Gurdev Kaur vs Milkhi Singh and Another

N.K. Kapoor, J.

1.This judgment of mine will disposed of Regular First Appeal No. 1064 of 1980 and Regular First Appeal No. 2229 of 1979 as both these appeals arise out of the same judgment and decree of the Sub-Judge, 1st Class, Barnala, dated 3.10.1979.

Smt. Gurdev Kaur claiming herself to be legally wedded wife of Milkhi Singh, filed a suit for maintenance at the rate of Rs. 200/- under the Hindu Adoptions and Maintenance Act against Milkhi Singh and another. According to her, Milkhi Singh has neglected in maintaining her so as compelling her to file the present suit for maintenance creating a charge over the agricultural land measuring 543 Kanals 12 Marlas as detailed in the heading of the plaint. It was further averred that since Milkhi Singh has transferred half share of the land to Balbir Singh-defendant with the sole object of depriving her of maintenance allowance, the same does not affect her right of maintenance in any manner.

In pursuance to the notice issued by the Court, defendants put in appearance and is fact Balbir Singh filed written statement for himself and his father Milkhi Singh as his attorney on 27.12.1977. The defendants denied that the plaintiff was legally wedded wife of Milkhi Singh. The remaining averments made in the plaint were also controverted by the defendants.

On the pleadings of the parties, the following issues were framed :-

(1) Whether Smt. Gurdev Kaur is the wife of Milkhi Singh defendant ? OPP.

(2) If issue No. 1 is proved, to what amount the plaintiff is entitled to as maintenance from the defendant ? OPP.

(3) Whether the plaintiff is entitled to charge of the maintenance on the property by mentioned in the suit ? OPP

(4) Relief.

The Trial Court on the basis of oral and documentary evidence on record came to the conclusion that Gurdev Kaur was legally wedded wife of Milkhi Singh and decided issue No. 1 in favour of the plaintiff.

Under issue No. 2 it was held that even now Milkhi Singh is still in possession of half share of land measuring 543 Kanals 12 Marlar and so granted maintenance allowance at the rate of Rs. 100/- per month.

Under issue No. 3 this maintenance allowance of Rs. 100/- was constituted as a charge on half of the land measuring 543 Kanals 12 Marlas as detailed in the heading of the plaint. Resultantly, the suit of the plaintiff was decreed. The grant of maintenance at the rate of Rs. 100/- per month and further a charge on this amount as created in respect of immovable property owned by Milkhi Singh.

Feeling dissatisfied with the judgment of the Trial Court, Gurdev Kaur has filed this apppeal claming enhancement of the amount of maintenance with a specific prayer that the impugned judgment and decree is liable to be modified and the plaintiff is at least entitled to claim one third annual income from the property detailed in the heading of the plaint which was stated to be Rs. 12,000/.

In the other connected appeal, Milkhi Singh challenged the findings of the Trial Court under issue No. 1.

Finding on issue No. 1 has a material bearing fate of these appeals. With a view to prove this, Gurdev Kaur appeared as her own witness and also examined Budh Ram PW-4 and Chand Singh PW-5, the attesting witnesses of Karewanama Exhibit P-l. As per case of the plaintiff, she was earlier married to Moni Singh @ Sher Singh who was uterine brother of Milkhi Singh i.e. Milkhi Singh and Moni Singh @ Sher Singh were born from the womb of same mother Sant Kaur who after the death of her previous husband Kaku Singh, father of Moni Singh @ Sher Singh, remarried Sarup Singh, father of Milkhi Singh. It is on the occasion of ''Barah'' ceremony of Moni Singh @ Sher Singh when the ceremony of ''Chadar Andazi'' was performed between the plaintiff and defendant Milkhi Singh and ever since then they had been living as husband and wife and were blessed with one daughter named Surjit Kaur. Formal ceremony of ''Anand Karaj'' was duly performed by the parties and a Karewaanma Exhibit P-l was also executed. This document was duly thumb marked by the plaintiff as well as defendant No. 1 Milkhi Singh and the same was attested by Budh Ram PW-4 and Dalip Singh PW-6. PW-6 Dalip Singh duly corroborated and confirmed the sworn testimony of plaintiff Gurdev Kaur. Besides this, Joginder Singh PW-7, the real brother of Gurdev Kaur, who also attended the ''Barah'' ceremony of Moni Singh @ Sher Singh, stated that ceremonies of ''Chadar Andazi'' and "Anand Karaji'' were performed in his presence. He further stated that at this occasion, he gave a turban to Milkhi Singh in formal recognition of the plaintiff having been handed ever to Milkhi Singh through ceremony of ''Chadar Andazi''. This witness further stated that the plaintiff and defendant continued to live and co-habited as such and from their union, two daughters were born but they did not survive. This factum of performance of ''Anand Karaj'' ceremony was challenged by the defendant on the ground that there is no pleading by the plaintiff to this effect- Even the alleged writing i.e. entry of ''Anand Karaj'' ceremony in the register maintained by Gurdwara Singh Sabha, Barnala, is not proved. Even if, it is proved that the writing Exhibit P-l bears thumb-impression of Milkhi Singh, such an admission is otherwise erroneous and much reliance cannot be placed upon the same. Even otherwise, on the basis of the cogent evidence led by the defendant, the so-called admission of Milkhi Singh is proved to be wrong.

I have carefully perused the relevant documentary evidence on record as well as the statements of the witnesses in support of their respective contentions and I am of the view that the finding of the Trial Court does not call for any interference. The factum of ''Chadar Andazi'' is proved by the statements of the attesting witnesses nemely Budh Ram PW-4 and Chand Singh PW-5 attesting witnesses of Karewanama Exhibit P-l as well as from the statement of Joginder Singh, PW-7. One cannot lose sight of the fact also that there is a custom among Jats of Punjab to marry the wife of their brother in case he happens to expire by means of performing ceremony of ''Chadar Andazi''. In the present case, besides performing this ceremony of ''Chadar Andazi'' in the presence of near relations and other respectables on the ''Barah'' ceremony of Moni Singh @ Sher Singh uterine brother of Milkhi Singh, Karewanama Exhibit P-l was also executed between the parties which bears the thumb-impressions of the plaintiff and Milkhi Singh defendant. Except for mere denial, there is no other reliable evidence of the defendant in rebuuttal. In the absence of the same, the Trial Court rightly decided issue No. 1 in favour of Smt. Gurdev Kaur.

Next point which needs consideration is with regard to the amount of maintenance which is to be awarded as per evidence in this case. For enhancement of the amount, the Counsel for Gurdev Kaur has referred to the statement of Ujjagar Singh, office Kanungo, Barnala, who appeared as PW-3. As per his statement the land owner share i.e. one third of the total value of the crop in respect of the suit land comes approximately Rs. 35,239.53 P i.e. the share of Milkhi Singh and so urged that amount awarded to the appellant is too meagre in the circumstances of the present case. Admittedly, there is no rebuttal to the statement of Ujjagar Singh, Office Kanungo. There is no denial to the fact that the amount awarded by the Trial Court i.e. Rs. 100/- per month is, indeed, too meagre in the present prevailing price index. With this amount, one person cannot afford even two meals a day. Since the plaintiff on her own has claimed a sum of Rs. 200/- per month for maintenance, this Court has no option but to award the same.

Resultantly, I accept the appeal of Gurdev Kaur and grant her maintenance at the rate of Rs. 200/- per month and modify the judgment of the Trial Court of that extent. The other appeal field by Milkhi Singh is, however, without merit and is consequently dismissed. The Parties to bear their own costs in this appeal.