Bombay High Court
Shamuji S/O Jyotiram Lokhande And ... vs Smt. Sonali Wd/O Sunil Lokhande And ... on 18 March, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-NAG:2677-DB
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 28/2021
1. Shamuji s/o Jyotiram Lokhande,
aged about 65 yrs., Occ. Business (deceased)
through his Legal Heir;
1-A. Smt. Reema wd/o. Shamuji Lokhande,
Aged about 50 yrs., Occ. Household
R/o. Swami Sadan, B-wing, Flat No.101,
G.P.O. Chowk, Civil Lines, Nagpur.
2. Suryakant s/o Shamuji Lokhande,
Aged abut 35 yrs., Occ. Business,
R/o. Swami Sadan, B-wing, Flat No.104,
G.P.O. Chowk, Civil Lines, Nagpur.
3. Sudarshan s/o Shamuji Lokhande,
Aged about 40 yrs., Occ. Business,
R/o. Swami Sadan, B-Wing, Flat No.101,
G.P.O. Chowk, Civil Lines, Nagpur.
(Original Respondents)
...APPELLANTS
On R.A.
VERSUS
1. Smt. Sonali wd/o. Sunil Lokhande,
Aged about 31 yrs., Occ. Household,
2. Ku. Vibhanshi d/o Sunil Lokhande,
Aged about 15 yrs, Occ. Student, being
minor represented through her natural
guardian (mother) i.e. Smt. Sonali wd/o.
Sunil Lokhande,
Both residents of c/o Rupchand s/o. Jagoli
Gondane, Plot No.70, Jai Bhim Nagar, near
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2
Buddha Vihar, Post Parvati Nagar, Nagpur-27.
(Original petitioners)
3. Smt. Sunita w/o Manoj Motghare,
aged about 45 yrs., Occ. Household,
R/o. Flat No.G-603, Ektabhumi, Garden
Apartment, Rajendra Nagar, Borivali (East),
Mumbai-66
(Original Respondent No.1-B)
RESPONDENTS
On R.A.
-------------------------------------------------------------------------------------
Mr. U.P. Dable, Advocate for appellants.
Mr. S.G. Malode, Advocate for respondent Nos. 1 & 2.
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CORAM : NITIN B. SURYAWANSHI AND
M. W. CHANDWANI, JJ
JUDGMENT RESERVED ON : 23.01.2025
JUDGMENT PRONOUNCED ON : 18.03.2025
JUDGMENT :
(PER: NITIN B. SURYAWANSHI , J.)
Heard.
2. This appeal filed under Section 19 of the Family Courts Act,
1984 challenges the judgment and decree passed by the Family Court
No.2, Nagpur on 14.01.2021, thereby allowing the petition filed by
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the respondents under Sections 19, 20 and 22 of the Hindu
Adoptions and Maintenance Act for grant of maintenance.
3. By filing petition under Sections 19, 20 and 22 of the
Hindu Adoptions and Maintenance Act, respondents/original
petitioners claimed maintenance from petitioners/original respondents
contending that marriage of respondent No.1/original petitioner No.1
with Sunil Lokhande was solemnized on 07.12.2003 at ladies Club,
Nagpur. Respondent No.2/original Petitioner No.2 was born out of
wedlock on 27.11.2004. On 13.11.2005, Sunil met with an accident
and expired. Original Petitioner No.1/widow and original petitioner
No.2/grand-daughter stayed with in-laws at the property described in
paragragph No. 3(c) of the petition. On 28.06.2005, due to fire
incident, the entire building was burnt. Thereafter, they started
residing with in-laws at Flat No.104 described in paragraph No.3(o) of
petition.
4. During the stay of original petitioner No.1 and original
petitioner No.2 with father-in-law Shamuji, he had taken
responsibility of educational expenses of original petitioner No.2. He
used to bear all day to day expenses of the house, but there was no
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freedom to the original petitioner No.1 to claim extra amount for their
personal expenses. She was not given any amount in her hands.
Occasionally, Original petitioner No.1 and original petitioner No.2
were not introduced to others. All in-laws of original petitioner No.1
and their wives were not behaving befitting the honour and respect of
widow, who had 1/5th share in the property owned by Shyamuji and
others. Father-in-law (original respondent No.1) along with his sons
took over the charge of business of 'Kabadi and Scrap Material' from
his father. There were five firms (i) Jyoti Polymers, (ii) S.S. Bottles,
(iii) Satyam Enterprises, (iv) Jyoti Plastic and Scraps and (v) Jyoti
Scraps. In-laws have employed 25 to 30 persons in their scrap
business. There are 5 to 6 trucks and also cars of similar numbers.
