Roshni vs Satinder Krishan

Sunil Gaur, J.—Appellant is the widowed daughter-in-law of the respondent. Appellant was married with Sunil Kumar, son of the respondent and out of the said wedlock, two daughters were born. After the said marriage, appellant alongwith aforesaid Sunil Kumar started residing separately in a rented accommodation. After the death of the husband of the appellant on 26th November, 2001, share of the husband of the appellant in the ancestral land was sought by the appellant by filing a petition u/s 19 of Hindu Adoption and Maintenance Act, 1956. At that time, appellant was having two minor daughters aged five and six years respectively. Maintenance of Rs. 10,000/- per month with effect from December 2001 was sought by the appellant for herself and on behalf of her two minor daughters. Respondent before the trial Court resisted the petition for maintenance of the appellant by contending that he is a retired government servant and he does not have any income from the ancestral property and appellant had started living with her husband since July 1997 and that the appellant is earning Rs. 1500/- per month as "Anganwadi worker".

Petition for maintenance was contested before the trial Court on the following issues:

Whether the petitioner is entitled to the maintenance claimed? OPP

Whether petition is not maintainable in the present form? OPD.

Whether petitioner has sufficient income to maintain herself? OPD

Whether respondent is not liable to pay maintenance to the petitioner? OPD

Relief.

In support of the petition for maintenance, appellant had got examined herself as PW-1 and the Respondent had deposed as DW-1 before the trial Court and had got examined Dalel Singh (DW-2), Rajmal Sharma (DW-3) and Rohtas Vashisht (DW-4). Respondent had got examined the above referred three witnesses to prove photocopy of some settlement dated Ist August, 1997 as Ex.DW1/6.

After the contest, trial Court vide impugned order dated 4th September, 2003 has dismissed the petition for maintenance by holding that the respondent had not acquired any coparcenary property which was sufficient to yield anything and so, respondent was not having any legal obligation to maintain the widowed daughter-in-law who was earning Rs. 1263/- per month and was being supported by her mother.

Strangely, impugned order was assailed by the appellant by filing an appeal u/s 28 of the Hindu Marriage Act. However, vide order dated 27th March, 2008, this appeal was treated as a regular appeal u/s 96 of the Code of Civil Procedure, 1908.

Both the sides have been heard and the record of this case has been perused by us.

In the impugned order, the trial Court has relied upon photocopy of the revenue record i.e. Khatoni/fard Ex.DW1/4 to hold that the respondent was in possession of 275 sq. yds of the agricultural land which was unproductive.

Aforesaid finding is assailed by the appellant in this appeal by contending that this is factually incorrect and the share of the respondent was 625 sq. yds and not 275 sq.yds and one third of it i.e. 200 sq yds fell into the share of the late husband of the appellant and the appellant had pre-existing right to the estate of her deceased husband.

We are surprised to find that revenue record Ex.DW1/4 and Ex.DW1/4B are the photocopies which have been simply tendered in evidence by the respondent in his evidence. To say the least, the trial Court ought to have not relied upon the aforesaid revenue record to defeat the claim of the appellant. In the fitness of things, the revenue record Ex.DW1/4 ought to have been got legally proved in evidence by summoning the concerned witness from the Revenue Department to prove these vital documents. Since, photocopy of the revenue record could not have been legally looked into by the trial Court, therefore, the self serving statement of the respondent regarding his share in the ancestral land cannot be accepted on the face of it. The revenue record before being relied upon in this case has to be duly certified and proved on record and respective shares in the agricultural land and the share of the respondent has to be specifically pointed out in the revenue record which has not been done. It is true that appellant sought to have ensured that the certified copy of the revenue record relied upon is brought on record and is got duly proved. Appellant is a poor widow and perhaps due to financial constraints, she could not get the aforesaid revenue record duly proved in evidence but this does not mean that substantial justice is sacrificed at the alter of technicalities.

Trial Court has noticed in the impugned order that respondent in his cross-examination has admitted that compensation of Rs. 5,00,000/- (Rupees five lacs) was received by him in lieu of his share in the agricultural land, referred to in Ex.DW1/4, but has relied upon the medical bills to indicate that Rs. 50,000/- has been spent by the respondent on the treatment of his son/husband of the appellant who had died due to illness. There are some photocopies of the medical record of the husband of the appellant Ex.DW1/8-A to DW1/8-B which does indicate that some medical expenses were incurred from time to time on the treatment of the appellant''s husband. But this by itself is not sufficient to negate the claim of the appellant to the maintenance out of the share of the estate of her husband. In any case, the quantum of compensation received by the respondent upon acquisition of the ancestral agricultural land has been disputed by the appellant and in this appeal, vide order dated 3rd April, 2006, respondent was directed to state as to how much compensation he had received upon acquisition of his agricultural land and respondent was also restrained from receiving any enhanced compensation with regard to his acquired land.

In pursuance to the aforesaid order dated 3rd April, 2006 of this Court, respondent had filed an affidavit dated 18th April, 2006 stating that he had received Rs. 8,30,132/- (Rupees eight lacs thirty thousand one hundred thirty two only) on account of acquisition of his agricultural land and in this affidavit, he has stated that whatever money was received, has been spent on his family and in discharge of his family social obligation.

Since the respondent in his evidence has stated before the trial Court that he had received a compensation of rupees five lacs and now on affidavit, he has stated that the compensation received by him is Rs. 8,30,132/-, therefore, we find that in order to do substantial justice, the proper course to adopt would be to remand this matter to the trial Court with direction to give the parties an opportunity to lead proper evidence to prove as to what was the actual amount of compensation which received by the respondent and on what dates? It is so said because in the affidavit now filed by the respondent it is claimed by him that after recording of his evidence by the trial Court in August 2003, he has received Rs. 2,88,058/- on 24th December, 2005. It would be open to the appellant to urge before the trial court, question of enhanced compensation and if received during the pendency of this petition, would be adequately secured by the trial court, till the final outcome of this petition. Another reason to persuade us to remand this matter to the trial Court is that the actual share of the respondent in the joint ancestral land has not been duly and legally proved on record which is required to be done to arrive at a just decision in this case.

For the reasons aforesaid, impugned order dated 4th September, 2003 is set aside and this case is remanded back to the trial Court for decision afresh in light of what is observed above by us. Both the sides are at liberty to amend the pleadings, claim additional issue, if required, and to lead fresh evidence in accordance with the law. This appeal is accordingly allowed with no orders as to costs. Both the sides are directed to appear before the learned District Judge, Delhi on 10th September, 2008 for assigning this matter to the competent Court of jurisdiction.

Accordingly this appeal stands disposed of, with direction to the court concerned to decide this matter as expeditiously as possible, preferably within this calendar year.