Madras High Court
Ellappa vs Minor Sureshbabu Son Of Ellappa on 22 April, 2022
S.A.No.745 of 2016
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
Vs.
1.Minor Sureshbabu son of Ellappa
2.Minor Sarathbabu son of Ellappa
3.Manjula
4.Minor Amaresh son of Ellappa
5.Minor Sivappa son of Ellappa Respondents
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.
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S.A.No.745 of 2016
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.
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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 1 st 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
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S.A.No.745 of 2016
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
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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 1 st 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. In view of the same, both the
Courts came to a conclusion that the 1st and 2nd plaintiffs are entitled for a
share in the suit properties and that the Partition Deed will 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 1 st and 2nd
plaintiffs will be entitled for 1/20th share each in the suit properties.
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S.A.No.745 of 2016
N.ANAND VENKATESH.,J
ssr
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.
22.04.2022
Index :Yes/No
Internet :Yes/No
ssr
To
1.The Additional District Court, Krishnagiri.
2.The Sub Court, Hosur.
S.A.No.745 of 2016
and C.M.P.No.14127 of 2016
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