Madras High Court
Periyathambi Padyachi vs Chinthamani
Author: P.Rajamanickam
Bench: P.Rajamanickam
S.A.No. 1557 of 2001
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 04.10.2019 Delivered on: 17.10.2019
CORAM
THE HONOURABLE Mr.JUSTICE P.RAJAMANICKAM
S.A.No.1557 of 2001
Periyathambi Padyachi ... Appellant
Vs.
1.Chinthamani
2.Gnana Poonkothai
3.Sivagunasundari
4.Minor Seethalakshmi ... Respondents
(by guardian mother
Chinthamani)
PRAYER: Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree dated 30.10.2000 in A.S.No.495 of 1994 on the
file of the I Additional Sub-Court, Villupuram dismissing the appeal
against the judgment and decree dated 27.07.1994 in O.S.No.250 of
1991 on the file of the District Munsif Court, Tirukoilur.
For Appellant : Mr. N.Suresh
For Respondents : Mr.V.Raghavachari
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JUDGMENT
This Second Appeal has been filed by the defendant against the judgment and decree passed by the First Additional Sub-Judge, Villupuram in A.S.No.495 of 1994 dated 30.10.2000, confirming the judgment and decree passed by the District Munsif Court, Tirukoilur, in O.S.No.250 of 1991 dated 27.01.1994.
2. The respondents herein had filed a suit in O.S.No.250 of 1991, on the file of the District Munsif Court, Tirukoilur, to divide the suit 'B' Schedule properties into four equal shares and allot three such shares to the plaintiffs 2 to 4 and to direct the defendant to pay a sum of Rs.1,200/- as past maintenance and Rs.300/- per month towards future maintenance to the first plaintiff and for paying the said amount promptly, a charge has to be created against the share of the defendant (1/4th ) in the suit 'B' Schedule property. The learned District Munsif, Tirukoilur, by the judgment dated 27.07.1994 had decreed the suit as prayed for.
3. Aggrieved by the same, the defendant had filed an appeal in A.S.No.495 of 1994, on the file of the I Additional Sub-Judge, Villupuram. The learned I Additional Sub-Judge, Villupuram, by the 2/26 http://www.judis.nic.in S.A.No. 1557 of 2001 judgment dated 30.10.2000 had dismissed the said appeal confirming the judgment and decree passed by the trial Court. Feeling aggrieved, the defendant has filed the present Second Appeal.
4. For the sake of convenience, the parties are referred to as described before the trial Court.
5. The averments made in the plaint are, in brief, as follows:-
The first plaintiff is the legally wedded wife of the defendant and the plaintiffs 2 to 4 are their children. Five years ago, the defendant had illegal contact with one Boomadevi and is living with her. When the first plaintiff questioned the same, the defendant threatened her that he will kill her and also her children. Further, the defendant neglected the plaintiffs and he has not maintained them and also driven them out of home. The suit properties are the joint family properties in which the plaintiffs 2 to 4 and the defendant have got equal share. Hence, the plaintiffs had issued a lawyer's notice calling upon the defendant to pay maintenance to the first plaintiff and to divide the suit properties into four equal shares and allot three such shares to plaintiffs 2 to 4. The defendant, after receipt of the said 3/26 http://www.judis.nic.in S.A.No. 1557 of 2001 notice, has sent a reply notice with false averments. Hence, the plaintiffs were constrained to file the above suit for the relief of maintenance and for partition.
6. The averments made in the written statement are, in brief, as follows:-
It is true that the first plaintiff is the wife of the defendant and the plaintiffs 2 to 4 are their children. But it is false to say that the defendant is having an illegal contact with one Boomadevi and driven out the plaintiffs from the house. After the birth of the fourth plaintiff, the first plaintiff was affected by leprosy and her health was affected and she could not do any domestic work and told the defendant to marry some other woman. Accordingly, with the consent of the first plaintiff, the defendant married one Boomadevi, through Boomadevi a male child by name Seetharaman was born. Since the first plaintiff is not having any male issue, after the birth of a male child to the said Boomadevi, the first plaintiff indulged in giving troubles to the defendant and also compelled the defendant to transfer the property in her favour. Since the defendant had not agreed for the same, the first plaintiff had filed the above suit. The first plaintiff has not filed the suit to protect the interest of the minor plaintiffs 2 to 4. The defendant 4/26 http://www.judis.nic.in S.A.No. 1557 of 2001 never refused to maintain the plaintiffs. Further, the defendant has been maintaining the suit properties in a good manner. He proposed to construct a terraced house and dig a bore well and install an electric motor. The defendant had borrowed a sum of Rs.50,000/- by executing a pro-note and also from a bank and he has to discharge the said debts only through the suit properties. The defendant is not bound to give any share to the plaintiffs. Even now the defendant is ready to maintain the plaintiffs. The defendant had sent a proper reply to the notice issued by the plaintiffs. Therefore, the defendant prayed to dismiss the suit.