There are 20 to 25 motorcycles used by the family of in-laws and their
staff. In these firms, father-in-law and his two sons were jointly
carrying on all the family business of scrap material in whole Nagpur
District and also in Vidarbha region. Their day to day earning from
these businesses was not less than Rs. 5,00,000/-. Till his death,
husband Sunil of original petitioner No.1 toiled hard for upliftment
and progress of the family business. He used to work round the clock
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to achieve the maximum benefits and profits, as the business and
properties were joint. After death of father in-law, his sons original
original respondent Nos. 2 and 3 are enjoying the entire ancestral
properties. Original Petitioner No.1 has no source of income. She is
unable to maintain herself and her daughter. After the death of
husband, original petitioner No.1 along with her daughter stayed with
in-laws till 10.04.2014. During that period, she was made to work
from dawn to dusk for their two time meals and shelter. She was
treated like a maid servant and they were starving for every penny
when they were entitled to lead their life at the same standard of in-
laws and their respective wives and children. Original petitioner No.2
could not get milk to drink in her childhood in the renowned family
of the in-laws.
5. Original Petitioner No.1 requires Rs. 25,000/- per month
towards maintenance, Rs. 10,000/- per month for hiring a rental flat
and Rs.10,000/- per month towards education and other expense
of her daughter who was studying in 5th standard in Bhavan School at
Nagpur. Amount is also needed for transport and other expenses.
Therefore, claim of Rs. 45,000/- per month for maintenance was
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made in the petition, out of the income of the firms and from 1/5th
share of deceased Sunil. Prior to filing of petition, they issued legal
notice dated 11.08.2014 claiming maintenance. In-laws replied said
notice on 18.08.2014 and refused to give maintenance.
6. In-laws resisted the claim by filing written statement at
Exh. 17 and denied all the contentions raised by the Original
petitioners/respondents. It is admitted that Original respondent No.1
(father-in-law) purchased properties in the name of his minor sons
Sunil, Suryakant and Sudarshan. Property described in paragraph 3(c)
of the petition was multi-storied house which was gutted down in fire
on 28.06.2005. Other properties described in paragraph No.3 in the
petition are independent properties of original respondent Nos. 2 and
3. The business of 'S.S. Bottles Traders' is a proprietary concern run
by original respondent No.1. Except that, he had no other source of
income. Original Respondent No. 1 desires to maintain original
petitioners. He is ready to give the best education to original
petitioner No.2. He wants to do something for them during his life
time. Original Petitioners had no right to claim maintenance against
brother-in-laws, who are earning independently. In case, the original
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petitioners prefer to reside with original respondent No.1, he will do
his best to maintain them as they were maintaining them from last 9
years. He has deposited Rs. 45,000/- towards the annual fees and
Rs.1862/- for books of original petitioner No.2. It is further stated
that Flat No.104 at Sr. No.3(o) is the exclusive property of original
respondent No.2 (Suryakant) and Flat No.101 is the exclusive
property of original respondent No.3 (Sudarshan). Both of them are
carrying their individual business. Parents of respondent No.1 and his
wife are living with Suryakant. Parents have their independent
business and source of income. Original Respondent No. 3 is also
doing independent business. He is living in Flat No.101, at Sr.No.3(o)
of the petition. Except the properties 3(c)(i), all the other properties
have been purchased by original respondent Nos. 2 and 3 from their
own earnings.
7. Sunil husband of original petitioner No.1 has not
contributed in the business activities. Original Respondent No.1 had
no ancestral property nor any ancestral business. Deceased Sunil had
no share in the business. Original Respondent Nos. 2 and 3 are
unnecessarily made parties.
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During the period of 9 years stay of original petitioners with
original respondents, they were treated nicely and all facilities were
provided to them without any discrimination. Original Petitioners
had no grievance for 9 long years. Original Petitioners were never ill-
treated. Original Petitioners had no reasons to quit the company of
the original respondents. Original Petitioners should reside with
original respondent No.1 in his last days and give love and affection to
him.
8. During the pendency of the proceedings before the
Family Court, original respondent No.1 Shyamuji expired, hence his
legal heirs i.e. Mrs. Reema wd/o Shamuji Lokhande (original
respondent No.1-A) and daughter Sunita w/o Manoj Motghare
(original respondent No.1-B) were brought on record. Though Mrs.
Reema did not file any written statement, daughter Sunita filed
written statement at Exh.74. In the written statement, she has
supported the case of original petitioners. She admitted that, original
petitioners have 1/5th share in the properties owned and possessed by
Shamuji and also in the business of 'Kabadi and Bhangar Material'.
