1 903-cas-1646-2009.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1646 OF 2009 IN SECOND APPEAL NO.1056 OF 2004 1 Mrs. Kamalabai S. Rajiwade ] Age 70 years, Occu- Household ] residing at Pune Municipal Corporation ] Colony, Rajendra Nagar Chawl No.9, ] Room No.325, Pune 411 030. ] 2 Mrs. Sindu N. Danawale ] Age 65 years, Occ. Agri. and Household ] Residing at Pare Budruk, District- Pune. ] .. Applicants V/s. 1 Shri Vishnu M. Jadhav alias ] Shri Keshav P. Jadhav ] since deceased survived by his ] legal heirs ] (A) Smt. Laxmibai K. Jadhav ] Adult, Occ: Household, Residing at: ] Salawade, Tal: Bhor, District- Pune. ] (B) Bhujaba K. Jadhav ] Adult, Occ: Agriculture, Residing at ] Salawade, Tal: Bhor, District- Pune. ] (C) Mrs. Ujawala S. Bhilare, ] Adult, Occ: Household, Ra Bhillarwadi ] Tal: Bhor, District-Pune. ] (D) Mrs. Mangal V. Avhale ] Adult, Occ: Household, Residing at ] Bholawade, Tal: Bhor, District-Pune. ] 2 Shri Narayan M. Jadhav ] 2 903-cas-1646-2009.sxw Age 57 years, Occ: Agriculturist ] 3 Shri Bajirao M. Jadhav ] Age 54 years, Occu: Agriculturist ] 4 Shri Digambar M. Jadhav ] Age 52 years, Occu: Agriculturist ] 5 Shri Dattatray M. Jadhav ] Age 47 years, Occu: Agriculturist ] 6 Smt. Savitribai M. Jadhav ] Age 86 years, Occu: Agriculturist ] All residing at Talawade, Tal: Bhor, ] District- Pune. ] 7 Smt. Indubai A. Gade ] Age Adult, Occu: Agriculturist ] Residing at Harishchandra, Tal: Bhor, ] District – Pune. ] 8 Smt. Chandrabhaga D. Chavan ] Age Adult, Occu: Household work ] Residing at Wanewade, Bhor, District- ] Pune. ] 9 Smt. Nanubai M. Kalaskar ] Age Adult, Occu: Household work ] Residing at Sawarde, Tal: Bhor, ] District- Pune. ] 10 Smt. Chabubai M. More ] Age Adult, Occu: Household work ] Residing at Malegaon, Tal: Bhor, ] District- Pune. ] .. Respondents. Ms. Anjali Uthale i/b. Mr. S. S. Kulkarni, for the Applicants. Mr. Prathamesh Bhargude i/b. Mr. A. V. Anturkar, for the Respondents. CORAM : G.S.GODBOLE, J. DATE : 30th SEPTEMBER, 2011. 3 903-cas-1646-2009.sxw P.C.: 1 This Civil Application is filed for seeking the following substantive reliefs:- “(a) Pending the hearing and final disposal of the above Appeal, this Hon'ble Court be pleased to direct the Respondent No.1 to pay maintenance of Rs.25,000/- per month to each of the applicants. (b) Ad interim relief in terms of prayer clause (a) be granted. (c) In the alternative, this Hon'ble Court be pleased to expedite the hearing of the Appeal and peremptorily fix the early date of hearing of the abovesaid Appeal. (d) Any other appropriate orders as this Hon'ble Court may deem fit in the interest of justice and equity be passed.” 2 An affidavit in reply has been filed by son of Respondent No.1 namely Mr. Bhujaba K. Jadhav and Applicant No.1- Kamlabai S. Rajiwade has filed additional affidavit indicating that she is widow and has placed on record the revenue records of various suit lands indicating their respective areas, nature of crops cultivated, existence of wells etc. 3 On 23rd September, 2011, after hearing this Civil Application for some time, following order was passed:- “ Heard Ms. Uthale for the applicant and Mr. Bargude for the respondent 3 to 11. 2 The Civil Application has been filed by respondent no.1 4 903-cas-1646-2009.sxw in R.C.S.no.108/1992 which was filed for partition and separate possession in respect of various properties. The properties in schedule-A are the agriculture lands and the schedule-B property is residential House. The Trial Court dismissed the suit and Civil Appeal No.282/2003 filed by the appellants has been allowed by the impugned judgment and order passed on 20/4/2004 and the applicants have been awarded 1/6th share each in the said properties. The Second Appeal is admitted and an interim order is operating in favour of the appellant in Second Appeal who is respondent no.1 herein. 3 This Civil Application is opposed by filing reply and even during the course of submissions Mr. Bargude advanced the following submissions. Though the relationship is not disputed and though the fact that the applicants are the daughters of late Parvati and late Janabai Jadhav is not disputed and though the fact that Parvati died in the year 1945 and Janabai died intestate is also not disputed; according to Mr. Bargude on account of adoption of respondent no.1 Vishnu now known as Keshav, the respondent no.1 would divest Janabai and consequently the applicants cannot claim any share in the suit property. 