Madras High Court
Kandasamy vs Minor Saranya Rep.By on 18 April, 2023
S.A.No.180 of 2005
IN THE HIGH Court OF JUDICATURE AT MADRAS
DATED : 18.04.2023
CORAM
THE HONOURABLE JUSTICE Mr.V.LAKSHMINARAYANAN
S.A.No.180 of 2005
Kandasamy ...Appellant.
Vs.
1.Minor Saranya rep.by
Guardian Mother Lakshmi.
2.Lakshmi
3.M.Kaja Mohideen
4.Bairaj Begum
5.M.Saithappa
6.Nurual Bacheeriyammal ...Respondents.
PRAYER:Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree dated 25.10.2004 made in
A.S.No.16 of 2004 on the file of the Additional District Court, Erode,
confirming the judgment and decree dated 19.11.2002 made in
O.S.No.472 of 1997, II Additional Sub Court, Erode.
For Appellants : Mr.Ma.P.Thangavel
R1 & R2 : Mr.Dheeraj for
Mr G R.M.Palaniappan
R3 to : NA-Served
1/11
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S.A.No.180 of 2005
JUDGMENT
The first defendant in O.S.No.472 of 1997 on the file of the II
Additional Sub Court at Erode, is the appellant. The suit was filed by
respondent Nos.1 & 2. They are the minor daughter and the wife of the
appellant. The marriage between the appellant and the second
respondent took place on 13.07.1986. From the wedlock, the first
respondent was born on 15.12.1987. The marriage fell into hard times
and the parties separated soon thereafter. On 03.06.1989, the appellant
claims that the 2nd respondent had given up her right for maintenance,
after receipt of Rs.25,000/-.
2.There are totally three Items of properties. Item Nos.1 & 2 are
situated in Vellodu village and Kangeyam village. According to the
appellant, Item Nos.1 and 2 are his self-acquisitions. On the contra, it
was the case of the respondent Nos.1 & 2 that Item No.3 which is also
situated in Kangeyam village, belong to the joint family of the father of
the appellant, Pachiappan and his brother Nachimuthu. They would
plead that from and out of the income available from Item No.3, Item
Nos.1 & 2 were purchased. It is pertinent to note that on the date on
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S.A.No.180 of 2005
which Item Nos.1 and 2 were purchased, the appellant was aged about
18 years and 23 years respectively.
3.To torpedo the case of the respondent Nos.1 & 2, the appellant
would plead that there was self-acquisition by him in the nature of
running lorry business, running a rice mill as well as earned income
from money lending business. Sadly, for the appellant, he has not
established any of the sources of income as pleaded by him.
4.Mr.Ma.P.Thangavel, learned Counsel for the Appellant would
vehemently argue, that the burden of proof to show that the properties
were joint family properties is heavily on the respondents Nos.1 & 2
and both the Courts below have wrongly misplaced the burden on the
appellant. He would further submit that the wife having executed
Ex.B.13, the document of relinquishment of maintenance, she is not
entitled to claim maintenance. Therefore, he would submit the Court
has to accept his plea, that Items Nos.1 & 2 are self-acquisitions and
the wife is not entitled to be maintained by the husband as she has
executed Ex.B13.
5.The following substantial questions of law arises for
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S.A.No.180 of 2005
consideration in this second appeal:-
" (i) When the nature of properties, in respect of
which the relief of partition is asked for, is disputed by
the contesting party as not joint family properties and
when admittedly, the documents of title relating to those
disputed properties (2 Items) stand in the name of the
contesting party, is there not a legal burden on the
parties asserting them as joint family properties to show
the source for such purchase and when such a legal
burden is not discharged by the parties concerned, have
not the Courts below committed an error of law in
giving a decree for partition in respect of those two
Items also?
(ii) Can Ex-B13, the document under which the
plaintiffs have received a lumpsum payment towards
their maintenance be a bar for the plaintiffs maintain
their claim for maintenance."
6.Mr.Dheeraj, learned Counsel appearing for the respondents 1
and 2 would submit that the mother, sister and the brother of the
appellant had executed release deed with respect to the Item No.3 of the
properties which would show that they have a pre-existing right in and
over the properties. According to him, the judgments of the Courts
below are not perverse and have been rendered in a right manner after
appreciation of the evidence and does not require interference by this
Court, especially under Section 100 of the Civil Procedure Code, 1908.
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S.A.No.180 of 2005
7.I have carefully considered the arguments raised by
Mr.Ma.P.Thangavel, learned counsel for the appellant and Mr.Dheeraj
for Mr.G.RM.Palaniappan, learned counsel for respondent Nos.1 and 2.
