1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.409 OF 1999 Maruti Rabhaji Shinde & anr. ..Appellants V/s. Smt.Mandabai Vasantrao Shinde & ors ..Respondents Mrs.Sharvari Shailendra, Advocate, for the appellants Mr.U.B.Nighot, Advocate, for the respondents CORAM : R.M.SAVANT, J. DATE : 25TH SEPTEMBER, 2008 P.C. . Being aggrieved by the Judgment and Decree dated 29th October, 1988 passed by the learned 4th Extra Joint District Judge, Pune in Civil Appeal No.165 of 1992 confirming the Judgment and Decree dated 28th April, 1992 passed by the learned Civil Judge, Junior Division, Ghodegaon, District Pune the appellants have preferred the above Second Appeal. The appellants herein are the original defendant Nos.1 and 2 in R.C.S No.160 of 1986 filed by the 2 respondents herein for partition and separate possession of their 1/3rd share in the joint family properties. The plaintiff No.1 is the wife of the brother of the defendant No.1 and the plaintiff No.2 is the son of the brother of the defendant No.1. On the defendants' denying them their share on the death of the husband of the plaintiff No.1, the plaintiffs filed the said suit. The defendants filed their Written Statement and denied the claim of the plaintiffs. The plaintiffs in the said suit filed an application which was numbered as Exh.25 dated 23rd December, 1988 for interim maintenance. On the said application, an order dated 15th December, 1990 came to be passed wherein interim maintenance of Rs.500/- each was granted to the plaintiffs. Civil Revision Application No.376 of 1991 was filed by the defendants challenging the grant of interim maintenance in this Court. This Court by Order dated 30th July, 1991 dismissed the Civil Revision Application and confirmed the order of interim maintenance. It appears that in the mean time, pending the said suit, an application Exh.37 came to be filed for execution of the said order of maintenance. The Trial Court rejected the said application Exh.37 3 however, observed that the said issue of arrears would be considered at the time of passing of the final decree. 2. It appears that thereafter, the defendants filed a pursis vide Exh Nos.40 and 46 and admitted the claim of the plaintiffs made in the suit. The suit was, therefore, decreed and the Trial Court held that the plaintiffs were entitled to 1/3rd share in the suit property and directed that the plaintiffs should be put in possession of the said 1/3 share in the suit property. Since some part of the suit land was alienated by the defendants pending the suit, the Trial Court ordered that the said land should be given in the share of the defendant Nos.1 and 2. In so far as an interim maintenance is concerned, the Trial Court held that the plaintiffs are entitled to the interim maintenance from the date of the application (Exh.25). 3. The defendants carried the matter in appeal by filing the Regular Civil Appeal No.165 of 1992. The principal ground of challenge was the grant of interim maintenance to the plaintiffs. It 4 was the case of the defendants that though, in the plaint there was no prayer for interim maintenance, the Trial Court erred in granting the said reliefs. The Appellate Court considering the provisions of Section 151 of the Civil Procedure Code, 1908 and the Judgment of a learned Single Judge of this Court reported in 1983 Bom.L.R.327, in the matter of Rajeshbhai Sadashiv Khairnar v. Shantabhai Sadashiv Khairnar and also in the matter of Sushilabai Chhotelal Gupta v. Ramcharan Hanumanprasad Vaishya and another reported in 1976 Mah.L.J.82 held that an application for interim maintenance in a suit for partition could be entertained under the provisions of Section 151 of the Code of Civil Procedure, 1908. The Lower Appellate Court held that since the defendant No.1, was admittedly in possession of the suit property and since the plaintiffs were not given their share, the plaintiffs would be entitled to the grant of interim maintenance in exercise of inherent powers of the Court under Section 151 of the Code of Civil Procedure, 1908. 4. Apart from the fact that the said Revision Application filed 5 by the defendants against the order granting interim maintenance was dismissed by this Court. Considering the Judgments (Supra) of this Court, in my view, grant of interim maintenance in a suit for partition and separate possession cannot be faulted with. Both the Courts below have concurrently held that the plaintiffs would be entitled to interim maintenance in the facts and circumstances of the case. In my view, the challenge raised in the Second Appeal does not involve any substantial question of law. The Second Appeal is accordingly dismissed. (R.M.SAVANT, J.)