4 At the request of Mr. Bargude to enable him to study the matter further in the context of provisions of Hindu Women's Right to Property Act, 1937, S.O. after one week.” 4 Today, Mr. Bhargude states that on account of Article 504 of the uncodified Hindu Law in the commentary of Mulla, the adoptive son- Vishnu now known as Keshav will also divest his adoptive mother-Janabai 5 903-cas-1646-2009.sxw and will become exclusive owner of the entire property of the deceased adoptive father- Parvati. Prima facie, this argument clearly overlooks the provision of Section 3 of the Hindu Women's Right to Property Act, 1937 and, hence, the same cannot be accepted. 5 The Advocate for the Applicants has relied upon the averments made in the Application and the additional affidavit and contended that considering the provision of Section 21 and Section 22 of the Hindu Adoption and Maintenance Act, 1956 as interpreted by the Supreme Court in the case of Balwant Kumar and another v/s. Chanan Singh and others, reported in AIR 2000, SCC-1908, of which paragraphs 13, 14 and 19 were relied upon; the Applicants are entitled to get maintenance from the ancestral properties since the decree for partition and separate possession has been stayed at the instance of the Respondents who are Original Applicants in the Second Appeal and Respondents are enjoying entire income of the suit properties assigned to them. The learned Advocate for the Applicants relied upon the entries in Revenue Records indicating cultivation of cash crops as also the entries in the right column in the revenue record to indicate that cash crops are cultivated, there are wells in the suit land and,hence, according to the Applicants, substantial income is derived. She points out that though affidavit in reply has been filed, the quantum of income is not disclosed anywhere. 6 903-cas-1646-2009.sxw 6 On the other hand, the learned Advocate for Respondents opposed the Civil Application by advancing the following submissions:- (a) Relying on the Plaint in Regular Civil Suit No. 108 of 1992 and relying on prayer no.4 of the plaint, it was submitted that the Plaintiff had prayed for an enquiry into the mesne profits, the suit was dismissed and though Civil Appeal No. 282 of 2003 filed by the Plaintiffs has been allowed and the decree for partition and separate possession has been passed on 20th April, 2004, clause 8 of the operative orders reads as “ rest of the claim is refused”, which shows that the prayer for mesne profits has been rejected and, therefore, the prayer for awarding of interim maintenance, pending the Second Appeal; being a prayer in the nature of mesne profits cannot be granted. (b) There is no provision for filing of the Civil Application for grant of maintenance in Second Appeal arising out of suit for partition and even in a suit for partition, there is no provision for passing interim order for awarding maintenance and since no such provisions exists in the Code of Civil Procedure, 1908, even the Trial Court does not have jurisdiction to pass the order awarding maintenance and hence, the High Court hearing Second Appeal arising out of such suit, cannot pass such interim order. (c) The suit is not filed under the provisions of Hindu Adoption and Maintenance Act, 1956 and, hence, since 7 903-cas-1646-2009.sxw there is no substantive relief of maintenance prayed for, interim application seeking such relief or maintenance is not maintainable. (d) It is alternatively submitted that assuming that the provisions of the said Act of 1956, can be looked into; considering the nature of the definition of the term “Dependant” under Section 21 (iv) of the said Act, the Applicants cannot be called as “Dependants” so as to confer any right on them to claim maintenance contemplated by Section 22 of that Act. Alternatively, in any case, assuming that the said Act is applicable, the Applicants have to first seek maintenance from their husbands, children or the property of their husbands and cannot claim maintenance from the Respondents. (e) When the Second Appeal was admitted, Civil Application No.1312 of 2004 was filed for stay of execution of the decree in which ad interim order was passed on 20th November, 2006 and was confirmed on 5th