at the time of marriage and also sari samans worth Rs.50,000/-. From the beginning of marriage the defendant and his mother had been arrogant and had been harassing the plaintiff on one pretext or the other. There was a demand for additional dowry as well. The father of the defendant, who used to admonish such acts of the defendant and his mother, passed away in the month of August 1997. On 05.9.1999 the defendant and his mother necked out the plaintiff since she was not inclined to accept the demand that she should make a request to her father for money or property. The plaintiff having left with no other option had gone to her parents’ house and ultimately a crime was registered, since a report was given, as crime No.231 of 1999. Further it was pleaded that the plaintiff has no properties and the defendant is having properties and the known details of the properties had been specified in plaint ‘A’ schedule. It is also her case that the defendant has got several other properties as well. Since the defendant is bound to maintain, the suit for maintenance was filed. 10. The defendant filed written statement admitting the relationship. The defendant denied other allegations, however the death of his father is not put into controversy. The report given by the plaintiff and the registration of the crime also had been admitted. Specific stand had been taken that after trial the criminal case ended in acquittal. The partition and certain other details had been pleaded. It was also pleaded in the written statement that as grandfathers of the plaintiff and the defendant were friends, the father of the plaintiff and father of the defendant performed the marriage and the father of defendant did not demand or took any dowry. The parents of the plaintiff agreed to give Ac.3-00 of land at Katavaram to the plaintiff. The said land was not registered in the name of the plaintiff by her parents. 11. Further it was pleaded that the plaintiff is an arrogant woman and she always used to abuse the defendant and his family members. The father of the defendant during his life time even advised the plaintiff to mend her ways and cooperate with the plaintiff and lead happy marital life. There is no issue during their wedlock. In spite of medical advice, the plaintiff did not co-operate. The plaintiff used to demand the defendant to execute a gift deed in her favour in respect of the family property for which the defendant did not agree. 12. It was also pleaded that finally in the first week of July 1998 the plaintiff went to her parents’ house without informing the defendant. The efforts made by the defendant to bring back his wife proved futile. Hence, the defendant got issued a notice dated 15.9.1999 calling upon the plaintiff to join his society. But, the plaintiff received the said notice and kept quiet. The plaintiff, her brother and brother-in-law colluded together with a view to grab the property of the defendant, got issued a police report against the defendant and his mother with false allegations and that case was ended in acquittal. The mother of the defendant and the defendant suffered a lot due to the false complaint and his mother died due to heart attack due to harassment of police report. 13. It was also further pleaded that the plaintiff deserted the defendant without reasonable and proper cause and living separately for more than two years. So, the defendant filed O.P. No.258 of 2000 on the file of Family Court, Vijayawada, for divorce. 14. The plaintiff having not satisfied with the police case got filed the present suit for maintenance. The defendant is not having any fixed deposits and shares and any properties worth Rs.3.00 crores as contended. The defendant had got Ac.7-00 of dry land and Ac.7-00 of wet land worth Rs.20.00 lakhs and the annual income of the defendant never exceeded Rs.50,000/- per month. The defendant is not having any AC rooms and not maintaining AC cars. The defendant is an ordinary farmer and not even an income tax assessee. The plaintiff is getting an income of Rs.25,000/- per year from her lands. The plaintiff’s father and her brother got their family properties at Katavaram village and the plaintiff’s father has got to his share Ac.12-00. The plaintiff is having Ac.3-00 of land given by her parents at Katavaram towards her pasupu-kumkuma. Hence, the dismissal of the suit had been prayed for. 15. The trial court framed the following issues: (1) Whether the defendant had deserted and neglected to maintain the plaintiff? (2) Whether the plaintiff is entitled to the maintenance? If so, at what rate? (3) To what relief? 