FAO(OS) No. 270/2004 Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO (OS) No. 270/2004 RESERVED ON :October 1st , 2008 % DATE OF DECISION : January 16, 2009 RADHIKA NARANG & ORS. ..... Appellants Through: Mr. Y.P. Narula, Sr. Advocate with Mr. Sanjoy Gosh and Mr. Aniruddha Choudhary, Advocates. Versus KULDEEP NARANG & ANR. ..... Respondents Through: Mr. C.A. Sundaram, Sr. Advocate with Mr. Shailen Bhatia, Advocate for R-2. CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL HON'BLE MR. JUSTICE MANMOHAN 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the digest? Yes J U D G M E N T MANMOHAN, J: 1. The Appellant daughter-in-law has filed the present appeal against the order dated 16th November, 2004 passed in Suit No. 1225 of 2003 whereby the learned Single Judge while deciding a preliminary issue has held that the plaint does not disclose a cause of action against the father-in-law (defendant No. 2/respondent No. 1 herein) and has deleted him from the array of parties. FAO(OS) No. 270/2004 Page 2 of 27 2. Learned Single Judge while reaching the above conclusion has held that by virtue of Sections 18 and 19 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter to be referred as the ‘said Act’), a daughter-in-law during the life time of her husband had no right to seek maintenance from her father-in-law and further in view of Section 4 of the said Act, the Old Customary Law which entitled a wife to seek maintenance from co-parcenary property was no longer available. The learned Single Judge concluded that the question of defendant No. 2/respondent No. 1 herein being ‘karta’ or his obligation to perform duties as ‘karta’ did not arise in the present case and he was neither a proper nor a necessary party and further that he had been improperly joined. 3. At the outset, Mr. Y.P. Narula, learned senior counsel for the Appellant submitted that the learned Single Judge failed to appreciate that the present suit was a composite suit for maintenance and residence not only on behalf of the wife but also on behalf of the minor children. In this context, he referred to the cause title of the suit itself which stated “SUIT FOR MAINTENANCE AND SEPARATE RESIDENCE UNDER SECTION 9 CIVIL PROCEDURE CODE READ WITH SECTION 18 AND 20 OF THE HINDU ADOPTION & MAINTENANCE FAO(OS) No. 270/2004 Page 3 of 27 ACT, 1956 & FOR PERMANENT AND MANDATORY INJUNCTION.” 4. Mr. Narula submitted that the minor children acquire an independent right of ownership by birth in Hindu co-joint parcenary property and until partition, each member has co- ownership over the said property and a co-parcener can seek maintenance from such property. In this context, he relied upon the observations of the Apex Court in Controller of Estate Duty Vs. Alladi Kuppuswamy reported at (1977) 3 SCC 385 wherein it has been held as under:- ―Thus analyzing the ratio of the aforesaid case regarding the incidents of a Hindu coparcenary it would appear that a Hindu coparcenary has six essential characteristics, namely, (1) that the lineal male descendants up to the third generation acquire an independent right of ownership by birth and not as representing their ancestors; (2) that the members of the coparcenary have the right to work out their rights by demanding partition; (3) that until partition, each member has got ownership extending over the entire property conjointly with the rest and so long as no partition takes place, it is difficult for any coparcener to predicate the share which he might receive; (4) that as a result of such co-ownership the possession and enjoyment of the property is common; (5) that there can be no alienation of the property without the concurrence of the other coparceners unless it be for legal necessity; and (6) that the interest of a deceased member lapses on his death and merges in the coparcenary property.‖ FAO(OS) No. 270/2004 Page 4 of 27 5. He submitted that in the impugned judgment there was no discussion with regard to the minor children’s right to claim maintenance against their grandfather as well as co-parcenary property in the control of defendant No.2/respondent No.1 as ‘karta’. 6. Mr. Narula submitted that in view of the averments in the plaint it could not be concluded without a trial that the plaint did not disclose a cause of action against defendant No.2 / respondent No.1 herein. In this context learned Senior Counsel for Appellant referred to the following averments in the plaint which are being reproduced hereinbelow for ready reference:- ―4. The Plaintiffs further submit that the Defendant No. 2 is the head of the Narang Joint Hindu family, an extremely well known wealthy family of Delhi. The Narang Family owns various business and movable and immovable assets, including properties No.3, currently used as an office & No. 5, Dr. G.C. Narang Marg, Delhi, in which the Plaintiff No. 1 started living with the Defendant No. 1 after her marriage and was living there till the day she was forced to leave the said matrimonial house on 25.2.2003, as mentioned above. Both the properties have a common enclosure and are situated in approx. 