Karnataka High Court
Sri K M Santhosh Kumar vs Smt Kalamma on 14 July, 2023
Bench: S.R.Krishna Kumar
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WP No. 23071 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 23071 OF 2022 (GM-CPC)
BETWEEN:
SRI K M SANTHOSH KUMAR
S/O LATE K.H. MALLAPPA
AGED ABOUT 35 YEARS
AGRICULTURIST
R/AT HALEKUNDUWARA BENCHIKATTE
DAVANAGERE TALUK
DAVANAGERE DISTRICT-577 002.
...PETITIONER
(BY SRI. HAREESH BHANDARY T., ADVOCATE)
AND:
1. SMT KALAMMA
W/O LATE K.H. MALLAPPA
AGED ABOUT 67 YEARS
HOUSEHOLD
R/AT HALEKUNDUWARA BENCHIKATTE
DAVANAGERE TALUK
DAVANAGERE DISTRICT-577 002.
Digitally
signed by
LEELAVATHI 2. SMT. K.M. RUKMINI
SR W/O H. BASAVARAJAPPA
Location: AGED ABOUT 47 YEARS
High Court of HOUSEWIFE
Karnataka
HALEKOLENAHALLI VILLAGE
KUKKWADA POST
DAVANAGERE TALUK
DAVANAGERE DISTIRCT-577 002.
...RESPONDENTS
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION
OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER ANNEXURE-A
DATED 10.10.2022 MADE ON I.A.NO 5 IN O.S.NO. 26/2020 BY THE COURT
OF I ADDITIONAL SENIOR CIVIL JUDGE AND J.M.F.C., DAVANAGERE.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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WP No. 23071 of 2022
ORDER
This petition by the 1st defendant in O.S.No.26/2020 on the
file of I Addl.Senior Civil Judge & JMFC, Davanagere, is directed
against the impugned order dated 10.10.2022 passed on I.A.No.5
by the trial court, which allowed the said application filed by the 1st
respondent - plaintiff and directed the petitioner - 1st defendant to
pay a sum of Rs.5,000/- per month to the 1st respondent - plaintiff
and issued certain other directions.
2. Heard learned counsel for the petitioner and learned
counsel for the respondents and perused the material on record.
3. The material on record discloses that the petitioner is the
son of 1st respondent - plaintiff, while 2nd respondent - 2nd
defendant is the sister of the petitioner and daughter of 1st
respondent. In the said suit which is being contested by the
petitioner, the 1st respondent - plaintiff filed the instant application
I.A.No.5 for a direction to the petitioner to pay maintenance of
Rs.5,000/- per month. The said application having been opposed
by the petitioner, the trial court proceeded to pass the impugned
order partly allowing I.A.No.5 and by directing the petitioner to pay
sum of Rs.5,000/- per month by way of interim maintenance from
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WP No. 23071 of 2022
the date of the order till the disposal of the suit, by holding as
under:-
" This application is filed by plaintiff U/Sec. 151 of
CPC seeking an order to direct the 1st defendant to pay
an amount of Rs.15,000/- per month towards the
maintenance to plaintiff from the date of suit till the
possession of her share in the suit schedule properties
are given to her.
2. This application is supported by affidavit of plaintiff.
In the affidavit plaintiff has stated that she has filed this suit
against the defendants for partition and separate
possession of her share in the suit schedule properties.
Suit schedule properties are agricultural lands measuring
in all 5 acres 30.04 guntas and two house properties. It is
stated that, the suit schedule properties are cultivated by
defendant No.1 and after the death of her husband
defendant No.1 is the only eldest male member in her
family and looking after the suit schedule properties. It is
stated 1St defendant is raising two paddy crops in a year
and growing nearly 320 quintals of paddy and getting
income of Rs.4,48,000/- to 5,12,000/- per year and after
deducting all expenses incurred for raising paddy,
defendant No.1 is getting income of Rs.2,60,000/- per year
from the suit schedule properties. It is further stated that,
defendant No.1 is taking away the entire income from the
suit schedule properties and therefore plaintiff was forced
to file this suit for partition and separate possession of her
share.
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3. It is stated that, 1st defendant has not made any
arrangements for food, shelter and clothing of the plaintiff.
Defendant No.1 being the son of plaintiff is bound to make
provision for food, shelter and clothing of plaintiff.
Defendant No.1 has capacity to maintain the plaintiff out of
the income received from suit schedule properties. Plaintiff
is aged 66 years and on account of her old age she is
unable to do any work to eke out her livelihood and she is
unable to maintain herself. In these hard days plaintiff
requires minimum an amount of Rs.15,000/- per month for
her maintenance. If the application is allowed no prejudice
will be caused to the 1st defendant, on the other hand, if
the application is not allowed then plaintiff will be put
heavy irreparable loss. Hence it is prayed to allow the
application as prayed for.
4. This application is opposed by 1st defendant by
filing his objection statement. In the objection statement,
1st defendant has denied all the averments made in the
affidavit filed in support of IA No.5. It is stated that, the
plaintiff has filed this application with malafide intention to
give harassment to the 1st defendant, plaintiff has filed this
application by suppressing the material true facts.