16. The trial court, no doubt, tried O.P. No.49 of 2003 also along with O.S. No.65 of 2001. The under noted oral and documentary evidence had been recorded by the trial court in O.S. No.65 of 2001. Witnesses examined For plaintiff: P.W.1: Muppalla Atchamamba P.W.2: Settipalli Durgarani P.W.3: Muppalla Poornachandrarao P.W.4: Chitturi Ramarao For defendant: D.W.1: Muppalla Badari Narayana. Documents marked For plaintiff: NIL For defendant: Ex.B-1:10.5.1988: C.C. of partition deed of the family properties of P.W.4. Ex.B-2:15.9.1999: C.C. of notice given by the plaintiff Ex.B-3:17.9.1999: C.C. of postal acknowledgment Ex.B-4:25.9.1999: C.C. of FIR in Cr. No.231/99 of Penamaluru P.S. Ex.B-5:20.12.2000: C.C. of deposition of the plaintiff in CC.516/1999 Ex.B-6:9.8.2001: C.C. of calendar and judgment in C.C.516/1999 Ex.B-7:13.12.2003: C.C. of judgment in appeal No.1049/2002 Ex.B-8:19.7.2000: C.C. of petition in O.P.358/2000 Ex.B-9:3.7.2001: C.C. of counter in O.P.No.358/2000 Ex.B-10:26.9.2003: C.C. of affidavit of respondent in O.P.49/2003 Ex.B-11:3.1.2002: C.C. of plaint in O.S. No.37/2002 Ex.B-12:10.10.2002: C.C. of written statement in O.S.37/2002 on the file of Senior Civil Judge’s Court, Vijayawada. 17. Originally plaintiff filed the suit as an indigent person under Order XXXIII Rule 1 of Code of Civil Procedure praying for the relief of maintenance and also for charge over the plaint schedule properties. 18. It is not in serious controversy that the plaint schedule properties over which charge had been prayed for are outside the jurisdiction of these courts. By amending the pleading that portion of the relief to create charge had been deleted and no doubt certain submissions were made that the said amendment is not being in accordance with law, since it would change the very nature of the suit, such amendment is vitiated and, hence, the plaint to be returned to be presented to proper court. The court of first instance had recorded reasons in detail and came to the conclusion that since the relief relating to creation of charge over the plaint schedule properties had been deleted, the other objection being technical in nature, the suit be decreed partly granting maintenance of Rs.5,000/- per month to the plaintiff against the defendant from the date of filing of the suit with proportionate costs and the rest of the suit claim was dismissed without costs. 19. In A.S. No.258 of 2005 on the file of I Additional District Judge, East Godavari at Rajahmundry, the appellate court at para 28 formulated the following points for consideration. (1) Whether the plaintiff is entitled for maintenance as claimed? (2) To what relief? 20. The appellate court recorded findings on point No.1 at paras 36 to 65 and further recorded certain findings on point No.1 at para 66 and ultimately confirmed the findings of the court of first instance but with an addition of creation of charge over the plaint schedule properties. The appellate court after referring to the relevant provisions of Hindu Adoptions and Maintenance Act recorded such findings and was of the opinion that in a suit for maintenance non-granting of relief of creation of charge may not be just and proper and accordingly the same had been granted. 21. In the light of the clear findings recorded by both the court of first instance and also the appellate court the first substantial question of law need not be further dealt with in elaboration. Convincing reasons had been recorded in this regard by the trial court and those reasons, no doubt, had been confirmed even by the appellate court. However, the first court, in the light of the deletion of the prayer for the relief of creation of charge, had decreed the suit partly granting the relief of maintenance. But, the appellate court while confirming the findings of the trial court further added the relief of creation of charge as well. 22. Section 16 of the Code of Civil Procedure deals with suits to be instituted where subject-matter situate. Section 16 (d) of the Code aforesaid specifies subject to the pecuniary or other limitations prescribed by any law, suits for the determination of any other right to or interest in immovable property, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. The proviso specifies – Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. The explanation specifies in this Section “property” means property situate in India. 23. There cannot be any doubt or controversy that a right to maintenance claiming change on immovable property would be a suit falling within the meaning of for the determination of any other right to or interest in immovable property. There is no serious dispute or controversy that no portion of immovable property over which creation of charge had been prayed for would fall within the local limits of the courts at Rajahmundry. 24. Section 100 of the Transfer of Property Act defines the expression “charge” as hereunder. “Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained (which apply to a simple mortgage shall, so far as may be, apply to such charge.) Nothing in this section applies to a charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, (and save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.)” 