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2017 DIGILAW 2427 (ALL)

Dev Nath Yadav v. Shashikala Devi

2017-10-26

ARUN TANDON, RAJIV JOSHI

body2017
JUDGMENT : 1. This appeal under Section 19 of the Family Court Act has been filed against the judgment and order of the Principal Judge, Family Court, Varanasi dated 2.5.2017. The facts relevant for deciding the appeal are as under: 2. Smt. Shashikala Devi was married to one Rajendra Yadav, who expired on 1.11.2012. The widow having no other source to maintain herself, filed an application against the father-in-law under Section 19 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as Act) claiming that she was entitled to be maintained by the father-in-law, as in the properties possessed by the father being plot nos. 441, 49, 47 and 48 village Gola, Pargana Katehar, Tehsil Sadar, District Varanasi, her husband was co-partioner and that the share of the husband after his death, has gone to father-in-law as the property was joint hindu family property. 3. An objection was raised in respect of maintainability of the application by the father-in-law on the ground that the agricultural property has to be dealt with as per the provisions of U.P.Z.A & L.R. Act. The widow daughter-in-law was not justified in contending that the property was joint hindu family property or that husband had a share in the said property, which has fallen in the share of the father subsequent to his death. 4. The Family Court has rejected the objection and has proceeded to hold that the application even if not maintainable under Section 19 of the Act, would be maintainable under Section 21 of the Act. Hence this appeal. 5. Counsel for the appellant contended before us that the finding that the application would not be maintainable under Section 21 of the Act is totally misconceived as Section 21 of the Hindu Adoptions and Maintenance Act, 1956 contains the definitions and does not deal with any right of maintenance. 6. We find that the contentions so raised on behalf of the appellant is factually correct inasmuch as Section 21 of the Act only defines dependent. However, we are of the opinion that this itself may not close the chapter so far as the maintainability of the application filed by the widowed daughter-in-law is concerned. We may record that more wrong mention of the section in the order of the court below will not result in depriving the widowed daughter-in-law of her right of maintenance being considered on merits. 7. We may record that more wrong mention of the section in the order of the court below will not result in depriving the widowed daughter-in-law of her right of maintenance being considered on merits. 7. We are of the opinion that having regard to the facts disclosed in the application filed by the wife for claiming maintenance against the father-in-law, her application would fall for consideration within Section 19 of the Act itself inasmuch as it has to be ascertained as to whether the agricultural land holding has its source from the funds of joint hindu family property or not. The use of the word 'co-partioner' in Section 19 Sub-clause 2, with reference to the purpose of providing maintenance to widowed daughter-in-law, who has no source of livelihood, has to be extended to include within its ambit that all such properties which are purchased from the corpus of the joint hindu family and as a logical consequence thereto the son would become co-partioner in respect of such property purchased from the joint hindu family funds from birth having regard to the Mitakshara Hindu Law. 8. We are not expressing any final opinion as to whether the agricultural property standing in the name of the appellant before us had been purchased from joint hindu family funds or not inasmuch as such issues need to be considered after evidence is led by the Family Court itself. 9. Counsel for the appellant, however, contended with reference to the judgement of Hon'ble Apex Court in the case of Vimlaben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel and others reported in AIR 2008 SUPREME COURT 2675, has held that such right of maintenance is not available to the husband against the property of the mother-in-law. 10. In our opinion, the judgment is fairly distinguishable vis-a-vis, the facts of the case in hand. So far as the judgment in the case of Archana Vs. Deputy Director of Consolidation, Meerut Camp, Amroha reported in 2015 (111) ALR 63, Palak Dhari and another Vs. 10. In our opinion, the judgment is fairly distinguishable vis-a-vis, the facts of the case in hand. So far as the judgment in the case of Archana Vs. Deputy Director of Consolidation, Meerut Camp, Amroha reported in 2015 (111) ALR 63, Palak Dhari and another Vs. Deputy Director of Consolidation and others reported in 1975 AWC 353 are concerned, the same deal with the provisions of U.P.Z.A & L.R. Act, in the matter of succession to property and that Hindu Succession Act being not applicable in respect of agricultural properties and the same would be regulated by the provisions of U.P.Z.A & L.R. Act as well as with regard to the right of the female to get bhoomidhar land by way of Will under the U.P.Z.A & L.R. Act. The law so laid down is of little assistance to the appellant in the facts of the case. 11. The provisions of U.P.Z.A & L.R. Act will have no application for considering as to whether the husband had a share in the property subject matter of the application or not. 12. Counsel for the appellant lastly relied upon the judgment of this Court passed in the case of Uma Shanker and another Vs. The Deputy Director of Consolidation and others, reported in paragraph 8 specifically wherein the rights of the bhoomidhar in respect of the agricultural holding have been held to be regulated under the Zamindari Abolition Act and not under the Hindu Succession Act. 13. As already stated above, the use of the word 'copartioner property' under Section 19 Sub-clause 2 of the Act is not with reference to any particular nature of the property but has been used in the manner to suggest that if the husband had any share in the property at the time of his death and such property falls in share of the father-in-law subsequent to the death of the son, then the wife would be entitled to maintenance. It is in this background the word 'co-partioner' under the Section has to be interpreted. 14. We may also record that the issue of share in the property because of the source of funds being the corpus of the joint family is entirely a different concept vis-a-vis the succession subsequent to the death of the recorded tenure holder under the provision of U.P.Z.A & L.R. Act. 15. 14. We may also record that the issue of share in the property because of the source of funds being the corpus of the joint family is entirely a different concept vis-a-vis the succession subsequent to the death of the recorded tenure holder under the provision of U.P.Z.A & L.R. Act. 15. In view of the aforesaid, we do find any reason to interfere with the order of the Family Court insofar as it holds that the application was maintainable. All rights of the appellant to contend that the agricultural property has been purchased by him from his own sources and is not the property having its sources in the corpus of the joint hindu family are left open to be agitated before the Family Court. All the aspects of the matter shall be considered in accordance with Section 19(a). 16. This appeal is dismissed.