S.A.No.26 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 28.04.2023

CORAM

THE HONOURABLE MRS. JUSTICE R.HEMALATHA

S.A.No.26 of 2018

Thangavelu

...Appellant

Vs.

1. Sumathi

2. Jawahar Prasad

3. Minor Ragunathan @ Yaswanth

Rep. by Guardian mother Sumathi

... Respondents

Prayer

: Second Appeal filed under Section 100 CPC, 1908 against the

decree and judgment dated 31.08.2015 passed in A.S. No.65 of 2013, on

the file of the I Additional District Judge, Coimbatore, upholding the

decree and judgment dated 29.09.2011 passed in O.S. No.91 of 2011, on

the file of the Additional Sub Judge, Tirupur.

For Appellant

: M/s. L.P. Varsha Vimanthan

for Mr. M. Velmurugan

For Respondents

: Mr. Sharath P. Nair

for Ms. R. Sonia Glory

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S.A.No.26 of 2018

JUDGMENT

The appellant is the defendant in O.S. No.91/2011 on the file of

the Additional Subordinate Judge, Tiruppur. The respondents/plaintiffs

filed the suit in O.S. No.91/2011 on the file of the Additional Subordinate

Judge, Tiruppur, for partition of the suit property into three equal shares

and to allot two such shares to the respondents 2 and 3 who are then

minors represented by the 1^st respondent and also for granting a decree of

maintenance at Rs.1,000/- per month.

2. For the sake of convenience, the parties are referred to as per

their ranking in the trial court and at appropriate places, their rank in the

present appeal would also be indicated.

3. The case of the plaintiffs is that the suit property originally

belonged to Udaya Gounder, who is the grand father of the defendant.

After his death, there was a partition between his son Devanna Gounder

and his grandson (defendant) through a registered partition deed (Ex.A2)

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S.A.No.26 of 2018

dated 18.11.1999. The 2nd and 3rd plaintiffs were added as parties to

the said partition deed. The defendant has been in possession and

enjoyment of the suit property. Since he did not maintain the plaintiffs,

they filed a suit O.S. No.696/99 before the Sub Court, Tiruppur for

partition and maintenance in which the defendant agreed to maintain the

plaintiffs. Thereafter, the said suit was allowed to be dismissed for default

by the plaintiffs. Since the defendant did not keep up his promise, the

plaintiffs filed the present suit in O.S. No.91/2011 on the file of the

Additional Subordinate Judge, Tiruppur, for the abovestated relief.

4. The defendant in his written statement had averred that the

suit property was already partitioned among the plaintiffs 2 and 3 and the

defendant and therefore, the plaintiffs 2 and 3 are each entitled to 2/3

shares in the suit property. He had further averred that the 1^st plaintiff

already filed a petition before the Family Court, Coimbatore, claiming

maintenance from the defendant and the said petition was allowed by

directing the present appellant/defendant to pay a sum of Rs.750/- each

per month to the plaintiff's 2 and 3 and the same was dismissed as

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S.A.No.26 of 2018

against the 1st plaintiff as she was earning Rs.3,000/- per month.

Moreover the earlier suit filed by the plaintiff was dismissed for default

and therefore, the present suit is hit by the principles of Res Judicata as

per Section 11 of the Code of Civil Procedure

5. On the basis of the above pleadings, the trial Court framed

the following issues :

i. "Whether the 2^nd and 3^rd plaintiffs are entitled for a preliminary

decree of partition as 2/3 share jointly in the suit property?

ii. Whether the 1^st plaintiff is entitled for a claim of maintenance as

prayed for?

iii. Whether the 2^nd and 3^rd plaintiffs are entitled for the maintenance

amount as prayed for?

iv. To what other relief?

v. Whether the suit is hit by Section 11 CPC due to the di