March, 2007 and, hence, said prayer for maintenance not having been made or granted at that time; making of prayer for maintenance would amount to modification / review of the said order dated 20th November, 2006 which has merged in the order dated 5th March, 2007 and, hence, Civil Application is not maintainable. (f) Even on merits by relying of the geneology annexed at page 18 of the Civil Application and the operative order of the impugned Judgment of the 8 903-cas-1646-2009.sxw Appellate Court, it is submitted that the shares are not properly worked out and in any case, the branch of Parvati will have only ½ undivided share, the remaining ½ is owned by the branch of Maruti and, hence, the Applicants should not be awarded maintenance on the basis of the impugned Decree as the Applicants can claim at highest share only in the property falling to the share of the property of Parvati. (g) The children of the Applicants are working with the local authorities. They are staying in Pune and the medical certificate are not genuine. In any case, as per the instructions of the Respondents, they were earning only a sum of Rs.40,000/- per annum as the net income from all the agriculture lands which were not irrigated. 7 I have carefully considered the submissions. The first submission regarding refusal of prayer for mesne profits being prayer no.4 in the plaint even by the Appellate Court, though the suit was decreed, need not be an impediment in considering the prayer for maintenance. The Second Appeal is admitted and even at the time of final hearing of the Second Appeal, if the decree for partition is being confirmed. Applicants who are Original Plaintiffs can always call upon this Court to modify that decree and the Court can direct an enquiry into mesne profits. Even without formal cross objections, this can be done particularly by passing decree of mesne profits, while considering the confirmation or otherwise of 9 903-cas-1646-2009.sxw the decree for partition in the Appeal, at the instance of the Respondents who are cultivating the land and enjoying its income and, hence, the first submission of Mr. Bhargude is rejected. 8 The second objection that there is no power conferred on the Civil Court to award maintenance is completely without substance. In a civil suit for partition, the Civil Court is not powerless to pass an order directing payment of maintenance. The power under Section 151 of the Code is sufficiently wide to take care of all such situations. Apart from this, the power to pass interim order is not restricted to only passing of orders for appointment of Court Receiver, the grant of injunction and attachment before Judgment etc. These are higher reliefs and a lesser relief can always be granted by the Civil Court. 9 The next submission of Mr. Bhargude that the suit was not filed or was not a proceeding under the said Act of 1956 is also having no merit. The suit was a civil suit for partition and separate possession for enforcement of the civil rights conferred by the Hindu Succession Act, 1956. There is no need that it must be a suit under the Hindu Adoption & Maintenance Act, 1956. 10 The next submission of Mr. Bhargude that the Applicants are 10 903-cas-1646-2009.sxw not Dependants is also, prima facie, incorrect. In view of the Judgment of the Supreme Court in the case of Balwant Kumar (supra), the said argument is not having much merits. Merely because the Applicants can also claim maintenance from their children or from the property of their husbands, that does not deprive them from claiming maintenance from the property of their deceased father- Parvati and deceased mother to which they have been already held to be entitled by the District Court by allowing their Appeal. 