Maruti vs Laxmibai and Others

K.N. Phaneendra, J.—This regular second appeal is preferred by the sole defendant in O.S. No. 30/1999 on the file of the Civil Judge (Sr. Dn.), Bhalki.

For the purpose of easy understanding and convenience, I would like to retain the ranks of the parties as per their ranks before the Trial Court.

The brief factual matrix that emanate from the records are:

"Plaintiff No. 3 by name Sharnamma filed a suit for herself and on behalf of plaintiff Nos. 1 and 2 her two children against the defendant who is none other than her husband seeking a decree for partition and separate possession of their 2/3rd share in the suit schedule properties and also for maintenance of Rs. 400/- each from the defendant from the date of the suit till the plaintiff No. 1 gets married and plaintiff No. 2 attain the age of majority and till the life time of plaintiff No. 3. It is also sought that plaintiff No. 3 shall be declared as nominee in the service register of the defendant and also sought for benefit under the government provident fund and other retirement benefits which may ensue to the defendant. The said suit came to be decreed granting all the remedies as sought for in the plaint. Being aggrieved by the said judgment and decree, the defendant preferred an appeal in RA No. 106/2006 on the file of the Presiding Officer, Fast Track Court-II, Bidar, (sitting at Bidar) and vide judgment dated 27.11.2009 the first appellate Court dismissed the appeal confirming the judgment and decree passed by the Trial Court against which the present second appeal is preferred." 4. This Court vide order dated 07.09.2010 framed only one substantial question of law which reads as follows:

"Whether the Lower Appellate Court was justified in decreeing the suit, in the absence of plea that the property was ancestral property?" 5. As only one substantial question of law has been raised, it is just and necessary to answer the above said substantial question of law. Therefore, the Court has heard the learned counsel appearing for both the parties on the above framed substantial question of law.

The plaint averments disclose that plaintiff Nos. 1 and 2 are the daughter and son of plaintiff No. 3 and the defendant. Plaintiff Nos. 1 and 3 had filed Miscellaneous Case No. 271/1984 against the respondent which ended in compromise on 17.06.1986. It has been decided in the said miscellaneous petition that plaintiff Nos. 1 and 3 will be given half of house No. 1 by the respondent therein and further compromised that plaintiff Nos. 1 and 3 and respondent will be joint owners of land in Sy. No. 30 measuring 2 acres 30 guntas situated at Maroor, Tq. Bhalki. After compromise and about 11 years prior to the filing of the suit, plaintiff No. 2 was born to plaintiff No. 3 through the defendant. It is specifically contended by the plaintiffs that defendant for some years had cohabitation with plaintiff No. 3 and due to their martial relationship, plaintiff No. 2 has taken birth. But subsequently, in the year 1992 during the life time of plaintiff No. 3, defendant started residing with his kept-mistress by name Sulemma. The said Sulemma knowing fully well the relationship between plaintiff No. 3 and the defendant has started living with the defendant. The defendant has built another house on the ancestral property outside Maroor village and in the said house, he started living with his kept-mistress. It is further stated that defendant was working as Peon in the Government Veterinary Hospital and was drawing monthly salary of Rs. 5,000/-. The defendant after taking his kept-mistress has neglected and refused to maintain the plaintiffs and plaintiffs were at the mercy of plaintiff No. 3 and they were left with any support and plaintiff Nos. 1 and 2 almost became orphans due to negligent act of the defendant. It is alleged that inspite of compromise effected, the defendant, instead of abiding the terms of compromise, has violated the same and not granted any relief adhering to the said order. He never allowed the plaintiffs to enjoy the yields of the land which were granted to them. It has become only paper order and did not reap any fruits to the plaintiffs. Therefore, plaintiffs were forced to file the suit seeking their shares in the suit schedule properties which are ancestral and joint family properties of the plaintiffs and defendant. As they were left with any remedy with regard to their maintenance, they also sought maintenance of Rs. 400/- each from the date of filing of the suit. It is further contended that the defendant has monthly salary of Rs. 5,000/- and also annual income of Rs. 20,000/- apart from salary income. Therefore, he is capable of paying said amount. As per the earlier compromise, monthly maintenance of Rs. 90/- was awarded but that amount was also not paid. On the above said grounds, plaintiffs have approached the Trial Court for grant of decree.