25. In Baburao v. Gopikabai[1] it was held that where judgment-debtor is also under a personal liability to pay maintenance, the fact that a charge is created as a security for regular payments does not deprive the decree- holder of his ordinary right to execute the decree personally against the judgment-debtor. 26. Section 27 of Hindu Adoptions and Maintenance Act, 1956 deals with maintenance when to be a charge and this provision specifies a dependant’s claim for maintenance under this Act shall not be a charge on the estate of the deceased or any portion thereof, unless one has been created by the will of the deceased, by a decree of court, by agreement between the dependant and the owner of the estate or portion, or otherwise. 27. In Raghavan and another v. Nagammal and another[2] it was held that it is clear from Section 28 that a person whose right to maintenance is protected under the section must be a dependant. A dependant is defined in Section 21 of the Act. A wife is not taken in the definition of the word ‘dependant’. Hence, the wife will not be entitled to have a charge over the properties of the husband for her maintenance and the same cannot be enforced against the property gifted by the husband to his concubine. But a Hindu wife is entitled to have a charge on the property of her husband and to claim protection under Section 39 of the T.P. Act. Hence, the gift in favour of the concubine by the husband cannot avail against the right of the wife to have a charge for maintenance amount. The right of a Hindu wife to maintenance is also interlinked with her interest in her husband’s property. It is not necessary that the right to maintenance should become crystallised in the form of a decree to enable the wife to proceed against the property in the hands of the husband or her transferees. Merely because at the time the gift deed was executed the wife had not obtained a decree for maintenance would not mean that she will not be entitled to enforce the right of maintenance against the property gratuitously transferred by the husband to the concubine. 28. In Kiran Bala Saha v. Bankim Chandra Saha[3] it was held that where no relief was prayed for to create a charge of maintenance amount on estate of husband, it would not be right to travel beyond plaint, where property to be charged so has not even been mentioned, thereby taking defendant completely by surprise. 29. In Ramaswamy Goundar and another v. Baghvammal and others[4] the learned Judge of the Madras High Court observed that where charge was claimed by Hindu wife in relation to maintenance claim against some property transferred by her husband, it will be unreasonable to create a charge over properties far out of proportion to the quantum of maintenance decreed in favour of wife and that it is but equitable that in first instance wife should be made to pursue properties still in hands of her husband and it is only when it is necessary for her to do so, she be permitted to proceed against transferred properties. 30. The counsel for appellant placed strong reliance on the decision of the Division Bench of this Court in Bank of India, CBD Belapur Branch, Navi Mumbai v. U.A.N. Raju and another[5] wherein the Division Bench observed at paras 4, 5, 6, 7, 8 and 10 as hereunder. Law is well settled and was reaffirmed by the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether, it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties. Question before us is whether Court can assume jurisdiction merely on the concession of parties. Consent or waiver can cure defect of territorial jurisdiction but cannot cure inherent lack of jurisdiction. In Hira Lal Patni v. Sri Kali Nath, air 1962 SC 199, it was held that consent of parties could not operate to confer jurisdiction on a Court, which was incompetent to try the suit. But the objection as to the territorial jurisdiction of the Court is one, which does not go to the competence of the Court and can, therefore, be waived. Objection as to the local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try case. Competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of civil Procedure. The aforementioned view was reaffirmed by the Supreme Court in Bahrein Petroleum Co. , Ltd. v. P. J. Pappu, air 1966 SC 634, saying that as a general rule, neither consent or waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit. But Section 21 of the Code of Civil procedure provides an exception, and a defect as to the place of suing, that is to say, the local venue for suits cognizable by the Courts under the Code may be waived under this Section. The waiver under section 21 is limited to objections in the appellate and revisional Courts. But Section 21 is a statutory recognition of the principle that the defect as to the place of suing under sections 15 to 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it. In a more recent case in Globe transport Corporation v.