KEHAR SINGH AND OTHERS Vs. JWALA AND OTHERS

JUDGEMENT

(1.) THIS is a defendants' second appeal in suit for maintenance. The first respondent, Smt. Jwala Devi, was the plaintiff in the suit which was filed on 22-3-1969, against her husband Kandhai Lal claiming a declaration that she was entitled to a maintenance allowance of Rs. 600/- per year and a charge for recovery of the same against the property specified at the foot of the plaint, the property being 16 plots of agricultural land having a total area of 6 Bighas 15 Biswas 5 Biswansis, of which Kandhai Lal, her husband, was the tenure-holder. The allegations in the plaint were that the parties had several children of whom two daughters, Smt, Hansmukhi Devi and Kumari Ram Devi, were surviving, Smt. Hansmukhi Devi was married after taking loans by the plaintiff and the second daughter Km. Ram Devi was a minor; that Kandhai Lal inherited the agricultural land and a house from his father and that after the death of his father Kandhai Lal fell into bad company and started wasting the property. The plaintiff apprehended that he would alienate whatever had remained and hence suit. An application for attach­ment before judgment was made on which the land specified at the foot of the plaint was attached on 9.4.1969. It appears that after the attachment Kandhai Lal sold the land to the defendant appellants on 11.4.1969. They were later impleaded as defendants Nos. 2 to 8 in the suit or an application moved on 18.9.1969 by the plaintiff for amendment of the plaint and for impleading the transferees as defendants Nos, 2 to 8 in the suit. The suit was contested by the transferees on several grounds which, it is not necessary, to refer to in this judgment. However, it appears that on 19.9.1970 learned counsel for defendants Nos. 2 to 8, the appellants in this Court, stated before the trial Court that they agreed that a charge may be created on the property, pur­chased by them from the first defendant, in case the suit is decreed. There­upon, the attachment was withdrawn subject to the condition that the charge for maintenance of the plaintiff may be-created on the property attached in the event of the suit being decreed. The Court thereafter proceeded to try the suit and the necessary issues were framed as reproduced in the trial Court's judgment, but before the suit could be finally heard and decided, Kandhai Lal died on 3.3.1972, and an application for substitution and amendment of the plaint, consequent upon the death of Kandhai Lal, was filed by the plaintiff. Although under the provisions of the U. P. Z, A. & L. R, Act the plaintiff alone would have been the heir of the property specified at the foot of the plaint, it appears that in view of the sale of the property to defendant Nos. 2 and 8 in spite of the attachment before judgment during the pendency of the suit, and the statement made by the counsel for defendant-transferees that a charge may be imposed on the property in their hands in case the suit is ultimately decreed and consequent withdrawal of the attachment, the plaintiff sought the impleadment of only her daughters Smt. Hansmukhi Devi and Km. Ram Devi as defendants Nos. 1/1 and 1/2 in place of her deceased husband Kandhai Lal obviously because after his death they alone could be said to be interested, if at all, in opposing the plaintiff's prayer for maintenance against the property of Kandhai Lal.

(2.) THE suit was decreed on 28.3.1974 by the Court of Additional Munsif, Bareilly, declaring that the plaintiff was entitled to Rs. 600/- per year as main­tenance from the date of that judgment and creating a charge for the recovery of the same on the property specified at the foot of the plaint in the hands of defendants Nos. 2 to 8. The defendants Nos. 2 to 8 appealed to the district Court. The appeal was dismissed by the Court of Additional District Judge, Bareilly, on 11.2.1975. The present second appeal is directed against that judgment.

(3.) HAVING heard learned counsel and considered the submissions made by him, I find that there is no force in either of them. A suit for maintenance is a special kind of suit and except in the case of a claim for arrears of main­tenance, a suit for maintenance and or annuities or other sums payable periodically, has to be valued under sub-clause (a) of clause (ii) of Section 7 of the Court Fees Act at ten times the amount claimed to be payable for one year, provided that in suit for personal maintenance by females and minors, such value shall be deemed to be the amount claimed to be payable for one year. It is in this case not a suit for recovery of a specific sum of money. It is a suit for adjudication of the plaintiff's right to recover an amount periodically by way of maintenance and the plaintiff can properly ask for a declaration of the amount payable to her as maintenance annually. The frame of the suit could not, therefore, be said to be in any manner bad or defective. It is a different matter that if arrears of maintenance had been claimed, the amount of the arrears, so claimed, might have been required to be specified and valued at the specific sum so claimed, for the purposes of payment of Court fees, but inasmuch as no amount was claimed for arrears of maintenance, the claim for declaration of the amount payable as maintenance was, in my view, perfectly correct and proper.