4.73 acres of land which interalia also contain a swimming pool, gardens including a huge vegetable garden, a temple, servants quarters etc. 5. The Defendant No. 1 is the managing director cum CEO of Eastern Medikit Ltd., of which company he is the virtual owner. The defendant No. 1 also controls various other companies the details of which are given hereinafter. The Defendant No. 1 earns huge profits from these companies and FAO(OS) No. 270/2004 Page 5 of 27 spends more than Rs. 5 lacs per month. The Defendant No. 1 controls and has major shareholdings in the following family companies in which his father is also involved: i. Eastern Medikit ltd. ii. Eastern Connections ltd. iii. Asuma Medical ltd. iv. Asuma Research ltd. v. International Systems Pvt. Ltd. vi. Vital Tooling Pvt. Ltd. vii. Indeco Engineering Pvt. Ltd. viii. Eastern Securities ltd. It is relevant to mention that the Plaintiff No. 1 is also a shareholder in all these companies. However the Defendant No. 1 has kept the control of the companies with him and has denied to share profits etc. with the Plaintiff No. 1. 8………The Defendant No. 2 is the Karta and the Head of the Narang‘s joint family, and is liable to maintain and provide for the maintenance of the Plaintiffs out of the joint family income and assets, which he is controlling jointly with Defendant No. 1. The Plaintiff No. 3 is the minor daughter of the Plaintiff No. 1 and Defendant No. 1 and she is entitled to be maintained from the assets & income of the joint family till she gets marriage. The Defendants are also liable to provide for her marriage expenses as per the status of the ‗Narang family‘. 9. The Plaintiff No. 1 submits that the Defendant No. 1 has acted dishonestly and has written letters to the Plaintiff No. 1 wrongly, stating that the house at 3 & 5, Dr. G.C. Narang Marg, Delhi belongs to his father. In fact, the said property is an ancestral property and the Defendants are holding the same in a fiduciary capacity and for the benefit of all the Plaintiffs, and the mother of Defendant No. 1. The said Defendant No. 1 is adverse to the interest of his minor children as he is denying the rights of his FAO(OS) No. 270/2004 Page 6 of 27 own minor children in the ancestral joint family properties. 10. The Plaintiffs submit that the properties at 3 & 5, Dr. G.C. Narang Marg are the ancestral properties of the ‗Narang Family‘ acquired by Sir G.C. Narang, the great grandfather of Defendant No. 1 who used to live in Pakistan before partition. After partition, he came to India and acquired properties situated at 3 & 5 Dr. G.C. Narang Marg, Delhi, which comprises of a land area of 4.75 area.‖ 13. The Plaintiff No. 1 submits that the Defendants are controlling a number of Private & Public Limited Companies, the list whereof is annexed hereto as Annexure-C. The grandfather of Defendant No. 2 (Sir G.C. Narang) owned Sugar Mills, which has been the source of funds for the Narang family for three generations. A number of companies have been started by Narang family at different times to structure or re-structure their respective rights and to suit their Tax planning. In the said companies the majority share-holding has always been with the Narang family and, therefore, the Defendants are liable to disclose the assets of the said companies and their respective share- holdings in the said companies. The Plaintiff No. 1 has also been holding shares in some of the companies and she is entitled to the said shares as her absolute property and as owner thereof.‖ 40. The Plaintiff No. 1 submits that after her marriage, she has lived in 5, Dr. G.C. Narang Marg, Delhi. The said house is a joint family property and the Plaintiffs have a right in the said property. It appears that on account of his dispute with Plaintiff No. 1, the Defendant is now alleging that the said house is the property of his father only. The Plaintiff No. 1 submits that the said conduct of the Defendant is not in the interest of his son, who are members of the HUF, to which the said property belongs. The Plaintiff No. 1 submits that to set up a false defence to the claim of maintenance of the Plaintiffs, the Defendant has started pleading poverty and has started addressing the correspondence from an alleged rented house situated at IC 2nd Floor, B.D. Estate, Delhi-110 054 FAO(OS) No. 270/2004 Page 7 of 27 and is refusing to accept correspondence at the said Dr. G.C. Narang Marg. Keeping in view the said conduct of the Defendant, which is adverse to the interest of the minor children of the parties, the Plaintiffs reserve their right under Order 2 Rule 2 CPC to seek partition of the joint family properties. The said property is situated on 4.75 Acres of land or more. The said property is ancestral and not self-acquired of the Defendants. The Defendant No. 1 has always driven in foreign cars of selected makes, but to set up a false defence, he is now representing that he is riding a Maruti Esteem. The Plaintiffs submit that to ascertain the net worth of the Defendants, the credit card records of the Defendants for the last 3-4 years would show that the Defendants are fabricating records and are making false statements to deny to the Plaintiffs their legitimate rights to maintenance.‖ (emphasis supplied). 