Roshni vs Satinder Krishan
2008 Latest Caselaw 1260 Del

*                     HIGH COURT OF DELHI : NEW DELHI


               Judgment reserved on : July 22, 2008
              Judgment delivered on : August 7, 2008


+                         R.F. A. No.196/2006

       Roshni                           ...    Appellant
                          Through: Mr.Abhay Singh Kushwaha and
                                   Mr. Dhruv Kumar, Advocates

                                versus

       Satinder Krishan              ...  Respondent
                       Through: Mr.S.S. Dahiya and Mr. L.K.
                                Dahiya, Advocates


CORAM:

HON'BLE MR. JUSTICE T.S. THAKUR
HON'BLE MR. JUSTICE SUNIL GAUR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?

2.     To be referred to Reporter or not?

3.     Whether the judgment should be reported
       in the Digest?

SUNIL GAUR, J.

1. Appellant is the widowed daughter-in-law of the respondent.

Appellant was married with Sunil Kumar, son of the respondent

and out of the said wedlock, two daughters were born. After the

said marriage, appellant alongwith aforesaid Sunil Kumar started

residing separately in a rented accommodation. After the death of

R.F.A. No. 196/2006 Page 1 the husband of the appellant on 26th November, 2001, share of the

husband of the appellant in the ancestral land was sought by the

appellant by filing a petition under section 19 of Hindu Adoption

and Maintenance Act, 1956. At that time, appellant was having two

minor daughters aged five and six years respectively.

Maintenance of Rs.10,000/- per month with effect from December

2001 was sought by the appellant for herself and on behalf of her

two minor daughters. Respondent before the trial Court resisted

the petition for maintenance of the appellant by contending that

he is a retired government servant and he does not have any

income from the ancestral property and appellant had started

living with her husband since July 1997 and that the appellant is

earning Rs.1500/- per month as ''Anganwadi worker''.

2. Petition for maintenance was contested before the trial Court

on the following issues:-

1. Whether the petitioner is entitled to the maintenance claimed? OPP

2. Whether petition is not maintainable in the present form?OPD.

3. Whether petitioner has sufficient income to maintain herself?OPD

4. Whether respondent is not liable to pay maintenance to the petitioner?OPD

5. Relief.

R.F.A. No. 196/2006 Page 2

3. In support of the petition for maintenance, appellant had got

examined herself as PW-1 and the Respondent had deposed as

DW-1 before the trial Court and had got examined Dalel Singh

(DW-2), Rajmal Sharma (DW-3) and Rohtas Vashisht (DW-4).

Respondent had got examined the above referred three witnesses

to prove photocopy of some settlement dated Ist August, 1997 as

Ex.DW1/6.

4. After the contest, trial Court vide impugned order dated 4 th

September, 2003 has dismissed the petition for maintenance by

holding that the respondent had not acquired any coparcenary

property which was sufficient to yield anything and so, respondent

was not having any legal obligation to maintain the widowed

daughter-in-law who was earning Rs.1263/- per month and was

being supported by her mother.

5. Strangely, impugned order was assailed by the appellant by

filing an appeal under section 28 of the Hindu Marriage Act.

However, vide order dated 27th March, 2008, this appeal was

treated as a regular appeal under section 96 of the Code of Civil

Procedure, 1908.

6. Both the sides have been heard and the record of this case

has been perused by us.

R.F.A. No. 196/2006 Page 3

7. In the impugned order, the trial Court has relied upon

photocopy of the revenue record i.e. Khatoni/fard Ex.DW1/4 to

hold that the respondent was in possession of 275 sq. yds of the

agricultural land which was unproductive.

8. Aforesaid finding is assailed by the appellant in this appeal by

contending that this is factually incorrect and the share of the

respondent was 625 sq. yds and not 275 sq.yds and one third of it

i.e. 200 sq yds fell into the share of the late husband of the

appellant and the appellant had pre-existing right to the estate of

her deceased husband.