7. Based on the aforesaid pleadings, the learned District Munsif, Tirukoilur had framed necessary issues and tried the suit. During trial, on the side of the plaintiffs, the plaintiffs 1 and 2 have examined themselves as PW1 and PW2 respectively. They also examined one more witness as PW3 and they have marked Ex.A1 to Ex.A3 as exhibits. On the side of the defendant, the defendant examined himself as DW1 and also examined one more witness as DW2. He did not mark any exhibit on his side.
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8. The learned District Munsif, Tirukoilur, after considering the materials placed before him, found that the suit 'B' Schedule property is a joint family property in which the plaintiffs 2 to 4 and the defendant are entitled to 1/4th share each. He further found that the defendant did not maintain the first plaintiff and as such, the defendant is bound to pay a sum of Rs.1,500/- towards past maintenance to the first plaintiff and Rs.300/- per month towards future maintenance to the first plaintiff. Accordingly, he has passed a preliminary decree directing to divide the suit 'B' Schedule property into four equal shares and allot three such shares to the plaintiffs 2 to 4 and created a charge over the share of the defendant (1/4 th share) in the suit 'B' Schedule property. Aggrieved by the same, the defendant had filed an appeal in A.S.No.495 of 1994 on the file of the I Additional Sub-Judge, Villupuram. The first Appellate Court had dismissed the said appeal confirming the judgment and decree passed by the trial Court. Feeling aggrieved, the defendant has filed the present Second Appeal.
9. This Court, at the time of admitting the second appeal, has formulated the following substantial questions of law:- 6/26
http://www.judis.nic.in S.A.No. 1557 of 2001 "1.Under the facts and circumstances the first plaintiff, who was suffering from a virulent farm of leprosy entitled to claim maintenance against harrasment when such illness was itself a sufficient ground for divorce?
2. Whether the property obtained a partition by the first defendant between his brothers, being heirs to her father was not separate property in his hands and hence not partiable?
3. Whether the fourth plaintiff could take a share in the properties when she was a minor even without pleading and proof of the benefit by such partition?
4. Whether the children of the defendant, through his second wife, though not legitimate were also not entitled to be allotted a share as per Shastric Hindu Law, when a partition were to be effected?
10. Heard Mr. N.Suresh, the learned counsel for the appellant and Mr.V.Raghavachari, the learned counsel for the respondents.
11. Substantial Questions of law No.1 :
The learned counsel for the appellant/defendant has submitted that the Courts below failed to consider that the first plaintiff is 7/26 http://www.judis.nic.in S.A.No. 1557 of 2001 suffering from a virulent form of leprosy, she had left the company of the first defendant on her own accord and as such, she is not entitled to seek maintenance from the defendant. He further submitted that as per Section 13 (1) (iv) of the Hindu Marriage Act, 1955, if one of the parties suffering from a virulent form of leprosy, the other party can seek divorce and hence, it has to be presumed that the defendant divorced the first plaintiff.
12. Per contra, the learned counsel for the respondents/plaintiffs has submitted that absolutely there is no evidence that the first plaintiff is suffering from a virulent form of leprosy. She further submitted that as per Section 13(1)(iv) of the Hindu Marriage Act, 1955, suffering from a virulent form of leprosy by any of the parties may be a ground for seeking divorce but in this case, absolutely there is no evidence that the first plaintiff is suffering from leprosy. He further submitted that even assuming that the first plaintiff is suffering from leprosy, admittedly, the defendant has not filed any petition on that ground and obtained divorce. Therefore, the marriage between the first plaintiff and the defendant is subsisting and in such a case, the defendant cannot take a plea that he married one Boomadevi legally.