The defendant made his appearance before the Trial Court and admitted the relationship between plaintiff Nos. 1 and 3 with him and he denied the paternity of plaintiff No. 2 and also his relationship with the said Sulemma as alleged in the plaint by the plaintiffs. It is contended that property was earned by him subsequent to the compromise in Miscellaneous Case No. 271/1984, therefore, they are not joint family properties. Hence, plaintiffs are not entitled to any share in the property. He also denied the alleged ill-treatment, harassment and negligence by him. It is further contended that by virtue of the earlier compromise, the plaintiffs have accepted to receive collectively Rs. 90/- from the defendant with a separate residence in the house of the defendant in Maroor village of Bhalki Taluk. It is contended that he has been regularly paying the said monthly maintenance to the plaintiffs. He admitted that as per the compromise entered into between the parties, he has no objection for recording the name of plaintiff No. 3 in the records of rights of land bearing Sy. No. 30 of Maroor village. It is stated that plaintiff No. 3 has filed complaint for the offence punishable under Section 494 r/w Section 109 of IPC before the jurisdictional JMFC Court but subsequently, after compromise, she withdrew the same. In the said miscellaneous case on over all it is stated that defendant has been taking care of them. Therefore, they are neither entitled to any share in the property nor they are entitled for any maintenance. Therefore, he pleaded for dismissal of the suit.

On the basis of the said rival contentions, the Trial Court has framed the following issues:

"i. Whether the plaintiff No. 2 proves that he is the son of defendant?

ii. Whether the plaintiff No. 1 and 2 proves that they are entitled for partition and separate possession of 2/3rd share in the suit properties?

iii. Whether the plaintiff Nos. 1 to 3 proves that they are entitled for the monthly maintenance of Rs. 400/- each?

iv. Whether the defendant proves that in view of the compromise effected in Cr.Misc. 271/1984 regarding the payment of maintenance of Rs. 90/- per month, the plaintiff No. 1 and 3 now not entitled for any maintenance?

v. Whether the plaintiff No. 3 proves that she is entitled to the nominee in the service register of the defendant?

vi. Whether the plaintiff No. 3 further proves that she is entitled to claim all the mandatory benefits in the event of demise of the defendant who is a Government Servant?

vii. What order or decree?"

Answering the above said issues in favour of the plaintiffs, the Trial Court has passed the decree.

