Cases referred:
1. See Kamalmal v. Venkatlaxmi. A.I.R. 1965 S.C. 1349.
Advocates appeared:
A.B. Naik for S. P. Kurdukar, for appellants.
R.G. Bhadekar, for respondent.
Per VAIDYA G.N., J.:- The only point which arises in the above First Appeal filed by the defendants in a suit for maintenance filed by the respondent is whether the learned Civil Judge, Senior Division, Bhir, erred in law in passing a decree creating a charge over the property mentioned in Schedule B to the plaint which the learned Civil Judge, Senior Division, held to be the joint family property of the defendands.
2. The plaintiff Padminibai is the wife of defendant No. 2 Mohanrao Ghule. Defendant No. Krishna Madhav Ghule is the father of Mohan Ghule. Defendant No. 3 Trivenibai is the first wife of defendant No. 2. Defendants 4, 5 and 6 are the brothers of defendant No. 2; and they being minors, all are represented by their guardian father defendant No. 1.
3. Padminibai was married to Mohan in 1955 at Deodhanura, Taluka Kallam, District Osrnanabad. After marriage, plaintiff lived with the defendants for about six years at Sirpur in Taluka Kaij. At that time defendant No. 3 was not living with defendant No. 2 as she had deserted him for a period of three years. In 1961 disputes started as defendants illtreated the plaintiff. She was driven out of the joint family house of the defendants in the month of June 1961 and since then she was living with her brother at Deodhanura.
4. The defendant had not since then taken any care to maintain the plaintiff. The plaintiff tried to return to defendant No. 2 on two or three occasions but he did not allow her to enter the house. The defendants family owned large movable and immoveable property as shown in Schedule B, the annual net income of which was more than Rs. 20,000. She, therefore, claimed maintenance.
5. Defendants 1 and 4 to 6 resisted the suit contending that defendant No. 2 had separated from defendants 1 and 4 to 6 about 10 or 11 years prior to the suit. According to them, defendant Nos. 1 and 4 to 6 were living jointly with the second wife of defendant No. 2 and defendant Nos. 1 and 2 were managing and enjoying their respective properties separately. They admitted that plaintiff was residing with defendant Nos. 1 and 3 till about 5 years prior to the suit; and in July 1963 she had gone to her brother without informing defendant No. 2 when the latter had gone for marketing at Kalegon. Defendant No. 2 supported these contentions alleging a partition 10 or 11 years prior to the suit.
6. The learned Civil Judge, framed six issues as per Ex. 56. The parties led oral evidence in support of their rival contentions. It was found by the learned Civil Judge that there was no documentary evidence to prove that there was a partition between defendant Nos. 1 and 2. He on the contrary noticed that it was only, after the summons was served on the defendants in the suit, that mutations were got effected in the extracts of village Forms Nos. 12 and 7 at Ex. 8 to show that there was a partition. The suit was filed on February 8, 1967. The mutations were effected on July 6, 1967.
7. The learned Judge observed in para 8 of his judgment:
Therefore it is clear to me that this attempt to show a partition has takes place after the defendants came to know of the suit filed by the plaintiff, This is not a genuine partition wish the intention to separate. That partition seems to have been effected with the intention that the plaintiff should get as little amount as possible for maintenance. Therefore, as there was no genuine intention to separate and to disrupt the family do not hold that it is a regular and legal partition under Hindu Law. The extracts they have filed at Exs. 78 to 87 show that separate entries were made of the shares of defendants Nos. 1 and 2 in 1967-68 only but the plaintiffs have filed at Exs. 7 to 17 extracts of their lands also. These extracts refer to years 1965-66 and 1966-67. They all show that the lands were entered in the name of defendant No. 1 atone. The comparison of these two sets of extracts clearly shows that this attempt at partition was made in 1968 i.e. after the suit was filed.
8. Having regard to the fact that the father of defendant No. 1 had received about 50 acres of land in partition with his younger brother; and, in the facts and circumstances of the case, including the income of the land, the learned Judge awarded Rs. 100 per month as maintenance and passed a decree for past arrears of Rs. 3600 and also awarded Rs. 10 per month for the separate residence from February 1967. The defendants were ordered to pay the said maintenance by the decree. The judgment and decree passed by the learned Civil Judge are challenged in the above First Appeal.
9. The first ground which was urged by Mr. Naik in support of the appeal was that the lower Court erred in holding that there was no partition. The finding of the lower Court that there was no partition is based on appreciation of the oral evidence led by the parties. The learned Civil Judge, had the advantage of hearing and seeing these witnesses. It is well settled that in a matter of appreciation of evidence and the credibility of the witnesses, the opinion of the trial Judge should not be lightly disturbed in appeal. It requires circumstances of exceptional character to justify a reversal. The trial Judge sees, hears and questions witnesses and a finding of fact arrived at by him on oral testimony should not be disturbed except in rare cases where some error susceptible of being dealt with wholly by argument is disclosed, such as omission to take account of circumstances or probabilities material to an estimate of the evidence or giving credence to testimony which turns out on more careful analysis to be substantially inconsistent with itself or with indisputable fact.
10. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or his refraining from exaggeration. It is open to an appellate Court to differ from the Court which heard the evidence where it is manifest that the evidence accepted by such Court of first instance is contradictory or is so improbable as to be unbelievable or is for other sufficient reasons unworthy of acceptance. But such grounds must exist, if a conclusion is to be arrived at as to credibility, opposed to that of the judge who had the great advantage of seeing and hearing the witnesses. (See pages 52 and 53, Sarkars Law of Evidence, 12th Edition, 1971).
11. In view of this well settled position in Law it is impossible to interfere with the careful and well considered findings recorded by the learned Civil Judge, in this case. I have carefully gone through the reasons and findings recorded by the learned Judge and the evidence of the parties and their witnesses. I find no reason whatsoever to disagree with the conclusion arrived at by the learned Civil Judge, with regard to their credibility. The learned Judge, in my opinion, righly believed the plaintiff and her witnesses and concluded that it was only after the summons in the suit was served on the defendants, that the defendants tried to manipulate with the record and proceedings so as to minimise the amount of maintenance given to the plaintiff and to cast the liability only on defendant No. 2. As I am in complete agreement with the findings of the learned Civil Judge, it is unnecessary to elaborate on this point.
12. What remains is the point which has been referred to above with regard to the power of the Court to create a charge on the joint family property in favour of the plaintiff. Mr. Naik, the learned counsel for the defendants, contended that law of maintenance is now governed by the provisions of the Hindu Adoptions and Maintenance Act. He relied on the provisions of section 4, sections 18 and 19 of the Act and contended that a Hindu wife is entitled to be maintained by her husband during her life time and the father-in laws liability commences only after the death of her husband. He also referred to the definition of the word, dependents and contended that, that definition will come into operation only when determining the liability of the heirs of the deceased Hindu. But it must not be forgotten that the Hindu Adoptions and Maintenance Act is not exhaustive of the law relating to maintenance amongst Hindus.
13. It is an Act to amend and codify the law relating to adoptions and maintenance amongst Hindus; but having regard to the provisions of section 4 it must be held that only in so far as there is some express enactment in the Act, that the Act can be said to be exhausting in regard to such express provisions. There is no provision in the Hindu Adoptions and Maintenance Act relating to the right of a coparceners wife to be maintained out of the coparcenery property. Such a right was part of the old Hindu Law. The manager of the joint Mitakashara family is under a legal obligation to maintain all members of the family, their wives and their children. (See Manusmriti Chapter 9, section 108; Nardasmriti Chapter 13, sections 25, 27, 28 and 33, Mullas Hindu Law, 13th Edition 1974 para 543 page 591)
14. Obligation to maintain these persons arises from the fact that the Manager is in possession of the family property. (See Kamalmal v. Venkatlaxmi)1, A.I.R. 1965 S.C. 1349. The Hindu Adoptions Maintenance Act has no doubt provided for the personal liability of the husband to maintain his wife and the liability attached to the property inherited by the heirs in so far as dependents are concerned. The Act has not made any provisions regarding the maintenance of the wife of a coparcener. Therefore, the old principles of Hindu Law in this behalf continue to apply. The statutory right of maintenance given under section 18 avails to the wife against her husband whether he has or has not any property. It is the personal liability of the husband to satisfy this right. As long as the family continues to be joint the coparcenery must be held to possess the property belonging to the husband and hence all its members are also liable to maintain the plaintiff.
15. It is also well settled that when a coparceners wife has a right of maintenance it can be made the subject matter of a charge on the property of the coparcenery by a decree of the Court. Mr. Naik submitted that the right of maintenance can be enforced by the wife only in respect of the share of the husband. But the share of the husband cannot be ascertained unless there is a partition under Hindu Law. The essence of a coparcenery is unity of ownership in the whole body of coparceners.
16. According to the true notion of an undivided family governed by the Mitakashara Law while it remains undivided it cannot be predicted by the joint and undivided member of the family that he and/or any particular member has a definite share, 1 /3rd or 1 /4th. The right of each coparcener until a partition takes place, consists in the common possession and common enjoyment of the coparcenery property. There is a community of interest and unity of possession between all the members of the family. Hence the entire joint property is liable to be subjected to a charge for the maintenance of the plaintiffs as the wife of one of the coparceners. The decree passed by the lower Court is, therefore, in accordance with law.
17. For these reasons, the First Appeal fails and is dismissed with costs. The judgment and decree passed by the lower Court are confirmed.
Appeal dismissed.
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