Where a charge has been created and the decree provides for enforcement of the charge in the event of non-payment, Sec. 39, Transfer of Property Act not applicable.

(Second appeal under Section 100 CPC against the decree and judgment dated 30.06.2000 made in A.S. No. 104 of 1999 on the file of Additional Subordinate Judge, Villupuram reversing the decree and judgment dated 22.10.1998 made in O.S. No. 615 of 1996 on the file of Principal District Munsif Court, Villupuram.)

The second defendant in O.S. No. 615 of 1996 on the file of Principal District Munsif Court, Villupuram is the appellant in this second appeal. The said suit has been filed by the Plaintiff/first respondent herein praying for (i) directing the petitioner to sue as an indigent person; (ii) directing the 1st respondent to pay a sum of Rs.1,000 /- per month towards maintenance by creating a charge over B Schedule Described property (iii) directing the first respondent to pay Rs.18 ,000/- towards arrears of maintenance with a charge over the B Schedule properties; and (iv) directing the first respondent to pay the court fee payable on the plaint to the Government and for costs. The trial court dismissed the suit and on appeal, the first appellate court set aside the decree and judgment of the trial court, hence the present second appeal.

2. For the sake of convenience, the parties are referred to as they were arrayed before the trial court.

3. The case of the plaintiff/first respondent herein, as set out in the plaint are as follows:-

The suit was filed as a pauper. The marriage between the Plaintiff and the first defendant was solemnised at Ezhu Sembon Village 40 years ago and they lived happily as husband and wife for a period of ten years; that out of the said wedlock, two female daughters namely Mahalakshmi and Mangalakshmi were born; that thereafter, the first defendant developed illicit intimacy with one Manonmani and drove the plaintiff and her daughters out of the matrimonial home; that the plaintiff went to her mother's house at Sompet Village and lived there along with her daughters; that she maintained herself and her daughters by doing manual labour work in the fields; that both the daughters had a prematured death due to poverty; that the plaintiff was unable to maintain herself and her aged mother; that the plaintiff was aged and she could not even do labour work and she needed financial support for maintenance of her life; that the first respondent also had illicit intimacy with one Mangai and out of the said relationship, four sons were born; that her husband, the first defendant is possessed of 5 acres of agricultural land and house and he has been earning Rs.50,000/- per annum out of the said lands; that the plaintiff required Rs.1,0 00/- per month towards food, clothing and shelter and the first defendant is bound to pay the said amount; that the plaintiff is also entitled to claim past arrears for a period of three years, however, restricted it to Rs.18 months, which works out to Rs.18,000/- payable by the first defendant; that the first defendant, in order to defeat the rights of the plaintiff was attempting to sell the immovable property to the second defendant, hence, he was also impleaded as a party in the suit.

4. The first defendant has not chosen to contest the suit. He neither filed written statement nor participated in the trial, hence he was set exparte.

5. The second defendant has contested the suit by filing written statement stating that he was unnecessarily impleaded as a party to the suit; that the 'B' Schedule described property shown in the plaint was purchased by him on 16.02.1996 for a valid sale consideration of Rs.27,000/- from the first defendant and ever since the said purchase, he is in possession and enjoyment of the same; that the first defendant had sold the said property to settle the debts incurred towards performance of the marriage of his daughters Mahalakshmi and Mangalakshmi; that even before the institution of the suit, he had purchased the property from the first defendant; that there are other properties owned and possessed by the first defendant, but the plain