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"Without prejudice to rights of parties to proceed in Civil Court for appropriate remedies the parties agree for a maintenance of Rs.30/- at the rate of Rs.15/- for the petitioner and Rs.7-8 for each child from the date of the order."

60. On the side of the defendants, it is sought to be projected as though Elumalai Chetty without intending to litigate before the Criminal Court regarding paternity, simply made such endorsement consenting to pay maintenance without prejudice to his right to proceed in Civil Court. In fact, Rajeswari Ammal and the plaintiffs are beneficiaries and they had no dire necessity to approach the Civil Court for getting any additional benefit, but it was Elumalai Chetty, who was bound by the order of the Criminal Court to pay maintenance and he had been paying maintenance as revealed by the evidence in this case and in such a case, had really Elumalai Chetty in commensurate with the letter and spirit of his endorsement captioned under "without prejudice", wanted to challenge the paternity of the plaintiffs, then he would not have kept quite throughout his life without initiating any proceedings, so as to get cancelled the maintenance awarded in favour of the plaintiffs payable by him. This is a very significant and not a mere poco curante conduct on the part of Elumalai Chetty in refraining from initiating such proceedings as against the plaintiffs.

65. The learned counsel for the plaintiffs would convincingly and appositely highlight that consequent upon Rajeswari Ammal's submission that she started living with one Deivasigamani, the Criminal court vide its order in M.C.No.985 of 1963 in Ex.B3, cancelled the maintenance awarded in favour of Rajeswari Ammal only and in respect of the plaintiffs, the earlier order awarding maintenance continued and remained in tact. An excerpt from the operative portion of Ex.B3, the order of the Criminal Court is extracted here under for ready reference:-

" Petitioner as P.W.1 swears that the respondent is now living with the said Deivasigamani Chettair, she is now four months pregnant and that he received the letter Ex.P1, which is in her handwriting. She has stated in Ex.P1 that she is living with the said Chettiar and that she does not require any maintenance for her. The maintenance ordered in M.C.No.745 of 1962 for the respondent alone is cancelled. Petitioner will pay maintenance ordered for the children."

(emphasis) A bare perusal of it would exemplify that Elumalai Chetty filed the necessary application under Section 489 of Cr.P.C for getting cancelled the maintenance awarded in favour of only Rajeswari Ammal on the ground that she started living with Deivasigamani. The above excerpt would indicate that even as per Elumalai Chetty, around the time of filing the application for cancellation, Rajeswari Ammal started living with Deivasigamani as the words "now living with the said Deivasigamani" found in that order as the one spoken by PW1 (Elumalai Chetty) therein, would speak volumes that even as per Elumalai Chetty, at or around the time of filing that application for cancellation only, Rajeswari Ammal started living with Deivasigamani and at that time, she was four months pregnant. There is also nothing to indicate or suggest that even as per Elumalai Chetty that previously Rajeswari Ammal had been living in illicit intimacy with Deivasigamani. In the counter statement filed by Elumalai Chetty in the M.C.No.745/62, as found in Ex.B1, there is no whisper that she had been living with Deivasigamani and for that matter, he had not in categorical terms declared that the plaintiffs were not born to him.

66. What are all he stated in the counter, was that her plea, as on the date of the filing of the maintenance petition that apart from the two children, she once again became pregnant, was not possible, as she left his company even earlier to it. As such, the tenor of the counter filed in M.C.No.745/62 would demonstrate that Elumalai Chetty, unequivocally and unambiguously, clearly and categorically, did not came forward with the plea that the plaintiffs were not born to him at all and that alone actuated him and accentuated him, propelled him and impelled him, to make endorsement that he would pay maintenance for them and even at that time of getting cancelled the maintenance awarded in favour of Rajeswari Ammal as revealed by Ex.B3, he did not chose to get cancelled the maintenance awarded in favour of the plaintiffs by pleading that the plaintiffs were not born to him. As such, the conduct of Elumalai Chetty is of paramount importance to assess the paternity of the plaintiffs. Once Elumalai Chetty himself had not chosen to get declared his status as the one not that of the plaintiffs herein or in the alternative the plaintiffs herein are not his sons, the defendants who happened to be Elumalai Chetty's brother's sons, cannot for the purpose of depriving the plaintiffs of their right over the suit properties, based on Madurai Chetty's Settlement Deed be heard to contend that the plaintiffs are not the sons of Elumalai Chetty.