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HIGH COURT OF ORISSA
S.BARMAN,G.K.MISRA, JJ.
Jagat Krishna Das
Versus
Ajit Kumar Das
First Appeals Nos. 22 and 27 of 1961,
Decided On : 06-11-1963
HINDU MARRIED WOMEN'S RIGHT TO SEPARATE RESIDENCE AND MAINTENANCE ACT, 1946 - SECTION 2(4) - MAINTENANCE - SECOND MARRIAGE - HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - SECTION 18(1) - MAINTENANCE - HUSBAND'S OBLIGATION - DESERTION - EVIDENCE - JOINT FAMILY PROPERTY - BLENDING - CUTTACK PROPERTY - PARTITION.
Fact of the Case:
Plaintiffs, a wife and her two children, filed a suit for partition and maintenance against the defendants, including the husband (defendant 1) and his second wife (defendant 7). The plaintiffs claimed that the Cuttack property was a joint family property and liable to partition. The defendants claimed that the Cuttack property was the self-acquired property of Raghabananda, the father of defendant 1, and that defendant 7 was the legally married wife of defendant 1.
Finding of the Court:
The Court found that the Cuttack property was a joint family property and liable to partition. The Court also found that defendant 7 was the legally married wife of defendant 1 and that defendants 8 to 10 were the legitimate sons of defendant 1 through defendant 7. The Court further found that defendant 1 had deserted the plaintiffs from March 1953 and that he was liable to pay maintenance to the plaintiffs from that date.
Issues: 1. Whether the Cuttack property was a joint family property or the self-acquired property of Raghabananda? 2. Whether defendant 7 was the legally married wife of defendant 1? 3. Whether defendant 1 had deserted the plaintiffs? 4. Whether defendant 1 was liable to pay maintenance to the plaintiffs?
Ratio Decidendi: 1. The Court held that the Cuttack property was a joint family property on the basis of the following evidence: a. The property was purchased by Raghabananda in his own name in 1903, but he had spent Rs. 4,000/- out of his own income on the construction of the ground floor in the main block prior to 1911. b. Defendant 5 (a senior Advocate of the Bar) constructed the first floor of the main building in 1922 or 1923, the ground floor of the office block and rooms to the south-east of the main building consisting of a Hall and two side rooms in 1924-25, and the southern extension of the office block consisting of two rooms and the 1st floor of the office block with a sanitary latrine in 1929. c. Bhubanananda (defendant 4) also made substantial additions to the house by investing money from his own earnings. d. Raghabananda did not object to the constructions made by defendant 5 and Bhubanananda, and he allowed them to occupy the house along with him. e. After Raghabananda's death in 1932, the Cuttack property was recorded in the names of defendant 5, Bhubanananda, and the sons of Raghabananda in the Khashmahal papers. 2. The Court held that defendant 7 was the legally married wife of defendant 1 on the basis of the following evidence: a. Defendant 2 (son of Raghabananda) admitted that defendant 7 was married to defendant 1 on 15-4-1954. b. Defendant 7 was a respectable and educated girl, and it was unlikely that she would submit to concubinage when there was no obstacle in the path of marriage. c. The second marriage was performed within closed doors in the company of a few friends without any pomp and splendour. 3. The Court held that defendant 1 had deserted the plaintiffs from March 1953 on the basis of the following evidence: a. The plaintiffs' evidence that defendant 1 had deserted them from August 1951 was not satisfactory and reliable. b. Defendant 1's plea that plaintiff 2 (wife) was quarrelsome, ill-treated his mother, and deserted him in March 1953 was not established by any evidence. c. Defendant 1 had failed to prove that the plaintiffs were not entitled to maintenance from March 1953 or that any payment was made towards maintenance. 4. The Court held that defendant 1 was liable to pay maintenance to the plaintiffs from March 1953 on the basis of the following provisions: a. Section 2(4) of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, entitles a Hindu married woman to separate residence and maintenance from her husband if he marries again. b. Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956, provides that a Hindu wife is entitled to be maintained by her husband during her life.