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13. She further submitted that Ex.A1 would clearly shows that the said Boomadevi already got married to one Narasimha Reddy and she did not get divorce from the said Narasimha Reddy and that being so, the alleged marriage between the defendant and the said Boomadevi is illegal. She further submitted that the defendant keeping the said Boomadevi as his concubine and had driven out the plaintiffs from the home and did not maintain them. She further submitted that the trial Court had rightly held that the defendant is liable to pay maintenance to the first plaintiff and the same has been confirmed by the first Appellate Court and in the said concurrent factual findings, this Court cannot interfere.
14. Though the defendant has taken a plea in his written statement and also his evidence that the first plaintiff is suffering from leprosy and hence, she voluntarily withdrew from the marital life and only with her consent, he married one Boomadevi as second wife, he has not produced any medical evidence to substantiate the plea that the first plaintiff is suffering from leprosy. The first plaintiff while examining herself as PW1 has denied that she is suffering from any disease,. The second plaintiff while examining herself as PW2 also denied the suggestion that the first plaintiff is suffering from any 9/26 http://www.judis.nic.in S.A.No. 1557 of 2001 disease. Under the said circumstances, the burden is upon the defendant to prove that the first plaintiff is suffering from leprosy. As already pointed out that the defendant has not produced any medical evidence to show that the first plaintiff is suffering from leprosy. Therefore, the contention of the defendant that the first plaintiff is suffering from leprosy and hence, she had withdrawn from the marital life cannot be accepted. Even assuming that the first plaintiff is suffering from leprosy, admittedly, the defendant had not filed any petition seeking divorce on that ground and therefore, the marriage between the first plaintiff and the defendant subsist till today.
15. Under the said circumstances, the contention of the defendant that he married the said Boomadevi with the consent of the first plaintiff also cannot be accepted. Since the defendant has admitted that he is living with one Boomadevi, the first plaintiff is entitled to seek maintenance. The trial Court taking into consideration of the said facts had rightly held that the first plaintiff is entitled to seek maintenance from the husband and the same has been confirmed by the first Appellate Court and in the concurrent factual findings, this Court cannot interfere. Accordingly, this substantial question of law is answered against the appellant/defendant.
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16. Substantial questions of law 2 to 4:
The learned counsel for the appellant/defendant has submitted that the defendant has got suit 'B' Schedule properties in a partition which took place between himself and his brothers and as such, the suit 'B' Schedule properties are separate properties of the defendant in which the plaintiffs 2 to 4 cannot claim any share.
17. In support of the aforesaid contention, the learned counsel for the appellant /defendant relied upon the following decisions:-
1) Hardeo Rai Vs. Sakuntala Devi and others, (2008) 7 SCC 46.
2) Bhanwar Singh Vs. Puran and others, (2008) 3 SCC 87.
3) Uttam Vs. Saubhag Singh and others, 2016 (2) CTC 306.
4) Arshnoor Singh Vs. Harpal Kaur and others, 2019 (5) CTC 110.
5) M.Kumaran and another Vs. J.Rajesh and another, 2010 (4) TLNJ 133 (Civil).
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6) M.Palaniappan & another Vs. Nachimuthu, CDJ 2016 MHC 6350.
18. Per contra, the learned counsel for the respondents has submitted that in the written statement filed before the trial Court, the defendant has not denied the averments made in the plaint that the suit 'B' Schedule properties are the joint family properties of the defendant and the plaintiffs 2 to 4. She further submitted that for the first time in the S.A.No.1557 of 2001, the defendant is taking a plea that suit 'B' Schedule properties are his separate properties and without taking such a plea before the Courts below, the defendant cannot take such a plea before this Court. She further submitted that even the decision relied upon by the appellant in Arshnoor Singh Vs. Harpal Kaur and others, (cited supra) is supporting the case of the plaintiffs and therefore, the defendant cannot claim that suit 'B' Schedule properties are his separate properties. She further submitted that admittedly, the suit properties were obtained by the defendant in the partition that took place between him and his brothers and as such, the suit properties are the ancestral properties in which the plaintiffs are entitled to get shares by virtue of the amendment made by the Tamil Nadu Act, 1989. She further submitted that the trial Court 12/26 http://www.judis.nic.in S.A.No. 1557 of 2001 taking into consideration of the aforesaid facts has rightly held that the suit properties are the ancestral properties and that the plaintiffs 2 to 4 being the co-parceners are entitled to get 3/4 th share and the same has been confirmed by the first Appellate Court and in the said factual findings, this Court cannot interfere.
