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2012 DIGILAW 80 (AP)

Syed Yakub v. Bee Amma Begum

2012-01-24

C.V.NAGARJUNA REDDY

body2012
JUDGMENT 1. The petitioners, who are defendant Nos.1 and 2 in O.S.No.14 of 2010 filed by respondent No.1, filed this Civil Revision Petition feeling aggrieved by order, dated 03.11.2010, in I.A.No.523 of 2010 in O.S.No.14 of 2010, whereby the learned Judge, Family Court-cum-Additional District Judge, Khammam partly allowed the said application. 2. The facts in brief which are relevant for the purpose of disposal of this Civil Revision Petition are stated as under: - The petitioners are the sons of respondent No.2 and brothers of respondent No.1. Respondent No.1, a married woman and living with her husband separately, filed the above-mentioned suit for partition and allotment of 1/5th share of the suit schedule properties to her. Respondent No.1 filed I.A.No.523 of 2010 in the said suit for appointment of a Receiver to take possession of the suit schedule properties and manage the same during the pendency of the suit, by conducting lease/auction of suit ‘A’ schedule mango garden and item Nos.1 and 2 of plaint 'B' schedule properties, viz., rice mill and the house, and deposit the lease amount into the Court. She also sought for a direction to the petitioners herein to pay Rs.10,000/- per month towards her maintenance and medical expenses as an alternative prayer. 3. Respondent No.2, the mother of the petitioners, who is defendant No.3 in the said suit, filed I.A.No.524 of 2010, under Section 151 of the Code of Civil Procedure, for appointment of an Advocate-Commissioner to conduct lease/auction of the suit ‘A’ schedule mango garden and other properties in respect of which I.A.No.523 of 2010 was filed, or in the alternative, to direct the petitioners to pay Rs.10,000/- per month towards her maintenance and medical expenses. 4. The petitioners filed counter-affidavits resisting these two applications. 5. The lower Court has rejected I.A.No.524 of 2010 filed by respondent No.2-mother of the petitioners on the ground that except making mere allegations, she has failed to place any piece of evidence in support of her pleas. However, the lower Court has partly allowed I.A.No.523 of 2010 filed by respondent No.1 and appointed an Advocate-Commissioner for the purpose of sale of mango crop, forming part of 'A' schedule property, as and when the same is ripe and is suitable for sale/auction, and to deposit the sale proceeds before the Court. However, the lower Court has partly allowed I.A.No.523 of 2010 filed by respondent No.1 and appointed an Advocate-Commissioner for the purpose of sale of mango crop, forming part of 'A' schedule property, as and when the same is ripe and is suitable for sale/auction, and to deposit the sale proceeds before the Court. The lower Court has also directed the parties to approach the Court for issuance of suitable directions for distribution of the sale proceeds. 6. Having considered the approach of the lower Court, this Court is unable to desist from expressing its displeasure at the way in which it has dealt with these two applications. The lower Court which discussed Exs.A-1 to 3, rendered a categorical finding that respondent No.1 herein, who is the petitioner in I.A.No.523 of 2010, failed to establish prima facie case in respect of her title, special equities and also that the property at the hands of the petitioners is in danger of being wasted. The lower Court has, however, partly allowed the I.A. by appointing an Advocate-Commissioner. This approach of the lower Court is wholly lopsided, to say the least. When the lower Court has found that respondent No.1 failed to make out a case for appointment of a Receiver, it has failed to realize that the same reasons would hold good even for rejecting prayer for appointment of a Commissioner. 7. While the Court below has committed a serious jurisdictional error in allowing the application of respondent No.1 for appointment of an Advocate-Commissioner for auctioning the usufruct of the mango garden, it has compounded the same by ignoring the plea of respondent No.2 at least for grant of some maintenance towards her sustenance and also medical expenses, on the ground that no evidence was adduced by her to show that she is suffering from ill-health. It is not in dispute that respondent No.2 is aged about 70 years, and it is reasonable to presume that a person of that age would suffer from ailments. The lower Court ought to have considered the alternative plea of respondent No.2 for grant of reasonable maintenance as she is not only the mother of the petitioners, but also a widow aged about 70 years without having any support. The lower Court has completely failed to make a humanitarian and rational approach in dealing with the application of respondent No.2. 8. The lower Court has completely failed to make a humanitarian and rational approach in dealing with the application of respondent No.2. 8. It is the sacred and pious obligation of the sons to take care of their parents in all events and at all costs. It is distressing to note that a tendency has developed in the society where the children want to succeed to the wealth of their parents without shouldering corresponding responsibility to take care of them in the evening of their lives. The growing number of old age homes bears ample testimony for the neglect of the old aged parents by their children. 9. Considering the fact that respondent No.2 is the mother of the petitioners and an aged widow, this Court feels that her interests need to be protected even though she has not questioned the order dismissing her I.A. Having regard to the plight of respondent No.2, who, it is quite obvious, is not being taken care by the petitioners, this Court has chosen to exercise its inherent powers which are intended to be invoked in situations of this nature. From the material on record, it is quite obvious that the petitioners hold valuable properties. The petitioners are, therefore, directed to pay Rs.5,000/- per month to respondent No.2 towards her maintenance and medical expenses with effect from 01.01.2012 till disposal of the suit. The deposit shall be made on or before 5th of every month and respondent No.2 is entitled to withdraw the same without furnishing any security. This payment should be irrespective of whether respondent No.2 succeeds in getting a share allotted to her in the suit or not. As regards the claim of respondent No.1, she should await the outcome of the suit. 10. At the hearing, learned counsel for the petitioners submitted that in pursuance of the order passed in I.A.No.523 of 2010, the Advocate-Commissioner has auctioned the usufruct of the mango garden for one year and that the sale proceeds were deposited in the lower Court. If that be so, the petitioners shall be entitled to receive the same by filing appropriate application before the lower Court. 11. For the above-mentioned reasons, the order, dated 03.11.2010, in I.A.No.523 of 2010 is set aside and subject to the above directions, the Civil Revision Petition is allowed. 12. If that be so, the petitioners shall be entitled to receive the same by filing appropriate application before the lower Court. 11. For the above-mentioned reasons, the order, dated 03.11.2010, in I.A.No.523 of 2010 is set aside and subject to the above directions, the Civil Revision Petition is allowed. 12. As a sequel to disposal of the Civil Revision Petition, C.R.P.M.P.No.2028 of 2011 filed by the petitioners for interim relief is disposed of as infructuous.