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VENUBAI WD/O WASUDEO RAMBHAD (SINCE DEAD THROUGH LRS) & OTHERS V/S LAXMAN LAHANUJI RAMBHAD (SINCE DEAD THROUGH LRS) & OTHERS , decided on Friday, January 18, 2008.
[ In the High Court of Bombay (Nagpur Bench), Second Appeal No. 117 of 1989 . ] 18/01/2008
Judge(s) : B.P. DHARMADHIKARI
Advocate(s) : P.N. & U.P. Deopujari.
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  "2008 (2) ALL MR 550"  ==   "2008 (3) BCR 154"  ==   "2008 (3) MAH.L.J 195"  ==   "2008 (3) AIR (Bom) R 795"  ==   "2008 AIR (Bom) 130"  







    Civil Procedure Code ? Section 100 - Hindu Adoption and Maintenance Act 1956 - Section 19 - only question of entitlement of widowed daughter-in-law to claim maintenance from her father-in-law against his self acquired estate in terms of Section 19 of Hindu Adoptions and Maintenance Act 1956 falls for consideration in this Second Appeal ? Second Appeal needs to be answered against the Appellants & is answered accordingly - It is apparent that death of Laxman and Ramkrishna are subsequent to institution of suit and the question of entitlement of Venubai to succeed to the self acquired property of Laxman or Ramkrishna has not arisen in suit at all for adjudication. This Court has also not considered any such question. The question requires verification of various disputed facts and that can only be done by regular trial in appropriate proceeding. In the circumstances as the Appellants are in possession of house property since last more than 30 years their possession is protected for a period of two more months from today with liberty to them to file appropriate proceedings for claiming their share if any in the property left behind by the deceased father-in-law of their mother Venubai. The said entitlement shall be decided by the trial Court in accordance with law without getting influenced by any of the observations made by this Court in the matter.Case Law Referred :1.Balbir Kaur vs. Harinder Kaur AIR 2003 P & H. 174 (Para 5).2.Daljit Singh vs. S. Dara Singh AIR 2000 Delhi 292 (Para 5).3.T.A. Lakshmi Narasamba vs. T. Sundaramma AIR 1981 AP 88 (Para 5).4.Animuthu vs. Gandhiammal AIR 1977 Madras 372 (Para 5).5.Angat Singh vs. Dhan Kaur AIR 1964 Punjab 393 (Para 5).6.Bhagirathibai vs. Dwarkabai AIR 1933 Bom. 135 (Para 5).7.Gopal Chandra Pal v. Kadambini Dasi AIR 1924 Calcutta 364 (Para 9).8.Bal Parvati vs. Tarwadi Dolat Ram 1901 ILR 25 Bom. 263 (Para 5).9.Yamunabai vs. Manubai 1889 ILR 23 Bom. 608 (Para 5).10.Adhibai vs. Cursandas Nathu 1887 ILR 11 Bom. 199 (Para 5).     Oral judgment:Heard Shri Deopujari learned counsel for the appellants. Nobody has appeared for respondents on 10th 14th & 15th January & thereafter today.2. By this Second Appeal the widowed daughter-in-law has challenged the judgment and decree concurrently passed against her ordering her eviction from house property having Corporation House No.176/0+1 situated in old Ward No. 44 Jagnath Road Teen Nal Chowk Nagpur. Regular Civil Suit No.1325 of 1978 filed for eviction from that house by her father-in-law and his brother came to be decreed on 30.8.1984 after holding that the present appellant had taken forcible possession of part of it and licence to occupy its remaining part was duly terminated. The widow then filed Regular Civil Appeal No.584 of 1984 and said appeal came to be dismissed on 30.1.1989 by 8th Additional District Judge Nagpur. The appellate Court also found that though widow was claiming right to occupy that house by contending that her father-in-law was duty bound to maintain her there was no such plea in her written statement. The present Second Appeal under Section 100 of Civil Procedure Code has then been admitted in view of Grounds No. 11 and 12. Ground No.12 is in relation to protection available to licensee in view of provisions of C.P. & Berar Letting of Houses and Rent Control Order 1949 while Ground No.11 is on an obligation of father-in-law to maintain the widow of his pre-deceased son in view of Section 19 of Hindu Adoption and Maintenance Act 1956. 