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Smt Rajkumari vs Gotha Chakarvarti on 6 April, 2018

1 F.A. No.578/2016

HIGH COURT OF MADHYA PRADESH AT JABALPUR

First Appeal No.578/2016

(Division Bench: Hon’ble Shri Justice S.K. Gangele
Hon’ble Smt. Justice Nandita Dubey)

APPELLANTS : Rajkumari 2 others

Vs.
RESPONDENT : Gotha Chakravarti

For the appellants : Shri A.K. Jain, Advocate

For the respondent : Shri Pranay Verma, Advocate

Arguments heard on : 26.03.2018
Judgment delivered on : 06.04.2018

JUDGMENT

As per Nandita Dubey, J.:

Present appeal under Section 19 of the

Family Courts Act, 1984 at the instance of appellants is

directed against the judgment and decree dated

28.06.2016 passed by the Judge, Family Court, Katni in

G.W. No.15/2014.

2. Undisputed and admitted facts are that

appellant No.1 is the widow of Late Balaprasad, son of

defendant and appellants No.2 and 3 are her children

and at present residing with her father at village
2 F.A. No.578/2016

Khirhani, Katni. It is also undisputed that land bearing

survey No.165/2, area 0.24 hectares in village Simra

and survey No.152/2 area 0.126 hectares in village

Kudrai is recorded in the joint name of appellants,

Balram and defendant.

3. Brief facts of the case are that

plaintiffs/appellants filed a petition under Section 19 of

the Hindu Adoption and Maintenance Act, 1956

(hereinafter referred to as ‘the Act’) against the

respondent/father-in-law, seeking maintenance to the

tune of Rs.10,000/- for herself and her two minor

children. It was pleaded that her late husband

Balaprasad had purchased the land, survey No. 165/2

in village Simra and survey No. 152/2 in village Kudrai

during his life time, in the joint name of Balaprasad

and appellant No.1 from his own source. Defendant

separated his son Balaprasad but did not give him any

share in the joint family properties. After the death of

Balaprasad, the defendant alongwith her mother-in-

law, brother-in-law, threw her out of the house and

took forcible possession of the movable and

immovable properties of the appellants and in

collusion with the revenue authorities, got his name

jointly recorded in the said land. It was pleaded that
3 F.A. No.578/2016

despite having property in their names, they lived as

destitutes and for their safety, were forced to live with

the father of appellant No.1. Appellant No.1 has

pleaded that under the facts and circumstances, she

is unable to maintain herself and her two minor

children. She has further pleaded that a report to this

effect was lodged by her in police Station, Rithee on

11.07.2011 and 17.07.2001 and despite police

mediation and investigation, her household items,

jewelery, etc., were not returned back by her father-in-

law, hence a registered notice was also sent to him,

but defendant is an influential and well off person and

has threatened to kill her. The plaintiff to prove her

case has examined 5 witnesses and produced

documentary evidence Ex. P-1 to P-5.

4. The defendant has filed his written

statement, wherein he has contended that the lands

survey nos. 165/2 and 152/2 were purchased by him in

the name of his two sons Balaprasad and Balram.

About 10 years ago, his son Balaprasad decided to

separate from the joint family, hence he gave survey

Nos. 165/2 152/2 and 166 total 0.15 hectares of land

and other moveable properties alongwith two rooms

for him to live separately with his family. It was further
4 F.A. No.578/2016

contended that Balaprasad was suffering from cancer

and required money for his treatment, therefore, he

himself has sold off some of his moveable and

immovable properties. According to the defendant,

after the death of Balaprasad, appellant No.1 took her

two minor children and went to live with her father. It

is stated that all the other properties mentioned in

plaint are of self acquired properties of defendant and

none of his son has a right to ask for partition in it.

The defendant has not examined any witness in his

defence and produced documentary evidence Ex. D-1

to D-13.

