In the High Court of Judicature at Madras Dated:24 .09.2008 Coram The Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYAN Second Appeal No.233 of 1999 1. V.Subramani 2. Shanthi 3. Selvi ..Appellants/Respondents/ defendants v Kamalam @ Kamala ..Respondent/Appellant/plaintiff This Second appeal filed U/s.100 of C.P.C.against the judgment and decree dated 28.7.1998 made in A.S.No.133 of 1997 on the file of the District Judge, Villupuram reversing the Judgment and decree dated 27.4.1994 passed in O.S.No.122 of 1989 on the file of the Court of Subordinate Judge, Tindivanam. For Appellants : Mr.S.Udayakumar,Advocate For Respondent : Ms.A.Shanmugapriya, Advocate for M/s V.Raghavachari JUDGMENT This appeal has been directed against the Judgement in A.S.No.133 of 1997 on the file of the Court of District Judge, Villupuram. The lis is between the wife and her husband. The defendants who had lost their defence before the first appellate Court are the appellants before this Court. 2. The short facts of the plaint averments relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows: The marriage between the plaintiff and the defendant was solemnized on13.8.1972. The plaintiff is the second wife of the defendant. The first wife of the defendant is now no more. Through the first wife, the defendant had one married son and two daughters. Since the children of the defendant have neglected to look after the welfare of the defendant,the defendant had married the plaintiff as his second wife. At the time of marriage, the https://hcservices.ecourts.gov.in/hcservices/ parents of the plaintiff had presented 40 sovereigns of gold ornaments, Rs.10,000/- worth about ever silver utensils as Sreedhana. At the time of marriage, the parents of the plaintiff also presented a watch worth about Rs.600/- to the defendant. Even though at the beginning both the plaintiff and the defendant lived separately, subsequently, at the request of the defendant the plaintiff had agreed to lead a joint family along with the family of the defendant's brother. Slowly, the defendant began to ill treat the plaintiff for no reason of her. Developing inferiority complex against the plaintiff, he began to suspect the fidelity of the plaintiff. Later, the defendant has failed to maintain the plaintiff. The defendant has also abused the plaintiff in filthy language in front of the defendant's brother and his wife. The defendant had gone to the extent of even murdering the plaintiff. The plaintiff has no source of independent in come. The defendant is having the property worth about Rs.10,00,000/- and is getting an yearly income of Rs.75,000/- from the said properties. The plaintiff was driven out of the matrimonial home by the defendant within one month from the date of marriage. The plaintiff had issued a suit notice on 6.11.1987 demanding Rs.500/- per mensum towards her maintenance and also a sum of Rs.1000/- to meet her yearly expenses. The defendant had sent a reply notice dated 22.11.1987 containing frivolous allegations. The plaintiff has no amount to pay the court fee. Hence the suit for maintenance in informa paupris. 3. The defendant in his written statement would contend that the suit is not maintainable and the first wife of the defendant is now no more and about four years after the death of first wife, the defendant had married the plaintiff as his second wife. Since the plaintiff's father was working under the father of the defendant, the defendant had agreed to marry the plaintiff at the instance of the plaintiff's father. Even after the marriage, the plaintiff had failed to take care of the children born to the defendant through his first wife. The plaintiff's father was not an influential person. At the time of the marriage, the plaintiff's father had not offered 40 sovereigns of gold ornaments and ever silver utensils worth about Rs.10,000/-. Only at the instance of the plaintiff's father and brothers , the plaintiff has filed the vexatious suit . The defendant is not having immovable property worth about Rs.10,00,000/- and he was not getting yearly income of Rs.75,000/- from the said property. The plaintiff has no cause of action to claim any maintenance from the defendant. The plaintiff cannot claim Rs.21,000/- towards past maintenance. Hence the suit is liable to be dismissed. 4. In the additional written statement , the defendant would contend that the plaint schedule survey Nos.1/5 and 1/6 belonged to the defendant's brother and no charge can be created in respect of https://hcservices.ecourts.gov.in/hcservices/ the decree to be passed in the suit in respect of those properties. The correct extent of S.No.93/5(New S.No.1/6) is1.01.0 hectares and not 0.01.0 as mentioned in the plaint. S.No.3/5(Old S.No.89) does not belong to the family of this defendant. The said old S.No.89 (New S.No.3/5) belonged to one Subbarayalu Reddiar. So in respect of S.No.3/5(Old S.No.89)also the plaintiff cannot create any charge for the decree if any to be passed in the suit. S.No.83/2A,83/2B,83/2D belonged to one Velu Pillai , s/o Veerasamy Pillai. Those lands were sold in the year 1985 in favour of Velu Pillai. With an ulterior motive, the plaintiff has included those survey number properties also in the plaint schedule property. In the year 1984, the land in S.No.84 was sold in favour of Muniyappa Pillai s/0 Pichai Pillai. The vendors under the sale deed are the defendant and his brother Govinda Reddiar. The vendees under the said sale deed are the necessary parties to the suit. Hence the suit is bad for non joinder of necessary parties. In the properties belonging to the defendant, the son born through his first wife is also entitled to ½ share . So in respect of ½ share of the son of the defendant born through his first wife, no charge can be created. 