Punjab-Haryana High Court
Sheela Rani And Another vs Hari Chand And Another on 21 August, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
Civil Revision No.4855 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.4855 of 2011
Date of decision: 21.08.2012
Sheela Rani and another
......Petitioners
Versus
Hari Chand and another
.......Respondents
CORAM : HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. Rajeev Godara, Advocate,
for the petitioners.
Mr. Akshay Jain, Advocate,
for the respondents.
*****
A.N. Jindal, J.
This petition assails the order dated 08.04.2011 (Annexure P-6) passed by the Additional Civil Judge (Senior Division), Sirsa, dismissing the application filed by the plaintiffs-petitioners (hereinafter referred as 'the petitioners') for grant of interim maintenance.
The question for determination in this case is, as to "whether the petitioners were entitled to grant of interim maintenance allowance to the tune of Rs.20,000/- per month against the defendants-respondents-father and mother-in-law (hereinafter referred as 'the respondents')."
Admittedly, Subhash Chand, husband of petitioner No.1 and father of petitioner No.2, had died. He had neglected petitioner No.1 and Civil Revision No.4855 of 2011 2 her son namely Arjun-petitioner No.2. during his lifetime, land measuring 8 Kanals 8 Marlas was transferred by Subhash Chand in the name of his son Arjun-petitioner No.2. The petitioners submit that they have no source to maintain themselves, whereas the respondents are having more than 30 acres of agricultural land and their income is more than Rs.6 Lacs per annum, therefore, they are bound to be maintained by them. Along with this suit, filed under Section 19 of the Hindu Adoption and Maintenance Act, 1956, the petitioners have filed an application for grant of interim maintenance by mentioning the aforesaid facts.
Reply to the application was filed by the respondents, whereby they denied the allegations and submitted that the petitioners had left the house of their own accord and had started leveling false allegations against Subhash Chand and the respondents. The petitioners have sufficient property and means to maintain themselves. The property in question is not a coparcenary property, therefore, the petitioners could not claim maintenance from the self acquired property of the respondents.
The trial Court, after hearing the parties, declined to grant interim maintenance on the ground that the petitioners have failed to establish that the land measuring 25 Kanals 19 Marlas, owned by the respondents, is coparcenary property. Another ground for declining the application was that vide mutation No. 4312, petitioner No.2 was given land measuring 8 Kanals 8 Marlas on the basis of a Will executed by Subhash Chand. The question, as to whether the petitioners are entitled to be maintained from the self acquired property, owned by the respondents, had also arisen earlier before this Court in a case Balbir Kaur Vs. Harinder Kaur, 2003 (1) R.C.R. (Civil) 624, wherein it was observed as under:- Civil Revision No.4855 of 2011 3
"12. The right of maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife. The right in case of a widow is a preexisting right, which existed under the Shastric Hindu law long before the passing of the Hindu Women's Rights to Property Act, 1937 or the Hindu Married Women's Rights to Separate Residence and Maintenance Act, 1956. These Acts merely recognized the position as was existing under the Shastric Hindu law and gave it a statutory backing. The right of maintenance and residence of a widowed daughter-in-law against her father-in-law also existed under the Shastric Hindu law and the same has been recognized by various judicial pronouncements and the statute i.e. Hindu Adoptions and Maintenance Act. In Gopal Chandra Pal v. Kadambini Dasi and others, AIR 1924 Calcutta 364, a Division Bench of the Calcutta High Court held that though a widowed daughter-in-law has no legal right to maintenance as against the self-acquired property of her father-in-law but if her husband died during the life time of her father-in-law then the father-in-law is under moral obligation to maintain his widowed daughter-in-law, even though he has no ancestral assets in his hands. The position of the heirs, who took the estate of the father-in-law by inheritance is different. What is a moral obligation in respect of the father ripens into a legal obligation when the estate passes into the hands of his heirs. This principle is applicable even when the father-in-law has made a testamentary disposition of his property or has during his lifetime made a gift of his property. In that case, even the donee or alienee are legally bound to maintain the widowed daughter-in- law. This principle was also adopted by the Allahabad High Court in Jeot Ram Chaudhari v. Mt. Lauji and another, AIR 1929 Allahabad 751, wherein it was held that father-in-law is under a moral obligation to maintain a widow of a pre-deceased son and this moral liability becomes a legal obligation in the hands of his surviving sons who inherit father's estate and no distinction should be drawn in this respect between property which is inherited from the father-in-law and property which is gifted by him. Thus, if father-in-law gifts a portion of self acquired property to one of his sons, daughter-in-law gifts a portion of self acquired property to one of his sons, daughter-in-law is entitled to maintenance out of such property. In Ambu Bai v. Soni Bai, AIR 1940 Madras 804, the Full Bench of the Madras High Court observed as under:-
"The doctrine that a moral obligation becomes a legal obligation when the estate of a person on whom the moral obligation lay comes into the possession of his heirs may be open to criticism but it is too late in the day to indulge in it and the Court must confine itself to the question whether the principle should extend beyond the case of widowed daughter-in-law."Civil Revision No.4855 of 2011 4
Recently, the Full Bench ofAndhra Pradesh High Court in T.A. Lakshmi Narasamba v. T. Sundaramma and others, AIR 1981 Andhra Pradesh 88, while dis-agreeing with theview of the Bombay High Court has held as under:-
"We are unable to agree with the reasoning of the Bombay High Court. The Bombay High Court mainly proceeded on the ground that the father- in-law has absolute power over his self-acquired property to deal with the same. He has a power to exercise will or gift and deprive the daughter-in- law of her maintenance. When the absolute owner has exercised that power and transferred the property under gift or will, the question of enforcing her right against the transferees would not ariseat all. The Bombay High Court put it on the ground that the property acquired by valid testamentary disposition is not governed by the rules of the Hindu Law of inheritance and when the power of making such disposition is unrestricted, it is difficult to conceive any consistent ground on which the devisee could be held bound by an obligation from which the testator had power to relieve him and by the bequest had actually relieved him. With great respect, we are not able to agree with this view. The learned Judges there have not taken into consideration the duty of the Hindu heirs to provide for the bodily, and mental or spiritual needs of their immediate and nearer ancestors, and also the fact that there was no rigid distinction between the moral duty and legal duty as there is in the modern society. They have also not considered the concept of 'duty' to be performed by the head of the family and that if he died without performing that duty he had committed sin and that the sons have to discharge that obligation to relieve him from that sin. The Madras High Court in Sankaramurthy V. Subbamma (AIR 1933 Madras 914) followed the view of the Bombay High Court expressed in Yamunabai v. Manubai, (1899) ILR23 Bombay 608; Bhagirathibai v. Thakur Mal (AIR 1926 Lah 193) ,but with great respect we are not in agreement with this view.
