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TMI Blog1998 (10) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... rised her of the fact that he had already moved out of his family home referred to above and he did not want to live with her any more. Defendant No.1 thus deserted the Plaintiff. Consequently, in view of the above changed circumstances, plaintiff No.1 alongwith her daughter i.e. plaintiff No.2 was forced to shift to the house of her parents. The mother of plaintiff No.1 died on 10th November, 1994. In the above circumstances a family settlement was arrived at in between the parties to the present proceedings on 4th November, 1994 with a view to providing financial assistance to the plaintiff vide Annexure-A. The defendants have wilfully and deliberately defaulted in performing their part of obligation under the said settlement and in making the payments as agreed to in between the parties and to provide for the plaintiffs. The defendants have failed to provide the monthly maintenance to the plaintiff in terms of the said settlement from January, 1997 onwards. They have also defaulted in paying the school fees of the plaintiff No.2. The plaintiffs are being put to a lot of inconvenience and hardships on account of defaults made by the defendants. Plaintiff No.1 is a young lawyer an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e life time of defendant No.1, defendants nos. 2 to 4 are not at all liable to pay any maintenance to the plaintiffs. The application is false and frivolous and is thus liable to be dismissed. 5. The defendants have also moved an application (I.A.No.2635/98) under Order 7 Rule 11 C.P.C. for rejection of the plaint and another one (I.A. No. 2534/98) under Section 151 CPC for recalling the order dated 15th December, 1997 passed by this Court. 6. All the above three applications are being taken up together as the same can be disposed of by one and the same order. 7. It has been urged for and on behalf of the plaintiffs that they are entitled to maintenance as per the settlement dated 4th November, 1994. The defendants are bound by the same and they cannot wriggle out of it, despite their efforts to avoid it on one pretext or the other. The defendants have miserably failed to comply with the terms and conditions of the said settlement since January, 1997. 8. Learned counsel for the defendants on the other hand has contended that the alleged agreement is the result of undue influence, coercion and duress brought to bear upon them. It is without consideration. The maintenance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the plaintiffs at 37, Aurangzeb Road, New Delhi, which was the residence of the parents of plaintiff No.1 at that time in order to enquire of the well being of the mother of plaintiff No.1. Plaintiff No.1, her father and brother at that time insisted on them to sign the impugned settlement. They in that connection used the factum of the serious illness of the mother of plaintiff No.1 to emotionally blackmail the defendants and to make them sign the same. Plaintiff No.1 stated that since her mother was dying she wanted to tell her at that critical juncture that her disputes with defendant No.1 have been settled amicably by showing her the said settlement. The defendants were further given to understand that the said agreement shall not be implemented and acted upon and the same was for the satisfaction of her mother who was terminally ill. Plaintiff No.1 threatened that in case they would not sign the same in that eventuality they would be subjected to all kinds of litigations and adverse publicity all over the country. It was in the above circumstances that the said settlement was signed and executed. Hence the same cannot be acted upon and enforced under law. 13. The ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by the showers of tender affection, expanded by the cheering glow of kindness, and guarded by the impregnable barrier of unshaken confidence. Thus matured it will bloom with fragrance in every season of life, and sweeten even the loneliness of declining years. 17. The letters alluded to above portray defendant No.1 in a repentant and remorseful mood for the mistakes which he had committed during the period plaintiff No.1 and defendant No.1 lived together. While concluding the letter to the plaintiff No.1 he has got this to say that the plaintiff should not treat whatever he has done as a compensation for the agony and pain he has put her through. The same thing we find in the letter dated April 29, 1994 ( Annexure A-2) addressed to his mother-in-law i.e. the mother of plaintiff No.1. He feels sorry through the said letter for the emotional trauma he has put his in-laws through. It thus can be safely inferred therefrom prima facie that the impugned settlement was entered into by the defendants out of their own free will and without any pressure, coercion or duress in order to help the plaintiffs to pass on their lives comfortably in the absence of the earner of their bread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely and intentionally used the word agreement also. Thus there can be a maintenance which has been fixed by the parties themselves. 