AMARNATH SINGH Vs. PHULWA DEVI

JUDGEMENT

(1.) The point for determination in this case is that if the claim for maintenance is admitted, can the Court pass an order for interim maintenance during the pendency of a partition suit ?

(2.) In the suit for partition brought by opposite party Nos. 1 and 2, claiming one-third share, they filed an application under Section 151 and Order 40, Rule 1, Code of Civil Procedure, for appointment of a Receiver or, in the alternative, to allow them some maintenance. In the written statement filed on behalf of the petitioners (defendants) the right to claim partition was denied, inter alia, on the ground that Ramsewak Singh, husband of Opposite Party No. 1, had died in the year 1935, and not in 1958, and that opposite party No. 1, Phulwa Devi had no right in the joint family properties, but she was entitled to maintenance. So far as opposite party No. 2 was concerned, it was stated that she was a married lady and had passed out of the family by reason of her marriage. In their rejoinder to the petition for appointment of Receiver, the petitioners denied the allegation made on behalf of the opposite party with regard to sale or mortgage of the property in suit as false and stated that no sufficient cause had been made out for appointment of a Receiver, They, however, did not state therein that opposite party No. 1 was not entitled to maintenance.

(3.) The Court below has refused to appoint a Receiver but has directed that out of the 22 bighas of land in dispute, survey plot No. 1624, having an area of 1.53 acres, be given for the maintenance of opposite party No. 1 till the disposal of the suit as, in its opinion, considering the large area involved, giving of 1.53 acres did not seem to be unjustified. The present application is directed against this order of the Court below.