Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 159 (MP)

Neha Singh v. Asha Singh

2011-02-03

G.S.SOLANKI

body2011
ORDER G.S. Solanki, J. 1. This Misc. Appeal has been preferred by the Appellant under Order 43 Rule 1(r) read with Section 151 of Code of Code of Civil Procedure being aggrieved by order dated 17.9.2010 passed by Second Additional District Judge, Satna in MJC No. 18/2009. 2. It is not in dispute that Respondent No. 1 Smt. Asha Singh is a legally married wife of late Ashok Kumar Singh. It is also not in dispute that Appellant Ku. Neha Singh is a daughter of late Ashok Kumar Singh by his first wife Smt. Anita Singh, who died in the year 1990-91. 3. The facts of the case in short are that the Appellant filed a civil suit for declaration and injunction before the trial Court on the basis of Will executed by late Ashok Kumar Singh in her favour. She filed an interim application under Order 39 Rule 1 and 2 read with Section 151 of Code of Code of Civil Procedure for grant of temporary injunction during pendency of the suit and pleaded inter alia that her father late Ashok Kumar Singh executed a Will in her favour on 3.11.2008 that she alone is entitled to get retiral benefits and payments from the office of his father. It was further pleaded that her father died on 27.11.2008. Respondent No. 1 after dispute with her husband late Ashok Kumar Singh, left her matrimonial house in the year 2006 and living in her parental house. Respondent No. 1 lodged a report against Appellant, her father and grandfather. It was also pleaded that Respondent No. 3 is bent upon to disburse the retiral benefits in favour of Respondent No. 1. Since as per the Will executed by father of Appellant, the Appellant is the only person who is entitled for retiral benefits, Appellant has prima facie case in her favour. In the event of disbursement, she will be deprived from aforesaid right and she will suffer irreparable loss, therefore, temporary injunction against Respondents was prayed. 4. Respondent No. 1 replied that the Will is forged and fabricated. She is a married wife of late Ashok Kumar Singh, therefore, along with the Appellant, she is also entitled to get retiral benefits under M.P. Civil Services (Pension) Rules, 1976. She further pleaded that there is no prima facie case, balance of convenience and irreparable loss in favour of the Appellant. She is a married wife of late Ashok Kumar Singh, therefore, along with the Appellant, she is also entitled to get retiral benefits under M.P. Civil Services (Pension) Rules, 1976. She further pleaded that there is no prima facie case, balance of convenience and irreparable loss in favour of the Appellant. On the contrary, in the event of non payment of retiral benefits to Respondent No. 1, she will have to struggle for livelihood. The aforesaid three points i.e. prima facie case, balance of convenience and irreparable loss are more in favour of Respondent No. 1 in comparison to the Appellant. 5. The trial Court after considering the material on record, dismissed the application filed by the Appellant, hence this Misc. Appeal. 6. Learned Counsel for the Appellant has submitted that the trial Court committed illegality, in not holding that the three factors of prima facie case, balance of convenience and irreparable loss are in favour of the Appellant. He has further submitted that Respondent No. 1 deserted from her husband's house, went to her parental house and lodged a report against her husband and in-laws including the Appellant, therefore, late Ashok Kumar Singh, by executing the Will, excluded Respondent No. 1 from the inheritance, however, the Will is subjudice, therefore, till the decision of Civil Suit, status quo should be maintained in regard to payment of post retiral dues. He has further submitted that the trial Court failed to consider the aforesaid relevant material on record and passed the impugned order which is contrary to law and facts, and is liable to be set aside. He further prays for grant of temporary injunction in favour of Appellant and in alternative, he prays for direction to the trial Court for speedy trial, till then prays for maintaining the status quo. 7. Learned Counsel for the Respondent has submitted that the trial Court applied its mind on the golden principles for grant of injunction and rightly held that Appellant/Plaintiff has no prima facie case and balance of convenience in her favour as well as there is no such irreparable loss, which cannot be compensated in money, therefore, prays for dismissal of appeal. 8. After considering the rival contentions raised by parties and having perused impugned order dated 17.9.2010 and other material on record, I am of the view that this Misc. Appeal is liable to be dismissed. 8. After considering the rival contentions raised by parties and having perused impugned order dated 17.9.2010 and other material on record, I am of the view that this Misc. Appeal is liable to be dismissed. As mentioned above, it is not in dispute that Respondent No. 1 is a legally married wife to late Ashok Kumar Singh, she was not divorced by late Ashok Kumar Singh, therefore, she is entitled to get the maintenance from Ashok Kumar Singh and charge of maintenance is always on the property of Ashok Kumar Singh. Ashok Kumar Singh died on 27.11.2008, amount of his retiral benefits became his estate after his death. Being his wife, Respondent No. 1 has equal right and share in the retiral benefits along with the Appellant. 9. It was submitted that there was dispute between Respondent No. 1 and Ashok Kumar Singh, during his life time and Respondent No. 1 lodged report against her husband, Appellant and in-laws, but due to this incident she cannot be excluded or debarred from the estate of late Ashok Kumar Singh. Since Respondent No. 1 is living separately from her husband since 2006 and nothing on record to show that she was being maintained by Ashok Kumar Singh, in his life time. A Hindu, however, cannot by Will so dispose of his estate (properties) as to defeat the legal right of his wife to maintenance. In these circumstances, despite execution of Will in favour of Appellant No. 1, in my opinion, Appellant/Plaintiff has no strong prima facie case in her favour. 10. Further in the event of non payment of amount of retiral benefits to Respondent No. 1, she will be in trouble for her livelihood. Therefore, point of balance of convenience and irreparable loss are also not in favour of Appellant. In these circumstances order passed by trial Court is based on sound principles of law. 11. Thus, there is no illegality committed by trial Court in passing the impugned order which warranting interference of this Court. 12. Resultantly, appeal has no force and is hereby dismissed. No orders as to costs. 13. Advocates' fee as per schedule or certificate, whichever is less. Appeal dismissed.