Madras High Court
Kaladevi … vs Saravanan on 5 October, 2023
A.S.No.305 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.10.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
A.S.No.305 of 2021
Kaladevi … Appellant/Plaintiff
Vs
Saravanan . . . Respondent / Defendant
Prayer: Appeal Suit is filed under Section 96 read with Order XLI
Rule 1 of C.P.C against the Judgement and Decree dated 06.07.2020 on
the file of Principal District Court, Namakkal passed in O.S.No.351 of
2019 (P.O.P.No.37 of 2017).
For Appellant : Mr.J.Aadhil
for Mr.I.Abrar Md Abdullah
For Respondent : Served – No Appearance
1/11
https://www.mhc.tn.gov.in/judis
A.S.No.305 of 2021
JUDGMENT
The appellant before this Court is the plaintiff in O.S.No.351 of
2019 on the file of the Principal District Court, Namakkal. The
defendant is the husband of the plaintiff. The suit was originally filed
as an indigent person in P.O.P.No.37 of 2017, which later, after giving
permission to the petitioner to sue as an indigent person, was converted
into a suit bearing O.S.No.351 of 2019 by the Principal District Judge,
Namakkal.
2. It is the case of the plaintiff that she and the defendant got
married on 20.04.2009. After the marriage, the defendant had fallen
into bad habits and ultimately, deserted the plaintiff. The plaintiff
would contend that she is residing in her parental home for the past
four years and is unable to maintain herself. On the contrary, the
defendant is running a business in the name and style of “Saravana
Medicals and General Stores” at Chithalandur and also carrying on
https://www.mhc.tn.gov.in/judis
A.S.No.305 of 2021
agricultural operations thereby earning a sizeable income. On
26.01.2017, she had approached the defendant with the assistance of
Panchayatdars to give her maintenance. However, the defendant denied
to give the maintenance and also refused to live with the plaintiff.
Therefore, the plaintiff has come forward with this suit seeking
maintenance of a sum of Rs.20,00,000/- with the charge on the “A”
schedule property.
3. Though the defendant was served, he had not entered
appearance and was called absent and set ex-parte.
4. The learned Principal District Munsif had framed the
following points of consideration in the first appeal:
1.Whether the plaintiff is entitled to maintenance as
claimed for?
https://www.mhc.tn.gov.in/judis
A.S.No.305 of 2021
2.Whether the plaintiff is entitle to pay Court Fees
after the Court had permitting the suit as the indigent
person?
5. P.W.1 had examined herself and marked exhibits A1 and A2.
The learned District Judge had partly allowed the suit and rejected the
claim of the plaintiff for the maintenance of Rs.20,00,000/- stating that
the plaintiff has not proved her contention that the defendant was
running a medical store and carrying on agricultural operations. The
Court below had held that Ex.A1-Patta would clearly indicate that the
plaintiff is not a joint owner of the “A” schedule property, since the
owner names are shown as Thangavel, Kuppayee and Chinnappan.
P.W.1 would state that the said Thangavel is the father of the defendant
and therefore, the defendant has a 1/3rd share in the suit property.
Considering the fact that the property did not stand in the name of the
https://www.mhc.tn.gov.in/judis
A.S.No.305 of 2021
defendant and as the property in question belongs to the paternal
grandmother of the defendant, thereby being a female property, the
learned District Judge has held that the defendant will not have a share
in the suit property, as it is the absolute property of the Hindu women.
6. The Court has also observed that the plaintiff has not pleaded
as to why she should be granted the maintenance of such a huge sum of
Rs.20,00,000/- The Court below observed that the plaintiff had failed
to prove the income of the defendant. However, since the defendant is
the husband of the plaintiff, he is duty bound to maintain her and the
Court below had proceeded to award a monthly maintenance of
Rs.1,000/- to the plaintiff. The suit was dismissed with regard to the
relief of creating a charge over the property. However, while partly
decreeing the suit, the learned District Judge had directed the plaintiff
to pay the Court fees on the sum of Rs.20,00,000/- and the decree had
been forwarded to the District Collector, Namakkal to recover the
https://www.mhc.tn.gov.in/judis
A.S.No.305 of 2021
Court fees. Aggrieved by the judgement and decree, the plaintiff has
come forward with this appeal.
