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Madras High CourtSA/745/2016dismissed

Ellappa v. Minor Suresh Babu

2022-04-22Honourable Mr Justice N. Anand Venkatesh4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 22.04.2022

CORAM

THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH S.A.No.745 of 2016 and C.M.P.No.14127 of 2016 1.Ellappa 2.J.Rammiah 3.Munivenkatappa 4.Prakash ...Appellants/Appellants/Defendants Vs.

1.Minor Sureshbabu son of Ellappa 2.Minor Sarathbabu son of Ellappa (Minors 1&2 rep.by mother of natural guardian) 3.Manjula 4.Minor Amaresh son of Ellappa 5.Minor Sivappa son of Ellappa

...Respondents/Respondents/Plaintiffs

Minor 4 & 5 are represented by Court Guardian Advocate Arunan PRAYER :

Second Appeal filed under Section 100 of C.P.C., against the Judgment and Decree in A.S.No.28 of 2011, on the file of Additional District Court, Krishnagiri and dated 31.10.2013 in confirming the Judgment and Decree in O.S.No.82 of 2005, on the file of the Sub Court, Hosur dated 24.09.2012. For Appellants : Mr.T.Panchatsaram For Respondents : M/s.V.Raghavachari for R1 to R3

JUDGMENT

The defendants are the appellants in this Second Appeal. 2.The respondents/plaintiffs filed a suit seeking for the relief of payment of monthly maintenance to the plaintiffs and for allotment of 1/20th share of the 1st defendant in the suit property in favour of the 1st and 2nd plaintiffs. 3.The case of the plaintiffs is that the 1st and 2nd plaintiffs were born to the 1st defendant through the legally wedded wife viz. the 3rd plaintiff. It is further alleged that the 1st defendant illegally married one Dhanalakshmi even when the 1st marriage was in subsistence and the 2nd and 3rd defendants were born to the said Dhanalakshmi. They also started staying with the 1st defendant. The 4th defendant is the father of the 1st defendant and the 5th and 6th defendants are the brothers of the 1st defendant.

4.The further case of the plaintiffs is that defendants 1,4,5 and 6 constitute a joint family and the properties in question are the joint family properties.

5.The grievance of the plaintiffs was that the 3rd plaintiff was driven out of the matrimonial home and she had taken care of the 1st and 2nd plaintiffs. They were not even maintained by the 1st defendant and the attempt made by him for restitution of conjugal rights also ended in a dismissal. The further grievance of the plaintiffs is that the 1st and 2nd plaintiffs are entitled for a share in all the properties and in order to defeat the said right, defendants 1,4, 5 and 6 collusively brought about a Partition Deed adverse to the interest of the 1st and 2nd plaintiffs and therefore, the plaintiffs claimed that they are not bound by the said Partition Deed. It is under these circumstances, the suit came to be filed for the reliefs stated supra.

6.The 1st defendant filed the written statement and took a stand that he never indulged in a bigamous marriage with Dhanalakshmi and the 2nd and 3rd defendants were not born to the 1st defendant. He also took a stand that he along with his

brothers and father entered into a registered Partition Deed dated 09.05.2005 and a portion of the propery was also allotted in favour of the 1st defendant. The 1st defendant took a further stand that he is ready to maintain the plaintiffs and that the 3rd plaintiff had deserted the 1st defendant and gone to her parents' house. The 1st defendant also took a stand that he is ready to share the properties allotted to him under the Partition Deed. It is stated that there was no cause of action for filing the suit and accordingly, the 1st defendant sought for the dismissal of the suit.

7.The 5th and 6th defendants filed a written statement and they also took a similar stand in line with the stand taken by the 1st defendant.

8.Both the Courts below on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, concurrently held in favour of the plaintiffs and decreed the suit. Aggrieved by the same, the defendants have filed this Second Appeal.

9.Heard the learned counsel for the appellant and the learned counsel appearing on behalf of the respondents. 10.This Court also carefully perused the materials available on record and the findings of both the Courts below. 11.Both the Courts below found that the 1st defendant was not maintaining the plaintiffs and was only indulging in initiating court proceedings for restitution of conjugal rights which was also dismissed. The 3rd plaintiff was forced to live away from the 1st defendant from the year 1993 onwards. The legal proceedings were initiated in the year 1996 and it ended in the year 2004. Immediately thereafter, the Partition Deed Ex. A10 came to be executed among the defendants 1, 4, 5 and 6. 12.

Both the Courts found that the properties in question are in the nature of joint family properties and to reach this conclusion, both the Courts relied upon Exhibits A8, A9, A11,A12, A13, A14, A15 and A16 and also took into consideration Exhibits B10 and B11.

not bind them. Ultimately, the 1st defendant was directed to pay monthly maintenance of Rs.1000 to the 3rd plaintiff and Rs.500 each to the 1st and 2nd plaintiffs. A preliminary decree was also passed to the effect that the 1st and 2nd plaintiffs will be entitled for 1/20th share each in the suit properties. 13.In the considered view of this Court, the findings of both the Courts below does not suffer from any perversity. The same does not warrant the interference of this Court in this Second Appeal. In any event, no substantial question of law is involved in this Second Appeal.

14.In the result, this Second Appeal is dismissed. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CS-VI) //True Copy// Sub Assistant Registrar ssr To

1. The Additional District Judge, Krishnagiri.

2. The Sub Judge, Hosur.

Copy to:

The Section Officer, V.R.Section, High Court, Madras.

+1cc to M/s.V.Raghavachari, Advocate, S.R.No.27639 S.A.No.745 of 2016 and C.M.P.No.14127 of 2016 SRA(CO) SU(17/05/2022)