3. During arguments Shri Deopujari learned counsel for the appellants fairly conceded that the widow being gratuitous licensee Ground No.12 is not being pressed by him. The facts on record demonstrate that original appellant before this Court viz. Venubai was wife of Wasudeo who died on 7.8.1976. The marriage of Venubai was solemnized with Wasudeo in the year 1971-72. Plaintiff No.1 Laxman in Regular Civil Suit No.1325 of 1978 was father of said Wasudeo while plaintiff No. 2 Ramkrishna was brother of Laxman. They contended that after marriage with Venubai Wasudeo wanted to live separately and therefore Laxman with the consent of Ramkrishna allowed Wasudeo and Venubai to occupy Northern block in the house consisting of a Coapari and Majghar as a licensee without any payment. The occupation was of permissive nature. It is further contended that thereafter Venubai forcibly took possession of middle block in that house. By notice dated 27.7.1978 her licence in respect of said property was revoked and she was asked to vacate entire block including middle block and as she did not vacate Civil Suit came to be filed. The defence of Venubai was that house itself was allotted to the share of deceased Wasudeo and Wasudeo was owner of that site on the basis of partition and Wasudeo had constructed suit house. It was further contended that she filed a Criminal Case No. 491 of 1977 and as a revenge for that purpose plaintiffs filed Regular Civil Suit No.1325 of 1978. As already mentioned above 4th Joint Judge Junior Division Nagpur has decreed the suit on 30.8.1984. It appears that during the pendency of suit plaintiff No.2 Ramkrishna expired and his Legal Representatives were brought on record.4. During the pendency of Second Appeal before this Court Plaintiff No.1 - Laxman also expired and his legal representatives are brought on record. Original defendant - Venubai died on 15.12.2007 and her legal representatives have filed Civil Application No.207 of 2008 for coming on record on 8.1.2008. The copy of said application is already served upon Shri Sagdeo learned counsel appearing for legal heirs of Respondent No.1. Shri Sagdeo had appeared before this Court on 16.1.2008 but today he has not turned up. On that day the matter was adjourned as parties stated that there is likelihood of compromise between them. As Civil Application No.217 of 2008 is within limitation the same is allowed and applicants therein i.e. the son and daughter of deceased Venubai are permitted to be brought on record. Necessary amendment be carried out forthwith.5. I have heard Shri Deopujari learned counsel for the appellants. After narrating the facts as mentioned above Shri Deopujari has invited attention to provisions of Section 19 of Hindu Adoption and Maintenance Act 1956. He states that the obligation to maintain widow of a pre-deceased son cast upon father-in-law by Hindu Law is maintained by Section 19(1) and he further argues that sub-section (2) does not in any way modify or dilute that obligation. According to him existence of coparcenary property in hands of father-in-law is not at all essential and obligation flowing from Section 19(1) is independent of Section 19(2) of the Hindu Adoptions and Maintenance Act 1956. He points out the judgment in the case of T.A. Lakshmi Narasamba vs. T. Sundaramma reported at AIR 1981 AP 88 (a Full Bench judgment) to support his stance that even in uncodified Hindu Law father-in-law was under obligation to maintain such daughter-in-law even though he had no coparcenary property. He further points out that in the case of Balbir Kaur vs. Harinder Kaur reported at AIR 2003 P & H. 174 the Honble Single Judge has taken the view that under Section 19 widowed daughter-in-law is entitled to claim maintenance even against self acquired property of her father-in-law. He states that said view needs to be followed even by this Court. He points out that the view of Bombay High Court in various judgments reported in the case of Adhibai vs. Cursandas Nathu (1887) ILR 11 Bom. 199 Yamunabai vs. Manubai reported at (1889) ILR 23 Bom. 608 Bal Parvati vs. Tarwadi Dolat Ram (1901) ILR 25 Bom. 263 and Bhagirathibai vs. Dwarkabai AIR 1933 Bom. 135 holding that there is no such obligation upon father-in-law under uncodified Hindu Law has not been followed and accepted to be good by Full Bench of Andhra Pradesh High Court in T.A. Lakshmi Narasamba vs. T. Sundaramma. He states that in Bhagirathibai vs. Dwarkabai actually it has been held that daughter-in-law was entitled to maintenance out of ancestral property and also the self acquired property of her father-in-law inherited by his heirs. He further states that the view taken is before coming into force of Hindu Adoptions and Maintenance Act 1956 and there is no judgment of Bombay High Court thereafter in the field. He fairly points out that the learned Single judge of Delhi High Court in the case of Daljit Singh vs. S. Dara Singh reported at AIR 