19. In support of the aforesaid contentions, the learned counsel for the respondents relied upon the following decisions:-
1) Deepak Tandon & another Vs. Rajesh Kumar Gupta, AIR 2019 (SC) 924 = 2019 (5) SCC 537.
2) Shyam Narayan Prasad Vs. Krishna Prasad and others, (2018) 7 SCC 646.
3) Danamma @ Suman Surpur & another Vs. Amar and others, (Civil Appeal Nos.188-189 of 2018 arising out of SLP (C) Nos.10638-10639 of 2013 on the file of the Hon'ble Supreme Court.
20. It is seen from Ex.A2 that the plaintiffs had sent a pre-suit notice on 02.06.1990 in which they have stated that Item Nos.1 to 11 of the properties were obtained by the defendant in the partition which took place between him and his brothers under a registered partition 13/26 http://www.judis.nic.in S.A.No. 1557 of 2001 deed dated 19.11.1945 and subsequently, item Nos.12 and 13 were obtained by way of exchange and hence, all the items are the joint family properties, in which the plaintiffs 2 to 4 are entitled to get 1/4th share each. For the said lawyer's notice, the defendant had sent a reply notice through his advocate vide Ex.A3 dated 25.06.1990. In the said reply notice, the defendant has not denied the allegation that the properties mentioned in the said notice are the joint family properties.
21. Further, in the plaint also, the plaintiffs have pleaded that except item Nos.12 and 13, all other items in suit 'B' Schedule properties were obtained by the defendant through the registered partition deed dated 19.04.1985 which took place between the defendant and his brothers through partition deed dated 19.04.1985. Item Nos.12 and 13 were obtained by the defendant by way of exchange from his brother Narasimha Reddy and hence, all the properties are the joint family properties, in which plaintiffs 2 to 4 and the defendant are entitled to ¼th share each. In the written statement, the defendant has not denied the aforesaid allegations and in the evidence also the defendant while examining himself as DW1 has not stated that the suit 'B' Schedule properties are not ancestral properties and it is a separate property in which plaintiffs 2 to 4 cannot claim any 14/26 http://www.judis.nic.in S.A.No. 1557 of 2001 share. For the first time before this Court in the Second Appeal, the defendant has taken a plea that the aforesaid properties are not ancestral properties and they are his separate properties in which the plaintiffs 2 to 4 cannot claim any share.
22. In Deepak Tandon and another Vs. Rajesh Kumar Gupta, (cited supra) the Hon'ble Supreme Court in para Nos.21 and 22 has observed as follows:-
“21. Fourth, it is a settled law that if the plea is not taken in the pleadings by the parties and no issue on such plea was, therefore, framed and no findings was recorded either way by the trial Court or the first Appellate Court, such plea cannot be allowed to be raised by the party for the first time in third Court whether in appeal, revision or writ, as the case may be, for want of any factual foundation and finding.
22. Fifth, it is more so when such plea is founded on factual pleadings and requires evidence to prove, i.e., it is a mixed question of law and fact and not pure jurisdictional legal issue requiring no facts to probe.” 15/26 http://www.judis.nic.in S.A.No. 1557 of 2001
23. From the aforesaid decision, it is clear that if the plea is not taken in the pleadings by the parties and no issue on such plea was, therefore, framed and no findings was recorded either way by the trial Court or the first Appellate Court, such plea cannot be allowed to be raised by the party for the first time.
24. In this case, as already pointed out that, the defendant has not taken a plea that the suit 'B' Schedule properties are not ancestral properties and that they are his separate properties either before the trial Court or before the first Appellate Court. Therefore, in view of the aforesaid decision of the Hon'ble Supreme Court, it is not permissible for the appellant/defendant to take a plea for the first time before this Court that the suit 'B' Schedule properties are his separate properties.