Final Decision: The Court dismissed F. A. 22/1961 (filed by defendants 1 and 2) and allowed F. A. 27/1961 (filed by the plaintiffs) in part. The Court modified the preliminary decree passed by the trial Court in the light of the further reliefs granted in F. A. 27/61. The Court directed defendant 1 to pay the court-fee payable by the pauper appellants in F. A. 27/61 and the costs of the appeal. The Court also directed defendant 1 to pay the court-fee payable by the pauper plaintiffs in the suit and the costs of the suit.
Judgement
MISRA, J. :- Both these appeals arise out of Title Suit No. 37 of 1955. One Ram Chandra Das (died in 1921) had three sons - Raghabananda Das (died in 1932), Bhubanananda (original defendant No. 4 and died during the pendency of the suit) and Bichitrananda (defendant No. 5). Suchitra (defendant No. 6) was the widow of Raghabananda and died after the disposal of the suit. On the death of Bhubanananda, his legal representatives were substituted as defendants 4 to 4(e). Raghabananda had three sons - Rashakrushna (defendant 3), Bankim Krishna (defendant-2) and Jagat Krishna (defendant-1) Sarojini (plaintiff-2) was admittedly married to defendant-1 in 1948. Ajit (plaintiff-1) is the son and Madhuchhanda (plaintiff-3) is the daughter of defendant No. 1 through plaintiff No. 2. Madhuchhanda was born in 1953. The plffs. filed this suit in forma pauperis on 23-8-1954 for partition and for maintenance. They aver that Basanti (defendant-7) is the concubine of defendant-1. Defendant-7, Kalyankumar (defcndant-8), Sarat Kumar (defendant No. 9) and Asit Kumar (defendant-10) had not been originally impleaded as parties to the suit. By an amendment, they were made parties on 11-3-1960. The plaintiffs" case is that in 1960-61 defendant-1 developed intimacy with defendant-7, who is the daughter of a prostitute. From 1951 onwards defendant-1 lived with defendant-7 and deserted the plaintiffs without either maintaining them or paying any sum, towards maintenance. A schedule properties mentioned in the plaint are the joint family properties. It may be noted that Item No. 1 of Schedule A refers to the residential building at Dagarpara ire Cuttack town. B schedule of the plaint is the self acquired property of Raghabananda. Plaintiff-1 is entitled to 1/27th share in schedule A and 1/9th share in Sch. B properties. So also plaintiff-2. They claim maintenance of Rs. 3600/- at the rate of Rs. 100/ per month from August 1951 to August 1954. Maintenance also is claimed at the same rate pendente lite till the disposal of the suit. The plaintiffs claim Rs. 25/- per month more for the educational expenses of plaintiff-3 and a maintenance of Rs. 25/- per month for plaintiff-3 from the date of the disposal of the suit till the date of her marriage. They also pray that the properties to be allotted to defendant-1 should be charged for the maintenance, marriage and educational expenses of plaintiff No. 3.
2. Defendants 1 and 7 to 10 took the plea that defendant 7 is the legally married wife of defendant No. 1. The second marriage took place on 15-4-1954. Defendants 8 to 10 are the sons of defendant-1 through defendant-7 during the continuance of a valid marriage. Defendant-7 is not the daughter of a prostitute. Defendant No. 8 was 3 years in February, 1958; in other words, he was conceived prior to the date of the institution of the suit (para 4 of the written statement of defendants 1 and 6). Defendant No. 1 took the positive stand that plaintiff-1 (2 ?) was quarrelsome, ill-treated his mother (defendant 6) and deserted him in March 1953. Despite the desertion, he used to make some payments towards maintenance of the plaintiffs and the plaintiffs are not entitled to any maintenance. So far as the properties in dispute are concerned, it is unnecessary to give the entire defence in detail as, an appeal, the controversy has been focused only on the residential house in Cuttack town mentioned in item No. 1 of Schedule A of the plaint.
Defendants 1 and 2 took the stand that the residential house at Dagarpara was the self-acquisition of Kaghabananda in which deceased Bhubanananda and defendant-5 have no right, title and interest. Defendant-2 supports the case of marriage-between defendants 1 and 7.
Defendant No. 3 in his written statement does not say anything with regard to the nature and character of the residential house at Cuttack town. The absence of any denial in the written statement amounts to acceptance of the averments in the plaint that the residentia
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