7. Mr. Narula submitted that at this stage the test to be applied was that of Order 7 Rule 11 CPC and, therefore, a plaint could only be dismissed even if all the allegations made in the plaint are believed to be true and correct but the plaintiff is held not entitled to any relief on the basis that it either discloses no cause of action or the relief is barred by law. In this context he relied upon observations of a Coordinate Bench of this Court in “ Ravi Singhal and others Vs. Manali Singhal and Others”, reported in 2000 Volume VII AD ( Delhi) 773 wherein it was held as under :- ―21……To enable the Court to reject the plaint on the ground that it does not disclose a cause of action where the plaint is based on a document, the FAO(OS) No. 270/2004 Page 8 of 27 Court is entitled to consider the said document also and to see if on conjoint reading thereof a cause of action is disclosed. However, validity of the document cannot be considered at this stage. In asking the Court to decide an issue whether the plaint discloses a cause of action or not, the defendant must be taken to admit, for the sake of argument, that the allegations of the plaintiff made in the plaint are true -modo et forma- in manner and form. The power to reject the plaint under this clause can be exercised only if the Court comes to the conclusion that even if all the allegations are proved, the plaintiff would not be entitled to any relief whatsoever……...‖ 8. Mr. Narula further submitted that the said Act is not an exhaustive law relating to maintenance amongst Hindus. He stated that under Hindu Law a person had a right to seek maintenance in a two-fold manner i.e. firstly, due to existence of a particular relationship and secondly, due to possession of property like co-parcenary property. He submitted that while the first obligation is personal in nature and arises on account of a relationship; the other obligation arises on possession of co- parcenary property and it is not confined to a particular relationship which casts an obligation to maintain. In this context he relied upon a judgment of the Hon’ble Supreme Court in Kamalammal v. Venkatalakshmi Ammal reported in AIR 1965 SC 1349 wherein it has been held :- ―………That might indicate that it would not be violent inference to hold that the disqualified heir had still some interest however little it might be in the FAO(OS) No. 270/2004 Page 9 of 27 property, for surely it is the proprietary right that gives him the right to maintenance. It might be noticed that under the Hindu law the liability to maintain others arises in a twofold manner: (a) from the existence of a particular relationship independent of the possession of any property, (b) on possession of property. In the first category fall the cases of the liability to maintain a person‘s wife, minor sons, and unmarried daughters and aged parents. Here the obligation is personal and is brought into existence by the relationship. In the other category are those where the liability is dependent on the possession of coparcenary property. Assuredly the liability to provide for the maintenance of the disqualified heir under the Hindu law would fall under the latter category also i.e. it is not confined to the particular relationships which cast the obligation to maintain. Thus a brother would have to be maintained out of the joint property where he is disqualified from claiming partition. No doubt, the texts deny him the right to partition but that is not the subject-matter of the discussion here. If the right to be maintained is traceable to his right to the property in which he is excluded from participating in full, it would not be a violent inference to hold that he has an incipient and vestigial interest in that property which is not capable of being asserted against other coparceners, but when there is none entitled to enjoy it as coparcener, blossoms into a full right……‖ (emphasis supplied). 9. He also relied upon the judgment of the Bombay High Court in the case of Krishna Madhav Ghule and Ors. Vs. Padminibai Mohan Ghule reported in 1977 Maharashtra Law Journal wherein it was held as under :- ―12. What remains is the point which has been referred to above with regard to the power of the Court to create a charge on the joint family property in favour of the plaintiff. Mr. Naik, the learned FAO(OS) No. 270/2004 Page 10 of 27 counsel for the defendants, contended that law of maintenance is now governed by the provisions of the Hindu Adoptions and Maintenance Act. He relied on the provisions of section 4, sections 18 and 19 of the Act and contended that Hindu wife is entitled to be maintained by her husband during her life time and the father-in-law‘s liability commences only after the death of her husband. He also referred to the definition of the word, ―dependents‖ and contended that, that definition will come into operation only when determining the liability of the heirs of the deceased Hindu. But it must not be forgotten that the Hindu Adoptions and Maintenance Act is not exhaustive of the law relating to maintenance amongst Hindus. 13. It is an Act to amend and codify the law relating to adoptions and maintenance amongst Hindus; but having regard to the provisions of section 4 it must be held that only in so far as there is some express enactments in the Act, that the Act can be said to be exhausting in regard to such express provisions. There is no provision in the Hindu Adoptions and Maintenance Act relating to the right of a coparcener‘s wife to be maintained out of the coparcenary property. Such a right was part of the old Hindu Law. The manager of the joint Mitakashara family is under a legal obligation to maintain all members of the family, their wives and their children. (See Manusmriti Chapter 9, section 108; Naradasmriti Chapter 13, sections 26,27, 28 and 33, Mulla‘s Hindu Law, 13th Edition 1974 para 543 page 591). 