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2014 DIGILAW 1330 (PNJ)

Jaswinder Kaur v. Karamjit Singh

2014-09-22

INDERJIT SINGH

body2014
JUDGMENT : Inderjit Singh, J. Petitioners Jaswinder Kaur and Lovedip Singh minor son have filed this revision petition against Karamjit Singh respondent under Article 227 of the Constitution of India for setting aside the impugned order dated 30.11.2012 passed by learned Addl. District Judge, Shaheed Bhagar Singh Nagar (SBS Nagar) vide which the appeal filed by the respondent-defendant was partly allowed by setting aside the order dated 05.10.2010 passed by learned Addl. Civil Judge (Senior Division), SBS Nagar. 2. As per evidence on record, the application filed by the present petitioners under Order 39 Rule 1 and 2 CPC has been accepted vide order dated 05.10.2010 by learned Addl. Civil Judge (Senior Division), SBS Nagar and the appeal preferred by respondent-defendant against the above-said was partly allowed. 3. Notice of motion was issued but despite service, none has put in appearance on behalf of the respondent. 4. I have heard learned counsel for the petitioner and have gone through the record. 5. From the record, I find that Jaswinder Kaur and Lovedip Singh plaintiffs filed a suit against Karamjit Singh defendant under Section 22 and 21 of the Hindu Adoption and Maintenance Act, 1956 (for short 'Act 1956') for recovery of arrears of maintenance from 01.11.2006 to 30.10.2009 at the rate of Rs.3000/- per month to each plaintiff (totaling to the tune of Rs.2,16,000/-) and for fixation of future maintenance at the said rate of Rs. 3000/- per month to each plaintiff and for creating charge of maintenance on the land of the defendant measuring 31 kanals 11 marlas as described in the heading of the plaint. 6. The defendant Karamjit Singh is father-in-law of plaintiff No.1 Jaswinder Kaur and grandfather of plaintiff No.2 Lovedip Singh. As per the case of the plaintiffs, husband of plaintiff No.1 Jaswinder Kaur namely Davinder Singh has already died. Plaintiffs were turned out from the matrimonial house of plaintiff No.1 and they have been neglected and deserted by the respondent-defendant. 7. Along with the suit, an application under Order 39 Rule 1 and 2 CPC has been filed, which has been allowed by learned Addl. Plaintiffs were turned out from the matrimonial house of plaintiff No.1 and they have been neglected and deserted by the respondent-defendant. 7. Along with the suit, an application under Order 39 Rule 1 and 2 CPC has been filed, which has been allowed by learned Addl. Civil Judge (Senior Division), SBS Nagar vide order dated 05.10.2010, vide which the charge has been created upon the property of the defendant with further directions that in case respondent-defendant wants to sell the property, he will seek prior permission from the Court and will make reference in the sale deed that the vendee shall be liable to discharge the liability and it will be mentioned that there is charge over the suit property. Learned Addl. District Judge, SBS Nagar vide judgment dated 30.11.2012 set aside the order dated 05.10.2010 and defendant was directed to furnish surety bonds in the sum of Rs.5 lacs to the satisfaction of learned lower Court. Sections 19 and 21 of the Act, 1956 provides as under:- "19. Maintenance of widowed daughter-in-law- (1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law. Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance- (a) from the estate of her husband or her father or mother, or (b) from her son or daughter, if any, or his or her estate. (2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law. 21. (2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law. 21. Dependents defined- For the purposes of this Chapter "dependents" mean the following relatives of the deceased:- (i) his or her father; (ii) his or her mother; (iii) his widow, so long as she does not remarry; (iv) his or her son or the son of his predeceased son or the son of a predeceased son of his predeceased son, so long as he is a minor; provided and to the extent that he is unable to obtain maintenance, in the case of a grandson from his father's or mother's estate, and in the case of a great-grandson, from the estate of his father or mother or father's father or father's mother; (v) his or her unmarried daughter for the unmarried daughter of his predeceased son or the unmarried daughter of a predeceased son of his predeceased son, so long as she remains unmarried; provided and to