IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.5208 OF 2005 WITH CIVIL APPLICATION NO.1346 OF 2008 IN FIRST APPEAL NO. 1139 OF 2001 Janabai Kundalik Irkar ..... ..... ...Applicant. V/s Smt.Sushil Kundalik Irkar & Ors. ..... ..... ...Respondents. Mr.S.G.Deshmukh, Adv. for the applicant. Mr.Pradeep Kadam, Adv. for the respondents. CORAM: A.P.DESHPANDE, J. 21st March, 2009. PC: Heard learned advocates for respective parties. The present applicant by name Janabai instituted a suit for partition and separate possession of various properties including 85 acres of agricultural land and there house properties. The properties are admittedly in possession of present respondents. The present applicant Janabai claims to be legally married wife of Kundalik who performed a second marriage with Sushilabai. Sushilabai has a son and daughter borne from Kundalik by name Bharat and Sajjabai. Besides them Smt.Mayabai the mother of Kundalik. Thus the persons who are claiming to be the class I heirs are the present applicant/original plaintiff claiming to be legally wedded wife (first 1 wife) of deceased Kundalik and Sushilabai the second wife her two children and the mother of Kundalik. The trial court decreed the suit filed by the present applicant/plaintiff and granted the applicant/plaintiff half share in the properties and granted other half to the mother of Kundalik. The trial court has declined the share to respondent no.1-Sushilabai on the ground that her marriage with Kundalik was not valid marriage as it was performed during life time of present applicant. The children of Sushilabai by name Bharat and Sjjabai are denied the share on the ground that they are illegitimate children. Prima facie even assuming the children of Sushilabai to be illegitimate they would have a share in the separate property left behind by deceased Kundalik. Prima facie the applicant will have 1/4th share in the property left behind by Kundalik, of course subject to the adjudication of claim of share made by Sushilabai with whom Kundalik married for the second time. With this prima facie view of matter one thing is sure that the applicant has 1/4th share in the properties left behind by Kundalik. 2. This Court has granted stay to the execution of decree for partition and separate possession. All the properties are in possession of the respondents to the exclusion of the applicant. The applicant has no source of maintaining herself. The applicant has even moved an application for maintenance in the execution proceedings and I am informed that in execution proceedings paltry amount of Rs.400/- was directed to be paid to the applicant for her subsistence but even 2 that amount has not been paid by the respondents to the applicant. Be that as it may, the applicant has moved the present applications; first one being for appointment of receiver so that the applicant can get sufficient money to maintain herself comfortably and the other application is for claiming maintenance. I do not propose to deal with first application i.e. application for appointment of Receiver, at this stage I propose to decide maintenance application. In the event if the amount of maintenance directed to be paid by this order is not paid it shall be open for the applicant to move the application for appointment of Receiver. It is very disturbing to say the least that maintenance application filed by an aged decree holder is coming up for consideration after a period of more than four years. During pendency of this application the applicant has been paid nothing towards maintenance. The applicant is claiming Rs.3000/- p.m. And is further seeking a direction against the respondents to compel them to deposit a sum of Rs.10,00,000/- so that amount of maintenance is regularly received by the applicant. Learned counsel submits that the applicant is not keeping good health and she has already undergone surgery requiring sufficient amount for maintaining herself in good health. Perused the application. Learned counsel for respondent has opposed the application. I am of the clear view that in the first place the very claim made in the present application for Rs.3000/- is very much on the lower side. In the teeth of decree in favour of the applicant for half share in the property which comprises of 85 acres of 3 land and three house properties the applicant is entitled to receive Rs.3000/- p.m. by way of maintenance every month as asked for. Learned counsel for respondent submits that sum of Rs.2000/- would be sufficient for providing maintenance in a village. Learned counsel for applicant submits that the applicant is staying at Sangli and not in a village. I do not find anything to deny the claim made by the applicant for maintenance in the sum of RS.3000/- p.m. In the result I pass the order directing respondent to pay sum of Rs.3000/- p.m. to the applicant every month towards maintenance. I do not propose to pass any order with a view to secure this amount of maintenance and thus choose not to pass an order asked for in prayer (a) and (b) for the present. These prayers could be considered in the event of non payment of maintenance amount directed under this order as and when the applicant would move the application for appointment of Receiver, of course in the event of non payment of maintenance. It is directed that the amount of Rs.3000/- p.m. towards maintenance shall be paid with effect from 21.11.05. The amount of maintenance shall be paid on or before 10th day of each month. Arrears of amount shall be paid within a period of six months from today. In the event of failure to pay any two consecutive installments it shall be open for the applicant to move the application for appointment of Receiver. The parties propose to negotiate a settlement and return back to the court. Hence S.O. till 17.4.2009 for settlement. Civil application No.5208 of 2005 stands disposed of in above terms. 4