HI6H COURT OF CHHATTIS6ARH AT BILASPUR F.A. fMISO N0. 53 OF 2008 Division Bench HON'BLE SHRI DHIRENDRA AAISHRA, <& HON'BLE SHRI DIUP RAOSAHEB DESHMUKH. JJ APPELLANTS Noresh Kumar Agrawal ond others Verstis RESPONbENTS : Smt- Leeio. Agrawal @ Megha Agrawat and others. JUD6MENT FOR CONSIDERATION Sd/- Dhirendra Mishra Judge HON'BLE SHRI DIUP RAOSAHEB OESHMUKH, J r Sd/- Dilip Raosaheb Deshmukh Judge .^ POST FOR PRONOUNCEMENT ON l^ SEPTEMBEft. 2008 Sd/- HI6H COURT OF CHHATTIS6ARH AT BILASPUR F.A. (MISa N0. S3 OF 2008 bhdsion Banch HON'BLE SHRI DHIRENDRA MISHRA, A HON'BLE SHKE DIUP RAOSAHEB DESHMUKH, JJ APPELLANfTS 1. 2. 3. 4. Versus RESPONbENTS 1. 2. 3. Naresh (Cumar Agrawaj Son of Late Mamachand, aged about 55 years; Ro-mesh Kumar Agrawo.1 Son of Late Mamachand, aged about 50 years; Hanumon Prasad Agrawal Son of Lote AAamachand, aged about 48 years; Rajesh Kumar Agrawal Son of Lat'e AAamachand, aged about 34 years; .AII resident of VillQge Betgahna, Occupation Business, Tahsil District Bilaspur (C&) Smt. Leejo. Agrawd @ Megha Agrawaj Widow of Late Arun Kumar Agrawal; AAinor Ku. Muskan D/o Late Arun Kumar Agrawal, aged about 6 years; Anshumon Son of Late Arun Kumar Agrawal, aged about 4 years; The respondents No. 2 and 3 ore minors, through their notural guardicn Mother Smt. Leela Agrawal and resident of Village Belgahna, District Bilaspur (C0), Presently residing at Hamalpara Kharsiyo., Tahsil Kharsjya, District Raigarh (CG) Present : Mr. P.P. Sahu, counsei for the appeilomts. Mr. Amit Sharma, counsel for the respondents. ^^!^^^ Ei^- ^^^ ^^ JUb©MENT (Delivered on l^eptember, 2008) Per Ohirendra Mishra. J Thj-s first appeal i.s directed against- the judgment doted 8.2.2008 passed in Civil Suit No.8/07, whereby learned Fcanily Court, Raigorh dlowing the applicotion of the respondents under Sections 5 A 7, treating the same to be an application under Section 19 of the Hindu Adoptions and Maintenance Act, 1956 (hereinofter referred to as *Act, 1956'), has awarded maintenance at the rote of Rs.1,000/- per month in favour of respondent No.l and crt- the rote of Rs.500/- per month each, in favour of respondents No. 2 A 3 agnin-st Nare-sh A.grnwo.!, o.ppe!iont No.l herein, from the date of judgment i.e 8.2.2008. (Parties hereinafter shall be referred to as per their description before the leomed Famijy Court'.) Applicont No.l is widow of Arun Kumor Agrawol, whereas appliconts No. 2 & 3 are her minor do.ughter ond son. Non-applicflnts are reai brothers of late Arun Kumar Agrawal. The Gipplicants filed application before the learned Family Court- at Raigarh under the Act, 1956 with the overments thot husbond of Qpplicont No.l resided with his brothers/non-appliconts in a joint fomity, they jointly possessed ancestrd as well as self-acquired property at Behgahna; jate Arun Kumar Agrawal looked after grain A provision shop ot Village-Saktibehra, whereas other shops of the joint fomijy were looked ocfter by the non-opplicants. After the death of Arun Kumar Agrawa! on 8.12.2004, the non-applicants grabbed the amount against insuronce policy of late Arun Kumar Agrawal ond thereofter, ousted the appjicants from their home ond ossured them to give their share in the Joint famity propert-y. The shop run by late Arun Kumor Agrawal was token by non-applicant No.l Nosresh Kumar Agrawal, who also promised to poy Rs.750/- per month as rent to 1?^^J; "1 ^^'?—,.