25. Even assuming that the appellant/defendant is entitled to contend before this Court that the suit 'B' Schedule properties are separate properties, admittedly, the suit properties (except item Nos.12 and 13) and other items were obtained by the defendant by partition which took place between the defendant and his brothers under a registered partition deed dated 19.04.1985. Further, the defendant has not disputed the fact that item Nos.12 and 13 were 16/26 http://www.judis.nic.in S.A.No. 1557 of 2001 obtained by him, by way of exchange from his brother Narasimha Reddy. Therefore, it is clear that the suit 'B' Schedule properties are ancestral properties.
26. In Hardeo Rai Vs. Sakuntala Devi and others, (cited supra) it was pleaded that the property was not already partitioned but, the evidence on record would show that the parties were in separate possession of their properties. Under the said circumstances, the Hon'ble Supreme Court has held that for the purpose of assigning one's interest of the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. Further, it was held that where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property. In this case, it is not the case of the defendant that already partition took place between himself and the plaintiffs 2 to 4 and therefore, the aforesaid decision will not apply to the facts of this case.
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27. In Bhanwar Singh Vs. Puran and others, (cited supra) one Bhima was the owner of the property. He died in the year 1972 leaving behind his son, Sant Ram and three daughters. The appellant therein, who is son of Sant Ram was born in the year 1977. The properties were partitioned between Sant Ram and his sisters. Their names were mutated in the revenue records. Their shares in the properties of the deceased Bhima were shown to be 1/4th each in the revenue records of 1973-74. The appellant filed a suit for setting aside the alienations made by his father Sant Ram claiming that he is a coparcener and without consent, his father could not have alienated the properties. Under the said circumstances, the Hon'ble Supreme Court in para Nos.14 and 15 has held as follows:-
“14. Indisputably, Bhima left behind Sant Ram and three daughters. In terms of Section 8 of the Act, therefore, the properties of Bhima devolved upon Sant Ram and his three sisters. Each had 1/4th share in the property. Apart from the legal position, factually the same was also reflected in the record-of-rights. A partition had taken place amongst the heirs of Bhima.
15. Although the learned first Appellate Court proceeded to consider the effect of Section 6 of the Act, in our opinion, the same was not applicable in the facts and circumstances of the case. In any event, it 18/26 http://www.judis.nic.in S.A.No. 1557 of 2001 had rightly been held that even in such a case, having regard to Section 8 as also Section 19 of the Act, the properties ceased to be joint family property and all the heirs and legal representatives of Bhima would succeed to his interest as tenants-in-common and not as joint tenants. In a case of this nature, the joint coparcenary did not continue.”
28. In this case, it is not the case of the defendant that his father was the owner of the suit properties and after his death, he and his brothers succeeded to the said properties as the legal heirs of his father. Therefore, the aforesaid decision will not apply to the facts of this case.
29. In Uttam Vs. Saubhag Singh and others, (cited supra) one Jagannath Singh was the owner of the property and he died in the year 1973, and after his death, his properties were devolved by succession under Section 8 of the Hindu Succession Act, and as such, in the property which is in the hands of the father is his separate property. But in this case, as already stated, it is not the case of the defendant that he got the property under Section 8 of the Hindu Succession Act, as legal heir of his father. Therefore, the aforesaid decision also will not apply to the facts of this case. 19/26 http://www.judis.nic.in S.A.No. 1557 of 2001
30. In Arshnoor Singh Vs. Harpal Kaur and others, (cited supra) the Hon'ble Supreme Court in para No.7.9 has observed as follows:-
“7.9. In the present case, the entire property of Lal Singh was inherited by his son Inder Singh as Coparcenary property prior to 1956. This coparcenary property was partitioned between the three sons of Inder Singh by the Court vide a Decree of partition, dated 04.11.1964. The shares allotted in partition to the coparceners, continued to remain coparcenary property in their hands qua their male descendants. As a consequence, the property allotted to Dharam Singh in partition continued to remain coparcenary property qua the appellant.”
31. From the aforesaid decision, it is clear that the shares allotted in partition to the coparceners continued to remain as coparcenary property in their hands qua their male descendants. As a consequence, the property allotted to Dharam Singh in partition to remain coparcenary property qua the appellant. In the aforesaid decision, the Hon'ble Supreme Court referred to the earlier decision in Uttam Vs. Saubhag Singh and others (cited supra) and distinguished the same.