7. Heard the argument of Mr.J.Aadhil, learned counsel appearing
for the appellant/plaintiff. It is his contention that the plaintiff has
proved that the defendant’s family owns the ancestral property as
evidenced by Ex.A1, however the trial Court has failed to take note of
the same. He would submit that the defendant, by not appearing before
the Court, has tacitly accepted the case of the plaintiff and therefore,
the Court below ought to have decreed the suit as prayed for. Further,
after permitting the plaintiff to sue as an indigent person and decreeing
the suit partly in and by which the Court below had directed the
defendant to pay the monthly maintenance of Rs.1,000/-, the Court
below has erred in directing the plaintiff to pay the court fees on the
suit claim of Rs. 20,00,000/-. Therefore, he sought to have the
judgment and decree of the Court below set aside.
https://www.mhc.tn.gov.in/judis
A.S.No.305 of 2021
8. The substantial questions of law that have raised for
consideration in the above second appeal are:
1.Whether the plaintiff is entitled to the maintenance
as claimed for?
2.Whether the plaintiff is entitled to pay the court
Fees after the Court had permitted her to sue as an
indigent person?.
9. The plaintiff has come forward to claim a monthly
maintenance of Rs.20,00,000/- on the premise that the defendant is
owning and running the medical stores apart from carrying on
agricultural operations. There is no proof let in by the plaintiff to show
that the defendant is owning and running the medical stores. Further,
she has contended that the defendant owns the agricultural lands in
proof of which Ex.A1 has been filed. The learned District Judge has
https://www.mhc.tn.gov.in/judis
A.S.No.305 of 2021
considered Ex.A1 at length and held that the property in question is the
property of the defendant’s paternal grandmother, though pattas stand
in the name of the defendant’s father, defendant's paternal
grandmother, and Chinnappan. Therefore, it is crystal clear that neither
the defendant nor his father are the owners of the property in question,
and in the absence of any proof, the courts below have rightly rejected
the plea of the plaintiff and held that she is entitled to the maintenance
of Rs.20,00,000/-. Taking into consideration her basic needs, the court
below has ordered a monthly maintenance of Rs.1,000/-, which appears
to be reasonable, and I see no reason to interfere with that finding.
Therefore, the first point of consideration is answered against the
plaintiff.
10. The learned District Judge had ordered P.O.P.No.37 of 2017
after obtaining the report about the plaintiff's indigent circumstances.
There is nothing to show that the plaintiff's indigent circumstance has
https://www.mhc.tn.gov.in/judis
A.S.No.305 of 2021
since improved. On the contrary, the Court below had directed the
defendant to pay a meagre sum of Rs.1,000/- per month towards her
maintenance as she does not have the wherewithal to take care of
herself. That being the case, the direction to pay the Court fees on
Rs.20,00,000/- is totally erroneous and without any basis. That apart,
the same is onerous. Therefore, the second point of consideration is
answered in favour of the appellant.
11. Consequently, the first appeal is partly allowed. The decree in
O.S.No.351 of 2019 in so far as it directed the plaintiff to pay the court
fees on the sum of Rs.20,00,000/- is set aside. Therefore, there shall be
no order to costs.
05.10.2023
Index: Yes/No
Speaking order/non-speaking order
srn
https://www.mhc.tn.gov.in/judis
A.S.No.305 of 2021
To
1. The Principal District Court, Namakkal.
2. The Section Officer,
V.R.Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
A.S.No.305 of 2021
P.T.ASHA, J.,
srn
A.S.No.305 of 2021
05.10.2023
https://www.mhc.tn.gov.in/judis