^ ^' ^ ^ ^ 11 ^^^ the appiicants. However, even after a lapse of more than one year after the death of Arun Kumor Agrawal, the non-applicants did not pay her ony ojmount towo.rd.s mointeno-nce nor she wois given her -sho.re in the ancestrQJ or joint family propert'ies of her husband, though the non-applicar?ts cre eorning more thfln Rs.50,000/- per monthwhereas the appljcants do not have any source of livejihood. Accordingly, the applicQnts prcyed for maintenance at the rote of Rs.5,000/- per month each. . The non-applicants did not file their reply to the above (xpplicoition of the applicants. Applicant No.l examined herself as AW-1, her father-Bhupdev Agrawd as AW-2, as her witness whereas Hanumon Prasad Agrawal, non-applicant No.3, exomined himself as NAW-1> Learned Fomily Court^ having considered the facts ond evidence o.vailable on record, after hearing both the parties, pQrtly allowed application of the applicoints by recording a finding that the house & shop of the husband of applicant No.l at Saktibehra is in possession of non-applicont No.l Naresh Kumor Agrawal, he is running the provision shop from there ond therefore, looking to the socio-economic condition of both the part'ies, ordered Naresh Kumar Agrawal, non-applicant No.l, to pay maintenonce, (xs mentioned above, to the applicants from the date of judgment i.e. 8.2.2008. Leamed counse! for the appeHaits/non-appIicants contended that tearned Fomily Court has committed an error of law by awarding maintenance to the respondents/appliconts under Section 19 of the Act, 1956. The application under Section 19 of the ^ct, 1956 can be filed only by daughter-in-law against her father-in-tow after the decrth of his son. Since father of appetlont No.l predeceased late Arun Kumar Agrawaj^ie^nstant^appli^^ against the appellants, who are brothers of late Arun Kumar Agrawaj, was not maintainable. It was furt'her contended that there is material varionce in the pleodin.gs and the eyidence adduced by respondent/appiicont No.l; the Court- below also ignored all the admitted facts that the non-applicants are brothers of deceosed late Arun Kumar Agrawaj and they were residing separatejy doing independent business for their jivejihood. It is ajso contended that the amount of maintenance is-too excessiye. On the other hand, learned counsej for the respondents/appliccnts support'ing the impugned judgment vehemently contended that it is true that wrong provisions of Sections 5 <& 7 of the Act, 1956, have been mentioned in the applicotjon by the app.licQnts, howeyer, looking to the contents of the application, it js evident thcri- the application was, in foct, under Section 22 of the Act. There is unrebutted eyidence ovajiable on record that the non-o.pp!icants and husbcnd of applicant No.l were members of a joint Hindu foimity, their family enjoyed joint ancestrd as we!j as joint sejf-acquired properj-ies; the shop run by late Arun Kumar Agrowal was, jater on, run by his brother Naresh Kumar Agrawal, non-applicant No.l, and thus, said Naresh Kumoir Agrawa! hos taken the estate of husbosnd of the applicGint after hls death ond therefore, the Court has rightly held Naresh Kumar Agrawoj, non-applicont No.l, responsibje for payment of mointenance to the appliconts. The Gipplicants connot be denied the relief sought, solely on the ground that they have mentioned wrong provisions in their application for maintenonce ond the appticatjon can be treated either under Section 19 or 22 of the Act, 1956. We have heard ieGrned counsel for the part'ies ond perused record of the learned Family Court' including the impugned judgment. ^ ^^ I/ ^'^^. I'fc^^ ^: ^ ^^/ Tt is not in di.spute that the non-appjicants appeored befor® the Fomijy Court- after service of summons. However, they did not file reply to the application for maintenonce. Applicont No.l Leela @ Megho. Agrawa!, AW-1, in her deposition has ccri-egorically stated that her husband ond his brothers Naresh Kumar Agr^awal and Rajesh Kumar Agrowal, were jointly looking after the family business "Mahamosyo Kirana Stores" -situated at Belgahna. -After the death of her husband, his brother Naresh Kumar Agrawal, is residing with his family in the house where her husbond resided and he is also looking after her husbGnd's shop i.e. AAahamaya Kirana Stores. Non- appliconts are not providing maintenonce to oppjicant No. 1 or her children, who are aged about 7 years ond four