On perusal of the records, plaintiff No. 3 examined herself as P.W.1 and also examined two witnesses as P.Ws.2 and 3 and got marked Exs.P1 to P5. The defendant also examined himself as DW.1 and examined two witnesses as D.Ws.2 and 3 and got marked Exs.D1 to D7. Ex. P1 is the ROR extract in respect of Sy. No. 30/A. Ex. P2 is the order copy dated 25.06.1991 regarding the regularization of service of the defendant. Ex. P3 is the certificate to show that the defendant was working at daily service. Ex. P4 is the document in which the name of the defendant is shown as father of plaintiff No. 2 and Ex. P5 is the progress report, wherein the name of the defendant is shown as father of plaintiff No. 2. Considering the above said documents, the Trial Court has held that plaintiff No. 2 is the legitimate child of plaintiff No. 3 and defendant. Though the defendant has taken up the pleading that plaintiff No. 2 is not his son, but except the pleading, he has not produced any material to show that he absolutely had no cohabitation after compromise in the earlier petition. It is a well recognized principle of law that as long relationship of husband and wife continues unless the divorce takes place, child born to the said couple is deemed to be a legitimate child of the couple, unless it is beyond reasonable doubt proved the paternity of the child that the defendant is not the putative father of the said child. In the absence of any such material, there is no need for this Court to draw any inference in favour of the defendant. As could be seen from the entire records, written statement and evidence of defendant, no specific stand has been taken as to how he acquired the properties, what is the source of income and how he claimed that all the properties are his self- acquired properties. Even there is no whisper in the written statement that suit schedule properties are self-acquired properties of the defendant. The document at Ex. P1 produced before the Court shows that it is in the name of the defendant but nature of acquisition is shown as pattadar and this document does not show the nature of acquisition as to how the defendant has exclusively acquired the properties. When there is specific pleading in the plaint that plaintiffs and defendant are in joint enjoyment and possession of the Hindu Joint Family schedule properties and it is shown that it is in the name of defendant and the defendant has to say as to how he acquired the property. If he does not establish his source of income and if he does not establish that he acquired the said property independently and not from his ancestors or from the source of ancestral properties, it cannot be said that it is his self-acquired property. Even no issue has been raised by the Trial Court with regard to this particular aspect. However, issue No. 2 with reference to whether plaintiff Nos. 1 and 2 prove that they are entitled to partition and separate possession of 2/3rd share in the suit properties, the Trial Court answered that particular point in the affirmative considering the above said document and also in the absence of any plea by the defendant that it is not his self-acquired property. No substantial question of law is framed so far as that particular aspect is concerned. The nature of pleading of the parties should be very leniently viewed by the courts whenever parties are residing in rural area and Advocate practicing at rural area. They only base their drafting on the basis of the information given by the parties. After reading of the entire plaint allegations and written statement allegations, if the Court can come to the conclusion that pleadings are sufficient to raise the said issues then it can be said that such pleadings are taken by the Court in a proper perspective. Though in vivid words the plaintiffs have not stated about the acquisition of the property by the defendant but specific pleading is there in the plaint that the suit schedule properties are the joint family properties and they are also jointly enjoying the said properties. The said plea has not been disproved or denied by the defendant. The defendant preferred the appeal against the judgment and decree of the Trial Court but even the first appellate Court after considering the evidence of all the witnesses of the plaintiffs and defendant came to the same conclusion that the said property is the property belonging to the family. Plaintiffs are entitled to their legitimate shares. Much has been concentrated in the evidence of plaintiffs and the defendant with regard to their earlier compromise in the miscellaneous case. But they are not concentrated with regard to the property involved in this case. Even considering the previous compromise entered into between the parties, the defendant has accepted that the plaintiffs have got some right over the property and in fact, it is admitted by the defendant that plaintiff Nos. 1 and 3 will be given half of house No. 1 by the defendant. If at all plaintiffs have no right over the said property, house property or landed property, why the defendant has admitted before the Court of law in the earlier proceedings that he is ready and willing to give half of the house property and also he has no objection that plaintiff Nos. 1 and 3 and defendant will continue as joint owners of land bearing Sy. No. 30. Therefore, conduct of the parties coupled with the documentary evidence placed before the Trial Court as well as first appellate Court shows that the properties are joint family properties and plaintiffs are entitled for their shares. Therefore, at any stretch of imagination, it cannot be said that the Trial Court or first appellate Court have committed any error in holding that the properties are ancestral properties. As I have stated, if there is any semblance of material in the pleadings and after over all reading of the plaint and written statement if the Court can gather information or the plea of the parties that would suffice the completion of the pleadings. Therefore, on looking broadly to the pleadings as pleaded in the plaint as well as in the written statement and coupled with the conduct of the parties in the previous proceeding, at any stretch of imagination, it cannot be said that there is absence of plea that the properties were ancestral properties. Therefore, I do not find any strong reason to answer the substantial question of law in favour of the appellant/defendant. On the other hand, the Trial Court and the first appellate Court have not committed any error in coming to the conclusion that the properties are the ancestral and joint family properties of the plaintiffs and the defendant and awarding maintenance as well as allotting 2/3rd share in favour of plaintiffs Nos. 1 and 2.

There is no serious dispute with regard to the awarding of maintenance in favour of the wife and children as it is said that they are the legitimate wife and children of the defendant. They are entitled to be maintained by the defendant. There is no material to show in the evidence or in the pleadings that after the husband and wife started residing separately he made any arrangement towards their maintenance, clothing or nourishment etc., therefore it inevitably goes to show that he has neglected to perform his duties. Therefore, an amount of Rs. 400/- each is not on the higher side and moreover, it has not been seriously challenged by the defendant and no substantial question of law has been framed so far as this aspect is concerned.

Looking from any angle, I do not find any other substantial question of law arise to be framed except one already framed by this Court. Hence, when the said substantial question of law is answered in the negative, nothing remains for consideration before this Court. Hence, I am of the opinion that this Regular Second Appeal shall fail and liable to be dismissed.

Accordingly, the appeal is dismissed.

In view of the appeal being disposed of on merits, I.A. No. 1/2013 filed for maintenance does not survive for consideration and accordingly, it is dismissed.