2000 Delhi 292 held that the order for interim maintenance cannot be passed against father-in-law in the absence of evidence showing coparcenary property in his hands. He further invites attention to the judgment in the case of Animuthu vs. Gandhiammal reported at AIR 1977 Madras 372 where learned Single Judge has held that a combined reading of Sections 19 & 20 of Hindu Adoptions and Maintenance Act revealed that when there was no factual obtaining of a share in the coparcenary property a widow could claim maintenance against the coparcenary property from her father-in-law. Angat Singh vs. Dhan Kaur reported at AIR 1964 Punjab 393 is also pointed out to show that Honble Division Bench of Punjab High Court there held that such widow is entitled to maintenance if her father-in-law has any ancestral property which is included in the term coparcenary property. Lastly he points out that the original plaintiff Laxman (father-in-law of Venubai) expired without making any Will and as such the daughter-in-law was entitled to receive share of her deceased husband and therefore became owner of joint undivided portion in such property. He therefore argues that in view of this subsequent event judgment & decree for her eviction cannot be even otherwise executed. He has filed a pursis on record framing two substantial questions of law in view of these developments. 6. After hearing learned counsel for the appellants I am satisfied that only question of entitlement of widowed daughter-in-law to claim maintenance from her father-in-law against his self acquired estate in terms of Section 19 of Hindu Adoptions and Maintenance Act 1956 falls for consideration in this Second Appeal. Section 19 reads 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.7. The perusal of various judgments pointed out by Shri Deopujari and mentioned above clearly show that the deceased Venubai could have been entitled to claim maintenance under Section 19 had she shown that she was unable to maintain herself out of her own earnings or other property and was unable to obtain maintenance from the estate of her husband or from the estate of her father or mother or from her son or daughter if any or his or her estate. In the facts of present case it is to be noted that at least before Trial Court there was no plea or defence under Section 19 and claim was the suit house has fallen to the share of Wasudeo in partition and therefore the defendant was occupying it as owner. Original Defendant Venubai had also contended that it was constructed by her husband Wasudeo. The Appellate Court has refused to consider the plea under Section 19 of the Act as factual matrix therefor was held to be absent. Even before me it is an admitted position that there is no evidence on record to show that Venubai was not in a position to obtain any maintenance from estate of her husband or from estate of her father or mother. There is no question of obtaining any maintenance from her son or daughter at the relevant time because as per record they were minors then. 8. The judgment of Full Bench of Andhra Pradesh High Court on which Shri Deopujari learned counsel has placed strong reliance considers the situation in which father-in-law had died in 1954 and his son had pre-deceased him. In this background the question of maintenance to widow of such pre-deceased son arose and the Full Bench has found that provisions of the Hindu Adoptions and Maintenance Act 1956 were only prospective in operation and were not retrospective and did not take away right of such widow already vested before commencement of codified enactment. It further found that there was moral duty on father-in-law to maintain the widowed daughter-in-law and her heir out of the property he inherits or from self acquired property. The perusal of judgment of this Court in the case of Bhagirathibai vs. Dwarkabai again shows that such a right of daughter-in-law against ancestral property or self acquired property of her father-in-law under uncodified law is also recognized by the High Court but with a rider added that such self acquired property should not have been disposed of by father-in-law by way of gift. If it was not so disposed of the right was held to be available against such self acquired property inherited by heirs of father-in-law also. This rider recognised by this High Court is not accepted to be correct in para 65 & 66 of its judgment by Hon. Andhra Pradesh High Court. But then these rulings do not support the stand of Appellant