14. Obligation to maintain these persons arises from the fact that the Manager is in possession of the family property (See Kamlamal v. Venkatlaxmi). The Hindu Adoptions and Maintenance Act has no doubt provided for the personal liability of the husband to maintain his wife and the liability attached to the property inherited by the heirs in so far as dependents are concerned. The Act has not made any provisions regarding the maintenance of the wife of a coparcener. Therefore, the old principles of Hindu Law in this behalf continue to FAO(OS) No. 270/2004 Page 11 of 27 apply. The statutory right of maintenance given under section 18 avails to the wife against her husband whether he has or has not any property. It is the personal liability of the husband to satisfy this right. As long as the family continues to be joint the coparcenary must be held to possess the property belonging to the husband and hence all its members are also liable to maintain the plaintiff. 15. It is also well settled that when a coparceners wife has a right of maintenance it can be made the subject matter of a charge on the property of the coparcenary by a decree of the Court. Mr. Naik, submitted that the right of maintenance can be enforced by the wife only in respect of the share of the husband. But the share of the husband cannot be ascertained unless there is a partition under Hindu Law. The essence of a coparcenary is unity of ownership in the whole body of coparceners. 16. According to the true notion of an undivided family governed by the Mitakashara Law while it remains undivided it cannot be predicted by the joint and undivided member of the family that he and/or any particular member has a definite share, 1/3rd or 1/4th. The right of each coparcener until a partition takes place, consists in the common possession and common enjoyment of the coparcenary property. There is a community of interest and unity of possession between all the members of the family. Hence the entire joint property is liable to be subjected to a charge for the maintenance of the plaintiff as the wife of one of the coparceners. The decree passed by the lower Court is, therefore, in accordance with law.‖ (emphasis supplied). 10. He further submitted that a Coordinate Bench of this Court in the case of Ravi Singhal and others Vs. Manali Singhal and FAO(OS) No. 270/2004 Page 12 of 27 Another reported in 2000 VII AD (Delhi) 773 has held as under:- ―The Hindu Adoptions and Maintenance Act, 1956, is not exhaustive on the law relating to maintenance among Hindus. It is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. Section 4 of the Act gives overriding effect to the provisions of the Act. However, a codifying statute does not altogether obliterate the old law with respect to the matters for which provision is not made in the Act. The prior law ceases to have effect to the extent laid down in that Section. As an inevitable corollary it also follows that in respect of matters for which no provision is made in the Act, the old law must continue to remain applicable.‖ (emphasis supplied). 11. On the contrary, Mr. C.A. Sundaram, learned senior counsel for the Respondent submitted that the test of Order 7 Rule 11 CPC was not applicable to the present case as the learned Single Judge had deleted Respondent No. 1 from the array of parties after deciding a preliminary issue. Mr. Sundaram stated that the Appellant’s argument proceeds on an erroneous basis that there is a co-parcenary property. He submitted that in view of the averments in the written statement and the failure of the Appellant/plaintiff to lead any evidence, it could not be presumed that there is any Hindu Undivided Family and the respondent No. 1/defendant No. 2 was a ‘karta’ of said Hindu Undivided Family. In this context, learned Senior Counsel for FAO(OS) No. 270/2004 Page 13 of 27 Respondent No.1 referred to and relied upon the following para in the said Respondent’s written statement: ―F. The answering Defendant also states at the outset that there is no Narang Joint Family. Such and entity does not exist. The answering Defendant is making a responsible statement which is in consonance with income tax and other records. The Plaintiff No. 1 is fully aware that there is neither an Hindu Undivided Family nor any property belongs to the said Hindu Undivided Family. The two buildings discussed in the plaint being No. 5, Dr. G.C. Narang Marg, Delhi and No. 3, Dr. G.C. Narang Marg, Delhi are not owned by any Hindu Undivided Family. The Plaintiff No. 1 has made vague, incorrect and irresponsible statements.‖ (emphasis supplied). 12. On a demurrer, Mr. Sundaram, learned senior counsel for the Respondent submitted that a daughter-in-law whose husband is alive has no legal right to claim maintenance from her father-in-law. He further submitted that matter relating to grant of maintenance are now exclusively governed by the provisions of the said Act. In this context he referred to Sections 3(b), 18 and 19 of the said Act which read as under:- “3. Definitions.- In this Act, (b) Maintenance include- (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment, FAO(OS) No. 270/2004 Page 14 of 27 (ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage….. 18. Maintenance of wife.- (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance- (a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or willfully neglecting her. (b) if has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injuries to live with her husband. (c) if he is suffering from a virulent form of leprosy. (d) if he has any other wife living. (e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere. (f) if he has ceased to be a Hindu by conversion to another religion. (g) if there is any other cause justifying living separately. (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion. 19. Maintenance of widowed daughter-in-law.- (1)