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.578/2016after 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’