SUSHILABAI CHHOTELAL GUPTA Vs. RAMCHARAN HANUMANPRASAD VAISHYA

JUDGEMENT

(1.) Applicant Sushilabai filed a suit for partition and separate possession of her share in the joint family property against non-applicant Ramcharan Hanumanprasad. The said suit is pending in the Court of the Civil Judge, Senior Division, Nagpur. It was contended by the plaintiff in the said suit that the parties were Halwais by profession and sweet-meet making was their ancestral business. According to the plaintiff, her husband and the husband of defendant No. 2 Parvatibai were also helping defendant No. 1 in the said business, which was a family business. She has further contended that the family was joint family. After the death of Hanumanprasad defendant No. 1 was acting as Karta of the family. All the income from the joint family business and shop used to be in the hands of defendant No. 1 and he used to manage the affairs of the joint Hindu family. It was then contended by the plaintiff that the joint family consisting of her deceased husband Chhotelal, defendant No. 1 Ramcharan and deceased husband of defendant No. 2 Parvatibai viz. Mahadeo, owns and possess immovable property described in the schedule attached to the plaint. She further contended that the plaintiff is residing in a portion of the joint Hindu family house and her husband died at Nagpur on 12/9/1960 without any issue. According to her, after the death of her husband she acquired the same interest as that of her deceased husband in the joint family property in view of the provisions of Hindu Succession Act, 1957. Therefore, she demanded partition of the joint family property and separation of her share. As the defendant No. 1 denied her claim vide his reply dtd. 21/8/1971 she was constrained to file the present suit for partition. Defendant No. 1, who is the main defendant contested the suit claim. In his written statement he admitted the relationship between the parties. He further admitted in paragraph 3 of his written statement that in good faith he promised his father and other members of the family to help them for the purpose of maintenance and shelter in his house. He further contended that his father Hanumanprasad died soon after coming to Nagpur within a year or two and thereafter defendant No. 1 was obliged to maintain Chhotelal and Mahadeo. Defendant No. 1 thus fulfilled his obligation by maintaining them. However, he denied the fact that there was any joint Hindu family or that his father Hanumanprasad was the Karta of the said family. According to him, the whole property shown in the schedule was his self-acquired property. In paragraph 8 of his written statement it was contended by defendant No. 1 that the account in the Bank or other immovable property including the house etc. as mentioned in the schedule attached to the plaint are not the property belonging to the Joint Hindu family. He contended that all this property is his self-acquired property. According to him, he was kind enough to maintain his orphan brothers and sometimes for the purposes of business convenience he allowed the name of the defendant No. 2's husband to appear in some transactions. He further contended that on some occasions he purchased the property Benami but the entire amount for acquiring the property was his and nothing was contributed by the plaintiff or defendant No. 2's husband towards the purchase of the property. According to defendant No. 1, both his brothers were living on his charity. After the death of Chhotelal and Mahadeo defendant No. 1 is maintaining the plaintiff and defendant No. 2 by giving them maintenance out of charity. Therefore, in substance it was the case of defendant No. 1 that there was no joint Hindu family as such nor the property of which partition is being claimed by the plaintiff is joint Hindu family property. On the contrary, according to defendant No. 1, the whole property is his self acquired property. Defendant No. 2, the widow of the other brother, practically admitted all the allegations made by the plaintiff in the plaint and she also claimed 1/3rd share in the property. During the pendency of this suit for partition plaintiff Sushilabai as well as defendant No. 2 Parvatibai filed applications for interim maintenance. According to them, they have no independent source of livelihood and, therefore, plaintiff Sushilabai claimed an interim maintenance at the rate of Rs.300.00 per month whereas defendant No. 2 Parvatibai claimed an ad-interim maintenance at the rate of Rs.200.00 per month. The defendant No. 1 contested this claim made by the plaintiff as well as defendant No. 2 and contended that they are not entitled to any interim maintenance during the pendency of the partition suit. He repeated all the contentions which he had raised in his written statement. It was further contended by him that such an application for maintenance in a partition suit is not maintainable. The learned Judge of the trial Court, after hearing the parties, dismissed the said applications filed by the plaintiff as well as defendant No. 2 Parvatibai. According to the learned Judge, the plaintiff and defendant No. 2 could not show him any provision from Hindu Law entitling them to such an interim maintenance in a suit for partition in which the very fact of the suit property being joint family property is denied by the contesting defendant No. 1. The learned Judge further found that there is no provision of law under which such claim of interim maintenance in a partition suit can be made. In this view of the matter both these applications were dismissed by the learned IInd Joint Civil Judge, Senior Division, Nagpur. Being aggrieved by this order these two revision petitions have been filed by the plaintiff and defendant No. 2 Parvatibai.

(2.) Shri Padhye, the learned counsel for the applicants, contended before me that the learned Judge of the trial Court committed an error apparent on the face of record in holding that there is no provision of law which entitles the plaintiff as well as defendant No. 2 to claim such an interim maintenance in a partition suit. Shri Padhye further contended that by mere denial by defendant No. 1 the rights of the plaintiff as well as defendant No. 2 cannot be defeated. According to Shri Padhye, the plaintiff has prima facie shown that the property referred to in the schedule attached to the plaint is a joint Hindu family property. In support of the contention the plaintiff has filed an income tax assessment order, entries from municipal assessment list and a sale-deed. From these documents it is quite clear that the business which was being carried out by defendant No. 1 and deceased Chhotelal and Mahadeo was a joint family business and the property acquired is a joint Hindu family property. According to Shri Padhye, under inherent powers of the Court u/s 151 of the CPC the Court can grant such an interim maintenance in a partition suit. It was further contended by Shri Padhye that the learned Judge of the trial Court has, therefore, refused to exercise the jurisdiction vested in him by law and hence the order passed by him is illegal.

(3.) On the other hand it is contended by Shri S. V. Padhye, the learned counsel for defendant No. 1 that the order passed by the learned Judge of the trial Court is in accordance with law. The learned counsel further contended that under Hindu law the plaintiff or defendant No. 2 are not entitled to claim any maintenance from defendant No. 1. Defendant No. 1 has denied the allegations made in the plaint that the property in his possession is joint Hindu family property. He has further denied the fact that the family itself was a joint Hindu family. In this view of the matter, according to the learned counsel, when the very factum of the nature of the family as well as the property is denied in a suit for partition, it is not open for the plaintiff to claim any interim maintenance. He further contended that in exercise of powers conferred upon the Court u/s 151 of the CPC such an interim maintenance cannot be granted by the Court.