I have gone through the records in particular Ex.B13. I have perused
the judgments of the Trial and the Lower Appellate Courts and I feel
that this case does not require acceptance by this Court.
(i) The appellant has categorically admitted that Item No.3 of the
suit schedule property is a joint family property. He has also graciously
agreed to give 1/4th share to his daughter, who is the first respondent
herein. It is his case that there were other sources of income on the
basis of which he had purchased Item Nos.1 & 2 of the suit schedule
properties.
8.Mr.Ma.P.Thangavel, learned counsel for the appellant would
bring to the notice of this Court the subsequent development that on
23.09.2015, the appellant together with the first respondent had
alienated Item No.3 in favour of the 3rd party by way of a registered
sale deed. Therefore, Item No.3 is not available for partition. Insofar as
Item Nos.1 & 2 are concerned, they have been purchased at a time
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S.A.No.180 of 2005
when the appellant was hardly an adolescent/ teenager aged 18 and 24.
The availability of joint family property has been established by
marking Ex.A2 partition deed dated 04.07.1983. Therefore, during the
relevant period of purchase of Item Nos.1 & 2 i.e., in the year 1974 and
1979 respectively, the joint family was very much in-existence. There
is also an admission by the appellant during his cross-examination by
the counsel for respondent Nos.1 & 2 that there was agricultural
income from Item No.3.
9.This is sufficient to shift the burden of proof from the
plaintiffs/respondent Nos. 1 & 2 on to the shoulders of the
appellant/first defendant. The first defendant though has pleaded that
he was indulging in several business activities, as already pointed out,
not given any proof of the same. This becomes looms large because the
family had separated in the year 1989. The marriage took place in
1986. The helpless lady, that is the second respondent, cannot be called
upon to produce records which are exclusively within the knowledge of
the appellant, as the purchases were made before the marriage in 1974
and 1979 and also before the partition in the year 1983. She has given
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S.A.No.180 of 2005
sufficient evidence to show the existence of the joint family and has
managed to extract admission as pointed out above with respect to the
income generated from the agricultural land that is Item No.3.
10.Thereafter, the burden shifts to the appellant would show that
he had sufficient income from his own efforts to purchase the property.
That evidence not being available, I am constrained to confirm the
judgments of the trial Court and the lower appellate Court. I do not find
any perversity with respect to the finding that Item Nos.1 and 2 in
Kangeyam and Vellodu villages were purchased from and out of the
income generated in Item No.3.
11.Now turning to the argument that the wife has given up her
right under Ex.B13, a perusal of the lower appellate court judgment
shows that the appellant, who is the husband of the second respondent,
has been called upon to maintain his wife only from the date of the suit
alone. For the period commencing from 13.07.1986 till the presentation
of the plaint which is 18.09.1987, the Courts have not granted any
relief.
12.To expect a lady who has been deserted by her husband to
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S.A.No.180 of 2005
survive on an one time payment of Rs.25,000/-, when she was aged
hardly 32 years for the rest of her life, to say the least, is cruel. It is in
that light that the Trial Court and the Lower Appellate Court have
granted the decree for the maintenance and in default have also direct
creation of a charge over the assets of the appellant. I do not find any
error in this. The amount that has been granted is less than Rs.30/- per
day, which is in my view is highly insufficient for a lady to survive. I
am not in a position to enhance the amount because the second
respondent has not preferred cross-appeal. Ex.B13 has been rightly
interpreted, as not putting an end, to the right of maintenance of the
wife. The additional factor is that the appellant has not only deserted
his wife, but has also taken another lady in marriage and has begotten
two children. It is the duty of the husband to maintain his wife and I am
not willing to accept the technical plea that Ex.B13 puts an end to her
right for maintenance.
13.There being no other questions of law projected before this
Court, I answer the two questions framed against the appellant and in
favour of respondent Nos.1 and 2. The appeal stands dismissed. Costs
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S.A.No.180 of 2005
throughout.
18.04.2023
nst
Index : Yes/No
Speaking : Yes/No
Neutral Citations : Yes/No
To:
1.The District Judge
Erode.
2.Additional Subordinate Judge,
Erode.
3. Record Keeper
VR Section
High Court of Madras
Chennai.
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S.A.No.180 of 2005
V.LAKSHMINARAYANAN. J,
nst
S.A.No.180 of 2005
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S.A.No.180 of 2005
18.04.2023
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