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Mst. Kapur Kaur Vs. Kishan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 896 of 1962
Judge
Reported inAIR1970P& H270
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 19(2) and 28
AppellantMst. Kapur Kaur
RespondentKishan Singh and ors.
Advocates: K.C. Puri, Adv.
DispositionAppeal allowed
Cases ReferredGurdip Kaur v. Ghamand Singh.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........singh made a gift of his entire land measuring 82 kanals, 8 marias in favour of his daughter, gurnam kaur, on july 31, 1958. she stated in the plaint that she had no source of income. she further mentioned in the plaint that the parties were governed by customary law in the matter of maintenance and her father-in-law was liable to pay maintenance allowance to her.2. the suit was dismissed by shri mohindra singh, sub-judge 1st class, faridkot, on october 29, 1959, but, on appeal, the learned district judge, bhatinda, ordered re-trial by his judgment dated july 28, 1960, after framing the following issues:--(1) whether the plaintiff is entitled to claim maintenance against the defendant according to custom applicable to the parties and what that custom is?(2) if issue no. 1 is not.....
Judgment:

Bal Raj Tuli, J.

1. The appellant, Shrimati Kapur Kaur, is the widow of Hakam Singh, who predeceased his father Kishan Singh, Hakam Singh died in April, 1957, as a result of a truck accident. His father, Kishan Singh, owned agricultural land, which was ancestral. Shrimati Kapur Kaur filed a suit against her father-in-law, Kishan Singh, on July 23, 1958, claiming maintenance at the rate of Rs. 40 per mensem. Having got the scent of the suit, Kishan Singh made a gift of his entire land measuring 82 Kanals, 8 Marias in favour of his daughter, Gurnam Kaur, on July 31, 1958. She stated in the plaint that she had no source of income. She further mentioned in the plaint that the parties were governed by Customary Law in the matter of maintenance and her father-in-law was liable to pay maintenance allowance to her.

2. The suit was dismissed by Shri Mohindra Singh, Sub-Judge 1st Class, Faridkot, on October 29, 1959, but, on appeal, the learned District Judge, Bhatinda, ordered re-trial by his judgment dated July 28, 1960, after framing the following issues:--

(1) Whether the plaintiff is entitled to claim maintenance against the defendant according to custom applicable to the parties and what that custom is?

(2) If issue No. 1 is not proved in the affirmative, is the plaintiff still entitled to claim maintenance otherwise according to law?

(3) Is the property against which charge is claimed ancestral of the deceased Hakam Singh and the defendant as alleged in para 9 of the plaint and what is its effect?

(4) To what amount of maintenance, if any, is the plaintiff entitled?

(5) Whether Kapur Kaur is living in adultery with Jagrup Singh and, if so, what is its effect?

3. On issues Nos. (1) and (2) the learned trial Court held that there was no such property out of which maintenance allowance could be granted to the plaintiff in view of the provisions contained in Section 19 of the Hindu Adoptions and Maintenance Act (No. 78 of 1956) (hereinafter called the Act), but on issue No. (3) the finding was that 82 Kanals and 8 Marias of land had been proved to be ancestral qua the plaintiff's husband. On issue No. (4) the learned trial Court held that the plaintiff was entitled to a maintenance allowance of Rs. 20 per month, if she succeeded on other issues. Issue No. (5) was decided against the defendant.

4. As a result of his findings on various issues, the suit of the plaintiff was dismissed on December 9, 1960.

5. Feeling aggrieved, the plaintiff went up in appeal which was dismissed by the Additional District Judge, Faridkot, on January 4, 1962. The learned lower appellate Court held that the ancestral land measuring 82 Kanals and 8 Marias in the hands of the defendant was not coparcenary property within the meaning of the word as used in Section 19 of the Act and, therefore, the defendant was not liable to maintain the plaintiff.

6. No other issue was argued before the learned lower appellate Court. The appellant has filed the present appeal against the decree of the learned lower appellate Court.

7. The first point argued by the learned counsel for the appellant is that a Full Bench of this Court by majority has held in Gurdip Kaur v. Ghamand Singh. ILR (1965) 1 Puni 271 = (AIR 1965 Punj 238) (FB), that the term 'coparcenary property' occurring in Section 19(2) of the Act means the property which consists of ancestral property, or of joint acquisitions or of property thrown into the common stock, and accretions to such property. That case also related to Jats and the point of law arose in similar circumstances. Gurdip Kaur had filed a suit against her father-in-law, Ghamand Singh, for maintenance at the rate of Rs. 100 per mensem, she being the widow of a predeceased son.

8. Respectfully following that decision, I hold that the appellant was entitled to a maintenance allowance from her father-in-law after the death of her husband. The amount of maintenance allowance was fixed as Rs. 20 per mensem by the learned trial Court and that finding was not agitated before the learned lower appellate Court. It is, therefore, held that she is entitled to a maintenance allowance of Rs. 20 per mensem from the date of her suit.

9. The learned counsel for the appellant has submitted that Kishan Singh, defendant, made a gift of his entire land, which was ancestral, measuring 82 Kanals and 8 Marias, in favour of his daughter, Gurnam Kaur, on July 31, 1958, that is, after the filing of the suit by the plaintiff-appellant, and as such the right to receive maintenance can be enforced against Shrimati Gurnam Kaur under Section 28 of the Act, since Kishan Singh, respondent, died on November 17, 1964. In his place, his two sons and the daughter. Gurnam Kaur, have been brought on record as his legal representatives. The gift of the land in favour of Gurnam Kaur, being gratuitous and during the pendency of the suit by the plaintiff, Shrimati Gurnam Kaur is liable to pay the maintenance allowance of Rs. 20 per mensem to the appellant under Section 28 of the Act, as the learned trial Court found that the land gifted to her by Kishan Singh was capable of affording that amount of maintenance to the appellant. This disposes of C. M. No. 137-C of 1966 filed by the respondents.

10. The learned counsel for the appellant has submitted that the maintenance allowance determined by the learned trial Court is too paltry a sum and it should be enhanced to Rs. 40 per mensem as claimed by her in the suit. I regret my inability to accede to this submission because the quantum of maintenance allowance fixed by the learned trial Court was not agitated before the learned lower appellate Court. The appellant may file another suit or take such other proceedings as may be open to her under the law for getting the maintenance allowance enhanced.

11. The appellant filed the suit and appeal in forma pauperis. The court-fee payable in respect of the suit and the appeal will be a first charge on the amount of maintenance that the appellant may recover from Shrimati Gurnam Kaur. A copy of this judgment may be sent to the Collector, Bhatinda, for realising the amount of court-fee.

12. For the reasons given above, this appeal is accepted and a decree for the recovery of maintenance allowance at the rate of Rs. 20 per mensem from the date of her suit is passed in favour of the plaintiff-appellant against Shrimati Gurnam Kaur. the transferee of the land from Kishan Singh, defendant, with costs throughout.


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