the extent that she is unable to obtain maintenance, in the case of a grand daughter from her father's or mother's estate and in the case of a great-grand daughter from the estate of her father or mother or father's father or father's mother; (vi) his widowed daughter; provided and to the extent that she is unable to obtain maintenance:- (a) from the estate of her husband; or (b) from her son or daughter, if any, or his or her estate; or (c) from her father-in-law or his father or the estate of either of them; (vii) any widow of his son or of a son of his predeceased son, so long as she does not remarry; provided and to the extent that she is unable to obtain maintenance from her husband's estate, or from her son or daughter, if any, or his or her estate; or in the case of a grandson's widow, also from her father-in-law's estate; (viii) his or her minor illegitimate son, so long as he remains a minor; (xi) his or her illegitimate daughter, so long as she remains unmarried." 8. Keeping in view above provisions, defendant-respondent prima facie is to maintain plaintiff No.2, who is son of his deceased son and plaintiff No.1 Jaswinder Kaur, who is widow daughter-in-law. It is yet to be proved whether land measuring 31 kanals 11 marlas is defendant's self acquired property. Learned Addl. District Judge also held in para No.8 that defendant took a specific plea that property in dispute measuring 31 kanals 11 marlas is his self acquired property. The parties are yet to lead their evidence to prove this fact. 9. At this stage, there is prima facie case, in favour of the plaintiffs as they have right to maintenance and balance of convenience also lies in favour of the plaintiffs. If the land is alienated, then the plaintiffs will suffer irreparable loss and they will not be able to get the order enforced passed by learned Addl. Civil Judge (Senior Division), SBS Nagar regarding maintenance. Rs.5 lacs cannot be held as a sufficient amount to safeguard the right of maintenance in future also. Otherwise also, relief under Order 39 Rule 1 and 2 CPC is a discretionary relief and learned Addl. District Judge, SBS Nagar should not have interfered without any cogent reasons, especially when the order passed by learned Addl. Civil Judge (Senior Division), SBS Nagar is not against the law or in any way can be held as perverse. 10. Learned counsel for the petitioner has cited judgment passed by the Hon'ble Supreme Court in Sree Jain Swetambar Terapanthi Vid (s) v. Phundan Singh and others, 1999(2) S.C.T. 309 : AIR 1999 SC 2322 , in which it is held as under:- "It is one thing to conclude that the trial court has not recorded its prima facie satisfaction on merits but granted the temporary injunction and it is another thing to hold that trial court has gone wrong in recording the prima facie satisfaction and setting aside that finding on the basis of the material on record because it has not considered the relevant material or because it has erroneously reached the finding or conclusions on the facts established. In the first situation, the appellate court will be justified in upsetting the order under appeal even without going into the merits of the case but in the second eventuality, it cannot set aside the impugned order without discussing the material on record and recording a contrary finding. In the first situation, the appellate court will be justified in upsetting the order under appeal even without going into the merits of the case but in the second eventuality, it cannot set aside the impugned order without discussing the material on record and recording a contrary finding. The High Court proceeded to set aside the order of the trial court on the first ground ignoring the aforementioned findings of the trial court, the order under appeal is, therefore, unsustainable." 11. I have gone through this cited judgment and the same fully applies to the facts of the present case. 12. In view of the above discussion, I find that impugned order dated 30.11.2012 passed by learned Addl. District Judge, SBS Nagar vide which he set aside the order dated 05.10.2010 passed by learned Addl. Civil Judge (Senior Division), SBS Nagar, is incorrect and not as per law and the same is set aside. The order dated 05.10.2010 passed by learned Addl. Civil Judge (Senior Division), SBS Nagar is upheld. 13. Therefore, finding merit in the present revision petition, the same is allowed. However, nothing stated above, shall constitute my opinion on the merits of the case.