5. The plaintiff in her reply statement would contend that the suit items 1 and 2 belongs to the defendant and not the defendant's brother Govinda Reddiar as alleged in the additional written statement. S.No.3/5 belongs to the defendant's family. No sale deed was executed in respect of S.No.83/2A, 83/2B and 83/2D in favour of one Velu Pillai as alleged in the additional written statement. S.No.84 was not sold to one Muniyappa Pillai by the defendant. 6. On the above pleadings, the trial Court had framed three issues for trial . On the side of the plaintiff, the plaintiff has examined herself as P.W.1 and exhibited Exs A1 to A19. The son born through the first wife of the defendant was examined as D.W.1 and the defendant has examined himself as D.W.2 and no documentary evidence was let in on behalf of the defendants. The learned trial judge on the ground that the plaintiff had deserted for no fault of the defendant and that the defendant has not having any property worth about Rs.10,00,000/- but was allowed only a share worth of Rs.12,967/- under Ex A9 partition deed alone, has come to an erroneous conclusion that the plaintiff is not entitled to the relief asked for, dismissed the suit but on appeal, the learned first appellate Judge, after meticulously going through the evidence both oral and documentary and after giving due consideration to the submissions made by the learned counsel on both sides, has come to a conclusion that there was no material placed before the trial court to show that the plaintiff had deserted the defendant and that the defendant is having sufficient means to pay the maintenance amount of Rs.500/- per mensum to the https://hcservices.ecourts.gov.in/hcservices/ plaintiff has allowed the appeal thereby setting aside the decree and Judgment of the learned trial judge had decreed the suit filed by the plaintiff for maintenance granting Rs.500/- per mensum towards maintenance and also Rs.1000/- per year to meet the other expenses of the plaintiff and has also created a charge in respect of the property scheduled and has dismissed the suit in respect of other reliefs and has further directed the respondents 2 to 4 to pay the Court fee due to the Government. Aggrieved by the said findings of the first appellate Judge, the defendant has preferred this second appeal. 7. The substantial questions of law involved in this appeal are i) Whether the respondent has left the matrimonial home as early as 1972 and whether she had taken steps to rejoin with the appellant? ii) Whether the Ex B9 properties are worth about Rs.10 Lakhs as alleged by the respondent in the plaint? Iii) Whether the appellant is entitled to pay the maintenance in view of the fact that the respondent has voluntarily left long back prior to the filing of the suit in the year 1989? 8. Substantial question of Law Nos.1 and 3 Admittedly, the first defendant/husband Venugopal Reddiar is now no more. He died pending the first appeal A.S.No.133 of 1997. His children were impleaded as Legal representatives of the first defendant Venugopal Reddiar as R2 to R4 in the first appeal who are the appellants herein. According to the plaintiff, P.W1, the marriage between her and the defendant Venugopal Reddiar was solemnized on 13.8.1972. The factum of marriage between the plaintiff and the defendant Venugopal Reddiar is not disputed. But the defendant Venugopal Reddiar as D.W2 would depose that the plaintiff had deserted him within one month from the date of marriage without any reason. In the cross examination D.W.2, Venugopal Reddiar would admit that he is not aware whether in the year 1987, the plaintiff had issued a legal notice but he would admit that on 22.11.1987, he had sent a reply notice. Ex A5 is the copy of the suit notice issued by the plaintiff. In Ex A5 notice, the plaintiff has given the reason for her leaving the matrimonial home, the reason being that the defendant ,after the marriage, had began to ill treat the plaintiff even without giving proper food to her and also threatened her to commit murder. But the said notice was issued subsequent to the filing of the suit. Since the defendant Venugopal Reddiar made an attempt to sell the family properties with the help of other brother, the plaintiff had issued the said notice informed her husband and the other proposed https://hcservices.ecourts.gov.in/hcservices/ purchasers that even if the defendant Venugopal Reddiar executes any sale deed in respect of the family property that will not bind her. The said notice was received by Party No.1 Duraiswamy Reddiar under Ex A6, party No.3, Mani Pillai under Ex A7 and the defendant had refused to receive the said notice is seen from Ex A8 returned postal cover. Ex A1 is the suit notice issued by the plaintiff before filing of the suit. Ex A2 is the reply notice issued by the defendant Venugopal Reddiar. Even in Ex A1, the plaintiff had alleged that only due to the unbearable ill treatment received at the hands of the defendant Venugopal Reddiar, she was forced to leave the matrimonial home and asked for maintenance without specifying the amount but claiming Rs.18,000/- for three years towards maintenance. ie., at the rate of Rs.500/- per mensum. Ex A2 is the reply notice dated 22.11.1987 sent by the defendant Venugopal Reddiar. In the reply notice, the defendant Venugopal Reddiar would allege that the plaintiff had left the matrimonial home voluntarily without any rhyme or reason. But the defendant Venugopal Reddiar has not filed any petition for restitution of conjugal rights to show that the plaintiff had left the matrimonial home voluntarily. 