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2000 DIGILAW 1428 (PNJ)

Raj Kumari alias Rajinder Kaur v. Jasvir Singh alias Bittu

2000-11-22

M.L.SINGHAL

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JUDGMENT M.L. Singhal, J. - Sukhjinder Singh alias Babu minor son of Smt. Raj Kumari alias Rajinder Kaur wife of Jasvir Singh and Smt. Raj Kumari alias Rajinder Kaur herself filed suit against Jasvir Singh alias Bittu, his father Gurmail Singh and mother Mohinder Kaur for separate possession of their 2/5th share by way of partition of the property detailed in the head note of the plaint paras A to D saying that they are joint Hindu family and coparcenary properties, in which, they have 2/5th share (1/5 + 1/5) which defendants have 1/5th share each. They sought permanent injunction also restraining them from alienating the said joint Hindu family and coparcenary properties through sale, mortgage and gift etc. They sought further permanent injunction restraining them from dispossessing them or causing their dispossession of house bearing Municipal unit No. B-XXXIV-1814/1 detailed at para-A of the heading of the plaint forcibly. Along with the plaint, they made application for the grant of temporary injunction to the effect that defendants be restrained from dispossessing them or causing their dispossession from the aforesaid house forcibly and illegally. It was alleged by them in their application for the grant of temporary injunction filed by them under Order 39 Rules 1 and 2 read with Section 151 CPC that Smt. Raj Kumari alias Rajinder Kaur was married to Jasvir Singh on 17.1.1988. After marriage, she cohabited with him in the aforesaid house and gave birth to Sukhjinder Singh alias Babu from his loins. The said properties are joint Hindu family and coparcenary properties in which her son acquired an interest equal to his fathers from the time of his birth. Joint Hindu family/ancestral and coparcenary properties cannot be alienated without any legal necessity. It is alleged that she also contributed in the construction of the properties in the suit as she is serving as ANM in the Civil Dispensary, Ludhiana since the time of her marriage. Her husband was also serving in foreign country since 1985. He also contributed in the purchase of the said properties. 2. Gurmail Singh and Smt. Mohinder Kaur defendants No. 2 and 3, who are her parents-in-law, contested her prayer urging that the marriage of Smt. Raj Kumari alias Rajinder Kaur with Jasvir Singh has since been dissolved by a decree of divorce. She is no longer the wife of Jasvir Singh. 3. 2. Gurmail Singh and Smt. Mohinder Kaur defendants No. 2 and 3, who are her parents-in-law, contested her prayer urging that the marriage of Smt. Raj Kumari alias Rajinder Kaur with Jasvir Singh has since been dissolved by a decree of divorce. She is no longer the wife of Jasvir Singh. 3. Vide order dated 21.10.1998, Civil Judge, Junior Division, Ludhiana declined this prayer of the plaintiffs and refused to grant them temporary injunction. 4. Plaintiffs went in appeal, which was dismissed by learned Additional District Judge, Ludhiana vide order dated 14.8.1999. Still dissatisfied, plaintiff Raj Kumari alias Rajinder Kaur came up in revision to this Court. 5. Learned counsel for the petitioner submitted that the petitioner and her minor child are residing in House No. B-XXXIV-1814/1 and they are registered with Diwan Gas Service/M/s. Azad Gas Service against this house for the supply of gas. It was also submitted that they are recorded as ration card holders as residents of this house. She has account in the post office where also she is shown as a resident of this house. It was submitted that Raj Kumari alias Rajinder Kaur and her child are putting up in this house. It was further submitted that it is a matter of proof whether the properties in suit are joint Hindu family, coparcenary and ancestral properties or they are the self acquired properties of Gurmail Singh and Smt. Mohinder Kaur who are parents-in-laws of Raj Kumari. It was further submitted that Smt. Raj Kumari is not a stranger to the family. She is the wife of Jasvir Singh alias Bittu son of Gurmail Singh and Mohinder Kaur. Similarly, Sukhjinder Singh alias Babu is not a stranger to the family. He is son of Jasvir Singh son of Gurmail Singh and Smt. Mohinder Kaur and he is, thus, a grand-son of Gurmail Singh and Smt. Mohinder Kaur. It was submitted that they are putting up in this house not as intruders but as members of the family of the defendants. Assuming that this house is not joint Hindu family/coparcenary/ancestral properties, they are entitled to put up in this house. It was submitted that they are putting up in this house not as intruders but as members of the family of the defendants. Assuming that this house is not joint Hindu family/coparcenary/ancestral properties, they are entitled to put up in this house. Subject to the provisions of Section 18 of the Hindu Adoption and Maintenance Act, 1956, 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." Subject to the provisions of Section 20 of the Hindu Adoptions and Maintenance Act, 1956, a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents." 6. A wife is entitled to be provided with a residence by her husband and her parents-in-law if they have some residential house. "Maintenance" as defined in Section 3(b) of the Act includes :- "(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage." 7. In my opinion, both the Courts below fell in error when they refused temporary injunction to Smt. Raj Kumari alias Rajinder Kaur and her minor child restraining the defendants from interfering with their possession of the aforesaid house or causing their dispossession therefrom forcibly, when they are shown to be residing there not as strangers but as members of the family of the defendants. Assuming that Smt. Raj Kumari alias Rajinder Kaur is the divorced wife of Jasvir Singh, she is entitled to be provided with residence so long as she remains unmarried. There was, thus, improper exercise of discretion on the part of the Courts below. Improper exercise of discretion by them has to be corrected by this Court in the exercised of its revisional jurisdiction. So, this revision is allowed. Temporary injunction is granted to the petitioner restraining the defendants from interfering with their possession of the house or causing their dispossession from this house forcibly during the pendency of the suit. Revision allowed.