20. Learned counsel for the defendants has then argued that the impugned settlement is without any consideration. Hence the same is hit by Section 25 of the Contract Act. The contention of the learned counsel may be an ingenious one but can be brushed aside without any difficulty. Parties more often than not settle their disputes amongst themselves without the assistance of the court in order to give quietus to their disputes once and for all. The underlying idea while doing so is to bring an era of peace and harmony into the family and to put an end to the discord, dis-harmony, acrimony and bickering. Thus the consideration in such type of settlements is love and affection, peace and harmony and satisfaction to flow therefrom. I am supported in my above view by the observations of the Hon'ble Supreme Court as reported in Ram Charan Das Vs. Girja Nandini Devi and others, ..... Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such a settlement. 23. Learned ounsel for the defendants has then contended that the defend-ants are not financially well off. They are thus not in a position to make payment to plaintiff No.1 at the rate of ₹ 50,000/- per mensem as demanded through the present application. The plaintiffs while showing the financial capacity of the defendants to make the payment have stated that the payments in connection with the maintenance were made to her(plaintiff No.1) at the above said rate till December, 1996. However, subsequently the defendants have failed to comply with the terms of the said settlement from January 1997 onwards. Thus according to the plaintiffs the payments were being made in pursuance to the said settlement till December 1996. Hence it goes to show that the defendants are financially and economically sound enough to pay the maintenance at the said rate. It has further been stated in the plaint that the defendants have properties and assets worth several crores of rupees (vide para 12). The defendants are a well-known family in the country. They own properties in several towns in the country such as, New Delhi, Mumbai, Udaipur, Allahabad. They have large comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person debt, maintenance or some thing like that would always try to exaggerate his sources of income. This is something which is innate in the nature of a man and the parties herein are not an exception to that general rule. The Court in such circumstances has to strike a balance in between the two. 27. It has been admitted by the defendants in para 5 of the written statement (Reply on Merits) that defendant No.1 paid with the help of his family members large sums of money to plaintiff No.1. The same thing has been reiterated in para 8 of the written statement. Furthermore, it has been admitted by the defendants in para 3 of the written statement that it was the defendant No.1 who made all necessary arrangements for plaintiff No.1 to go abroad along with her mother in connection with her treatment in April, 1994. Curiously enough the defendants for the best reasons known to them have not disclosed the exact figures of the said amounts paid to plaintiff No.1, by way of maintenance and spent on her while she went to England along with her other. In any case, the said assertion substantiates the averments made in the plaint that the defendants have been paying the maintenance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iving. According to him the amount of maintenance should not be fixed at such a rate which is beyond the financial capacity of the husband to pay or which is likely to reduce him to a state of penury. The learned counsel in support of his argument has led me through the observations of the Hon'ble Supreme Court as reported in Smt. Jasbir Kaur Sehgal Vs. The District Judge, Dehradun and others, , .... No set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance........ . 32. There is no dispute with the said proposition of law. However, while raising the said contention the learned counsel is oblivious of the fact that the present suit has been filed for enforcement of a family settlement where through the defendants themselves agreed to pay, inter alia, maintenance to the plaintiffs at the rate of ₹ 40,000/- per mensem. The present case is not a case simpli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any quid pro quo from the wife precluded that result. 37. The plaintiffs are thus entitled to succeed. The interim maintenance is fixed at ₹ 40,000/- per month in view of the settlement dated November 4, 1994. The defendants are liable to pay the maintenance fixed at the above said rate from January 1, 1997 onwards. The defendants are directed to clear the arrears of maintenance for the period from January 1, 1997 to September 30, 1998 at the rate of ₹ 40,000/- per month amounting to ₹ 8,40,000/- within two months from today. 38. The defendants are further directed to pay future maintenance, month by month, at the rate of ₹ 40,000/- per month, on or before the 5th day of every English calendar month. 39. The defendants would also pay and deposit the school fees and other charges in connection with the studies of plaintiff No.2 straightaway with the school wherever she might be studying. 40. The defendants are further directed to provide a residence to the plaintiffs as agreed upon in the family settlement dated November 4, 1994 (vide clause 4), within two months from today. 41. Prayers mentioned at (e) (f) of para 5 of the application are ..... 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