She has also admitted that original respondents are earning not less
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than Rs. 5,00,000/- per day. She admitted that all the original
respondents are jointly carrying on Jyotiram Lokhande's family scrap
material business in the entire Vidarbha region and Sunil toiled hard
for upliftment and progress of family business. Thus, she has fully
supported to the case of original petitioners and lastly she has stated
that she has not received any share from her parental property and
therefore, she may not be held liable for payment of maintenance to
the original petitioners and the liability to maintain petitioners is that
of original respondent Nos. 1-A and original respondent Nos. 2
and 3.
9. The Family Court framed issues and after recording
evidence, allowed petition. Being aggrieved by this decision,
appellants/original respondents have filed this appeal.
10. Heard learned counsel for appellants/original respondents,
learned counsel for respondents/original petitioners.
11. Learned counsel for appellants submits that on plain reading
of Section 19 of the Family Courts Act, it is clear that the respondents/
original petitioners ought to have claimed maintenance from father of
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respondent No.1/original petitioner No.1. If that was not granted by
father then only she can claim maintenance from father-in-law that to
the extent of share of her husband in the estate. He submits that since
respondent No.1 has failed to prove that her parents are unable to
maintain her, the Family Court ought to have dismissed the petition.
In support of this argument, he relied on the decision in case of Dayali
Vs. Anju Bai, 2010 SCC Online Chh 104 and Muthammal (died)
through LRs. and others Vs. V. Pavunambal and another, 2013(1)
Civil LJ 399. According to him, though this ground is not raised in
the appeal, since it is a legal ground, it can be considered by this Court
in absence of pleadings. He further submits that the Family Court has
erroneously appreciated the evidence on record and has given findings
as if it was deciding a suit for partition which is already filed by the
respondents. The Family Court has failed to ascertain what is the
share of father-in-law, while awarding the maintenance.
According to him, since appellants were ready to maintain
the respondents, they are ready to maintain the respondents provided
they stay along with appellants and without there being any justifiable
reason, respondents left company of the appellants. On this ground
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also, claim of maintenance should have been rejected by the Family
Court, even otherwise excess amount of maintenance is awarded by
the Family Court. Hence, he submits that the impugned judgment
and decree is liable to be quashed and set aside.
12. Per contra, learned counsel for respondents supported the
Family Court judgment. He submitted that there are no pleadings in
the written statement of the appellants that her parents are able to
maintain her. He submitted that there is sufficient material on record
to show that deceased husband of respondent No.1 had 1/5th share in
the joint family business and properties. Maintenance awarded by the
Family Court is reasonable by taking into consideration the standard
of living and the earnings of the appellants. Therefore, there is no
merit in the appeal and same may be dismissed.
13. With the assistance of learned counsel for the parties, we
have perused record, the evidence led by the parties, the judgment of
the Family Court and the citations relied upon by the learned counsel
for appellants.
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14. Relationship between the parties is admitted, so also, death
of Sunil. Admittedly, Shamuji/original respondent No.1 expired
during pendency of petition and both his sons i.e. appellant No. 2/
original respondent No.2(Suryakant) and appellant No.3/original
respondent No.3 (Sudarshan) are looking after the business. Civil suit
No.326/2015 for partition and separate possession of the share of her
deceased husband Sunil filed by respondent Nos. 1 and 2 against
appellants is pending. It has also come in evidence that an offer of
Rs.2,00,00,000/- towards full and final settlement was refused by
respondent No.1.
15. Perusal of evidence of respondent No. 1 shows that she has
reiterated her pleadings in the maintenance petition. In cross-
examination, she admitted that in 9 years spent by her with her father-
in-law after death of her husband, she did not make any complaint.
She was called upon vide notice reply to reside with her father-in-law.
Respondent No.2/original petitioner No.2 is admitted by her father-
in-law in Bhavan School and he was providing them basic human
needs. He was incurring all the educational and other ancillary
expenses of her daughter. She further states that out of 5 firms
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mentioned by her, one firm by name 'Sham Enterprises' is in name of
her father-in-law. She has stated in her chief that her 'gkSl' was not
being fulfilled. According to her, 'gkSl' means articles and other things,
hobbies, classes of her daughter, shopping of clothes of her daughter
were not fulfilled. She has stated that she was given an offer of Rs.
2,00,00,000/- as against full and final settlement, but it was refused by
her. In that cross-examination of respondent No.1, appellants have
tried to project that they were ready to incur all the expenses of
respondents, but respondent No.1 left the matrimonial home without
any reason.
