Omprakash Laxmanrao Dalvi vs Taramati Laxman Dalvi
2021 Latest Caselaw 5563 Bom

                                     1                              912-SA-283-19.odt



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                     912 SECOND APPEAL NO. 283 OF 2019
                     WITH CA/2539/2019 IN SA/283/2019


Omprakash S/o Laxmanrao Dalvi,
Age: 51 years, Occ. Agriculture,
R/o Babulgaon (Dalvi)
Tq. & Dist Parbhani.                                    .... APPELLANT
                                                        (Orignal Defendant)
         VERSUS

Taramati w/O Laxman Dalvi,
Age: 74 years, Occ. Nil,
R/o: Babulgaon, Tq. & Dist. Parbhani,
At present : Pimpalgaon Thombare,
Khanapur, Tq. & Dist. Parbhani.                         ... RESPONDENT
                                                        (Orignal Plaintiff )

                           ...
Mr. Sudhir K. Chavan, Advocate for Appellant
Mr. Kuldeep Patil h/f Mr. S.S. Chaudhary Advocate for Respondent
                         ....

                                         CORAM :        ANIL S. KILOR, J.

                                         DATE     :     24th MARCH, 2021
ORAL ORDER :-

The appellant herein, who is the original defendant,

challenges the Judgment and decree dated 1 st August, 2018 passed

by the Principal District Judge at Parbhani, in Regular Civil Appeal

No. 4 of 2011, upholding the Judgment and decree passed by the

Civil Judge, Senior Division, Parbhani in Special Civil Suit No. 59 of

2009, decreeing the suit granting thereby maintenance to the

plaintiff under Section 22(2) of the Hindu Adoption and Maintenance

Act, 1956 (for short " Act of 1956")

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2. Brief facts of the present case are as follows : ( The

parties are referred as per their status ).

It is the case of the plaintiff that she is the widow of

Laxman Dalvi, who expired in the year 1975, who owned and

possessed land Gut Nos. 209, 233, 236 and 237 of village

Babhulgaon, Taluka and District Parbhani, which is the suit property.

The suit property was ancestral and co-parcenery property of

deceased Laxman. There was partition between Laxman and his

brother Rustum, in which husband of the plaintiff has received

separate share. The plaintiff and deceased Laxman were issue-less

and after death of Laxman, plaintiff become absolute owner of the

entire property of her husband.

It is the further case of the plaintiff that, defendant is a

son of Rustum i.e. real brother of deceased Laxman, who is

obstructing and interfering in the peaceful possession and

enjoyment of the plaintiff over the suit property. Therefore, she

filed Special Civil Suit No. 220 of 1996 for perpetual injunction and

declaration. But, the said suit was dismissed. Appeal against said

dismissal of the suit was also dismissed on 11-02-2002 on the

point of limitation. It is further pleaded by the plaintiff that

thereafter defendant forcibly dispossessed the plaintiff from the suit

property and also drove her out of the house and threatened her to

kill. Not only that but the defendant had driven her out of the

village, therefore, she was required to take shelter at her

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matrimonial house at Pimplagaon. The plaintiff, thereafter, filed

Special Civil Suit No. 61 of 2007 for recovery of possession, but the

same was dismissed on 29-12-2008. The appeal preferred against

the said decision was also dismissed on 04-10-2020.

The application under Section 125 of the Code of

Criminal Procedure against defendant was also dismissed.

According to plaintiff, as she has no source of income and there is

nobody to maintain her because her age she is not able to do any

work to earn livelihood, she filed suit for maintenance under

Sections 21(iii), 22(2) and 23 and 27 of the Act of 1956.

3. The defendant appeared in the said suit. Admitted the

fact that the plaintiff is the widow of Laxman Dalvi, who owned and

possessed the suit properties. However, the defendant came up

with a case that as the plaintiff and Laxman were issue-less, they

decided to adopt the defendant as their son and accordingly they

adopted the defendant.

It is the case of the defendant that on adoption he

become absolute owner and possessor of the suit properties, and

accordingly, mutation entries were carried out in the name of the

defendant. It is the further case of the defendant that plaintiff

received Gut Nos. 177 and 265 in partition between the plaintiff and

the defendant and because she sold out her share, plaintiff has no

right to claim maintenance under Section 22(2) of the Act of 1956.

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4. Plaintiff has examined himself by way of affidavit at

Exhibit-15. The defendant has examined himself by way of affidavit

at Exhibit-24 and two more witnesses and closed his evidence.

5. The learned trial Court after scrutinizing the

documentary as well as oral evidence brought on record by both the

parties and after considering the legal contentions raised by both

the parties, decreed the suit and granted maintenance to the

plaintiff to be paid by the defendant @ Rs.3000/- per month from

the date of suit for her life time. Learned trial Court has also

granted past maintenance at the rate of Rs.1500/- for 36 months

i.e. amounting to Rs.54,000/- along with costs of the suit vide

Judgment and decree dated 04-12-2010.

6. The defendant feeling aggrieved by Judgment and

decree dated 04-12-2010, he went in appeal by filing Regular Civil

Appeal No. 4 of 2011 before the Principal District Judge, at

Parbhani. Learned lower Appellate Court dismissed the appeal and

modified the amount of maintenance by granting Rs. 5000/- per

month from 05-12-2020 vide Judgment and order dated

01-08-2018. The aforesaid Judgment and decree dated 01-08-2018

is assailed in the present appeal at the behest of the defendant.

