LAWS(APH)-2007-9-108

M VENKATA SESHAMMA Vs. BRAHMANDAM VENKATA KUSALA RAO

Decided On September 22, 2007
M.VENKATA SESHAMMA Appellant
V/S
BRAHMANDAM VENKATA KUSALA RAO Respondents

JUDGEMENT

(1.) HEARD Sri Radhakrishna Reddy, learned counsel representing the appellant and sri M. Y. K. Rayudu, learned counsel representing the respondent.

(2.) THE following substantial questions of law would arise for consideration in this second Appeal:

(3.) SRI Radhakrishna Reddy, learned counsel representing the appellant had taken this Court through Ex. B-13 and also referred to Exs. B-1 to B-3 and would maintain that in the light of the facts and circumstances inasmuch as there is sufficient evidence to establish the marital tie, the same cannot be doubted and in such a case a restraint order of this nature cannot be made as against the appellant. Learned counsel also would maintain that even the evidence of P. W. 1 would go to show that the husband of the appellant had nothing to do with the other properties and when that being so, as far as the properties of the husband of the appellant is concerned, she cannot be restrained especially in the absence of any evidence that the respondent herein is the kartha of the family. Learned counsel incidentally pointed out to section 11 of the Hindu Marriage Act, 1955 (the Act, for brevity) and would maintain that the respondent herein is a third party as far as the matrimonial status is concerned and the husband of the appellant being unheard of for sufficiently a long time, judicial notice can be taken relating to the civil death. Learned counsel also pointed out to section 108 of the Indian Evidence Act, 1872 (the Evidence Act, for short) and further pointed out to the incidental findings which had been recorded by the lower appellate court. Learned counsel also specifically pointed out to the re-examination of P. W. 1 and certain admissions made by P. W. 1. Hence learned counsel would maintain that there cannot be an injunction against the family member even if it is to be considered that the family continues or in the alternative the wife of a sharer cannot be restrained by way of an injunction or in the alternative even if injunction is to be confirmed, the other appropriate reliefs and directions to which the appellant would be entitled to, may have to be made. Learned counsel also placed strong reliance on certain decisions.