PRAYAGBAI Vs. RAMCHANDRA S O BAPU PURI

JUDGEMENT

(1.) PRAYAGBAI, petitioner herein filed Regular Civil Suit No. 350 of 1973 in the Court of Civil Judge (J. D.), Ambajogai, against her husband Shankarbuva, claiming maintenance at the rate of Rs. 75/- per month. In the said suit. Ramchandra s/o. Bapu Puri, minor under the guardianship of his father Bapu and Bapu s/o. Bala Puri, third parties, filed an application contending that they are in actual possession of Survey number 478 and House No. 61/1 on the basis of purchase of portion of the land and agricultural tenancy and, therefore, they are necessary parties to the suit. The said application came to be allowed and they were added as defendant Nos. 2 and 3. The learned Judge was pleased to decree the suit by granting maintenance at the rate of Rs. 75/- per month and was also pleased to create a charge of the maintenance on survey number 478 situated at Ghatnandur which has a well and 12 mango trees. Appeal filed by Ramchandra (who was then major) and his father Bapu came to be partly allowed, whereas the order of the maintenance was kept in tact, the charge was limited to the extent of 6 Acres western portion from Survey number 478. Thereafter, in the year 1980, Prayagbai filed an another suit bearing number 555 of 1988 praying for the enhancement of the maintenance which was decreed and the maintenance amount was enhanced to Rs. 225/- per month. The charge of the enhanced maintenance was also recreated by the said decree dated 24th September, 1982. In this suit, besides Shankarbuva, Ramchandra and Bapu were also parties. Besides enhancing the maintenance, the learned Judge was pleased to order that the charge is created over 6 Acres western portion of Survey number 478 firstly and if it is found that the decree cannot be satisfied out of this property, then a further charge is kept on the remaining 10 Acres 5 Gunthas area from Survey number 478. This decree came to be challenged by Ramchandra and Bapu Puri in an appeal in the District Court. The learned Assistant Judge was pleased to allow the appeal partly and while maintaining the quantum of enhanced maintenance at Rs. 225/- per month, he was pleased to modify the order regarding charge and was pleased to limit the charge to western 6 Acres area out of Survey number 478. Further order to keep charge on the remaining portion came to be set aside. Thereafter, an execution petition bearing number 9 of 1990 came to be filed in the Court of Civil Judge (J. D.), Ambajogai. Ramchandra was shown to be sole surviving judgment-debtor in the execution petition. Since Shankarbuva, husband of the petitioner, Prayagbai, and Bapu Puri-defendant No. 3 in the original suit had both expired, the learned Judge, was pleased to issue a warrant under Order XXI, Rule 43 of the Code of Civil Procedure, 1908. On 8th February, 1991, Ramchandra filed an application praying that the application for the execution be dismissed since judgment-debtor No. 1, Shankarbuva died on 18th October, 1987 and the decreeholder herself has become owner of land Survey number 478 to the extent of eastern 10 Acres and 5gunthas portion alongwith her daughter and the decree in Regular Civil Suit No. 555 of 1980 was operative and effective only during the lifetime of judgment-debtor No. 1, Shankarbuva, and is not executable against objection petitioner in the changed circumstances. The learned Judge was pleased to hold that the decree-holder has not brought the legal representatives on record and the decree is a personal decree and, therefore, it will have to be dismissed. This order dated 13th December, 1991 is the subject matter of this Civil Revision Application.

(2.) SHRI V. R. Sonwalkar, learned Counsel for the petitioner, contended that the obligation to pay maintenance if crystalized in the form of a decree does not remain personal one and the decreeholder is entitled to follow the property particularly when a charge is created on it. He further submitted that heirs required to be brought on record in this proceeding are the heirs who have meddled with the property and since they are already on record, the decree can well be executed against them. He further contended that even assuming that the heirs of deceased Shankarbuva should have been brought on record, the execution petition should not have been dismissed on that ground.

(3.) SECTION 18 of Hindu Adoptions and Maintenance Act, 1956 lays down that Hindu wife is entitled to be maintained by her husband during her life. The right of the Hindu wife to be maintained by her husband is absolute and irrespective of the fact whether husband has any property or not. Under section 22 of the said Act, heirs of the deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased. Section 21, which defines "dependants" recognizes widow of the deceased to be such dependant so long as she does not remarry. Relying on these provisions, Mrs. M. A. Kulkarni, learned Counsel appearing for respondent, submitted that only the heirs who have inherited any property of the deceased are liable to maintain widow of the deceased and since respondent-Ramchandra has not inherited any property from the deceased, he cannot be required to maintain widow of deceased Shankarbuva. The only class-I heir left is the wife Prayagbai herself and no other dependant has inherited any property of the deceased and, therefore, Prayagbai cannot get maintenance by the execution of the decree in question.