11 The next submission of Mr.Bhargude- relying on the orders passed in Civil Application No.1312 of 2004 also does not have much substance. The said orders dated 20th November, 2006 and 5th March, 2007, respectively read thus:- Order dated 20th November, 2006 “ Heard the learned counsel for the parties. Pendency of this appeal and the civil application shall not operate as stay to the final decree proceedings, if initiated already. If the final decree proceedings have not been initiated so far, it is open for the parties to initiate the final decree proceedings. The executing authority shall proceed with the execution of the decree but shall not hand over possession until further orders.” Order dated 5th March, 2007 “ Heard the learned counsel for the parties. The ad-interim order dated 20.11.2006 stands confirmed. The civil application is disposed of.” 11 903-cas-1646-2009.sxw 12 In view of the fact that a Second Appeal takes several years for final hearing in this Court in existing circumstances, the person who is held entitled for share by the Appellate Court can always file application for maintenance. Therefore, as on today, with a finding in favour of the Applicants that they have 1/6th share in the suit property, this application is neither in the nature of modification or review of the earlier order. 13 The remaining argument regarding the son of the Applicants being employees etc., that the Applicants are staying at Pune are also not substantive so as to deprive them from claiming relief in this Civil Application. The Applicants cannot be forced to seeks maintenance only from their sons, if there is a judicial declaration of their having a right to the extent of 2/6th share in suit agricultural lands which are earning income. The medical certificates clearly indicates the nature of ailments and the ages of the Applicants are not disputed. 14 In so far as quantum of maintenance is concerned, the Applicants have stated in their application that the lands are earing income and they have claimed maintenance of Rs.25,000/- per month. The income which is derived from the said agricultural lands is the matter which is within the special knowledge of the Respondents who are cultivating crops in the suit lands. The person having specific knowledge of fact is expected 12 903-cas-1646-2009.sxw to disclose such facts. The entire affidavit in reply is completely silent and only at the time of hearing, Mr, Bhargude states that net income is only Rs.40,000/- per annum. Considering the fact that there are wells in the suit lands as indicated in the revenue records and the fact that the Respondents are cultivating cash crops like tomato, ground nuts etc., and the fact that crop loans have been taken from Co-operative Agriculture Society every year of substantial amounts, which prima facie indicates cultivation of irrigated cash crops, it is not possible to believe such statement of the Respondents particularly when in the Affidavit in Reply they have completely suppressed the information about the net income. 15 In my opinion, a case for grant of relief to the Applicants is made out. Normally, the maintenance is to be awarded from the date of application which is 2nd September, 2009. However, the hearing of this application has taken two years. Hence, different amounts for the period from September, 2009 till September, 2011 and for the period commencing from 1st October,2011 will have to be provided for maintenance. Needless to state that this interim arrangement will be subject to the final out come of the Second Appeal and in case, decree for partition is confirmed and in case enquiry into mesne profits is ordered, the amount directed to be paid, will be taken into consideration and adjusted. It is further necessary to direct that if Applicants fail in the Second Appeal, the Respondents will be 13 903-cas-1646-2009.sxw entitled for restitution. 16 Hence, I pass the following order:- (i) The Respondents shall pay a sum of Rs.3,000/- per month to each of the Applicants from September, 2009 till 30th September, 2011. The arrears to be paid within a period of four months in equal monthly installments ending on 31st October, 2011, 30th November, 2011, 31st December, 2011 and 31st January, 2012. (ii) The Respondents shall pay maintenance at the rate of Rs.4,000/- per month to each of the Applicants for the period commencing from 1st October, 2011 on or before the end of every month. (iii) It is clarified that the aforesaid order will be subject to the final out come of the Second Appeal and in case, decree for partition is reversed, the Respondents shall be entitled for restitution and in case, the decree for partition is confirmed and mesne profits are awarded, the amount paid by the Respondents will be subject to adjustment as against mesne profits. (iv) Civil Application is disposed off. 17 On the oral request of Mr. Bhargude, this order is stayed for the period of six weeks. (G.S.GODBOLE, J.)