Does a Child need 1.5 Lakhs per month ?

.* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ IA No.10842/2007, IA No.7820/2008 & IA No.14008/2008 in C.S. (OS) No.1737/2007

Master Anant Narayan Rai & Anr.
..... Plaintiffs Through: Ms. Pinky Anand, Sr. Adv. with Ms. Aakanksha Munjal, Adv.

Versus

Mr. Siddharth Rai & Anr.
.....Defendants Through: Mr. B.S. Mann with Mr. H. Singh and Ms. Khushboo Bhardwaj, Advs.

Date of Decision: March 25, 2010

CORAM:

HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may be allowed to see the judgment? No
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes

MANMOHAN SINGH, J.

1. This order shall dispose of applications filed by the plaintiff being IA No.10842/2007 under Order XXXIX Rules 1 and 2 Code of Civil Procedure, 1908 ('CPC' for brevity) and IA No.7820/2008 under Sections 18, 20 and 23 of Protection of Women from Domestic Violence Act, 2005 and IA No.14008/2008 filed by the defendants under Order VII Rule 11 CPC for rejection of the plaint.

C.S.(OS) NO.1737/2007 Page 1 of 18

2. The plaintiff filed the suit inter alia, seeking partition and rendition of accounts in respect of properties and assets allegedly belonging to the HUF of Late Sh. Kalp Nath Rai. The plaintiff No.2 is the wife of defendant No. 1 and they were married according to Hindu rites and ceremonies on 17th January, 2000. Plaintiff No.1 is the son of plaintiff No.2 and defendant No.1, born on 23rd February, 2001.

3. Allegedly, defendant No.1 has treated the plaintiffs with extreme cruelty, both physical and mental. He has assaulted, abused and tortured the plaintiffs. Plaintiff No.1 is aged about eight years and is in the care and custody of his mother, plaintiff No.2 herein. The plaintiffs have averred that they have the legal right to enjoy their share in all the HUF properties under the control and possession of defendant No.1.

4. During the pendency of the suit, IA No.7820/2008 was filed by the plaintiffs under Sections 18, 20 and 23 of the Protection of Women from Domestic Violence Act, 2005 read with Section 151 CPC seeking to direct the defendant No.1 to pay interim maintenance of Rs.1.5 lac per month to the plaintiffs and directing him to pay 2/3rd of the rental income received by him to the plaintiffs.

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5. The plaintiffs aver that defendant No.1 is a man of means and is earning more than Rs.1 lac per month and leading a luxurious life. The defendant No.1 failed to fulfil his matrimonial obligations. Mr. Kalpnath Rai, father of defendant No.1 had an HUF consisting of himself and defendant No.1. He acquired certain immovable properties from the joint family funds during his lifetime. Mr. Kalpnath Rai expired intestate on 6th August, 1999, thus defendant No.1 became the karta of the said HUF and all the properties constituting the HUF devolved on defendant No.1, the said properties being ancestral joint Hindu properties etc. The plaintiffs claim to be entitled to 1/3rd share each in the joint family properties and the income derived therefrom as per the provisions of Hindu Succession Act, 1956 as the properties are in the nature of ancestral joint Hindu properties.

6. Defendant No.2 is the tenant in the property situated at D-4, Upasana Building, Hailey Road, Connaught Place, New Delhi and the defendant No.1 is admittedly getting Rs.63,000/- p.m. as rental income from the said flat. In addition, it is alleged that there are Fixed Deposits of about Rs.6 lac in the name of defendant No.1 in his savings account with the State Bank of India. It is stated in the application that defendant No.1 has received various amounts against agreement of sale of joint HUF properties and has received Rs. 22 lac from one Mr. Vinod Gupta against an agreement to sell dated 23rd May, 2007 for the property at Village Dera Mandi Tehsil, New Delhi. Mr. Vinod Gupta filed a case against the defendant No.1 being Suit No.2006/2007 on the apprehension that he may enter into an agreement/arrangement with some third party. Vide order dated 8 th October, 2007 an injunction was passed against the defendant no. 1 in the suit.

