SYED HUSSEIN Vs. RAHMATHAM

JUDGEMENT

(1.) A dispute between the sister and brother was taken to a Court in a suit for partition instituted by the sister, along with an application under S.151, CPC claiming interim maintenance. She said that her brother is in possession of the entire suit properties inclusive of seven shops fetching a rent of Rs.1,200 and she has no other income for maintenance. She claimed interim maintenance at the rate of Rs.300 per month. The application was resisted by the brother on the ground amongst others that it was not maintainable and the sister is well-to-do lady with enough property of her own to maintain herself.

(2.) The trial Court after considering the facts and circumstances of the case, directed the brother to pay interim maintenance at the rate of Rs.100 per month. Challenging the validity of the said order, defendants 1 and 2 have preferred the revision petition.

(3.) Mr.Ramachandra, learned Counsel for the petitioners urged that in a suit for partition, the Court has no jurisdiction to grant interim maintenance. In support of his contention, he placed reliance on the decision of this Court in Mulamani Sanna Basavarajappa v. Basavanappa, AIR 1959 Mys. 152-1958 MysLJ. 933. where Somnath Iyer, J., as he then was, following the decision of the High Court of Madras in Abdul Bahman v Tajunnisa Begaum, AIR 1953 Mad. 420. observed that in a suit for partition the Court cannot award interim maintenance. The above decisions have been considered by a Bench of the High Court of Calcutta in Tarini Gupta Chowdhury v. S.M.Gouri Gupta Chowdhury, AIR 1968 Cal 567. and were dissented from. Tn Chowdhury's case(3), the wife filed a suit for maintenance and she asked for interim maintenance. The Court held that the plea of the wife for interim maintenance cannot be denied when she has proved a prima facie case even though the defendant in the suit denied her relationship. Further observation at para 22 of the judgment reads :