Mukan Kanwar vs Seth Umrao Mal

Nigam, J.C.

Sm. Mukan Kanwar alias Mukand Koer filed Civil Suit No. 233 of 1952 against her adopted son claming a decree for Rs. 4,500/- on account of arrears of maintenance for five months ending Chait Badi Amavas S. 2008 and also a declaration that properties described in Schedule A attached to the plaint are liable to a charge for payment of the maintenance. The suit was contested and the learned Subordinate Judge decreed it for Rs. 4,500/- with costs. He also declared that the defendant will continue to pay the maintenance to the plaintiff at the same rate, but declined to declare the liability of the properties mentioned in Schedule A attached to the plaint to the charge of this maintenance. Against this judgment and decree, the plaintiff has come up in appeal. I have heard the learned counsel for the parties.

The only point canvassed before me is whether the properties mentioned in Schedule A attached to the plaint were liable to a charge for the payment of the maintenance. The learned counsel for the appellant has urged that the terms of the agreement arrived at between the parties provided for a charge on the properties inherited by the defendant. The learned counsel has referred me to clause 5 of the agreement which has been marked Ex. 1. The relevant portion reads:

........the properties moveable or immoveable, partitioned or unpartitioned, self-acquired or joint, left by the late Rai Bahadur Seth Biradhmalji Lodha which shall be the absolute property of party no. 2 to be utilized by him in the manner he may think fit, subject to his discharging the obligations mentioned above.

The obligation to pay the maintenance allowance of Rs. 900/- is mentioned in clause 3(ii)(c), i.e., in an earlier clause. The learned counsel for the respondent has urged that it was not the intention of the parties that the properties inherited by the defendant were to be subject to any charge for payment of the maintenance allowance. The learned counsel refers me to clause 3(ii)(a) which provides for a charge on Toshakhana for payment of the sum of Rs. 1,00,000/-. It is pointed out by the learned counsel that sub-para, (c) of clause 3(ii) does not mention the creation of any charge in respect of the maintenance of Rs. 900/- per month. It is true that that particular sub-clause does not create any charge, but I am unable to agree with the learned counsel for the respondent that the words ''subject to his discharging the obligations mentioned above in para. 5 are to be attached no meaning to.

In my opinion the words quoted above clearly indicate that the properties which were given to the respondent in terms of the agreement were to be utilized by him absolutely only subject to his discharging the obligations placed on him under the terms of the agreement. In that view, I am of opinion that all the properties allotted to the respondent under this agreement became subject to the charge for payment of the maintenance. The plaintiff, however, claimed a charge only in respect of six properties mentioned in Schedule A attached to the plaint. It is conceded by the learned counsel for the appellant that the description of the property under item no. 5 is vague. As such, a charge could be declared only against properties 1-4 and 6.

No other point has been pressed before me.

Accordingly, I accept this appeal and amend the decree granted by the learned Subordinate Judge and direct that the plaintiff be granted a further declaration that the properties mentioned at items 1-4 and 6 in Schedule A attached to the plaint are liable to the charge for payment of the monthly maintenance allowance of Rs. 900/- in terms of para. 3(ii)(c) of agreement Ex. 1. The appeal is allowed with costs.