SUHAS MANOHAR PANDE Vs. MANOHAR SHAMRAO PANDE

JUDGEMENT

(1.) This appeal arises out of a suit for maintenance filed by the appellant Suhas alias Ambadas against the respondent Manohar on the allegation that he is the son of the respondent Manohar and is entitled to be maintained by him. According to the plaintiff-appellant he was born on 30th October 1955. The suit has been filed on the 6th of January 1959. In this suit the plaintiff claimed a declaration that he is entitled to maintenance and claimed a decree for maintenance at Rs. 250/- per month or such other amount as the Court may fix from the date of suit and claimed a declaration of charge on the property described in Schedule A of the plaint or sufficient part thereof for payment of such maintenance. This plaintiff alleged that his mother Taramati who is now dead was married to the defendant on 30th January 1955 and during the lawful wedlock he was born to them on 30th October 1955. According to the plaintiff, the defendant who is his father is in law under personal obligation to maintain the plaintiff who is his minor son. IN order to claim this relief the plaintiff stated some additional facts which arose out of a prior proceeding between the defendant-respondent and the plaintiff-appellant's mother Taramati. The plaintiff's mother Taramati had earlier filed Civil Suit No. 32-A of 1957 in the Court of the Third Additional District Judge, Akola, for restitution of conjugal rights. It was her contention in that suit that she was married to the respondent Manohar on the 30th of January 1955 and during the lawful wed-lock she had given birth to a son from the defendant on the 30th of October 1955. Thereafter the defendant without any reasonable cause withdrew from her society and she, therefore, claimed restitution of conjugal rights against the respondent Manohar. This suit was decided on the 1st of October 1957 by the Third Additional District Judge, Akola in favour of the plaintiff's mother Taramati and her claim for restitution of conjugal rights was decreed. Against this judgment and decree, the present respondent had filed an appeal being First Appeal No. 6 of 1958, in this Court. However, during the pendency of this appeal, the plaintiff's mother Taramati died on 2nd of August 1958. The present respondent then stated in the fist appeal that by reason of the death of Taramati, the appeal had abated and he got the appeal pending in the High Court dismissed on 6th October 1958. The plaintiff contends that the decision in Civil Suit No. 32-A 1957 has become final on the question of validity of the marriage between Taramati of validity of the marriage between Taramati and the respondent and the respondent could not escape the liability of maintaining the plaintiff who was and is a minor.

(2.) The defendant-respondent while resisting the suit of the present plaintiff denied the fact of marriage between the plaintiff's mother Taramati and himself either on 30th of January 1955 as alleged or at any time. He also denied that the plaintiff was born during the alleged lawful wed-lock on the 30th of October 1955. The fact, however, of the suit having been filed by Taramati against him under Section 9 of the Hindu Marriage Act being Civil Suit No. 32-A of 1957 and a decree having been passed in that proceeding has been admitted by the defendant. He also admitted that he had filed First Appeal No. 6 of 1958 in this High Court, but since Taramati had died pending the appeal and no cause of action survived, the appeal was dismissed on the statement of his counsel. The defendant further contended that on account of the death of Taramati that decree as to restitution of conjugal right was rendered ineffective as it was purely a decree for personal rights. According to the defendant, the decision of the trial Court in Civil Suit No. 32-A of 1957 was not a final decision and on account of the death of Taramati, the said decree was rendered unexecutable and infructuous.

(3.) The learned trial Judge framed issues in the case and tried issues Nos. 1(a), 3(a) and (b) as preliminary issues. The three issues which were tried as preliminary issues were these: 1(a): Whether the decision in Tr. Civil Suit No. 32-A of 1957 on the file of the Third Additional District Judge, Akola, is final and operates as res judicata between the parties in the present suit? 3(a): Whether the plaintiff's failure to continue the proceedings under Section 26 of the Hindu Marriage Act amount to waiver of his right to obtain maintenance? (b) Whether the dismissal of the proceedings under Section 26 of the Hindu Marriage Act in Tr. Civil Suit No. 32-A of 1957 on the file of the Second Additional District Judge, Akola, operates as res judicata in this case?