16. It is obvious from the evidence of respondent No.1 that
they were being given all the basic things, when they were living with
appellants. However, the grievance of respondent No.1 is that she
was not given liberty to do whatever she wanted and her likings were
not being cared of by deceased father-in-law. The suggestions given
to her in her cross-examination that for full and final settlement, an
offer of Rs.2,00,00,000/- was given and she has refused the offer, in-
fact, supports the case of respondents. It also indicates that the
appellants are financially well off and their standard of living is high.
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17. It is a matter of record that by filing application Exh. 22,
respondent No.1 sought direction to the appellants to file their
income tax returns which was allowed and appellants were directed to
file income tax returns of last 5 years, but the appellants have
deliberately avoided to file income tax returns, therefore, adverse
inference needs to be drawn against them and there appears
substance in the contention of the respondent No.1 that there is
handsome income from the firms being run by the appellants.
18. On going through the evidence of appellant No.2/original
respondent No.2 Suryakant, it is clear that he has suppressed many
things from the Court like he has not filed the income tax returns of
5 years. When xerox copies of their income tax returns were
confronted to him, an objection was taken that since these are not
certified copies, they cannot be shown to him. He has admitted that
he was having all the returns submitted to Income Tax Department.
It is, therefore clear that appellants have tried to conceal their real
income, so as to defeat the claim of respondent Nos. 1 and 2. He
also admitted that properties at Umbargaon, Adali Fath, Umred
Road, Nagpur are in his possession. He further admitted that he runs
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factory of production of raw materials required for plastic items by
name 'Jyoti Polymers'. It is pertinent to note that in written
statement, he has stated that property described in paragraph No. 3(i)
of the petition is idle land, is incorrect statement. He admitted in
cross that his grandfather Jyotiramji was living at Ghat Road and in
the same vicinity, there is a shop of his paternal aunt Nirmala and
shop and house of his uncle Raju are situated. He has not disclosed
that his grandfather Jyotiramji was running scrap material business.
This also shows that he has attempted to conceal the truth from the
Court. At the time of death of his grandfather in the year 1994, he
was aged 16 to 18 years. Hence, it is not possible to believe that he
did not know the occupation of his grandfather and what was his
source of income. He has denied that the business of scrap material
was their ancestral business. He also did not state as to when his
father started scrap material business. There is no averment in the
written statement as to when the scrap material business was started
by them and when they acquired the properties. He has admitted
that there is business by name 'Jyoti Polymers' at 'Midline' Imamvada
in 4000 sq. ft area. His brother Sudarshan runs a scrap business at
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Taj Bag, opposite Power House i.e. the property described in
paragraph No. 3(d) of the petition. His brother Sudarshan is having
other scrap business by name 'Jyoti Plastics and Scraps' at Wathoda,
described in paragraph No. 3(e) of the petition. He is running his
business by name 'Jyoti Polymers' in 3 storied building besides the
liquor shop. His wife is also running the scrap business at Bhande
Wadi Railway Station which was started two years ago. She is the
sole proprietor. Before that his wife, he was running a business by
name 'Jyoti Polymers' at that place, property described in paragraph
3(h) of the petition. He admitted that there are two Flats, Flat No.
101 and Flat No. 104. He claimed that he purchased flat No.104 and
his brother purchased Flat No. 101 in the year 2006-2007. There is
no pleadings in the written statement that they started earning
independently prior to the year 2006-2007 and from their own
income, they purchased both these flats. He avoided to give
approximate value of these flats. He admitted that he is director of
'Satyam Impex Ltd.' He did not disclose when his parents became
Directors of that Company and when his brother left that Company.
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19. Apart from above, the oral evidence of respondents have
brought on record voluminous documentary evidence showing the
vehicles owned by the family of the appellants and various properties
owned by them. Income Tax Returns of 2014-2015 onwards are
brought on record through the Income Tax Department. The
documentary evidence on record shows that appellants are running
various businesses and they possess several movable and immovable
properties. The properties are earned from the business of scrap
material.
The tenor of evidence of this witness shows that he is
suppressing true and correct facts from the Court and he has given
evasive answers to the particular questions put to him in the cross-
examination, only with a view to shirk the responsibility to give
maintenance to the respondents.
20. Burden lies on the appellants to prove that their scrap
material business is not ancestral, but they have failed to prove that.
The Family Court, therefore is justified in arriving at prima-facie
conclusion that the properties are purchased through family business
of scrap material and those were enjoyed by deceased
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appellant/original respondent No.1 Shamuji and after his death, by
his wife and sons. Since the appellants are running the businesses
and enjoying the properties, they are rightly held jointly and severally
liable to pay the maintenance to the respondents.