8a) P.W.1 is the son born to the defendant through his first wife. He would depose that after the marriage, the plaintiff was with the defendant Venugopal Reddiar only for one day even though the defendant as D.W.2 Venugopal Reddiar would admit that the plaintiff after the marriage left the matrimonial home after one month. D.W.1 in his evidence in the cross examination would admit that he has no objection for awarding maintenance but he would contend that his share in the family properties shall not be made as a charge the decree to be passed in the suit. D.W.2 Venugopal Reddiar would admit in the cross examination that he has not given any notice to the plaintiff asking her to return to the matrimonial home. According to P.W.1 , the plaintiff, the defendant Venugopal Reddiar had executed Ex A3 settlement deed in respect of one of his properties in favour of his eldest daughter Kalaiselvi born through his first wife and has also executed another settlement deed in favour of another daughter by name Shanthi born through his first wife. According to her, the defendant is owning 30 acres of lands. Even though in the additional written statement, the defendant Venugopal Reddiar would raise a contention that S.Nos.1/5 ,1/6 and 3/5 do not belong to him, and also S.No.3/9 measuring 0.62.0 hectares, S.No.57/4 measuring 3.14.0 hectares, S.No.79/10 measuring 0.08.0 Hectares do not belong to him. The defendant has not filed any document to show that S.No.3/5 belongs to one Subbarayalu Reddiar and that the same was sold in the year 1985 in favour of one Velu Pillai , s/o of Veerasamy Pillai. No sale deed was produced on the side of the defendant before the trial Court to show that the lands mentioned in the additional written statement have been sold to the third parties mentioned thereunder. Under Ex https://hcservices.ecourts.gov.in/hcservices/ A9 family partition deed was produced by the defendant before the trial to show that there was a partition entered into between the defendant and his brothers and S.No.1/5 and 1/6 scheduled to the plaint were allotted to the share of defendant's brother Govinda Reddiar. But the learned first appellate Judge has created only the charge in respect of the properties of the first respondent alone. Hence I hold on substantial question of law No.1 that the respondent has left the matrimonial home only due to ill treatment received at the hands of the defendant Venugopal Reddiar and that the defendant Venugopal Reddiar had not taken any steps to restore the matrimonial home with the respondent/plaintiff and I hold on substantial question of law No.3 that the defendant Venugopal Reddiar is bound to pay the maintenance to the plaintiff and since Venugopal Reddiar is now no more, the charge created in respect of the property belonged to his son the second defendant Subramani viz., second appellant is valid. Substantial question of law Nos 1 and 3 are answered accordingly. 9. Substantial question of law No.2: Ex A9 partition deed dated 25.5.1988 entered into between the defendant Venugopal Reddiar and his brother Govinda Reddiar. "A" schedule property to Ex A9 was allotted to the share of defendant Venugopal Reddiar. A perusal of Ex A9 will go to show that towards the share of Venugopal Reddiar/defendant, new Survey No.3/5 and 3/9 were allotted to Venugopal Reddiar and not S.No.1/5 or 1/6. Even though under Exs A3 and A4 Venugopal Reddiar/defendant has settled the properties allotted to him under Ex A9 in favoaur of his daughters born through his first wife, they are subsequent to the filing of the suit. Under such circumstances, the charge for the decree in O.S.No.112 of 1989 is to be created only in respect of S.No.3/5 and 3/9 schedule of property to the plaint and not in respect of other survey numbers viz., 57/4 and 79/10, since there is no material placed before the trial court to show that those properties were belonged to the defendant/Venugopal Reddiar and the other S.No.1/5 and 1/6 were allotted to the brother of Venugopal Reddiar/defendant under Ex A9, who is not a party to this lis. Even though there is no material to show that the property worth about Rs.10,00,000/- was owned by Venugopal Reddiar/defendant. The fact remains that the property is worth about Rs.12,967.50 owned by the defendant/ Venugopal Reddiar. Under such circumstances, it cannot be said that the defendant/Venugopal Reddiar had no means to pay the maintenance to the plaintiff asked for in the plaint. Substantial question of law No.2 is answered accordingly. 10. In fine, the appeal fails and the same is dismissed confirming the decree and Judgment of the learned first appellate Judge in A.S.No.133 of 1997 on the file of the Court of District Judge, Villupuram with the following modifications. The charge is created in respect of S.Nos 3/5 and 3/9 to the plaint schedule https://hcservices.ecourts.gov.in/hcservices/ property alone. The charge in respect of S.Nos.1/5,1/6,57/4 and 79/10 properties scheduled to the plaint are hereby vacated. The respondent is entitled to her cost through out. If the decree amount is paid, the charge created in respect of the above said properties will automatically get vacated. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sg To 1. The District Judge, Villupuram 2. The Subordinate Judge, Tindivanam , Copy to The Record Keeper, VR Section, High Court, Madras. +1cc to Mr.S.Udayakumar, Advocate Sr 54747 SSN(CO) km/13.11. Second Appeal No.233 of 1999 https://hcservices.ecourts.gov.in/hcservices/