1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.10047 OF 2009 Popat Vasant Kale ...Petitioner vs. Priti Satish Kale & Ors. ...Respondents Ms Chandane Salgaonkar-Radia for the petitioner Mr.P.B.Shah for respondent no.1 CORAM :A.S.OKA,J. DATE : APRIL 13, 2010 P.C.: 1 The parties were granted time to amicably resolve the dispute. The parties were put to notice that the petition will be taken up for final disposal. However, the dispute could not be resolved. Hence, the petition is taken up for final disposal. 2 The petitioner in this writ petition under Article 227 of the Constitution of India is the 2nd defendant in a suit filed by the 1st to 3rd respondent. The 4th respondent is the 1st defendant in the suit. The suit has been filed by the 1st to 3rd respondents by invoking section 19 of Hindu Adoption and Maintenance Act,1956 (hereinafter referred to as the said Act). The case of the 1st to 3rd respondents is that the 1st respondent married to one Satish Kale on 8th may 1995. The 2nd and 3rd respondents are the sons of the 1st respondent and the said Satish. The said Satish died on 17th June 2005. The 4th respondent (1st defendant) is father-in-law of the 1st respondent. The petitioner (2nd defendant) is the brother of the said Satish. In the suit, a prayer for grant of maintenance at the rate of 5,000/- per month each to 1st to 3rd respondents was made by the said respondents. An application was made at Exhibit-41 in the said suit under 2 Rule 10 of Order I of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). It was contended that the suit under section 19 of the said Act was not maintainable against the petitioner and the suit will lie only as against the 4th respondent. The said application was contested by the 1st to 3rd respondents. By the impugned order dated 17th September 2009, the learned Principal Judge of the Family Court rejected the said application. The learned Judge observed that it is the case of the 1st to 3rd respondents that the said Satish was a member of the joint family of the petitioner and the 4th respondent and that there was a partnership business carried on between the said Satish, petitioner and the 4th respondent. The learned Judge observed that except the petitioner and the 4th respondent, there were no male members in the joint family after the demise of the said Satish and therefore, maintenance payable will be from the property in possession of the petitioner and the 4th respondent. The learned trial Judge , therefore, observed that the petitioner was a necessary party. 3 The submission of the learned counsel for the petitioner is that the right claimed by the 1st to 3rd respondents was only under section 19 of the said Act which can be enforced only against father-in-law of the 1st respondent and therefore, the suit was not maintainable as against the petitioner. 4 The learned counsel for the 1st to 3rd respondents supported the impugned order by contending that the learned Judge of the Family Court has rightly held that the petitioner and the 4th respondent and deceased Satish constituted a joint family which was possessing immovable properties. He pointed out that the said parties were having a business in partnership and therefore the 1st to 3 3rd respondents were entitled to claim maintenance from the properties in the hands of the petitioner and the 4th respondent. He placed reliance on the decision of this Court in case of Smt.Janabai Ramchandra Barge Vs. Mahadeo Manyaba Barge (since deceased through L.Rs.) (2006 (5) All M.R. 381). 5 I have given careful consideration to the submissions. On plain reading of the plaint, the same purports to invoke section 19 of the said Act. Even looking at the prayers made in the suit, it is obvious that the 1st respondent wants to enforce right under section 19 of the said Act. The suit is not for partition and separate possession of the share of the deceased Satish in the joint family property. Section 19 of the said Act reads thus : 19.Maintenance of widowed daughter-in-law- 1 A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law. Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance- (a)from the estate of her husband or her father or mother, or (b)from her son or daughter, if any, or his or her estate. 2 Any obligation under sub section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in 4 his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in- law. Sub section 1 incorporates an obligation of father- in-law to maintain his widowed daughter-in-law. Such widow is entitled to be maintained after the death of her husband by her father-in-law provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintnace from the estate of her husband or her father or mother, or from her son or daughter. Sub-section 2 provides that no obligation under sub section 1 shall not be enforceable if the father-in-law has no means to do so from the coparcenary property in his possession out of which the daughter-in-law has not obtained any share. Thus, the suit is specifically under the provisions of the said Act and in particular section 19. The liability, if any, to maintain the first respondent is of the 4th respondent-father-in-law. There cannot be any personal liability of the petitioner to maintain the 1st to 3rd respondents or any one of them. 6 The learned counsel for the 1st to 3rd respondents has relied upon the decision of this Court in case of Smt.Janabai (supra) which arose out of an order passed during the pendency of the suit for partition and separate possession. Assuming that the petitioner, 4th respondent and deceased Satish were members of the joint family which was holding a joint family property, 1st to 3rd respondents can always file a suit for partition and 5 separate possession of their shares or the share of the deceased Satish and in such a suit, 1st to 3rd respondents can always claim maintenance from the defendants who are allegedly possessing the shares of 1st to 3rd respondents. However, as stated earlier, the present suit is not for partition and separate possession. The suit is for enforcing the personal obligation of 4th respondent-father-in-law under the said Act. 7 Under Rule 10(2) of Order I of the Code of Civil Procedure,1908, the Court always has a power to strike out parties at any stage of the proceedings. As 1st to 3rd respondents were not entitled to seek any relief against the petitioner or against the property of the petitioner in a suit filed under the said Act, this was a fit case to exercise power. Hence, this petition must succeed. It must be clarified here that the observations made in this order are in the context of the claim for maintenance made by the 1st to 3rd respondents under the provisions of the said Act and no adjudication has been made on the right of the 1st to 3rd respondents to claim appropriate relief against the petitioner and the 4th respondent in appropriate suit. 8 Subject to what is observed above, impugned order is quashed and set aside. Application at Exhibit-41 is allowed in terms of the prayer clause (A) thereof. 9 Writ petition is allowed in above terms. JUDGE 6