KANDASAMI Vs. ADI NARAYANAN

JUDGEMENT

(1.) THE plaintiffs are the appellants in the above second appeal. THE first appellant/ first plaintiff was a minor who was represented by the mother and natural guardian, the second plaintiff/ second appellant. THE plaintiffs 1 and 2 are the son and wife of the first defendant. Defendants 1 and 2 are brothers. THE third defendant is the wife of the second defendant and the fourth defendant is said to be an alienee of item No. 12 in the'a' schedule properties. THE claim of the plaintiffs before the trial court was that most of the items of properties described in'a'Schedule are the ancestral properties of the family and the rest of the properties were acquired under a registered will said to have been executed by Rengasamy reddiar the maternal grandfather of defendants 1 and 2 in favour of the father, mother and step mother of defendants 1 and 2 and also acquired by purchases and mortgage, in the name of the second defendant and third defendant respectively. It is the case of the plaintiffs that all such properties not originally belonging to the ancestral family were also thrown into the common hotchpot and they were enjoying all the A schedule properties as joint family properties and the family was managed by the father of defendants 1 and 2 during his life time and after his death the mother and step-mother were attending to the family and thereafter when the second defendant attained majority he came to manage the family properties as Manager. THE step mother by name Thimmammal got separated from the family by a registered partition deed dated 7. 9. 1972. Even, thereafter defendants 1 and 2 continued to live together jointly. THE family was always said to be in affluent circumstances and there was sufficient funds not only to meet the expenses of the family but also to advance money to third parties and realise interest. THE second defendant was also stated to have saved large amounts with which he purchased some of the items of properties and obtained mortgages in his name representing the joint family and also benami in the name of the third defendant with intent to benefit the joint family. All these properties were also said to have been put in the common hotchpot, while effecting division on 7. 9. 1972, Ex. A-3. It was also stated that the second defendant and his wife had no separate means or independent sources of income.

(2.) THE first defendant was said to have married the second plaintiff in or about 1964 and though she was residing in the family house along with the other members of the family, she was taken by her father during her advanced stage of pregnancy for delivery and the first plaintiff was born on 3. 10. 1972 during their lawful wedlock of the second plaintiff and the first defendant. THE birth was also stated to have been intimated to the defendants and though they came and saw the baby later they did not turn up to take back the plaintiffs and virtually the plaintiffs have been deserted. It was also stated that the first defendant appears to have executed a sale deed in respect of his undivided 1/2 share in favour of the second defendant on 4. 1. 1973 Ex. A-4 and the contention of the plaintiffs was that it was sham and nominal one brought out in a fraudulent manner to defeat and defraud the rights of the plaintiff. It was also claimed that even if the said sale deed is held to be true, the second defendant could not have obtained such sale deed making use of the funds of the joint family and therefore it was claimed that the sale deed was tainted with illegality and injustice as also void invalid or inoperative not binding on the plaintiffs. THE suit was preceded by a notice for partition and since the claim was disputed O. S. No. 59 of 1974 came to be filed on the file of the Subordinate judge, Madurai for claiming partition of 1/4 share of the first plaintiff, maintenance for the second plaintiff and future mesne profits and accounting.

(3.) AGGRIEVED, the plaintiffs have filed the above second appeal. This Court at the time of admitting the second appeal has formulated the following questions of law, as arising for consideration in the above appeal. 1. Whether the lower appellate court was justified is negativing the claim for maintenance when there are necessary pleadings and proof for the claim" 2. Whether the conduct of the defendants in doubting the parentage of the first plaintiff and the second plaintiff's chastity in the notice and the written statement is sufficient enough to make a claim for separate maintenance" 3. Whether the lower appellate court was justified in not adverting to the partition deed Ex. A-3 filed to prove that all the properties were thrown in the common hotchpot" 4. Whether by reason of Ex. A-3, the defendants are estopped from disputing that there was blending" Learned counsel appearing on either side took me in great detail through the judgment of the trial as well as the lower appellate court and tried to support their respective stands by inviting my attention to some of the documents and the evidence on record. Some of the relevant decisions on the points in issue have also been placed for my consideration. I have carefully considered the submissions of learned counsel appearing on either side in the light of the above materials.