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7. It is further stated that the defendant No.1 is also receiving an amount of Rs. 3 lac p.a. from the ancestral agricultural land at Semari Jamilpur. The defendant No.1 is enjoying all the amenities and luxuries of life and drives a Maruti Gypsi and Bolero and also recently purchased a Ford Endeavour car.

8. The plaintiffs have allegedly been threatened by the defendant No.1 to the effect that he would sell all the joint family properties and appropriate the entire funds thereof to himself. A public notice was also published on 19th September, 2007 in Times of India, New Delhi to the effect that Mr. Rajiv Agnihotri's client is desirous of purchasing farm land standing in the name of ABS Enterprises. The plaintiffs thus filed IA No.10842/2007 under Order XXXIX Rules 1 and 2 CPC for restraining the defendant no. 1, his relatives, servants, agents and/or anyone else acting on his behalf from selling, transferring, alienating, mortgaging and/or creating third party rights and/or parting with possession of the properties detailed in Schedule 'A' annexed with the plaint.

9. It is submitted that the monthly expenditure of the plaintiff No.1 is approximately Rs.1.25 lac including school expenses and extra-curricular activities, medical expenses and other day to day requirements. The plaintiffs have submitted that they have the right to be maintained in a similar standard of living as enjoyed by defendant No.1.

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10. In reply to this application, the defendant No.1 submits that the proceedings of divorce are pending disposal between him and plaintiff No.2 at the court at Mau, U.P., therefore, the plaintiffs should press the relief for maintenance before that Court only. This court is not the proper and appropriate forum to grant interim maintenance to the plaintiffs. It is alleged that under the provisions of the Delhi Land Reforms Act, 1954 ('DLR Act' for brevity), U.P. Zamindari Abolition and Land Reforms Act, 1950 ('UP Zamindari Abolition Act' for brevity) and Hindu Minority and Guardianship Act, 1956, the suit is not maintainable. The defendant No.1 submits that he is ready to take the custody of plaintiff No.1 and to bear all the expenses towards his education, welfare and up bringing.

11. The defendant No.1 in the written statement contended that the properties situated at village Dera and at Mau, Uttar Pradesh are agricultural land and are exclusively under the jurisdiction of the revenue court under DLR Act and U.P. Zamindari Abolition Act respectively. It is submitted that the land at Village Dera is owned and possessed by ABS enterprises, the sole proprietorship concern of the defendant No.1. ABS Enterprises is the recorded bhumidar of the said land which is its separate and exclusive property and which can only claim its share or partition. The plaintiffs cannot claim any share in these lands. It is further contended that the land governed under the provisions of the DLR Act can only be partitioned by the revenue court between the recorded co-bhumidar and the provisions of Hindu Law are not applicable upon such lands.

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12. Learned Counsel for the defendant no. 1 further submits that the plaintiff No.2 is neither a coparcener nor a member of HUF of defendant No.1 thus, she has no right either to claim partition of HUF or to claim a share in the HUF properties. The defendant submits that only the property at Mau, U.P. is HUF property. The other properties mentioned in the suit are separate and exclusive properties of defendant No.1.

13. The defendant No.1 states that the HUF of Late Sh. Kalpnath Rai consists of the defendant No.1, plaintiff No.1, his four real sisters and one step sister who have not been impleaded in the present suit for partition of HUF properties, hence the suit filed by the plaintiffs is liable to be dismissed.

14. The defendant no. 1 submits that he purchased a petrol pump in 2001 in favour of plaintiff No.2 running at Mughal Sarai, G.T. Road and plaintiff No.2 is getting a monthly income of Rs.1 lac approximately out of it which is retained by her. The defendant urged that he was getting only a sum of Rs.63,000/- per month as rent at the time of filing the application and now is getting about Rs. 88,000/- (as admitted by the counsel for defendant no. 1 during the course of hearing of the application) from the property situated at D-4, Upasana Building, Connaught Place which is his exclusive and separate property, thus the plaintiffs have no right or claim on it. The land at Mau, U.P. is only generating an income of around Rs.30,000/- yearly.

