KAMALAKANNAN Vs. KASTHURI

JUDGEMENT

(1.) The defendants in the Original Suit are the appellants in the second appeal. The plaintiffs in the Original Suit are the respondents in the second appeal. The Original suit was filed by the respondents/plaintiffs for a) maintenance; b) a charge over of 1/6th share of the deceased first appellant/first defendant in the suit properties; c) dividing the suit properties into six equal shares and allotment of one such share to the second respondent/second plaintiff; d) rendition of accounts and e) costs. The learned trial judge decreed the suit with cost as prayed for and granted a decree for maintenance in favour of the first respondent/first plaintiff directing the deceased first appellant/first defendant to pay a sum of Rs. 5,500/- as past maintenance from 1.1.1999 till the date of filing of the suit and subsequent maintenance from the date of suit till the death of the first appellant/first defendant at the rate of Rs. 1,000/- per month; creating a charge over the share of the first appellant/first defendant in the suit properties except items 3, 6, 7, 14, 19 and 27 and a preliminary decree for partition directing division of the suit properties except items 3, 6, 7, 14, 19 and 27 into six equal shares and allotment of one such share to the second respondent/second plaintiff. The decree also directed the appellants/defendants to render true and correct account regarding the second respondent/second plaintiff's share of the income derived from the properties and directed and also payment of cost. On an appeal preferred in A.S. No. 16/2003 on the file of the Principal District Judge, Tiruvannamalai, the learned lower appellate judge confirmed the decree in respect of maintenance, but modified the decree of the lower court in respect of the prayer for partition holding that the second respondent/second plaintiff was entitled to 8/42 share and the first respondent/first plaintiff was entitled to 1/42 share in the suit properties except items 3, 6, 7, 14, 19 and 27. As against the said judgment and decree of the lower appellate court, the present second appeal has been filed by the defendants. For the sake of convenience, the parties shall be referred to in accordance with their ranks in the suit and at appropriate places, their ranks in the appeal shall also be indicated.

(2.) The first defendant Rajagopal had married one Pachaiammal and through her he got one son and four daughters. They are: 1) Kamalakannan @ Setu (2nd Defendant), 2) Apeetha (5th appellant not a party in the suit), 3) Tamil Selvi (3rd defendant), Selvi (4th defendant) and Anjala (5th defendant). Pachaiammal is no more. Contending that after the death of Pachaiammal, the first defendant married Kasthuri/the first plaintiff on 02.09.1992 in Annamalayar Temple, Tiruvannamalai, which was registered with Receipt No. 8978 in the register maintained in Sri Arulmigu Arunachaleswarar Temple, Tiruvannamalai; that out of the said wedlock, the second plaintiff Pannerselvam was born on 18.08.1996 at Government Hospital, Tiruvannamalai; that the said birth was registered in Tiruvannamalai Municipality with Registration No. 1874/1996 on 19.08.1996; that till December 1998 they lived along with the first defendant; that thereafter due to the ill treatment caused by the first defendant, who had become addicted to drinks and also by his mother, the plaintiffs had to leave the first defendant and live in the house of the first plaintiff's mother; that the first defendant, who inherited 2.00 acres of land from his father Chinnapaiya Gounder, who died 53 years prior to the filing of the suit, with no other source of income purchased 13.00 acres of land and put up a terraced house after demolishing a thatched house out of the income derived from the ancestral property inherited from his father and that therefore all the properties inherited by the first defendant from his father and the properties purchased by the first defendant were the joint family properties, in which the second plaintiff was entitled to a share by birth, the plaintiffs had filed the suit for the relief of partition. In line with their contention that Apeetha, the first daughter of the first defendant was married 12 years prior to the filing of the suit (prior to the date from which amendment to Hindu Succession Act was brought by Tamil Nadu Act 1/1990) and other daughters of first defendant got married subsequently, they had contended that the second plaintiff and the defendants 1 to 5 were entitled to 1/6th share each in the suit properties. Based on the averment that the first defendant failed and neglected to maintain the first plaintiff, the suit was filed also for a decree against the first defendant and for a direction to pay maintenance at the rate of Rs. 1,000/- per month and for creation of charge over the share of the first defendant in the suit properties. Relief of partition directing separation of the 2nd plaintiff's 1/6th share from the rest was also sought for along with a prayer for a direction to render true and correct account for the second plaintiff's share of the income derived from the suit properties.

(3.) The suit was resisted by the defendants on the basis of the averments found in the written statement filed by the first defendant, which was adopted by the defendants 2 to 5. In the written statement, the defendants have admitted the plaint allegations regarding the relationship among the defendants 1 to 5. However, as against the plaint averment that the wife of Pachaiammal died 12 years prior to the filing of the suit, the defendants averred that she died about 11 years prior to the filing of the written statement. It was admitted that the 5th appellant Apeetha's marriage took place 12 years prior to the filing of the suit. The defendants also stated that second defendant Tamil Selvi and the third defendant Selvi got married in the year 1990 subsequent to the amendment to the Hindu Succession Act introduced by Tamil Nadu Act 1 of 1990 and that the second defendant Kamalakannan @ Setu and the 5th defendant Anjala were not married as on the date of filing of the written statement. They also admitted the plaint averment that the first defendant got 2.00 acres of land by way of inheritance from his father. However, the defendants denied the plaint averments that other properties were purchased out of the income derived from the ancestral land inherited by the first defendant from his father. On the other hand, they had also contended that the first defendant was doing paddy and groundnut business and out of the income derived from the said business, he purchased 10.00 acres of land and a vacant site, made improvements in the lands spending about Rs. 2,60,000/- and put up a construction in the vacant site purchased by him. The defendants had also contended that the properties shown as items 3, 6, 7, 14, 19 and 27 were the self-acquisitions of Pachaiammal and hence the plaintiffs could not claim any share or charge over their shares in respect of the same. It was also contended by the defendants that the properties described as items 8, 24 to 26 and 27 did not belong to the family of the first defendant. Besides the above said averments, the defendants had also taken a plea that the first defendant did not marry the first plaintiff as claimed by the plaintiffs in the plaint and that the second plaintiff was not the son of the first defendant. Based on the above said averments, they had prayed for the dismissal of the suit.