5. 1st defendant has stated that, plaintiff has picked up
quarrel with his wife in the month of April-2019 at the time
of Ugadi and convened a Panchayath claiming partition in
the family properties for herself and for her daughter
(defendant No.2) in the presence of elderly persons. In the
Panchayath the elderly persons directed 1st defendant to
pay an amount of Rs.25,00,000/- to plaintiff and a
residential house situated in land bearing Sy.No. 100/29 till
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her lifetime. 2nd defendant was allotted 1 acre of land in
Sy.No.64/3 and remaining properties were allotted to the
1st defendant. Accordingly, defendant No.2 has taken
possession of 1 acre of land and defendant No.1 has
taken possession of other properties. It is stated defendant
No.1 has paid Rs.25,00,000/- in cash to plaintiff on
06-09-2019 in presence of of 2nd defendant and her
husband, and on the same day partition deed was
prepared. It is stated plaintiff has thrown out defendant
No.1 and his wife from the house and plaintiff is residing in
the residential house. Plaintiff is having 6 cow and 2
buffalo and getting income of Rs.1,000/- per day by selling
milk. Defendant No.1 is unable to maintain his wife and
children from the income derived from the properties
received by him in partition. Plaintiff has already received
Rs.25,00,000/- from defendant No.1 in lieu of her share in
the suit schedule properties. Hence , plaintiff is not entitled
for any maintenance from 1st defendant and hence 1st
defendant has prayed to dismiss the application.
6. Heard the arguments of both side counsels and
perused the materials placed on record.
7. The points that would arise for consideration are as
follows:
1. Whether the plaintiff is entitled for
maintenance during the pendency of the suit?
If so, how much?
2. What order?
8. My findings on the above points are as under;
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Point No.1: In affirmative, plaintiff is entitled for
maintenance of Rs.5,000/- per month.
Point No.2: As per final Order, for the following:
REASONS
9.Point No.1: On perusal of the pleadings of
parties it reveals that, the plaintiff has filed this suit seeking
relief of partition and separate possession of her share in
suit schedule properties. Suit item No.1 to 4 are their
agricultural lands and suit item No.5 is 7.04 guntas land
wherein 2 houses are situated and in one of the house
plaintiff is residing and another house is used for tethering
cattle. Defendant No.1 is the son and defendant No.2 is
daughter of plaintiff. Defendant No.1 has appeared and
denied the claim of plaintiff by filing his written statement.
Defendant No.1 has contended that already partition has
taken place between plaintiff and defendants and in the
said partition plaintiff is given 25,00,000/- (25 lakhs) in lieu
of her share in the suit schedule properties.
10.Sri J.N.V. Advocate for plaintiff has argued that
plaintiff and defendants are the members of the joint family
suit schedule properties are joint family properties and
same are managed by defendant No.1. He argued that
defendant No.1 is getting income of Rs.4,48,000/- to
5,20,000/- and after deducting expenses defendant No.1 is
getting income of Rs.2,60,000/-. Defendant No.1 has
neglected the plaintiff and not maintaining her. Plaintiff is
aged women and unable to earn her livelihood. Defendant
No.1 being the son of plaintiff is bound to maintain the
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plaintiff. Under the provisions of Hindu adoption and
maintenance Act son is bound to maintain his mother.
Plaintiff's counsel has submitted that defendant No.1 has
not made any provision for maintenance of his mother
plaintiff who is age old women and lead decent life plaintiff
requires minimum Rs.15000/- per month and defendant
No.1 is capable of paying Rs.15000/- towards the
maintenance of plaintiff.
11. Sri M.H.J Advocate for defendant No.1 has
argued that application for interim maintenance in Civil
Case is not maintainable as there are provisions under
different acts for seeking maintenance and plaintiff is at
liberty to seek maintenance under the said acts and
therefore these applications are maintainable. During the
arguments, the counsel for defendant No.1 argued that as
per the plaint para No.8 and the averments of para No.3
the Plaintiffs enjoyed the suit schedule properties jointly
and even now the plaintiffs are defendants are enjoying
the suit schedule properties jointly, and therefore when
plaintiff is jointly enjoying the suit schedule properties, she
is having source of income and plaintiff is not entitle for
maintenance from defendant No.1. He further argued that,
plaintiff has ousted the defendant No.1 and his wife and
she alone is residing in the suit schedule property and
plaintiff has six cattle and getting income of Rs.1000/- per
day from selling milk. Therefore, the counsel for defendant
No.1 argued that, plaintiff is having sufficient income to
maintain herself on the other hand, defendant No.1 is
struggling to maintain his wife and children. He argued
that, already partition has been effected between plaintiff
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and defendants in respect of family properties and in the
said partition defendant has given Rs.25,00,000/- in cash
to plaintiff in lieu of her share in the suit schedule
properties and therefore defendant No.1 is not liable to pay
any interim maintenance as the suit itself is not
maintainable.