15. The plaintiff relied upon the income tax return of Sh. Kalpnath Rai (HUF) for the year 1996-97 wherein the properties and assets as mentioned in the plaint are shown as HUF of Sh. Kalpnath Rai.

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16. The plaintiffs submit that a petrol pump at Mughal Sarai was allotted to the plaintiff No.2 and not purchased in her name in the year 2004 and is running in losses. The plaintiffs submit that the annual return from the said petrol pump is only Rs.5,000/- p.a. and a loan of Rs.28 lac was taken from the father of plaintiff No.2 for running it which is still outstanding and has to be paid back to him.

17. The plaintiffs also stated that since the sisters of defendant No.1 are married and have already been given their share of property from the HUF therefore, they are not necessary parties to the present suit.

18. The defendant no. 1 filed IA No.14008/2008 under Order VII Rule 11 CPC for rejection of the plaint contending that the suit filed by the plaintiffs seeking the relief of partition in respect of various properties as mentioned in the plaint are separate and exclusive properties of the defendant and the plaintiffs have no right, title or interest of any nature in the same. The applicant is the recorded bhumidar of the land situated at Mau, UP and Village Dera Mandi. Therefore, the principles of Hindu Law are not applicable on the said lands and the suit is barred under the provisions of the UP Zamindari Abolition Act, Hindu Minority and Guardianship Act, 1956 and the DLR Act. It is submitted that only recorded bhumidars have a right to seek partition of the land holding covered under the DLR Act and UP Abolition Act. Even the partition proceedings can be initiated only before the revenue courts constituted under the provisions of the above said Acts which exclusively have the jurisdiction to adjudicate upon and decide the issue of partition in respect of such land. The jurisdiction of civil courts is clearly barred under the above said Acts.

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19. It has been contended that the suit is also hit by the provisions of Order 1 Rule 9 CPC and is not maintainable for non impleadment of necessary parties. The defendant submits that the plaintiffs have not impleaded the sisters of defendant No.1 as necessary parties in the suit which is for partition of the alleged joint properties.

20. Ms. Pinky Anand, learned Senior counsel for the plaintiffs argued that the issue of jurisdiction is to be decided on merits along with other issues while deciding the suit at the stage of final disposal. She relied upon Rajendra Singh Vs. Vijay Pal, (2008) 4 SCC 36 contending that the issue whether the Civil Court has jurisdiction or not should be decided with the other issues on merit.

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21. The learned Senior counsel further argued that the present case is not covered by Section 185 of the DLR Act which bars jurisdiction of the Civil Court only as per Schedule I Column 11. The said Column deals with Section 55 of the DLR Act which relates to the rights of a Bhumidar filing a suit for partition. In the present case the plaintiffs are not bhumidars and, therefore, the present matter is not covered by DLR Act as alleged by defendant. The present suit of the plaintiffs for declaration of title and permanent injunction is not covered under specific matters enumerated in Schedule I of the DLR Act. The plaintiffs are not claiming bhumidari rights and therefore jurisdiction of the Civil Court under Section 185 is not barred when the plaintiffs are claiming permanent injunction on the basis of succession of bhumidari rights by virtue of a Will. The relief of interim injunction can be granted by the court. She submits that even otherwise, it was observed in Ram Awalamb Vs. Jata Shankar (FB), AIR 1969 Allahabad 526 that when the principal relief in the suit relates to Hindu Law of Succession and not Delhi Land Reforms Act, the suit could be taken cognizance of by the Civil Court and the ancillary reliefs which could be granted by the Revenue Court may also be granted by the Civil Court. The present suit is for declaration that the properties are HUF properties and plaintiff No.1 being the minor son of the defendant No.1 has a valid share in the said properties.

