CHAUDHARY SHANKARBHAI Vs. MAFIBEN KANJIBHAI CHAUDHARY

JUDGEMENT

(1.) THE appellants are the original defendants of Special Civil Suit No. 122 of 1999 pending in the Court of learned principal Civil Judge (Senior Division), mehsana and the respondents are the original plaintiffs who have filed the suit for partition alleging that the suit properties are undivided Hindu property and plaintiffs have share in that property and the same are in possession and enjoyment of the plaintiffs.

(2.) CHAUDHARY Man sangbhai was husband of plaintiff No. 1-respondent No. 1 herein and after his death on 23/10/1994, the plaintiffs-respondents are entitled for their share. The pedigree as mentioned in the plaint shows that Chaudhary shankarbhai Kanjibhai was head of the family and managing the affairs of ancestral property received by him and details of immovable properties are also mentioned in paragraph 3 of the plaint. It has been prayed in the plaint that certain movable properties are also in possession of defendants which are "stree Dhan" of plaintiff No. 1-Mafibe including the gold and silver ornaments, etc. and therefore these movable properties also may be given to the plaintiffs. By moving application Exh. 5, the plaintiffs have prayed for amount of maintenance pending the hearing and final disposal of the suit for partition keeping in mind the scheme of Section 19 of the Hindu adoption and Maintenance Act. On the date of filing of the suit, plaintiffs No. 2 and 3 were minor and plaintiff No. 1 prayed for maintenance pending the suit. It appears from the pleadings and the contents of application Exh. 5 that the plaintiffs prayed for maintenance by way of interim arrangement till they receive their legitimate share in the ancestral properties being members of Hindu Joint Family, more particularly, as members of the family in the capacity of heirs of deceased chaudhary Mansangbhai, because after getting their share being members of Hindu family, obviously they would not be entitled for maintenance from the family.

(3.) THE Court irrespective of the prayer made in the application Exh. 5, allowed the said application vide its order dated 29/08/2002 and awarded Rs. 1,000/- of maintenance per month to plaintiff No. 1 and Rs. 500/- per month each to plaintiffs no. 2 and 3 from the date of passing of the order till the final disposal of the suit with no order of costs. Though the Court has passed the order on 29/08/2002 allowing the application Exh. 5, but the defendants did not pay any amount to the plaintiff and therefore the plaintiffs prayed for execution of the order passed and the notice of recovery application was served to the appellants / defendants on 13/08/2003 wherein the plaintiffs prayed that rs. 1,10,000/- is payable and due to the plaintiffs.