1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA (MD) No.340 of 2011 and MP(MD)No.2 of 2011 Kuzhandaivelu Nadar .. Appellant/Defendant Vs. Rajarajeswari .. Respondent/Plaintiff Second Appeal filed under section 100 of CPC against the Judgment and decree dated 22.09.2010 passed in Appeal Suit No.25 of 2008 by the Principal District Court, Tirunelveli partly allowing the Judgment and decree dated 06.04.2005 passed in Original Suit No.140 of 2004 by the First Additional Sub Court, Tirunelveli. For Appellant : Mr.V.Kannan For Respondent : Mr.M.P.Senthil JUDGMENT The Judgment and decree passed in Original Suit No.140 of 2004 by the First Additional Sub Court, Tirunelveli, modified in Appeal Suit No.25 of 2008 by the Principal District Court, Tirunelveli are being challenged in the present second appeal. 2. The respondent herein as plaintiff has instituted Original Suit No.140 of 2004 on the file of the trial Court for the reliefs of past and future maintenance and also to recover value of movables and also to create a charge over the suit first schedule properties, wherein the present appellant has been shown as sole defendant. 3. It is averred in the plaint that the plaintiff has married one Murugaperumal who is none other than the son of the defendant on 30.10.1998 and he passed away on 11.07.2001. Since the husband of the plaintiff has tortured her, she filed HMOP.No.209 of 1999 on the file of the Sub court, Tirunelveli. The plaintiff has been driven from marital abode. On 26.02.2003 the plaintiff has sent a notice to the defendant and thereby claimed monthly maintenance at the rate of Rs.3,000/-. The plaintiff has also left her belongings worth of Rs.22,000/-. The husband of the plaintiff and defendant are the members of joint family. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the defendant it is averred that it is false to contend that the defendant and his son have tortured the plaintiff and driven her from marital abode. It is false to say that the plaintiff has left her belongings in her marital home. It is also equally false to say that the plaintiff is not having any income. In the suit first schedule, the son of the defendant has had https://hcservices.ecourts.gov.in/hcservices/ 2 no manner of right and interest. The suit first schedule is the absolute properties of the defendant. If at all the plaintiff is having any right over the the suit first schedule, she has to file a suit for partition. The quantum of monthly maintenance claimed by the plaintiff is exorbitant. The plaintiff is having illicit intimacy with one Yovan and due to that she refused to live with her husband. There is no merit in the suit and the same deserves to be dismissed. 5. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.25 of 2008 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the appeal in part and thereby dismissed the present suit in respect of items 6 and 7 of the suit first schedule and confirmed the remaining part of the decree passed by the trial Court. Against the Judgment and decree passed by the trial Court, modified by the first appellate Court, the present second appeal has been preferred at the instance of the defendant as appellant. 7. Before considering the rival submissions made on either side, it would be more useful to look into the following admitted facts. 8. It is an admitted fact that the son of the defendant by name Murugaperumal has married the plaintiff on 30.10.1998 and for some time both of them have lived as husband and wife and subsequently the plaintiff has gone to her parent's house and now she is living separately and further the said Murugaperumal has passed away on 11.07.2001 and the present defendant is the father-in-law of the plaintiff. 9. The plaintiff has filed the present suit for the reliefs of past and future maintenance and also to recover the value of movables mentioned in the plaint and also to create a charge over the suit first schedule properties. 10. As stated earlier, the trial Court has decreed the suit as prayed for. But the first appellate Court has modified the Judgment and decree passed by the trial Court to the extent that charge cannot be created in respect of items 6 and 7 of the suit first schedule. 11. On the side of the appellant/defendant, the following substantial questions of law have been raised for consideration: (a) Whether the Courts below erred in holding that the plaintiff is entitled to move both for partition of Hindu joint family properties and for maintenance? (b) Whether the Courts below erred in not holding that it is unreasonable to create a charge over properties far out of proportionate to the quantum of maintenance decreed in favour of the plaintiff? (c) Whether the first appellate Court erred in not https://hcservices.ecourts.gov.in/hcservices/ 3 holding that there are infirmity in the Judgment and decree of the trial Court? (d) Whether the Courts below erred in creating charge without ascertaining the extend of income from such properties? (e) Whether the Courts below erred in not holding that the plaintiff should execute only against a particular property to meet the maintenance amount and the plaintiff is entitled to proceed against all other or some properties only when the decree is still not satisfied? (f) Whether the Courts below erred in giving a finding of the fact that the appellant is getting income from the suit schedule properties based on no evidence and it is perverse? 