22. Learned Senior counsel further argued that the principals of customary Hindu Law are applicable to bhumidari rights. UP Zamindari Abolition and Land reforms Act does not touch or affect the law of joint family, hence Hindu Law continues to operate in this matter. She relied upon several case laws to contend that Hindu Succession Act applies to succession vis-a-vis agricultural land also. It was held in Tukaram Genba Jadhav & Ors. Vs. Laxman Genba Jadhav & Anr., AIR 1994 Bom 247 that Hindu Succession Act, 1956 Sections 4 (2) & 8 are applicable to agricultural lands also.

C.S.(OS) NO.1737/2007 Page 9 of 18

23. It is also argued that all coparceners have been made parties in the suit. The Amending Act of 2005 of Hindu Succession Act is not applicable to the instant case. The defendant No.1's sisters do not have any coparcenary rights in the HUF of Sh. Kalpnath Rai. The learned counsel submits that the suit is maintainable on behalf of plaintiff No.1 under Order 32 Rule 1 CPC.

24. Ms. Pinky Anand, learned Senior counsel for the plaintiffs also quoted several case laws wherein it was held that it is the right of the wife to be maintained by the husband in accordance with his status depending upon the income of the husband and the lifestyle that he is leading. She strenuously relied upon the Income Tax Returns of Shri Kalpnath Rai to establish that the properties in question were joint Hindu Family properties. She laid emphasis on well settled law that the wife under Protection of Women from Domestic Violence Act not only requires to be maintained but also requires a right to residence.

25. Mr. B.S. Mann, per contra, learned counsel for the defendants vehemently argued that the jurisdiction of the Civil Court is expressly barred in the present case under Section 185 read with Schedule I of the DLR Act and Section 330 and 331 read with Schedule II of the UP Zamindari Abolition and Land Reforms Act as the properties are situated in Village Dera Mandi, Delhi and Semri-Jamalpur, MAU, U.P. which are agricultural lands and the defendant No. 1 is the recorded co-Bhumidar of the above said lands. No person other than a recorded Bhumidar can maintain a suit for permanent injunction in a Civil Court. The relief of partition in respect of the above said land can only be granted by the Revenue Courts under the DLR Act and UP Abolition Act. He relied upon AIR 1972 ALL 470, AIR 1969 ALL 526(FB) and 2007 (2) SCALE 607 in support of his above contention.

C.S.(OS) NO.1737/2007 Page 10 of 18

26. He argued that where the part of the subject matter of suit property is situated outside the jurisdiction of the court, the plaint should not be rejected in that event but the court should not grant an injunction in respect of those properties which are situated beyond its jurisdiction.

27. It is contended that the principals of customary Hindu law/HUF are not applicable for Bhumidari rights in respect of the agricultural land. The devolution in respect of the share of a coparcener in the coparcenary property has to be in accordance with the provisions of Section 6 of Hindu Succession Act and the share of the coparcener is to devolve upon his legal heirs by intestate succession and is not to be devolved upon the surviving coparceners by survivorship. The sisters and step-sisters of the defendant No. 1 therefore, would also be necessary and property parties as they would get a share out of the interest of the coparcener Late Shri Kalpnath Rai. Since the sisters of defendant No. 1 are not made parties, the suit of the plaintiff is not maintainable.

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28. The defendant submits that the plaintiff No. 2 is also running K.N. Rai College, Raisa Man on National Highway and earning a good income therefrom.

29. In reply to the application of the plaintiffs under Order XXXIX Rules 1 and 2, it is stated that a suit for permanent injunction by a coparcener against the father for restraining him is not maintainable as the coparcener has an efficacious alternative remedy of challenging the sale after its completion.