5. The trial Court has framed the following two

issues :

1- D;k ;kfpdkdrkZ dz-a 1 vius LoxhZ; ifr dh laink ls
Hkj.k iks”k.k izkIr djus esa leFkZ ugha gS
2- D;k vukosnd] ;kfpdkdrkZx.k dk Hkj.k iks”k.k fgUnw
nRrd ,oa Hkj.k iks”k.k vf/kfu;e dh /kkjk 22 ds izko/kkuksa ds
varxZr djus ds fy;s vkc) gSa

6. The trial Court after analysing the

documentary and oral evidence on record, decided

both the issues against the appellants holding that

liability of father-in-law is not personal but only to the

extent of share of deceased in the co-parcenery/joint

family property and as the appellants have failed to
5 F.A. No.578/2016

prove that the properties in the hands of defendant is

ancestral/joint. They are not entitled for maintenance

from the properties of defendant. The trial Court has

also held that the liability to maintain a widowed

daughter rests primerly on her parents, since the

parents of appellant No.1 have lands of their own, the

liability cannot be fastened on the father-in-

law/defendant. The trial Court has further recorded a

finding that the appellant No.1 has failed to prove that

she is unable to maintain herself since the Kistabandi

Khatoni clearly established that the land is recorded in

the name of appellant No.1 as well as appellants No. 2

and 3 and since she has not stated that she derives no

income from the said lands or derives insufficient

income which is not enough to maintain herself and

her two minor children, she is not entitled to claim

maintenance from the defendant.

7. Learned counsel for the appellants has

contended that Section 19 read with Section 22 of the

Act, provides for the maintenance of a widow and her

children from the ancestral/joint properties of her

father-in-law in which her late husband also had a

share or from such person who is in possession of the

deceased’s estate. It is urged that appellants are
6 F.A. No.578/2016

entitled to be maintained by father-in-law/defendant,

specially in view of the fact that defendant is in

possession of the estate of her deceased husband.

8. Learned counsel for the respondent, on the

other hand has submitted that the plaintiffs/appellants

may file a suit for restoration of possession, but they

are not entitled to claim any maintenance.

9. Having heard the learned counsel for the

parties at length and on perusal of the record, it is

observed that it is an admitted fact that the name of

appellants are mentioned as co-owner is Survey Nos.

165/2, 152/2 and 166 in the kistabandi khatoni (Ex.P-1,

P-2 and P-3). Though the appellant No.1 has deposed

that the survey Nos. 165/2 and 152/2 were purchased

by late Balaprasad in the joint name with appellant

No.1 and after the death of Balaprasad, the defendant

in collusion with the revenue authorities, got the name

of himself and Balram, recorded in the revenue

records, the record proves otherwise. Ex.D-11, sale

deed dated 12.12.1995 of survey No.166 and Ex. D-12

sale deed dated 21.01.2008 of survey No.165 makes it

clear that the lands were purchased and recorded

jointly in the name of Balaprasad and Balram.
7 F.A. No.578/2016

10. Plaintiff has further deposed that land at

village Kudrai mentioned in para 3 of the plaint are

joint family/ancestral properties and no partition has

been taken place. Whereas, D.W.-1 Gotharam on the

other hand had stated that all his properties are self

acquired and none of his sons has any right to ask for

partition. However, it is reflected from Ex.D-10 that

partition between the family members of defendant

took place in the year 1994 and he received 0.766

hectares ancestral land in his share. D.W.-1 Gotharam

has also admitted in para 3 of his deposition that he is

ready to give share of appellants from his ancestral

property. In para 11, he has admitted that he has not

partitioned the land mentioned in para 3 of the plaint.

According to him an oral partition has been agreed

upon but everything is joint in Patwari record. He has

further admitted that he had transferred the land in

village Kudrai in the name of his son Balram and Takoli.

Thus, it is clear that defendant was in possession of

ancestral property, which he got transferred in the

name of Balram and Takoli and no share had been

given to his late son Balaprasad or to his widow and

children. The survey numbers 165/2, 152/2 and 166

were purchased in the name of Balaprasad and

Balram, hence was not part of ancestral property and
8 F.A. No.578/2016

after the death of Balaprasd, same got recorded in the

name of appellants.

11. It is also established from para 7 of the

deposition of P.W.-1 Rajkumari and para 14 of the

deposition of D.W.-1 Gotharam that after the death of

Balaprasad, appellant No.1 with her children left the

village and went to live with her father at village. It is

thus clear that she is not in possession of the lands

recorded in their names.

12. P.W.-1 Rajkumari had clearly stated that

though she has the estate of Late Balaprasad to fall

back upon for maintenance, but the defendant is in

possession of the same and she is living in a destitute

condition with the children and unable to maintain

herself and her minor children. This fact has not been

rebutted by the defendant, rather his defence was that

it was the duty of the parents of appellant No.1 to

maintain their widowed daughter and her children.

13. Section 19 of the Act provides for

maintenance of widowed daughter-in-law, which is

reproduced as under :-

S.19. Maintenance of widowed daughter-in-
law:- (1) A Hindu wife, whether married before or
9 F.A. No.578/2016

after the commencement of this Act, shall be
entitled to be maintained after the death of her
husband by her father-in-law.

