Hon'ble Rajiv Joshi,J.
The defendant-appellant has preferred this appeal against order dated 7.11.2017 passed by the Principal Judge on an application filed by the plaintiff-respondents under Section 19 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as the Act), whereby the family court has directed for payment of Rs. 4,000 per month as maintenance to the plaintiff-respondents by the 10th of each succeeding month.
The facts of the case reveal that the plaintiff-respondent no.1 Seema Vishwakarma was married to Ajay Vishwakarma on 8.3.2007 and a son Ujjwal-respondent no.2 was born to them on 24.9.2008. Unfortunately, the husband-Ajay Vishwakarma died on 11.9.2011 and the plaintiff-respondents were turned out of the house by their parents-in-law whereupon they were compelled to live with their own parents.
In the above circumstances, the plaintiff-respondents filed application under Section 19 of the Act claiming maintenance, which has been allowed in part by the impugned order.
In assailing the above order, the submission of Sri Ajay Kumar Pandey, learned counsel for the defendant-appellant is that the obligation to maintain widowed daughter-in-law would not be enforceable against the father-in-law unless it is established that he is in possession of the coparcenary property and that the same has not been partitioned and the daughter-in-law has not obtained the share of her husband.
Notices were issued to the respondents on appeal by registered/speed post. The office report reveals that notices sent to the respondents by speed post have not returned after service and the track consignment report obtained from India Post website shows that notices were duly delivered.
In view of the above, service upon the respondents is deemed to be sufficient but as no one has put in appearance on their behalf, we are proceeding to hear the appeal ex parte against them.
Section 19 of the Act provides for maintenance of widowed daughter-in-law and it casts an obligation upon the father-in-law to maintain her after the death of her husband, but said obligation is subject to three conditions, namely, that the widowed daughter-in-law is unable to maintain herself from the estate of her son or daughter, if any and that it shall not be enforceable against the father-in-law, if he has no means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share.
One of the basic conditions for the widowed daughter-in-law for enforcing the right of maintenance against the father-in-law is only if the father-in-law is having any coparcenary property and the daughter-in-law has not obtained share therein.
We have perused the application filed by the plaintiff-respondents under Section 19 of the Act as well as the affidavit in its support and find that she has nowhere stated that the father-in-law is having possession of any coparcenary property from which she has not obtained her share except for stating that he is having 10 bighas of agricultural land in village Budana and is running a shop in the name of Shiv Shankar Auto Parts in the house where he is residing.
The business of Shiv Shankar Auto Parts from any shop in an house in respect whereof there is no averment that the said house belongs to the father-in-law or is part of the coparcenary property and in the absence of any averment that the aforesaid 10 bighas of agricultural land in the village is also a coparcenary property, we do not think that the respondents have been able to satisfy the mandatory conditions of Section 19 of the Act that the father-in-law is having coparcenary property so as to enforce the claim for maintenance against him.
The court below simply on the basis of the averments of respondents that the father-in-law is having 10 bighas of agricultural land in the village, has incorrectly treated the said property to be ancestral in nature or of coparcenary nature, even though, there were no pleadings to that effect. The documentary evidence on record also does not establish that any of the property as mentioned above is a coparcenary property, though, the revenue entries in respect thereof may show that the said land is recorded in the name of grandfather of the deceased-husband, who is still alive and as such, it does not devolve either upon the father-in-law or upon the deceased, husband of plaintiff-respondent no.1.
In view of the aforesaid facts and circumstances, in the absence of any specific pleadings satisfying the mandatory conditions of Section 19 of the Act that the father-in-law is in possession of coparcenary property in which the deceased or his widow has not obtained her share, we are of the opinion that the family court could not have directed the father-in-law for payment of any maintenance.
Accordingly, the order dated 7.11.2017 passed by the family court is set aside. The appeal is allowed.
Order Date :- 26.4.2018 Noman