30. Regarding the Income Tax Returns filed by Late Shri Kalpnath Rai for the year 1996-97, the defendant No. 1 submits that the said returns were filed by his father in ignorance of the true position and alleged that they are not binding on him and there is no estoppel against him. It is submitted that the declaration made in the Return by Late Sh. Kalpnath Rai is not conclusive proof for the purpose of deciding the nature of the property and the same in no manner affects the true and actual nature of the property (See AIR 1960 SC 335).

31. Having heard the rival submissions of both the parties and perused the record, I shall first deal with I.A. No. 14008/2008 filed by the defendant no. 1 under Order VII Rule 11 CPC for rejection of the plaint. The main thrust of the learned counsel for the defendant in this application is that the suit with regard to agricultural land situated at Village Dera Mandi, Delhi and at Mau, U.P. is not maintainable in this court.

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32. It is settled law that under Order VII Rule 11 CPC where the suit appears from the averments made in the plaint to be barred by any law, then the plaint can be rejected. The legal position is that to decide whether a plaint is liable to be rejected under Order VII Rule 11, averments in the plaint have to be read without looking at the defense and thereupon it has to be seen whether Order VII Rule 11 gets attracted.

33. The question with regard to jurisdiction, in my view due to the facts and circumstances of the present case, will be decided along with the other questions while deciding the suit on merit. As held in Rajinder Singh (supra) the proper course is to commence the trial of the suit and decide the issue of jurisdiction on merits with other issues. Further, the CPC clearly provides in Section 20 that a Court will have jurisdiction if the whole or a part of the cause of action arises within its territorial jurisdiction. Prima facie this Court is of the view that it has the territorial jurisdiction to adjudicate upon the instant suit by virtue of one of the properties owned by defendant no. 1 which is situated at Hailey Road, Connaught Place, Delhi. The plaintiff in any case has to prove the case on the objection raised by the defendants about territorial jurisdiction at the time of trial.

34. At the outset, it can be seen that the lands situated at Village Dera Mandi, Delhi and at Mau, U.P. are agricultural land and defendant No. 1 is the Bhumidar of the said lands. Prima facie, therefore, the objection about the maintainability of suit in respect of these properties cannot be finally decided at this stage.

C.S.(OS) NO.1737/2007 Page 13 of 18

35. I find no merit in the other contention of the learned counsel for the defendant no. 1 that the suit is bad for non joinder of parties as the Hindu Succession (Amending Act) of 2005 is not applicable with retrospective effect. Plaintiff No. 1 was born in 2001 and the father of defendant No. 1 expired in the year 1999, therefore, whether the sisters of defendant no. 1 are required to be impleaded or not and are necessary parties or not in the suit cannot be the ground for rejecting the plaint without framing of the issues. Thus, there is no force in the application of the defendant under Order VII Rule 11. It is disposed of accordingly.

36. Regarding the other applications namely IA No. 10842/2007 and I.A. No. 7820/2008 for maintenance to the plaintiffs and restraining the defendant No. 1 from creating any third party right in the suit properties, it is pointed out here that divorce proceedings are pending in Mau, UP and an application for maintenance has also been allowed in that case. Learned counsel for defendant no. 1 has also filed a copy of the order passed by the Senior Civil Judge, Senior Division, Mau in the case Sidharth Vs. Sita Rai being Suit No. 296/2008 wherein the plaintiff no. 2 has been granted maintenance for plaintiff no. 1 to the tune of Rs. 20,000/- per month. The learned counsel for the defendant No. 1 during the arguments has admitted that the defendant no. 1 is receiving the monthly rental from the property at Hailey Road, Connaught Place is Rs. 88,000/- p.m.

C.S.(OS) NO.1737/2007 Page 14 of 18

37. Section 20 of the Domestic Violence Act empowers the Court to pass an order for grant of monetary relief to the aggrieved party, which may file civil and criminal cases by combining reliefs, to be paid by the defendant to meet the expenses, i.e. loss of earning, loss of property, medical expenses and maintenance under or in addition to any other law for the time being in force.

