SARWAN RAM Vs. AMAR NATH

JUDGEMENT

(1.) AMAR Nath, respondent, transferred immovable property comprising of a house and agricultural land in favour of the petitioner and respondent No. 2 by means of a registered gift deed, dated Feb. 20, 1962. Thereafter in 1976, he files a suit for maintenance at the rate of Rs. 200/- per mensem in forma pauperis against the donees. The application for permission to file the suit as a pauper has yet not been disposed of and the suit has not been registered as a regular suit. During the pendency of this pauper petition, an application for grant of interim maintenance during the pendency of the suit, was allowed by the trial Court vide the impugned order and the donees were held liable to pay maintenance to the plaintiff-respondent at the rate of Rs. 75 per month during the pendency of the suit The present revision petition is directed against the said order.

(2.) ACCORDING to the learned counsel for the petitioner; the trial Court had no jurisdiction to grant interim maintenance even in the exercise of its inherent jurisdiction, under Section 151, Civil P. C. (hereinafter called the Code), and that as yet, even the right of the plaintiff-respondent to get maintenance the petitioner and his brother, respondent No. 2, is to be determined, and there was no term of the gift deed as M the grant of maintenance to the plaintiff-respondent by the donees, though the latter who are collaterals of the former had been maintaining him till the filing of the suit and were even now prepared to maintain him if he lived with them in their house. It was also stressed that the observation of the trial Court in the impugned order that the donees must have given undertaking to the plaintiff-respondent at the time the gift deed to maintain him, is tantamount to pre-judging the issue before the trial of the suit. Reliance has been placed a number of decisions of various High Courts to canvass the proposition that Section 151 of the Code, does not confer any right on the Court to grant interim maintenance and that the said provision was only procedural one whereas the right of maintenance, whether on permanent basis or of an interim nature, during the pendency of the suit, was in the domain of substantive rights for which the reliance must be placed on some statute.

(3.) ADMITTEDLY, the plaintiff-respondent, who gifted his entire property in favour of the petitioner and respondent No 2, is only a collateral of the donees and as such, the provisions of the Hindu Adoptions and Maintenance Act, (hereinafter called the Act), for the purpose of grant of maintenance are not attracted. The suit out of which the present revision petition has arisen has also not been instituted for the purpose of setting aside the gift deed, in dispute. In this suit, only future maintenance has been claimed. Thus, whether the plaintiff-respondent is entitled to maintenance of right under trial Court (sic ). In these circumstances, the important question to be determined is Whether it is within the jurisdiction of the Court to grant interim maintenance under S. 151 of the Code on the analogy that where a case for interim attachment or interim injunction as provided under O. XXXVIII or O. XXXIX of the Code, is not made out, the Court is competent to grant relief relating to interim attachment or interim injunction, as the case may be, in the exercise of its inherent jurisdiction under S. 151 of the Code?