that even under codified law the widowed daughter in law has such entitlement. The contention that Full Bench has not followed Bombay decision is therefore not relevant for deciding the controversy before me. In any case in present matter the husband of Venubai by name Wasudeo has expired on 7.8.1976 i.e. well after coming into force the Hindu Adoptions and Maintenance Act 1956.9. The reliance by Shri Deopujari learned counsel for the appellants on judgment of Hon?e Punjab & Haryana High Court Balbir Kaur vs. Harinder Kaur (supra) to show that right of maintenance under Section 19 includes provision for residence and widowed daughter in law is entitled to claim right of maintenance against self acquired property of father-in-law in his hand or in the hands of his heirs under Section 19 of Hindu Adoptions and Maintenance Act 1956 now needs to be considered. The Hon. Single Judge there has in para 14 observed that:--14. Section 19 of the Hindu Adoptions and Maintenance Act 1956 (hereinafter referred to as the Act) deals with the right of maintenance of a widowed daughter-in-law. Whether married before or after the commencement of the Act she can claim maintenance only if she is unable to maintain herself from her own sources or out of the estate of her husband or her father or mother or from her son or daughter if any or his or her estate. The right to claim maintenance from the father-in-law in the circumstances stated above is however conditional upon the father-in-law having in possession of coparcenary property out of which widowed daughter-in-law has not obtained any share. Though under the Act the right to claim maintenance by widowed daughter-in-law against her father-in-law is limited to the extent of coparcenary property in the hand of father-in-law out of which widowed daughter-in-law has not taken any share but under the old Hindu Law prevailing before the enactment of the Act this right of maintenance to the widowed daughter-in-law against the self acquired property of her father-in-law was available. This right is still available to the widowed daughter-in-law of the pre-deceased son against the self acquired property of her father-in-law as this right shall not cease to be in force because the same is not inconsistent with any provision contained in the Act. Thus the widowed daughter-in-law of a pre-deceased son is entitled to claim right of maintenance against the self acquired property of her father-in-law whether it is in his hand or in the hand of his heir or donee.15. Learned counsel for respondent No.1 only contended that all the judgments cited by learned counsel for the appellants only deal with the right of maintenance and not the right of residence. In my opinion the maintenance necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner more or less to which she was accustomed. The concept of maintenance must therefore include provision for food and clothing and the like and take into account the basic need of a roof over the head.Little earlier in para 12 it is observed:--12. The right of maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife. The right in case of a widow is a pre-existing right which existed under the Shastric Hindu law long before the passing of the Hindu Womens Rights to Property Act 1937 or the Hindu Married Womens Rights to Separate Residence and Maintenance Act 1946 or the Hindu Adoptions and Maintenance Act 1956. These Acts merely recognized the position as was existing under the Shastric Hindu law and gave it a statutory backing. The right of maintenance and residence of a widowed daughter-in-law against her father-in-law also existed under the Shastric Hindu law and the same has been recognised by various judicial pronouncements and the statute i.e. Hindu Adoptions and Maintenance Act. In Gopal Chandra Pal v. Kadambini Dasi AIR 1924 Calcutta 364 a Division Bench of the Calcutta High Court. The attention of Hon. P. & H. High Court was perhaps not drawn to Section 4 of Hindu Adoptions of Maintenance Act which reads as under:--4. Overriding effect of Act. Save as otherwise provided in this Act -(a) any text rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. In view of this express provision in Section 4 it is apparent that question whether there was any moral obligation upon such father-in-law under uncodified law before enacting Hindu Adoptions and Maintenance Act 1956 pales into insignificance. Section 4(a) does not contemplate any express repugnancy between said customary obligation