Madras High Court
Gnanamuthu vs Amirtha Bai ... 1St on 3 March, 2022
S.A(MD)No.390 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A(MD)No.390 of 2010
1.Gnanamuthu
2.Lysammal ... Appellants 1 & 2/
Respondents 2 & 3
-Vs-
1.Amirtha Bai ... 1st Respondent /
Appellant/
Plaintiff
2.R.David ... 2nd Respondent/
4th Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree passed in A.S.No.246 of 2003, dated
06.10.2009 on the file of the District Court, Kanyakumari at Nagercoil
reversing the judgment and decree in O.S.No.143 of 1998 dated 01.08.2003
on the file of the Sub Court, Padmanabhapuram.
For Appellants : Mr.V.Jeyapragash
For Respondents : Mr.B.Brigesh Kishore for R.1
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S.A(MD)No.390 of 2010
JUDGMENT
This Second Appeal arises out of a maintenance suit. The first
respondent / Amirtha Bai got married to Thiru.V.K.Raju on 12.06.1994.
Alleging that she has not been maintained, she filed O.S.No.143 of 1998 on
the file of Sub Court, Padmanabapuram. V.K.Raju filed written statement
controverting the plaint averments. Based on the divergent pleadings,
issues were framed. The plaintiff examined herself as P.W.1 and three other
witnesses were examined on her side. Ex.A1 to Ex.A7 were marked.
V.K.Raju examined himself as D.W.1 and one Suresh was examined as
D.W.2. No documentary evidence was adduced. After consideration of
evidence on record, the trial Court, by judgment and decree, dated
01.08.2003 dismissed the suit. Aggrieved by the same, Amirtha Bai filed
A.S.No.246 of 2003 before the learned District Court, Nagercoil,
Kanyakumari District. During the pendency of the first appeal, the husband
passed away and the appellants herein came on record. The appellants also
filed I.A.No.69 of 2008 for marking the partition deed dated 08.10.1998
executed between the deceased V.K.Raju and other members of the family.
The first appellate Court dismissed I.A.No.69 of 2008, because there was
no reference to the partition deed in the written statement filed by V.K.Raju.
However, it decreed suit by directing the appellants herein to pay the
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S.A(MD)No.390 of 2010
plaintiff a sum of Rs.1,000/- (Rupees One Thousand only) per month from
the date of plaint, that is 27.10.1998, till realisation from the share of the
deceased V.K.Raju in the schedule property. Aggrieved by the same, this
Second Appeal came to be filed.
2. This Second Appeal was admitted on 28.04.2010 on the following
substantial questions of laws:-
“a) Whether the Lower Appellate Court is
justified in law in rejecting I.A.No.69 of 2008
reception of additional evidence in the appeal
since the appellants are impleaded in the Lower
Appellate Court after the death of sole
respondent?
b) Whether the Lower Appellate Court is right in
allowing the appeal without formulating the
point for determination as provided under order
41 Rule 31 C.P.C.?
c) Whether the Lower Appellate Court is justified
in law in granting maintenance to the plaintiff
who is capable of maintaining herself and she is
residing with her parents without sufficient
cause?
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S.A(MD)No.390 of 2010
d) Whether the Lower Appellate Court is justified
in law in allowing the appeal with entire cost of
Rs.15,296/- instead of awarding proportionate
cost in respect of maintenance alone?”
3. The learned counsel appearing for the appellants reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial questions of law in favour of the appellants
and set aside the impugned judgment and decree and restore the decision of
the trial Court.
4. Per contra, the learned counsel appearing for the first respondent
submitted that the impugned judgment and decree do not warrant any
interference.
5. I carefully considered the rival contentions and went through the
evidence on record.
6. There is no dispute that the plaintiff Amirtha Bai got married to
V.K.Raju on 12.06.1994. It is the duty of any husband to maintain his wife,
if she is not having any independent means to take care of herself. In the
case on hand, the first appellate Court has given a categorical finding that
the plaintiff was entitled to be paid a sum of Rs.1,000/- (Rupees One
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S.A(MD)No.390 of 2010
Thousand only) per month towards maintenance. The first appellate Court
is the final Court of fact. Exercising jurisdiction under Section 100 C.P.C,
I do not find any ground to interfere with such finding.
7. It is true that no personal decree can be passed against the
appellants. The grievance of the appellants appears to be that the partition
deed was not allowed to be marked in the first appellate Court. I will not
find fault with the first appellate Court for dismissing I.A.No.69 of 2008,
because V.R.Raju did not make any reference to it in his written statement.
Be that as it may, it is fairly conceded that the property in question belonged
to Vethakannu Nadar. Following his demise, it devolved in equal shares on
his three children. There is also no dispute that V.K.Raju had 1/3 rd share in
the suit property. The plaintiff / decree holder can proceed only against the
1/3rd share of her husband in the schedule property. In fact, the plaintiff as
the class 1 legal heir can take the said property. Though not said in so many
words, that is the effect of the impugned judgment and decree passed by the
first appellate Court. The only remedy open to the plaintiff / first
respondent is to proceed against her husband’s 1/3rd share in the suit
property. Substantial questions of law are accordingly answered and the
impugned judgment and decree passed by the first appellate Court is
confirmed.
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S.A(MD)No.390 of 2010
8. With this observation and clarification, this Second Appeal is
disposed of, accordingly. No costs.
03.03.2022
Internet : Yes/No
Index : Yes/No
mga
To
1.The District Court, Nagercoil, Kanyakumari.
2.The Sub Court, Padmanabhapuram.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.390 of 2010
G.R.SWAMINATHAN.J.,
mga
Judgment made in
S.A(MD)No.390 of 2010
03.03.2022
https://www.mhc.tn.gov.in/judis
