Renu Sood vs Seema Sood & Ors on 22 November, 2017

CR No.7719 of 2016 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CR No.7719 of 2016
Date of decision : 22.11.2017

Renu Sood
…Petitioner
Versus

Seema Sood and others

…Respondents

CORAM: HON’BLE MR. JUSTICE ANIL KSHETARPAL

Present: Mr. Sunil Chadha, Sr. Advocate with
Mr. Akshay Chadha, Advocate for the petitioner.

Mr. Namit Gautam, Advocate for respondent No.1.

****

ANIL KSHETARPAL, J. (ORAL)

The petitioner before this Court was added as defendant No.2

by Civil Judge (Junior Division), Ludhiana in the pending suit vide order

dated 18.10.2016. The petitioner is aggrieved of the aforesaid order.

The plaintiffs i.e. Seema Sood and Prisha Sood, daughter-in-

law and grand daughter of the petitioner had filed a suit for recovery of

certain amount as arrears of maintenance and had also prayed for pendente

lite and future maintenance and had also prayed for creation of the charge

regarding arrears of the maintenance on the property of the defendant. The

prayer made in the suit is extracted as under:-

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“It is therefore respectfully prayed that a decree for
recovery of Rs.1,50,000/- (Rupees one lac and fifty thousand
only) being the arrears of maintenance w.e.f. 27.02.2016 to
26.04.2016 and for pendentelite and future maintenance
with a direction to the defendant to pay maintenance at the
rate of Rs.75,000/- per month in future. And for creation of
charge regarding the maintenance on the property of the
defendant measuring 170.37 sq. yards being one third share
in the total property measuring 511.1/9 sq. yards comprised
in khasra no.61//16/9, khata no.1655/1807 as per
jamabandi for the year 2005-06 situated at Taraf Karabara
hadbast no.161, now bearing plot no.9 property no.736-B
Abadi Lajpat Nagar, Pakhowal Road, Ludhiana and
bounded as under:-

East: Plot No.29 and 30

West: Road
North: Plot No.8
South: Plot No.10
And decree for permanent injunction restraining the
defendant from alienating the above said property, may
kindly be passed in favour of the plaintiffs and against the
defendants with costs.

Any other additional or alternative relief to which the
plaintiffs be found entitled to in the circumstances of the
case, be also granted to the plaintiffs.”

During the pendency of the suit, the plaintiffs came to know

that with a view to defeat the right of the plaintiffs, the original defendant

i.e. the husband had transferred the property in favour of the mother i.e. the

petitioner-Smt. Renu Sood. The plaintiffs filed an application for adding the

petitioner as a party defendant. Learned trial Court allowed the application.

Learned counsel for the petitioner has argued that the suit itself

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is not maintainable as there is no prior order determining the amount of

maintenance and the suit is only for recovery of `1,50,000/-. He has further

submitted that consequently, the charge cannot be created as the suit was

not maintainable qua principle relief.

Learned counsel for the petitioner has further submitted that the

learned trial Court has committed error in recording that the transfer was

effected during the pendency of the suit whereas the transfer was prior to

the filing of the suit i.e. on 18.01.2016 whereas suit was filed on

22.11.2016.

With regard to the first submission of the learned counsel, it is

suffice to note that the plaintiffs had not only filed a suit for recovery but

they had also prayed for fixing the maintenance pendente lite and future

maintenance. The prayer made in the suit which has been extracted above

clearly proves that the suit for maintenance has been filed under Section 18

of the Hindu Adoption and Maintenance Act, 1956. In these circumstances,

the suit filed by the plaintiffs is maintainable. The plaintiffs are wife and

child of defendant No.1. Defendant No.1 had transferred the property in

favour of his mother to avoid any recovery. In such circumstances, the order

passed by the Court adding the petitioner as defendant No.2 cannot be

faulted.

Next submission of the learned counsel is that the suit for

principle relief is not maintainable, therefore, even for consequential relief,

the suit would not be maintainable. This argument has already been

answered as the principle suit itself has been held to be maintainable.

No doubt, the learned trial Court has committed a error in

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overlooking the fact that the transfer was made prior to the filing of the suit,

however, that would not make any difference. Wife and the child has a prior

right of maintenance and that prior right of maintenance is a charge on the

property of the husband.

For the reasons recorded above, the present revision petition is

dismissed.

22.11.2017 (ANIL KSHETARPAL)
Pawan JUDGE

Whether speaking/reasoned:- Yes/No

Whether reportable:- Yes/No

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