7. The learned counsel for the appellant submits that his

case that he is an adopted son and, therefore, after death of

Laxman, he become absolute owner of the suit properties, is not

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accepted by the plaintiff, therefore, he is not liable to pay any

amount towards maintenance as claimed by the plaintiff.

8. It is submitted that plaintiff has received two properties

in partition executed between the plaintiff and the defendant and

therefore as per Section 22 of the Act of 1956, the plaintiff is not

entitled for maintenance. For this purpose, he has relied upon the

Judgment of the Honourable Supreme Court in the case of

Pentakota Satyanarayan and others Vs. Pentakota Sheetharatnam

and others1.

9. He, lastly, in alternative argued that he is ready to pay

maintenance to the plaintiff, however, this Court may observe and

declare that the defendant is an adopted son of the plaintiff and her

husband Laxman.

10. Per contra, learned counsel appearing for the plaintiff-

respondent herein supports Judgment and decree passed by both

the Courts below and prays for dismissal of this appeal.

11. Considering the rival contentions of the parties, I have

gone through the record and perused the Judgments of both the

Courts below.

12. From the record, following facts emerges as undisputed

facts -

(i) Plaintiff is the widow of deceased Laxman Dalvi.

1 (2005) 8 Supreme Court cases 67

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(ii) Laxman Dalvi and Rustum Dalvi were real brothers.

(iii) The defendant is a son of Rustum.

(iv) There was partition between Laxman and Rustum.

(v) Laxman and plaintiff were issue-less.

(vi) Presently all suit properties are in possession of the defendant, who claimed to be an adopted son of deceased Laxman and the plaintiff.

(vii) The plaintiff is not staying in her husband's house, but she is staying at her matrimonial house.

13. Since in view of aforesaid undisputed facts, the plaintiff has

proved that the suit properties are not in her possession and she is

not getting any income out of it and she has no source of income to

earn her livelihood.

14. In the light of the above referred undisputed facts, if

pleadings of the defendant are considered, he made categorically

statement that he is an adopted son of the plaintiff and Laxman and

in that capacity enjoying the suit properties. It is not the case of

defendant that, being adopted son he is maintaining plaintiff or she

is residing with him. On the contrary, he opposes grant of

maintenance on the ground that because plaintiff is not accepting

him as an adopted son and as she received Gut Nos. 177 and 265

in partition in her share, which she has sold out, therefore, she is

not entitled for any maintenance.

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15. In the aforesaid backdrop, provisions of Section 22(2) of the

Act of 1956 is necessary to refer at this juncture, which is

reproduced below :

22. Maintenance of dependents. --

(1) Subject to the provisions of sub-section (2), the heirs of a deceased Hindu are bound to maintain the dependents of the deceased out of the estate inherited by them from the deceased.

(2) Where a dependent has not obtained, by testamentary or intestate-succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependent shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate.

(3) The liability of each of the persons who takes the estate shall be in proportion to the value of the share or part of the estate taken by him or her.

(4) Notwithstanding anything contained in sub-section (2) or sub-section (3), no person who is himself or herself a dependent shall be liable to contribute to the maintenance of others, if he or she has obtained a share or part, the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act.

16. It is the requirement of sub-section (2) of Section 22 of

the Act of 1956 that where a dependant has not obtained, by

testamentary or intestate-succession, any share in the estate of a

Hindu dying after the commencement of this Act, the dependant

shall be entitled, subject to the provisions of this Act, to

maintenance from those who take the estate.

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17. In the present matter, though the defendant has come

with a case that there was a partition of the suit properties and

other properties between the defendant and plaintiffs in which

plaintiff has received Gut No. 177 and 265, as per the provisions of

sub-section (2) of Section 22, she is not entitled for maintenance.

18. However, on perusal of the record, it is revealed that the

fact of partition and fact of receiving share in the estate of

deceased Laxman has not been proved by the defendant though

pleaded and thereby the defendant has failed to establish that, sub-

section (2) of Section 22 Will not apply to the present case.

19. The facts in the case of Pentakota Satyanarayan (Supra)

and the facts of the present case are distinguishable. In the said

case, Will was proved and it was held to be true and genuine

document by the Courts upto the Apex Court and first wife of

Pentakota had got some properties under said Will and in that view

of the matter, the Apex Court has held under Section 22(2) of the

Act of 1956, she is not entitled for any maintenance.

20. In the present matter, as observed hereinabove that the

defendant has not proved and established the partition between

plaintiff and defendant. It has also not been proved that in the said

partition plaintiff has received some properties and in view of

partition, the defendant is enjoying suit properties as an absolute

owner. In the circumstance, the Judgment in the case of Pentakota

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Satyanaraayana (Supra) is of no help to the appellant in the present

case.

21. The admission given by plaintiff that she sold some

portion of land out of Gut No.177 and 265 is not sufficient to accept

the case of the defendant that plaintiff received suit property in her

share in partition between them, particularly, in absence of any

evidence lead by the defendant as regards the same.

22. It is a notable fact that on one hand it is the case of the

defendant himself that he is an adopted son of the plaintiff and her

husband Laxman and, therefore, he is enjoying all the properties of

deceased Laxman and on the other hand, he raises challenge to the

amount of maintenance granted by the Courts below.

23. In that view of the matter, I do not find any perversity

or illegality in the impugned Judgment passed by the lower

appellate Court.

24. In above referred backdrop, I do not find any

substantial question of law involved in the present appeal. The

appeal is dismissed.

25. No order as to costs.

26. Pending civil application stands disposed of, accordingly.

( ANIL S. KILOR ) JUDGE mtk