Provided and to the extent that she is
unable to maintain herself out of her own earnings
or other property or, where she has no property of
her own, is unable to obtain maintenance :-

(a) from the estate of her husband or her
father or mother, or

(b) from her son or daughter, if any, or his
or her estate.

(2) Any obligation under sub-section (1) shall
not be enforceable if the father-in-law has not the
means to do so from any coparcenary property in
his possession out of which the daughter-in-law
has not obtained any share, and any such
obligation shall cease on the re-marriage of the
daughter-in-law.

Section 21 of the Act defines for

dependents, as Section 21(iii), (iv), (vi) and (vii) of the

Act is reproduced as under :

(i)……………..

(ii)…………….

(iii) his widow, so long as she does not re-marry;

(iv) his or her son or the son of his predeceased
son or the son a of predeceased son of his
predeceased son, so long as he is a minor;
provided and to the extent that he is unable to
obtain maintenance in the case of a grandson
from his father’s or mother’s estate, and in the
case of a great grandson, from the estate of his
father or mother or father’s father of father’s
mother.

(v)……………..

(vi) His widowed daughter: provided and to the
extent that she is unable to obtain
10 F.A. No.578/2016

maintenance :-
(a) from the estate of her husband; or

(b) from her son or daughter, if any, or his
or her estate; or

(c) from her father-in-law or his father or
the estate of either of them;

(vii) any widow of his son or of a son of his
predeceased son, so long as she does not
remarry, provided and to the extent that she is
unable to obtain maintenance from her
husband’s estate, or from her son or daughter, if
any, or his or her estate, on in the case of a
grandson’s widow, also from her father-in-law’s
estate;

Section 22 of the Act provides for

maintenance of the dependents by the heirs of the

deceased Hindu, out of the estate inherited by them

from the deceased or from such persons who are in

possession of the estate of the deceased.

14. A conjoint reading of Sections 19, 21 and 22

of the Act establishes that a widow has a pre-existing

right of being maintained from the estate of her

deceased husband and if she is unable to maintain

herself out of her own earning or from the properties of

the estate of the husband, she is entitled to claim

maintenance from the father-in-law. Clause II of

Section 19 of the Act shows two conditions precedent

for the father-in-law to maintain a widowed daughter-

11 F.A. No.578/2016

in-law, (i) it means to pay from the co-parcenary

property in his possession out of which the daughter-

in-law has not obtained any share and (ii) the widow

remains unmarried. In case of grand children, the right

to claim maintenance as a dependent and the extent

of such right is conditional upon the grand children

being unable to obtain maintenance from his father or

mother’s estate.

15. In the present case, it is established from

the record that the defendant/father-in-law is in

possession of the entire estate of her deceased

husband, though the same has been recorded in the

name of the appellants after the death of late

Balaprasad. The observation of the trial Court that the

appellants are claiming maintenance over the

properties of the defendant is not sustainable and in as

much as she is claiming maintenance as of right

against the property left behind by her husband, which

includes both moveable as well as immovable

properties. The right of maintenance could be

enforced by her against the estate of her husband in

the hands of the defendant. It is established from the

evidence on record that the appellants are not in

physical possession of survey nos. 165/2, 152/2 and
12 F.A. No.578/2016

166, though the same are recorded in the appellants

No.1, 2 and 3’s name. It is also clear from record that

the said lands are in possession of defendant and

Balaram, who are also enjoying the fruits of the lands.

16. It is also established from the record that

the defendant is in possession of not only the lands

jointly recorded in the name of the appellants and

Balram but also has not partitioned his ancestral

property and instead transferred the same in the name

of his other two sons. Hence, the appellants are

entitled to maintenance from their property in

possession of defendant (Survey Nos. 165/2, 166 and

152/2) and also from the share of her late husband in

corparcernary property. The maintenance amount is

fixed as Rs.4,000/- per month to the appellant No.1

and Rs.2,000/- each per month to appellants No.2

and 3.

17. For the reasons aforesaid, the appeal filed

by the appellants stands allowed. The judgment and

decree passed by the Family Court is set aside.

(S.K. Gangele) (Nandita Dubey)
JUDGE JUDGE
06/04/2018 06/04/2018
gn
Digitally signed by GEETHA NAIR
Date: 2018.04.06 16:17:37 +05’30’

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