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2009 DIGILAW 220 (PNJ)

Major Singh v. Mohinder Kaur

2009-01-27

S.D.ANAND

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JUDGMENT S.D. ANAND, J. 1. Respondent Mohinder Kaur claiming to be widow of a predeceased son of Piara Singh (who died after the filing of the plea under Order 33 Rules 1 and 2 of the Code of Civil Procedure and is represented by his wife, a son and three daughters as legal representatives) filed an application for the award of interim maintenance in terms of provisions of Section 19 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as “the Act”). 2. That plea of hers was allowed by the learned Trial Court, pending consideration of the plea for being allowed to sue in forma pauperis. In that context, learned Trial Judge held that the transfer of the entire agricultural holding of Piara Singh in the name of Major Singh (vide transfer deed dated 22.3.2004) was “to defeat the rights of the applicant particularly when the alleged conduct of the application has been mentioned in the Transfer Deed itself.” 3. Learned counsel for the petitioner argues that the impugned order deserves outright invalidation in view of the fact that the plea with regard to allowance or otherwise of the request made by the respondent-wife for being allowed to sue in forma pauperis, was pending consideration and had not been disposed of either way by the Court. 4. The plea is denuded of merit. It was held in Smt. Gian Devi Vs. Shri Amar Nath Aggarwal etc. ILR 1975 (1) Delhi 811 that such a request could be allowed even during the pendency of the application to sue in forma pauperis. Relevant observations made by the Delhi High Court, in the context, are reproduced as under for facility of reference:- “Applicant, an aged and forlorn woman of 76 years, filed a suit for maintenance in forma pauperis and during pendency of the application for permission to sue in forma pauperis, she applied for grant of interim maintenance. The question before the Court was whether interim maintenance could be granted to her. HELD also, that it is the duty of the Court to protect the interest of the applicant even at this stage of the proceedings, even though it is an interlocutory application and even though the application is still to be adjudicated upon for the purposes of finding out whether the applicant is entitled to sue in forma pauperis. “ 5. HELD also, that it is the duty of the Court to protect the interest of the applicant even at this stage of the proceedings, even though it is an interlocutory application and even though the application is still to be adjudicated upon for the purposes of finding out whether the applicant is entitled to sue in forma pauperis. “ 5. Learned counsel for the petitioner did not invite my attention to any judicial pronouncement to the contrary. It is accordingly held that plea for the award of interim maintenance was competent even while the plea for being allowed to sue forma pauperis is pending consideration of the Court. 6. Learned counsel for the petitioner, then, argues that the petitioner who is brother-in-law of the respondent, cannot be held liable for paying any interim maintenance for want of proof that the property, which came to him from his father, was ancestral in the hands of the latter. 7. It is apparent from the Transfer Deed that the entire property held by Piara Singh deceased was transferred by him in the name of Major Singh, vide Transfer Deed dated 22.3.2004. On point of fact, the learned Trial Judge noticed that the application for interim maintenance (and also the plea for being allowed to sue forma pauperis) had been typed out on 20.3.2004 but filed on 22.3.2004. For the moment, I am not inclined to disagree with that finding of fact. A party accountable for a duty under the law cannot be allowed to defeat entitlement of a claim by adoption of that course. 8. It is only at the trial that the parties would adduce evidence with regard to nature of the property transferred by Piara Singh to Major Singh. The present is only an application for the award of interim maintenance. The competence of such application was upheld by the Kerala High Court in Sivankutty Vs. S. Komalakumari and others AIR 1989 124. It was observed as under:- “Notwithstanding the fact that Section 18 of the Hindu Adoptions and Maintenance Act or any other provision of that Act does not provide for grant of interim maintenance pending final decision in the proceeding seeking maintenance from the husband, the Court by virtue of its duty to render fair justice and its inherent power saved under S. 151, Civil P.C. Has wide discretion to grant interim relief. The width and amplitude of the inherent power are co-extensive with necessity. The discretion in relation to a Court of justice means “a well grounded judicial discretion, properly guided and guarded by mature consideration of all things which are relevant to the issue. It should not sound fanciful, undisciplined or self-opinioned. It should not be whimsical, but should be legal and regular”. The power to grant interim maintenance is also implicit in S.18 of the Act. The Court cannot ignore considering the said reality of long delay in the final disposal of the litigation.” 9. It is, thus, evident from the above discussion that an application for award of interim maintenance is maintainable even then the plea of the claimant for being allowed to sue in forma pauperis is pending consideration of the Court. It is also held that such a claim cannot be defeated by the party liable therefor by transferring the entire property to his son vide a transfer deed, particularly under the circumstances noticed by the learned Trial Court. In the light of the foregoing discussion, the petition is held to be denuded of merit and is ordered to be dismissed.