12. Admittedly, suit schedule properties are
ancestral properties owned and possessed by husband of
plaintiff K.H. Mallappa till his lifetime i.e., March-1999. It is
admitted that, defendants are the son and daughter of
plaintiff and defendant No.2 is married and residing at her
husband's house. The pleadings of plaintiff and defendant
No.1 disclose the relationship between plaintiff and
defendant No.1 has been strained and they are residing
separately. It is the contention of defendant No.1 that, she
is old age women and unable to maintain herself, and the
defendant No.1 being the son has to maintain the plaintiff.
On the contrary, defendant No.1 has submitted already
partition has taken place between plaintiff and defendants
through partition deed dated 06/09/2019 and defendant
No.1 has given Rs.25,00,000/- in cash to plaintiff towards
her share in the suit schedule properties. To establish fact,
defendant No.1 has produced the unregistered partition
deed dated 06/09/2019. Defendant No.1 has also
produced 11-E sketch of suit survey number 64/3. But,
these documents at this stage cannot prove that partition
has taken place and plaintiff is given Rs.25,00,000/- in
cash.Defendant No.1 has not produced any receipt to
show that, he has given Rs.25,00,000/- to the plaintiff. At
this stage, there is no any clinching material on record to
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show that, partition has taken place between, plaintiff and
defendants and defendant No.1 has given Rs.25,00,000/-
to plaintiff.
13. As per the averments made in the plaint,
plaintiff is residing in one house and she tethering the
cattle in another house. It appears defendant No.1 not
residing in the joint family house properties. Defendant
No.1 has submitted that, plaintiff is getting income of
Rs.1000/- per day by selling milk. To believe this fact, no
evidence or document is placed on record. Admittedly,
plaintiff is old age women and she requires care,
protection and nourishment. Of course, for shelter, there is
a house to reside, but for food, clothing, medicine no
provision is made. As per the provisions of Sec.20 of
Hindu Adoption and Maintenance Act 1956, son has to
maintain the aged parents. The Sec.20 of Hindu Adoption
and Maintenance Act states as follows;
Maintenance of children and aged parents-
(1) Subject to the provisions of this section a
Hindu is bound, during his or her lifetime, to
maintain his or her legitimate or illegitimate
children and his or her aged or infirm parents.
14. Sri J.N.V Advocate for plaintiff has produced an
authority:
1975 (2) KLJ Page 182, between Syed
Hussain another V/s Rahamathabi & Another
15. The Hon'ble High Court of Karnataka has stated
that, "Under General Law nothing prevents the Court in a
suit for partition to make interim arrangement of the
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income of the suit property, provided that a prima-facie
case is made out by the party for claiming share thereof.
16. Thus, in the present case, plaintiff has made out
a prima- facie case for partition and separate possession
of her share in suit schedule properties and it is not the
contention of defendant No.1 that plaintiff is taking income
derived from the suit properties. Thus, for maintenance
plaintiff requires interim maintenance and same has to be
provided by defendant No.1 who is deriving the income
from the suit properties. Thus, plaintiff is entitle for interim
maintenance and the principle laid down by the Hon'ble
High Court in the above referred case is aptly applicable to
the case on hand.
17. Now, the question to be answered is how much
maintenance is to be awarded to the plaintiff and from
which date. Admittedly, as per the plaintiffs case defendant
No.1 is deriving income of Rs.2,50,000/- from suit
schedule properties. Defendant No.1 is having wife and
children and they are not residing in the properties. Thus,
defendant No.1 has to maintain his wife and children and
look after their education, health, clothing etc., along with
the maintenance of plaintiff. Defendant No.1 has to pay
rent of his house out of the income derived from the suit
properties. As per plaintiff the income of defendant No.1
Rs.2,50,000/- per year. So far as. Residence is concerned
plaintiff is having house to reside and plaintiff is getting
milk from the cattle for herself. But, plaintiff requires money
for purchasing food-grains and other food items. Plaintiff
requires money for her medicine & clothing. Thus, out of
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Rs.2,50,000/-, defendant No.1 may be directed to pay
Rs.5,000/- per month towards the maintenance of his
mother plaintiff. Out of Rs.5,000/- per month plaintiff may
lead her decent life. With this observation point No.1 is
answered in the Affirmative.
18. Point No.2: For the reasons stated in the above
point, this Court proceed to pass the following:
ORDER
The IA No.V filed by plaintiff is partly allowed.
Plaintiff is entitle for maintenance of Rs.5,000/- per
month from defendant No.1, from the date of this
order till the date of judgment.
Defendant No.1 is directed to pay Rs.5,000/- per
month towards the interim maintenance of plaintiff
from the date of this order till the date of
judgment."
4. A perusal of the material on record including the
impugned order will indicate that there is no illegality or infirmity
committed by the trial court warranting interference by this Court in
the present petition. Accordingly, I do not find any merit in the
petition and the same is hereby dismissed. However, the trial court
is directed to dispose of the suit within a period of one year from
the date of receipt of a copy of this order.
Sd/-
JUDGE
Srl.
