1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPEAL FROM ORDER NO. 320 OF 2006 APPEAL FROM ORDER NO. 320 OF 2006 APPEAL FROM ORDER NO. 320 OF 2006 with CIVIL APPLICATION NO. 406 OF 2006 Sumatilal Shivlal Munot &Ors. ... Appellants Versus Sou. Amruta Rahul Munot &Ors. ... Respondents Mr.A.A.Kumbhakoni a/w Mr. A.M.Kulkarni, Advocates for the appellants. Mr. A.P.Kulkarni, Advocate, for the respondent No.3. Mr. I.M.Khairdi, Advocate, for respondents Nos. 1 & 2. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 17th January,2008. DATE: 17th January,2008. DATE: 17th January,2008. P.C. P.C. P.C. 1. Heard learned Counsel for the parties. 2 2. The present appellants are the original defendants Nos. 2 to 5 and respondents Nos. 1 and 2 are the original plaintiffs and respondent No.3 is the original defendant No.1. For the sake of convenience, parties would be addressed by their original title. 3. To state in brief, plaintiff No.1 is the wife of defendant no.1 and plaintiff No.2 is their minor daughter, Vanshita. Defendants Nos. 2 and 3 are the parents of defendant No.1. Defendants Nos. 4 and 5 are the brother and sister of defendant No.1. The plaintiffs filed a suit for maintenance under Section 18 against defendant No.1. The trial Court passed an order directing defendant No.1 to pay maintenance of Rs.10,000/- per month to the plaintiff No.1 and Rs.5,000/- to the plaintiff No.2. That aspect is not material for disposal of the present Appeal. 4. The plaintiffs filed an application, Exhibit 5, under Order 39 Rules 1 and 3 of the C.P.C. seeking certain directions to restrain the defendants from alienating or creating any third party interest on the suit property mentioned in Para 1A to 1C of the plaint on the ground that if the property is disposed of, the plaintiffs may not be in a position to execute the 3 decree for maintenance that may be passed under Section 18. This application was opposed by defendants Nos. 2 to 5 on the ground that most of the properties shown in the plaint were self acquired properties of the defendants Nos. 2 to 5. They have no joint family property nor there is any joint family and, therefore, the defendants Nos. 2 to 5 are not liable to make any payment of maintenance nor their property can be charged with the same. They also contended that if they are not liable to make any payment of maintenance, they cannot be restrained from dealing with their property or from creating third party interest in the same. As far as defendant No.1-husband is concerned, he filed an undertaking (Exhibit 85) that he would not alienate the property standing in his name, pending the suit. In view of this undertaking, the trial Court dealt with the claim of the plaintiff only in respect of defendants Nos. 2 to 5 and passed the impugned order restraining defendants from creating any third party interest in the property. 5. On perusal of copies of the documents produced along with the present Appeal as well as the impugned order, it becomes clear that admittedly, there was no ancestral or joint family property in the hands of defendant No.2 nor there is a joint family as understood 4 under the Hindu Law in respect of the defendants. The learned trial Court observed that defendant No.2 had purchased certain properties out of his own income, but in the names of other defendants. The learned trial Court noted that it is the self-acquired property of defendant No.2. It is settled position of law that when there is a Joint Hindu family and the family holds the joint property, then every member of the joint family is entitled to be maintained out of the income of such joint family property. When there is no such joint family property or joint family, plaintiffs No. 1 could not have claimed maintenance against the father-in-law, mother-in-law or their children. The plaintiffs could claim maintenance only against defendant No.1 being husband of plaintiff No.1 and father of defendant no.2. Section 18(1) of the Hindu Adoption and Maintenance Act makes it clear that a Hindu woman, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. Thus, the responsibility of maintenance is clearly on the husband and not on the relatives of the husband. In view of this, there could be no justification to put a restriction on the right of defendants Nos. 2 to 5 to deal with their properties and even to create third party interest in respect of the same. The learned trial Court observed that there 5 was no evidence of partition of the property. In fact, this question was totally irrelevant and redundant because none of the children of the defendant no.2 could claim right or share in the property held by him nor they can claim any right of partition of that property as long as he is alive. The same principle will be applicable in respect of the property held by defendant Nos. 3 to 5 also. As pointed out earlier, defendant no.1, who is liable to maintain the plaintiffs, has already given an undertaking that he would not create third party interest in respect of the property standing in his name. As such, the learned trial Court clearly committed an error in passing the impugned order restraining defendants Nos. 2 to 5 from creating third party interest in respect of the properties standing in their name. In view of this, the Appeal deserves to be allowed. 6. The Appeal is, therefore, allowed. The impugned order is set aside. 7. As the Appeal itself is allowed and disposed of, Civil Application does not survive and stands disposed of accordingly. 6 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)