12. The learned counsel appearing for the appellant/defendant has attacked the Judgment and decree passed by the trial Court, modified by the first appellate Court on the following grounds: (a) The appellant/defendant is an old man and he is not getting any perennial income from the properties mentioned in the first schedule and therefore, he is not bound to give past as well as future maintenance to the plaintiff. (b) If at all the plaintiff is having right over the suit first schedule, she can file only a suit for partition and she cannot claim maintenance. 13. In order to repel the argument advanced by the learned counsel appearing for the appellant/defendant, the learned counsel appearing for the respondent/plaintiff has contended that even during the life time of the husband of the plaintiff, she has been driven out from the marital abode and since then she is living separately in her parent's house and after the demise of her husband the entire properties mentioned in the suit first schedule are in actual possession of the defendant and therefore, the defendant is liable to pay past and future maintenance to the plaintiff. Under the said circumstances the trial Court has passed its Judgment and decree and further, the first appellate Court has virtually confirmed the Judgment and decree passed by the trial Court, except items 6 and 7 of the suit first schedule and therefore, the Judgments and decrees passed by the Courts below need not be interfered with. 14. As stated earlier, the plaintiff is the daughter-in-law of the defendant. The first appellate Court after making elaborate discussion has come to a definite conclusion to the effect that items 6 and 7 of the suit first schedule do not belong to the family of the defendant and ultimately dismissed the suit in respect of the said items. The Courts below have concurrently found that items 1 to 5 are the family properties of the defendant. Even though a stand has been taken on the side of the defendant to the effect that the properties mentioned in the suit first https://hcservices.ecourts.gov.in/hcservices/ 4 schedule are his separate properties, no clinching evidence has been forthcoming on the side of the defendant to prove the above aspect. Under the said circumstances the Court can very well come to a conclusion that items 1 to 5 of the suit first schedule are joint family properties of the defendant and his son viz. Murugaperimal. 15. The present suit has been instituted for getting the reliefs of past and future maintenance and also to recover value of movables and also to create charge in respect of the suit first schedule. 16. Considering the fact that the plaintiff is the daughter-in-law of the defendant and also considering that items 1 to 5 of the suit first schedule are the family properties of the defendant and the same are in actual possession of the defendant, the defendant is liable to pay past as well as future maintenance to the plaintiff. 17. The trial Court after considering the extent of properties mentioned in the suit first schedule and also its classification, has awarded only Rs.1,000/- per mensem. Under the said circumstances, the quantum of monthly maintenance and also past maintenance awarded by the trial Court and confirmed by the first appellate Court are perfectly correct and the same do not warrant interference. 18. The learned counsel appearing for the appellant/defendant has also advanced a residual argument to the effect that the defendant is not having any independent income so as to give maintenance to the plaintiff. It has already been pointed out that items 1 to 5 of the first schedule are in actual possession and enjoyment of the defendant. The properties mentioned in items 1 to 5 are more than six acres. Considering the extent mentioned in items 1 to 5, it is needless to say that the residual argument advanced on the side of the appellant/defendant cannot be accepted. 19. The Courts below after considering all the contentions raised on either side have rightly rejected the defence taken on the side of the appellant/defendant. In view of the discussion made earlier, this Court has not found any error nor illegality in the Judgments and decrees passed by the Courts below and the substantial questions of law raised in the present second appeal are not having substance at all and altogether the present second appeal deserves to be dismissed. 20. In fine, this second appeal deserves dismissal and accordingly is dismissed without cost at the stage of admission. Connected Miscellaneous petition is also dismissed and the Judgment and decree passed in Original Suit No.140 of 2004 by the First Additional Sub Court, Tirunelveli, modified in Appeal Suit No.25 of 2008 by the Principal District Court, Tirunelveli are confirmed. Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 5 To 1.The Principal District Court, Tirunelveli 2.The First Additional Sub Court, Tirunelveli Copy to : The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai +1cc to M/s.M.P.Senthil, Advocate, SR.No.20808 mj GH : 20.07.2011 : 5p/5c SA (MD) No.340 of 2011 28.06.2011 https://hcservices.ecourts.gov.in/hcservices/