In the result, we are in agreement with the view expressed in Rangammal v. Echammal, (1899) ILR 22 Mad 305; Gopal Chandrapal V. Kadimbini Das (AIR 1924 Cal 364) and Foolcomari Dasi Vs. Debendra Nath (AIR 1942 Cal 474) wherein it was held that the legal liability upon a Hindu heir to provide maintenance to daughter-in-law exists irrespective of the fact whether the heir takes the property by intestacy or under a will or gift."
13. Section 19 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as 'the Act') deals with the right of maintenance of a widowed daughter-in-law. Whether married before or after the commencement of the Act, she can claim maintenance only if she is unable Civil Revision No.4855 of 2011 5 to maintain herself from her own sources or out of the estate of her husband or her father or mother or from her son or daughter, if any, or his or her estate. The right to claim maintenance from the father-in-law having in possession of coparcenary property out of which widowed daughter-in-law has not obtained any share. Though under the Act, the right to claim maintenance by widowed daughter-in-law against her father- in-law is limited to the extent of coparcenary property in the hand of father-in-law, out of which widowed daughter-in-law has not taken any share, but under the old Hindu Law, prevailing before the enactment of the Act, this right of maintenance to the widowed daughter-in-law against the self-acquired property of her father-in-law, was available. This right is still available to the widowed daughter-in-law of the pre-deceased son against the self acquired property of her father-in-law, as this right shall notecase to be in force because the same is not inconsistent with any provision contained in the Act. Thus, the widowed daughter-in-law of a pre-deceased son is entitled to claim right of maintenance against the self acquired property of her father-in-law, whether it is in his hand or in the hand of his heir or donee."
No other judgment was cited before me to the contrary in order to controvert the aforesaid legal proposition by the respondents. It may further be observed that the petitioners are also entitled to ad-interim maintenance during the pendency of the suit under Section 19of the Hindu Adoptions and Maintenance Act, 1956. Similar observations were made by this Court in Charanjit Kaurand another Vs. Darshan Singh 2005 (1) PLR 791, wherein it was observed as under:-
"10. In view of the binding precedent laid down by the Division Bench of this Court as well as the principles laid down by this Court in earlier judgments the Court has implied power to grant ad-interim maintenance during the pendency of the petition under Section 19of the Hindu Adoption and Maintenance Act. The observations of Hon'ble Supreme Court while interpreting the provisions of Section 125 Cr.P.C. in Smt. Savitri's case (supra) are applicable to the facts of the present case with equal force. It has been held that in the absence of any express prohibition, in Chapter IX of the Code, it is appropriate to construe the provision as conferring implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance. The Supreme Civil Revision No.4855 of 2011 6 Court even recognized the jurisdiction to grant an ad-interim maintenance......."
In the circumstances, the crux of the law is that the Civil Court has the jurisdiction to grant ad-interim maintenance qua the proceedings under Hindu Adoptions and Maintenance Act also. No contrary view has been cited before me by learned counsel for the respondents.
Now coming to the quantum of maintenance, which I do not want to leave on the trial Court to decide, it may be observed that since the minor son Arjun-petitioner No.2 has been given land measuring 8 Kanals 8 Marlas vide a Will dated 17.11.2008 by Subhash Chand and mutation No. 4312 has already been sanctioned, therefore, certainly petitioner No.1 Smt. Sheela Rani being natural guardian of minor Arjun, could make earnings from the said land. But the respondents have failed to establish on record, as to if she is cultivating and earning any income out of the said land, much less if she is in possession of the said land. It is also a question to be seen that 'whether the income from this small piece of land is sufficient for their maintenance. Therefore, the petitioners being widow and minor son having no other support to maintain themselves, certainly deserve to be maintained by the respondents during the pendency of the suit.
Under these circumstances, this petition is accepted; the impugned order is set aside and the respondents are directed to pay interim maintenance to the petitioners to the tune of Rs.3000/- per month from the date of filing of the application.
(A.N.Jindal)
August, 21, 2012 Judge
ajp