Bombay High Court
Kanchanabai Balkisan Mundada And ... vs Mangalabai Kachrulal Mundada ... on 25 August, 2021
Bench: Mangesh S. Patil
938.WP.6888.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6888 OF 2021
1. Kanchanbai Balkisan Mundada
Age : 72 years, Occ: Business,
R/o: House No.127, Polan Peth,
Jalgaon.
2. Radhika Radheshyam Mundada
Age : 38 years, Occu: Business,
R/o. As above.
3. Ritesh Radheshyam Mundada
Age : 19 years, Occu: Eduction,
R/o. As above
4. Kausalyabai Ramkisan Mundada
Age : 65 years, Occu: Household,
R/o. As above
5. Sunil Ramkisan Mundada
Age : 52 years, Occu: Business,
R/o. As above
6. Jitendra Ramkisan Mundada
Age : 46 years, Occu: Business,
R/o. As above.
7. Bharat Ramkisan Mundada
Age : 44 years, Occu: Business,
R/o. As above
8. Suchita Gopal Mal
Age : 48 years, Occu: Household,
R/o. Lakhpati Galli, Shegaon,
Taluka and District Buldhana
9. Manisha Rajesh Baser
Age : 47 years, Occu: Household,
R/o. Plot No.83, Yashwantnagar,
Jalgaon. ... PETITIONERS
(Org. Defendant Nos. 1
to 9/Appellants)
VERSUS
1. Mangalabai Kachrulal Mundada
Since deceased
2. Manjula Kachrulal Mundada
Age : 41 years, Lawyer,
R/o. House No.127, Polan Peth,
Jalgaon.
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938.WP.6888.21.odt
3. Saroj Kachrulal Mundada
Age : 28 years, Occ: Nil,
R/o. As above. ... RESPONDENTS
...
Advocate for Petitioners : Mr. Satyajit S. Bora
Advocate for Respondent Nos.2 and 3 : Mr. Datta A. Madake
...
CORAM : MANGESH S. PATIL, J.
DATE : 25.08.2021
ORAL JUDGMENT :
Heard. Rule. The Rule is made returnable forthwith. The
learned advocate Mr. Madake waives service for the respondent Nos. 2 and
3. The respondent No.1 is dead even before filing of this Writ Petition. With
the consent of both the sides, the matter is heard finally at the stage of
admission.
2. After the suit of the deceased respondent No.1 for general
partition and possession was decreed and the decree was challenged in
Appeal, the respondents moved a joint Application (Exhibit-11). They
averred that because of the demise of the husband and son of the deceased
respondent No.1 there was nobody to maintain the family of the
respondents. They have been held entitled to receive 1/3 share in all the
suit properties. They were hand to mouth, whereas the petitioners were in
possession of the shop premises and have been earning sumptuous rent.
Therefore they prayed for interim maintenance @ 25000/- per head.
3. The petitioners opposed the Application and denied that the
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respondents were in need of some money for their maintenance. They
further contended that the respondents were staying in the third floor of the
same building, the suit property. The respondent Nos. 2 and 3 are major
and have source of income and it was the responsibility of the respondent
Nos. 2 and 3 to maintain the deceased respondent No.1.
4. After hearing both the sides by the impugned order, the learned
Judge allowed the Application and directed the petitioners to pay
maintenance to each of the respondent @ Rs.3000/- per month per head.
5. The learned advocate for the petitioners would submit that
though the learned Judge has passed the impugned order under the
purported exercise of the powers under Section 22 of the Hindu Adoption
and Maintenance Act, the provision is not applicable to the respondent's
case. He would therefore submit that there is absolutely no provision which
would entitle the respondents to claim maintenance in his partition suit.
They have claimed and have been awarded mesne profit and if the
petitioners fail the respondents would get those mesne profit at an
appropriate stage. He would further submit that apart from such legal issue,
the Application (Exhibit-11) moved by the respondents is absolutely devoid
of any averments touching their inability to maintain the respondent Nos. 2
and 3. There is absolutely no whisper as to what they have been doing.
One of them is a lawyer. Both of them are in their thirties and in the
absence of any such averment and a specific prayer claiming maintenance
even for them after demise of respondent No.1, the learned Judge ought to
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have considered these aspects but has proceeded to ignore it and has passed
the impugned order.
6. The learned advocate for the respondent Nos. 2 and 3 submits
that, since a suit for partition has been decreed in favour of the deceased
respondent No.1 and she has been awarded mesne profit, the petitioners
who are holding possession over the joint family property and particularly
earning the rent from the shops of the ground floor, they are under not only
legal but even a moral obligation to pay the respondents some share of rent
during pendency of the Appeal. He would submit that even the respondent
Nos. 2 and 3 are in need of money. They do not have any source of income
and therefore there is no illegality in the order.
7. The learned advocate would rely upon the decision in the
Sushilabai Chhotelal Gupta Vs. Ramcharan Hanumanprasad Vaishya and
Ors.; 1976 Mh.L.J 82. He submits that the liability of the petitioners to pay
also arises from the fact of their holding possession of the suit property in
which the respondent have been granted a share.
8. I have considered the rival submissions and the reasoning
giving by the learned Judge. As the matter now stands, the respondent No.1
is dead and the request is now to be considered qua the respondent Nos. 2
and 3.
9. A bare perusal of the Application (Exhibit-11) shows that all the
three respondents have signed the Application. However, there is absolutely
no whisper in the Application either disclosing occupation or income of the
938.WP.6888.21.odt
respondent Nos. 2 and 3 or demonstrating their need. The Application has
been drafted to demonstrate as to how it is the respondent No.1 who was in
need of the maintenance. Admittedly, the respondent Nos. 2 and 3 are
women in their thirties one of them is stated to be a lawyer albeit the other
one's occupation is stated to be nil. In the absence of specific pleading
demonstrating their need to have the maintenance, one cannot comprehend
as to how the learned Judge could proceed to decide the Application in their
favour.
10. Irrespective of the fact as to if Section 22 of the Hindu Adoption
and maintenance Act is applicable to the facts and circumstances of the case,
the very request for maintenance was made by the deceased respondent
No.1 and therefore it ought to have been considered only to her extent.
Ignoring such state of affairs, the learned Judge has proceeded on the line as
if he was called upon to decide the Application strictly in view of the
observations of this Court in the case of Sushilabai Chhotelal Gupta (supra)
in paragraph No.5 which recognize a liability to maintain on account of
holding of possession of property. That was not the claim in Application
(Exhibit-11) and should not have been treated and considered in the light of
such principles.
11. Again, there is absolutely no material to reveal as to on what
basis the learned Judge could arrive at the income of the petitioners and
need of the respondents. Although there could be some leeway to draw
some inference when there is no concrete evidence, but there has to be
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something to draw the inferences which the learned Judge has drawn as
regards the income of the petitioners and the need of the respondents.
12. Considering the aforementioned facts and circumstances, the
order passed by the learned Judge is illegal and is liable to be quashed and
set aside.
13. The Writ Petition is allowed. The impugned order is quashed
and set aside.
14. The Rule is made absolute.
(MANGESH S. PATIL, J.)
habeeb