years. She has not been cross-examined by the non-appliconts and her version stonds unrebutted. Bhupdev Agrawd (AW-2), father of applicant No.l, has dso stated that ofter the death of hjs son-in-law Arun Kumar Agrawaj, his brother Ncresh Kumar Agrawa! is running his shop situated at Saktibehra, though he hos atso stated that his daughter gpt Rs.5 !ocs from the insuronce poticy of her husband, out of which some amount she has given on interest to her acquaintances omd the rest has been deposited in the bank. She gets Rs.2,000-2,500/- per month by way of interest, however, the above o-mount js not sufficient for maintaining the appttconts. Learned Fomjjy Courl- has exo-mined Honumon Pro.-sad Agpawal (NAW-1), though the non-appliconts did not file ony reply to the o.pplication filed by the applicants. However, this witness has a(so admitted thot the house, in which his brother lote Arun Kumor Agrowal resided, is presently in possesston of Noresh Kumar Agrawal, who is using the same as his godown. He has also admitted -r;~-^--T— m ww •!j l.!]l!i'!li:i;-:l •i---ll V" h^'..''";-i:-.j' •^ ;l!iiBSilfi®B188BBIIS18S8BS8BK ji||Na|||i|||||^||^|^|||l|^|^i|||^ ^s|e!^i|||l|r||i|||^|^|Bi|i||e||^||^^ |e|>|l!|(i|||||||||||||||^r||||^ :!;nQrp]iJ3||ip|||(||||,||vtli^^ iilNSlI%®i?S^gS%B^ii:SM®nS^^^^^ i^w^^iiitii^iiiSf^iiit^^ ^^ar^i|!i^||:|||||^|||||||i||||||^ Y:i^^hl||l:)|oi(^^|(i||^r|^ 's'^ ^lil|^^'|I|»||Iii|oi|i!ii|sj :)aj^Hc<|jj| |||i||||y^|||||||||^|||^^ ^|<^|j|||j^||^^^i||l||i^^|^t<^^ ^|||haH||||^|||||iir|is|l|||||li jP|o|o||!M|||w|||!^^ lliiBil^i^'i® l:Te<^p(l^||at;|lajiiIt||||1s^.|||^ j<;hIldi^:|)ut|o|th|r^BQm^ ^of?lher^wnl!^:ll^^''^y']^?'^i^^ ^:K^.(^l; jl|ij|§|^i||l||||iij|||j|i^j^^ 1111111^^1111111^11111111^11111^^ i. ^•^•;^i:^ ^iitiiusiSiUSBfis^MissjiiiBifiSiBSSiisiix ^Sililli^SliSSISIiSSilJBSISilifijlBSI^^ miii^^^^9i^i^ll^!wi^i^^iil!tiii^ii. & 11^1111111^111^11^1^1^1111111^111^ ill^!^^^^K IWIiS^^^^^^^WI^&S BiliJii8ill i^Wi ^i^iiy^iiyiiSiUi^WB^ wwSiSiii!yig!MiySiiiiSii^^^ ||K|^|||i^^^^^j^^^^^^l^^^^^^^|^9|ijil| lili^iil^i^S^B^^i^^^^l^^illillllllliii ilSSI ^^^^I^.i asi ssws il&ilIIMIII --."^^,/ '^ ^^ -^ ^ v^y ^ i ^ (4) Notwith.stGndihg anything contained in sub- section (2) or sub-section (3), no person who is himself or herself a dependant shafl be liabie to contribute to the maintenance of others, if he or she has obtained a shcre or part, the value of which is, or would, if the liability to contribute were enforced, become fess than what would be awarded to him or her by way of maintenance under this Act. " Tn the instant c-ase, there j.s unrebutted eyjdence tho* the shop, which wos run by the husbcnd of applicant No. 1 and the house, jn which he resided along with his fGmiiy, is presentjy in po.sse-ssion of Noresh Kumar Agrawd, non-appjicant No.l. There is also evidence that said Naresh Kumar Agrawal is running the shop, which was run by his brotherlate Arun Kumar Agrawd. Therefore, in yiew of sub- sections (1)(2) A (3) of Section 22 of the Act, 1956, learned Family Court hos rightjy hejd non-applicant No.l responsible for poiyment of maintenance to the o.pp!icants, os mentioned above. The mecigersum of Rs.1,000/- per month has been ordered in fayour of appliccnt No.l whereQS only Rs.500/- per month each has been grcsnted in favour of appjiccmts No. 2 A 3. Thus, in the considered opinion of this Court- Sooking to the unrebutted pleadings and evidence available on record, the leamed Family Courl' hos not committed any illegolity or infirmity while passing the impugned judgment Qwardjng mo.intenance Gst the rate of Rs4,000/- p.m. in fayour of applicant No. 1 and Rs.500/-p.m. eoch, in fovour of o.ppliccints No. 2 A 3 from the date of judgment i.e. 8.2.2008. In the result, the appeal being devoid of substance is jiable to be dismissed and is accordingly, dismissed. No order os to costs. Sd/- Dhirendra Mishra Judge Sd/- Dilip Raosaheb Deshmukh Judge ^