38. The submission of defendant no. 1 cannot be accepted that once maintenance has already been awarded to plaintiff no. 1 by the appropriate authority, no relief sought by the plaintiff in IA No. 7820/2008 under the Domestic Violence Act, 2005 can be granted. Having considered the various provisions of the said Act, this Court is of the view that there is nothing bars this Court from allowing the nature of prayer made in the present application. In order to make a prima facie case against the defendant in the present case, the plaintiffs have made specific allegations against defendant no. 1 that he has treated the plaintiffs with cruelty, both physical and mental, and has tortured and abused them. Though the said allegations have to be proved by the plaintiffs at the time of trial but this Court at this stage is of the considered view that the interim maintenance granted to the plaintiff by the Mau Court is not sufficient to allow the plaintiffs to lead a normal life as per the status of living of the defendant no.1.

C.S.(OS) NO.1737/2007 Page 15 of 18


39. Keeping in mind the facts in the present case and as per settled law in the subject that it is the right of the wife to be maintained by her husband in accordance with his status depending upon his income the lifestyle that he is leading, I find that interim maintenance in the present case has to be given to the plaintiffs apart from the maintenance ordered to be given to plaintiff no. 1 in the Suit No. 296/2008 before the Court at Mau.

40. In the case of Neelam Malhotra Vs. Rajinder Malhotra, 1994 AIR (Del) 234 it was held that there can be no precise or settled formulae to assess the quantum of interim maintenance. Each case depends upon its own facts. There is no doubt that where a person is self employed, s/he tends to disclose incorrect income in the income tax return filed by him/her. There is no mathematical formula to precisely calculate any accurate amount to be given during pendency of the interim maintenance proceedings. The legislature gives wide and flexible power to the Court to decide the maintenance pendente lite considering the income and other factors like status of living and day to day expenses of the parties etc.

C.S.(OS) NO.1737/2007 Page 16 of 18

41. In the present case, the contention of plaintiff no. 2 that she is earning only Rs. 5,000/- from the petrol pump is hardly believable and the true picture in this regard will come after recording of the evidence of the plaintiff no. 2. As already discussed, it cannot be determined with certainty as to how much the defendant No.1 is earning. As regard the earning of defendant no. 1, if any, from the properties and assets allegedly belonging to the HUF of late Sh. Kalpnath Rai, since defendant no. 1 has challenged its validity as well as raised the point of jurisdiction in the written statement, therefore, the prayer sought thereof by the plaintiffs cannot be allowed at this stage unless the same is proved. At the same time, defendant no. 1 has not disputed the fact that he has been receiving rent of the sum of Rs. 88,000/- from property no. D-4, Upasana Building, Hailey Road, Connaught Place, New Delhi and in light of this undisputed fact, I find that the relief of maintenance can be granted to the plaintiffs from the said earnings.

42. Therefore, the defendant No.1 is directed to pay maintenance @ Rs. 30,000/- p.m. from the date of filing the application as the monthly expenses of plaintiff No.1 who is in the care and custody of plaintiff No.2 and the maintenance to the plaintiff No.2. It is made clear that the defendant no. 1 is allowed four weeks time from the date of passing of this order to pay the arrears of the maintenance.

43. The defendant No.1 is also restrained from alienating/encumbering the properties mentioned in annexure 'A' of the plaint in any manner to any third party till the final disposal of the suit, as it appears from the facts and circumstances of the present case that the plaintiffs have made a prima facie case in their favour. The balance of convenience also lies in favour of the plaintiffs and against the defendants. If the interim order already granted is not confirmed, the plaintiffs will suffer irretrievable loss and injury. Thus, in order to protect the rights of the plaintiffs the order dated 12.10.2007 is made absolute.

44. With the above-stated directions, I.A. No.10842/2007 and I.A. No.7820/2008 are disposed of.

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List the matter on 14th April, 2010 before Roster Bench. MANMOHAN SINGH, J.

MARCH 25, 2010
sa

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