21. It is a matter of record that the respondent No.3/original
respondent No.1-B daughter of deceased Shamuji and appellant
No.1-A/original respondent No.1-A. Mrs. Reema has supported the
claim of the respondents/original petitionrs. She has specifically
averred in written statement that deceased Sunil had 1/5th share in
the family business and properties during his life time. He had
worked hard to earn profits in the family business.
22. There is sufficient evidence brought on record to show that
husband of respondent No.1 had 1/5th share in the joint family
property of appellants. Due to death of original respondent No.1, she
is entitled to claim share in the property which would fall to the share
of original respondent No.1 and present respondents/original
petitioners are entitled to claim share of deceased Sunil, coparcener of
Shamuji, being dependents of Sunil. There is also sufficient evidence
brought on record to show that Sunil had 1/5th share in the joint
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family property and he had given his best during his life time to the
family business of scrap material. It is also clear from the record that
appellants are enjoying joint family properties/estate, after the death of
original respondent No.1 Shamuji. Since appellants are in possession
of the estate of deceased Shamuji and Sunil, respondent/original
petitioners are entitled to claim maintenance from the appellants in
terms of Section 19 and 22 of the said Act.
23. This Court in Madhukar s/o. Kisan Lokhande Vs. Shalu
wd/o Narendra Lokhande, 2013(6) Mh.L.J. 391, after considering
Sections 19, 21 and 22 of the Hindu Adoptions and Maintenance Act
held:-
"14. Section 19 of the said Act is an enabling provision
under which a right of a widowed daughter-in-law to receive
maintenance from her father-in-law is recognized. Proviso to
sub-section (1) of Section 19 states that to the extent such
widowed daughter-in-law is unable to maintain herself out of her
own earnings or other property or where she has no other
property of her own and is further unable to obtain maintenance
from the estate of her husband or her father or mother or her
children or their estate, maintenance can be claimed from the
father-in-law.
15. .............When these provisions are construed
harmoniously, first obligation to maintain his widowed
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daughter-in-law is always on father-in-law. It shifts to the father
of such widow only in case of inability of father-in-law or to the
extent of such inability. The circumstances in which or extent to
which father-in-law is obliged to discharge this obligation are the
only facets regulated by Section 19.
16.......The aforesaid provisions clearly recognize the entitlement
of a widowed daughter-in-law to the right of maintenance and in
certain circumstances to receive such maintenance from her
father-in-law.
17.....The word 'estate' has undoubtedly in law a diversity of
meaning and a variety of signification It may mean the property
of a living man or that of a deceased person which passes to his
administrator. Generally speaking, this word may mean the
property of every character but ordinarily it is applied to the
property of a deceased person or a ward or a lunatic or a
bankrupt etc. according to which meaning it conveys an idea of
property which is administered by administrators or executors or
in Courts."
It is thus clear that the entire object of Section 19(1) of the
said Act is to recognize the rights of a widowed daughter-in-law to
receive maintenance from either of the sources mentioned therein. She
is entitled to maintenance from other property or from the estate of
her husband. It is only if the same is not possible that the liability of
her father or mother to maintain her would arise.
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24. In the light of aforesaid observations, argument of appellants
that in absence of evidence on record that father of respondent No.1
was unable to maintain her, she was not entitled to claim maintenance
from father-in-law is liable to be rejected.
In view of aforestated, the decision of this Court in case of
Dayali (supra) relied upon by the appellants would not assist their
case.
25. In view of aforesaid observations, respondents are entitled to
claim maintenance from the appellants, as appellants are in possessions
of the estate of deceased Shamuji and Sunil in which deceased Sunil
had 1/5th share.
26. We are unable to accept the submission of appellants
that the Family Court has, in-fact, given findings which are required
to be given by the Civil Court in the partition suit. Family Court has
recorded its prima facie opinion in respect of properties and family
businesses which is in the custody and is being run by the appellants,
so as to decide the claim of maintenance of respondents. This by no
stretch of imagination can be said to be a finding recorded in respect
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of partition suit. The Civil Court before whom the partition suit is
pending will decide it on the basis of evidence led by the parties
before it.
27. In the light of above ratio and considering the evidence on
record, we are of the considered view that respondents have proved
their claim of maintenance. The Family Court has properly
appreciated the evidence on record and has passed a well reasoned
order. No case is made out by the appellants to interfere in the same.
The appeal being devoid of merit, it is dismissed with costs.
28. It is made clear that above observations are limited for the
purpose of deciding present Family Court appeal and shall not
influence the Trial Court while deciding the partition suit instituted
by respondents herein.
( M. W. CHANDWANI, J.) (NITIN B. SURYAWANSHI, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PA To Honourable Judge
Date: 18/03/2025 15:11:38