9. We are surprised to find that revenue record Ex.DW1/4 and

Ex.DW1/4B are the photocopies which have been simply tendered

in evidence by the respondent in his evidence. To say the least, the

trial Court ought to have not relied upon the aforesaid revenue

record to defeat the claim of the appellant. In the fitness of things,

the revenue record Ex.DW1/4 ought to have been got legally

proved in evidence by summoning the concerned witness from the

Revenue Department to prove these vital documents. Since,

photocopy of the revenue record could not have been legally

looked into by the trial Court, therefore, the self serving statement

of the respondent regarding his share in the ancestral land cannot

be accepted on the face of it. The revenue record before being

R.F.A. No. 196/2006 Page 4 relied upon in this case has to be duly certified and proved on

record and respective shares in the agricultural land and the share

of the respondent has to be specifically pointed out in the revenue

record which has not been done. It is true that appellant sought to

have ensured that the certified copy of the revenue record relied

upon is brought on record and is got duly proved. Appellant is a

poor widow and perhaps due to financial constraints, she could not

get the aforesaid revenue record duly proved in evidence but this

does not mean that substantial justice is sacrificed at the alter of

technicalities.

10. Trial Court has noticed in the impugned order that

respondent in his cross-examination has admitted that

compensation of Rs.5,00,000/- (Rupees five lacs) was received by

him in lieu of his share in the agricultural land, referred to in

Ex.DW1/4, but has relied upon the medical bills to indicate that

Rs.50,000/- has been spent by the respondent on the treatment of

his son/husband of the appellant who had died due to illness.

There are some photocopies of the medical record of the husband

of the appellant Ex.DW1/8-A to DW1/8-B which does indicate that

some medical expenses were incurred from time to time on the

treatment of the appellant's husband. But this by itself is not

sufficient to negate the claim of the appellant to the maintenance

R.F.A. No. 196/2006 Page 5 out of the share of the estate of her husband. In any case, the

quantum of compensation received by the respondent upon

acquisition of the ancestral agricultural land has been disputed by

the appellant and in this appeal, vide order dated 3 rd April, 2006,

respondent was directed to state as to how much compensation he

had received upon acquisition of his agricultural land and

respondent was also restrained from receiving any enhanced

compensation with regard to his acquired land.

11. In pursuance to the aforesaid order dated 3 rd April, 2006 of

this Court, respondent had filed an affidavit dated 18th April, 2006

stating that he had received Rs.8,30,132/- (Rupees eight lacs thirty

thousand one hundred thirty two only) on account of acquisition of

his agricultural land and in this affidavit, he has stated that

whatever money was received, has been spent on his family and in

discharge of his family social obligation.

12. Since the respondent in his evidence has stated before the

trial Court that he had received a compensation of rupees five lacs

and now on affidavit, he has stated that the compensation

received by him is Rs.8,30,132/-, therefore, we find that in order to

do substantial justice, the proper course to adopt would be to

remand this matter to the trial Court with direction to give the

parties an opportunity to lead proper evidence to prove as to what

R.F.A. No. 196/2006 Page 6 was the actual amount of compensation which received by the

respondent and on what dates? It is so said because in the affidavit

now filed by the respondent it is claimed by him that after

recording of his evidence by the trial Court in August 2003, he has

received Rs.2,88,058/- on 24th December, 2005. It would be open

to the appellant to urge before the trial court, question of

enhanced compensation and if received during the pendency of

this petition, would be adequately secured by the trial court, till the

final outcome of this petition. Another reason to persuade us to

remand this matter to the trial Court is that the actual share of the

respondent in the joint ancestral land has not been duly and

legally proved on record which is required to be done to arrive at a

just decision in this case.

13. For the reasons aforesaid, impugned order dated 4th

September, 2003 is set aside and this case is remanded back to

the trial Court for decision afresh in light of what is observed above

by us. Both the sides are at liberty to amend the pleadings, claim

additional issue, if required, and to lead fresh evidence in

accordance with the law. This appeal is accordingly allowed with

no orders as to costs. Both the sides are directed to appear before

the learned District Judge, Delhi on 10th September, 2008 for

assigning this matter to the competent Court of jurisdiction.

R.F.A. No. 196/2006 Page 7

14. Accordingly this appeal stands disposed of, with direction to

the court concerned to decide this matter as expeditiously as

possible, preferably within this calendar year.

                                             SUNIL GAUR, J




                                             T.S. THAKUR, J

August        7, 2008
DKG




R.F.A. No. 196/2006                                             Page 8