PARNA ROY SHAH Vs. MAHENDRALAL SHAH

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the order dtd. 13/3/2020 passed by the learned 2nd Civil Judge (Senior Division) at Alipore, South 24 Parganas in connection with the disposal of the application under sec. 151 of the Code of Civil Procedure filed by the plaintiffs, present revisional application has been preferred. By the impugned order plaintiffs"/petitioners" prayer for interim maintenance has been rejected by the court below. Petitioners contended that the petitioners/plaintiffs have instituted a suit for partition and accounts against opposite parties /defendants before the 2nd Civil Judge (Senior Division) Alipore being Title Suit No. 14 of 2017 praying inter alia for passing preliminary as well as final decree of partition declaring their 1/10th share in respect of the suit property and also for the accounts of the suit property. Facts of the case as set out by the petitioners is that Mr. L.P. Shah since deceased and one M.P. Shah were the joint owners as well as partners of the suit properties. The opposite party/ defendant No. 2 is the son of Mr. L.P. Shah and his first wife. Mr. L.P. Shah and his second wife namely Leela Shah got married subsequently and from the said wedlock two sons were born namely Sanjoy Shah, since deceased and Rajib Saha, opposite party/defendant No. 4 herein. Said Sanjoy Saha died on 10/11/2016 and thereafter his son from the first wife Neha, namely Amit Shah, opposite party /defendant No. 3 became successor and partner of the business along with petitioners/plaintiffs. Subsequently according to their family settlement all the defendants have become the partners and/or joint owners of the suit properties. Petitioner no.1/plaintiff no. 1 was an employee of the said partnership firm namely Shah Automobiles and during her service period an emotional relationship grew up with aforesaid the then director of Shah Automobiles Sanjoy Shah with the plaintiff No. 1 and subsequently said Sanjoy Shah married plaintiff No. 1/petitioner No. 1 herein on 14/2/2000 and started to reside at her paternal residence where marriage was consummated and plaintiff No. 1 got conceived within the said wedlock. Petitioners further case is all on a sudden on 10/7/2000, opposite party No. 4/defendant No. 4 acknowledge herself as first wife of Sanjoy Shah and came to know that Sanjoy had already married to Neha Shah and Amit Shah is their child. Petitioner No. 1 on 5/12/2000 had given birth to a male child, who is petitioner No. 2 herein namely Sahil Shah. Petitioner/plaintiff No. 1 got anxious about the future of their child Sahil, but she got assurance from her husband Sanjay Shah and Sanjay used to pay Rs.80,000.00 per month to the petitioner for incurring family expenses and educational expenses of said son Sahil /petitioner No. 2 herein. Said Sanjoy Shah died on 10/11/2016 the petitioners/plaintiffs state that they are facing extreme financial hardship after death of Sanjoy shah. Now said petitioner No. 2 Sahil Shah is a student and has taken loan of Rs.8,20,245.00 to meet educational and other family expenditure, which are to be paid within stipulated period as motioned in loan agreement. The petitioners further state that for educational purpose of petitioner No. 2 she has to incur huge expenditure , which the petitioner entitled to get from suit property. In spite of repeated request the opposite parties/defendants refused to pay the amount of maintenance of the petitioners/plaintiff. As such, petitioners as plaintiff compelled to file aforesaid suit for partition against opposite parties herein. The opposite party No. 5 had filed an application for maintainability challenging the veracity of the plaint and plaintiff/petitioner had filed written objection thereto. After hearing learned court below rejected defendants said petition.

(2.) In the said suit petitioner /plaintiffs filed an application for maintenance under sec. 151 of the code before learned court below on 6/11/2017. Subsequently on 27/11/2019 the petitioner /plaintiff also compeled to file another application for maintenance of Rs.1,50,000.00 per month under sec. 151 of the code due to changed circumstances. Opposite parties/defendants had filed written objection against the said application for maintenance. After hearing both the parties at length learned court below by its impugned order dtd. 13/3/2020 was pleased to reject aforesaid application for maintenance under sec. 151 of the code.

(3.) Mr. Banerjee learned counsel appearing on behalf of the petitioners submits that the trial court acted illegally with material irregularity and arbitrarily passed the impugned order dtd. 13/3/2020 without applying its mind and failed to understand that sometimes change in law precedes societal change and is even intended to stimulate it. Learned trial court failed to appreciate the crux of the precedent in 2008 (INSC 1590) where the Apex Court granted interim maintenance to second wife and all major children who were plaintiffs in that suit for partition. He also relied upon the judgment of the Apex Court reported in 2014 (1) SCC 188. He further submits that the trial court has passed impugned order dtd. 13/3/2020 without going through the judgment reported in AIR 1992 AP 234 where it has been specifically held after demise of father illegitimate son is entitle to equal share of joint family property as legitimate son and kept concubine is also entitled for maintenance and share. Learned court below when passing the impugned order dtd. 13/3/2020 failed to make comparison of the facts of 1998 (5) AD (Del) 383 with the instant matter that the petitioner/plaintiff no, 2 was minor at the time of filing for maintenance before the trial court and there is no provision for maintenance and residence of minor son and accordingly settlement and/or partition in between the opposite parties/defendants is prima facie unjust and liable to be reopened. The learned Trial Court acted beyond the jurisdiction and arbitrarily passed the impugned order without going through AIR 1992 Del 335 that interim maintenance can be granted in a pending partition suit from the accrued interest of the joint family property. Court below have also failed to appreciate the spirit of the judgment in 2011 SCC (1) 01 while passing impugned order that children born from void or voidable marriages shall be legitimate and they cannot be discriminated and they will be at par with other legitimate children and will be entitled to all the rights in the property of their parents, be it an ancestral or joint family property or self acquired absolute property. Accordingly he prayed for setting aside the impugned order and for passing maintenance order of Rs.1,50,000.00 monthly in favour of petitioners from their share in connection with the properties left by their predecessor Sanjoy Sah.