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32. The learned counsel for the respondents also relied upon the aforesaid decision and contended that by virtue of the amendment made by the Tamil Nadu Act, 1989, the daughters also became coparceners and therefore, they are entitled to get shares in the coparcenery property.
33. In M.Kumaran Vs. Rajesh and another (cited supra), the father and his sister divided the property of their father. This Court has held that since the father got the property as legal heir of his father, the said property is his separate on which the son cannot claim any share.
34. In this case, as already pointed out that the defendant did not get the suit property through his father as legal heir. On the contrary, he got the property as coparcener in the partition by birth. Therefore, the aforesaid decision also will not apply to the facts of this case.
35. In M.Palaniappan and another Vs. Nachimuthu (cited supra) the suit properties were purchased by the first defendant's father Marappa Gounder under Ex.B1 sale deed and as such, the suit 21/26 http://www.judis.nic.in S.A.No. 1557 of 2001 properties are the self acquired properties of Marappa Gounder and there was no evidence that the said Marappa Gounder had blended the suit properties with other properties of the joint family. Under the said circumstances, this Court has held that the properties of the said Marappa Gounder are his separate properties. But, in this case, the facts are totally different. In this case, it is not the case of the defendant, he purchased any property. Therefore, the aforesaid decision will not apply to the facts of this case.
36. In Shyam Narayan Prasad Vs. Krishna Prasad and others, (cited supra) the Hon'ble Supreme Court in para No.12 has observed as follows:-
“12. It is settled that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will 22/26 http://www.judis.nic.in S.A.No. 1557 of 2001 continue to be ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.”
37. From the aforesaid decision, it is clear that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property.
38. In M.Yogendra and others Vs. Leelamma.N and others, (2009) 15 SCC 184, the Hon'ble Supreme Court in para No.29 has held as follows:-
“29. It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid.” (emphasis supplied) 23/26 http://www.judis.nic.in S.A.No. 1557 of 2001
39. From the aforesaid decision also, it is clear that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property until his son is born. Once son is born, the coparcenary revived. The same analogy will apply to the daughters also after the amendments made in the Hindu Succession Act. In view of the aforesaid decision, the suit property shall be the defendant's separate property till his daughters (plaintiffs 2 to 4) are born. Once his daughters are born, the property is revived as coparcenary property.
40. In Danamma @ Suman Surpur and another Vs. Amar and others, (cited supra) the Hon'ble Supreme Court has held that as per Section 6 as amended by the Act 2005, the daughter of a coparcener shall by birth became a coparcener in her right in the same manner of the son.
41. In Tamil Nadu the said amendment was introduced by the Act, 1989. As per the said amended Act, on the date of the commencement of the said Act, the daughter should not have married. In this case, admittedly, the plaintiffs 2 to 4 were not married on the date of commencement of Act 1989 in Tamil Nadu and as such, the 24/26 http://www.judis.nic.in S.A.No. 1557 of 2001 plaintiffs 2 to 4 are coparceners by birth and therefore, they are entitled to get 1/4th share each.
42. Further, the defendant has not denied in his written statement that the suit properties are the ancestral and joint family properties, the plaintiffs 2 to 4 are entitled to get 1/4th share each as coparceners. The trial Court taking into consideration of all the aforesaid facts had rightly held that the plaintiffs 2 to 4 are entitled to get 1/4th share and the first plaintiff is entitled to seek maintenance. The said finding has been confirmed by the first Appellate Court and in the said concurrent factual findings, this Court cannot interfere.
43. As already pointed out that the defendant, admittedly, is living with another lady Boomadevi and as such, the first plaintiff is entitled to seek maintenance. Taking into consideration of the said facts, the trial Court as well as the first Appellate Court concurrently found that the first plaintiff is entitled to get maintenance from the defendant and for prompt payment, she is entitled to have a charge over the share of the defendant. This Court does not find any infirmity in the said findings. Accordingly, these substantial questions of law are answered against the appellant/defendant.
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44. In the result, the Second Appeal is dismissed, confirming the judgments and decrees passed by the Courts below. Considering the facts and circumstances of the case, the parties are directed to bear their respective costs.
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Index :Yes/No
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To
1.The I Additional Sub-Court, Villupuram.
2.The District Munsif Court, Tirukoilur.
Pre-Delivery Order in
S.A.No.1557 of 2001
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