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TMI Blog1975 (2) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,000/- per month, and hence, defendant No. 1 will be in a position to meet the expenses of the proposed marriage of the applicant, defendant No. 4 This application also prays that a sum of ₹ 75,000/- or such other amount as this Court may direct may be set aside for meeting the marriage expenses of defendant No. 4. Both the applications state that the sum should be -placed at the disposal of the plaintiffs and defendants 2 to 4 to meet those expenses. 2. Both these applications have been heard by me on a number of occasions both in Court as well as in camera for the Purpose of bringing about some convenient arrangement by which the marriage of defendant No. 4 can be performed in a satisfactory manner. Unfortunately, it has not been Possible to reach an agreement in spite of defendant No. 1 being willing to perform the marriage. I may say at the outset, that Shri Nanak Chand, defendant No. 1 is the father and plaintiffs 1 to 3 are his sons, whereas defendants 2 to 4 are his daughters. There are unfortunate circumstances in the case which have' proved to be a stumbling block in the performance of the marriage as originally thought possible by me and directed on 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery unusual type. 5. I now turn to give some indication of the nature of the suit pending in this Court. According to the plaintiffs, there is a Joint Hindu Family property of which defendant No. 1 is Karta and manager. Details of that property are set out by the plaintiffs in paragraph 8 of the Plaint. This shows that there is considerable Property allegedly owned by the Joint Hindu Family. It also appears from paragraph 10 of the plaint that the Income-tax authorities have been assessing M/s. Banarsi Dass Nanak Chand, a Joint Hindu Family firm as an assessed. On the other hand, the case of defendant No. 1 in the written statement was to deny the existence of any Joint Hindu Family. Fated with the assessment orders, which have been put on, record, the case of defendant No. I is that he had got his income assessed as a Joint Hindu Family for the purpose of avoiding tax liability, but the Property was in reality his self acquired property. The first question for consideration at this stage is: Is there a Prima facie case to hold that there is a Joint Hindu Family which has property? In view of the fact that there is an assessment of the property as Joint Hindu Family Proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29 = (AIR 1947 Pc 122), Smt. Gourl Gupta Chowdhury v. Tarani Gupta Choudhury, , NemiChand Jain v. Smt. Lila Jain, and Tarini Gupta Chowdhury v. Suit. Gouri Gupta Chowdhury, . The controversy in these cases has been, whether an interim order can be passed in a suit for maintenance, The cases cited by the learned Counsel for defendant No. 1, show that such an order cannot be passed being beyond the Powers set out in Section 94 of the Code of Civil Procedure. On the other hand, the Calcutta High Court has taken the view that an interlocutory order can be passed permitting maintenance even when the matter is contested. In the judgment of A. N. Ray, J. (as he then was) it was stated in the last of these cases as follows: - I am unable to accept that contention. The relief asked for in the suit has yet to be determined and decided. If there is a prima facie case and if the Court is of opinion that the plaintiff is entitled to interim relief the plaintiff may be Liven such relief. That is not deciding the whole case. In these cases the Court is bound to arrive at a conclusion as to whether any interlocutory order will be made or not. There has to be a prima facie opinion. Interlocutory o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty; there is also prima facie the case that the applicant the 4th defendant is entitled to get her marriage expenses out of that estate. On the other hand, the position that them is no Joint Hindu Family estate is also to be considered, In that connection, I may now refer to the Hindu Adoptions and Maintenance Act, 1956. Section 20 of that Act deals with the situations as far as defendant No. 1. is concerned. Sub-section (3) of that section reads- The obligation of a person to maintain his or her aged or infirm grant or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be is unable to maintain himself or herself out of his or her own earnings or other property- Thus, the maintenance of a daughter extends to maintaining her to the extent she cannot do so out of her own earnings. Sub section (1) of this very section reads: - Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents, Sub-section (2) of the same section shows that the claim of a legitimate or illegitimate child exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency of a partition suit. Such an order will be in the nature of an interlocutory judgment. It will, however, not be a conclusive judgment, because in case the partition suit fails, then the daughter cannot get this maintenance in the for in of an interlocutory order in the partition suit because it will not be a claim against the joint Hindu family property, there being no joint Hindu family property. However, in such a case, the 4th defendant could get a similar order against her father, defendant No. 1, on account of the Hindu Adoptions and Maintenance Act, 1956, as explained by me. This is one, around on which an interim order can be passed in favor of the 4th defendant on the application removed before this Court. 10. I propose now to deal with the application on the footing that an order cannot be passed in this manner because of Section 94 of the Code of Civil Procedure, which permits interlocutory orders only to be passed in circumstances which-are prescribed. That is no Prescribed express section witch Permits interim -orders to be passed in the manner Proposed by none. If the afore-1 mentioned view of the Madras and Patna High Courts is accepted to be a correct v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If I refuse to make an order, the marriage cannot take place. If her marriage is to await the final decision of the suit Probably, the marriage of the 4th defendant will never, be performed, as I do not expect that the person she is due to marry, will wait till the suit is finally decided by this Court. This means that justice both substantive and procedural must be used in the interests of defendant No. 4, even if there is no parallel case previously. L therefore, propose to pass an order directing defendant No. 1 to place a sum at the, disposal of defendant No. 4 for enabling her marriage to be Performed. 13. The claim made in the two applications before me is for a sum of ₹ 75,000 or such other sum as the Court may direct. I have been anxious, during the hearings before me, to pass, some order which will provide the minimum assistance required to meet the expenses of the marriage. In discussions it has turned out that the absolute minimum requirement is ₹ 25,000/-, therefore, proceed to Pass an order directing defendant No. 1 to put a sum of ₹ 25,000 at the disposal of the 4th defendant. As per prayer in the applications, this amount is to be put at t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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