under uncodified Hindu law and obligation flowing from Section 19 or even a possibility of simultaneous obedience. It emphatically states that if a statutory provision is made on any custom the obligation under uncodified law automatically ceases to operate. The same is the position even in relation to any other law immediately in force before commencement of the Hindu Adoptions and Maintenance Act but then by virtue of clause (b) of Section 4 test of inconsistency between such former & later enactment has been expressly added. There is no argument of inconsistency between any other earlier legal provision and Section 19 before me in the present matter. It is therefore apparent that even though there may have been as per uncodified Hindu law some obligation upon a father-in-law to maintain his widowed daughter-in-law even out of his self acquired property; it has ceased to have effect & can not be implemented if right to claim it accrued after 1956 Act came into force. 10. Shri Deopujari learned counsel for the appellants has further contended that provisions of Section 19(2) only bar execution of the obligation by such widowed daughter-in-law against father-in-law if father-in-law has no coparcenary property. In other words he contends that the obligation of father-in-law which springs from Section 19(1) is independent of its enforceability under Section 19(2). He argues that the obligation cannot be executed or enforced through a Court of law because of bar under sub-section (2) of Section 19 of the Act if such father-in-law has no coparcenary property but the obligation exists even against self acquired property under Section 19(1). I am not in a position to accept such distinction. An obligation which cannot be legally enforced cannot be recognized as legal obligation at all. Section 19 is a complete scheme in itself which provides for an obligation and also its enforcement. It creates a right in daughter in law with corresponding liability on father in law. It specifies in what circumstances & to what extent the right accrues and when or how it is enforceable. It is therefore not possible to read Section 19(1) independent of Section 19(2) of Act. I therefore find no merit in the argument sought to be raised by the Appellant.11. Thus the substantial question of law as framed and accepted by this Court in this Second Appeal needs to be answered against the Appellants & is answered accordingly. 12. At this stage Shri Deopujari learned counsel states that his alternative argument about entitlement of deceased Venubai as co-owner to succeed to the estate of her father-in-law should be considered. I find that death of father-in-law has taken place sometime in 1991 and questions whether it was intestate one or he has left behind any Will are relevant for deciding said entitlement. There is no material to enable me to consider such disputed questions for the first time in this Second Appeal. Shri Deopujari therefore states that the Appellants should be given liberty to file appropriate Civil Suit to protect their possession and status quo obtaining as on today should be continued for a period of at least four months so as to enable them to obtain appropriate interim relief in such suit. He further states that this Court should clarify that this Court has not considered said entitlement of Venubai or heirs of Venubai in present Second Appeal. 13. It is apparent that death of Laxman and Ramkrishna are subsequent to institution of suit and the question of entitlement of Venubai to succeed to the self acquired property of Laxman or Ramkrishna has not arisen in suit at all for adjudication. This Court has also not considered any such question. The question requires verification of various disputed facts and that can only be done by regular trial in appropriate proceeding. In the circumstances as the Appellants are in possession of house property since last more than 30 years their possession is protected for a period of two more months from today with liberty to them to file appropriate proceedings for claiming their share if any in the property left behind by the deceased father-in-law of their mother Venubai. The said entitlement shall be decided by the trial Court in accordance with law without getting influenced by any of the observations made by this Court in the matter.14. Subject to this direction and observation Second Appeal is accordingly dismissed. Rule discharged. However in the circumstances of the case there shall be no order as to costs.