JUDGMENT
Mahmood Ali Khan, J.
ADMIT.
1. Arguments were heard on the petition for final disposal on the request of counsel for the parties.
2. This revision petition is directed against an order of Additional District Judge, Delhi dated 20.1.2000 by which he has fixed interim maintenance of the respondent wife at the rate of Rs. 3000/- per month besides litigation expenses of Rs. 5000/- under Section 24 of Hindu Marriage Act during the pendency of a divorce petition.
3. Briefly stated the facts fare that the petitioner husband had filed a petition for grant of divorce on the ground of cruelty against respondent wife under Section 13(1)(i-a) of the Hindu Marriage Act. On receipt of summons the respondent wife filed an application for grant of interim maintenance and litigation expenses.In the application she put counter blame on the petitioner. She alleged that she was treated with cruelty and was forced to leave the matrimonial home on 1.9.1997 and since then she is residing at her parental home with her minor daughter (who is imp leaded as respondent No. 2). She stated that she is non-working woman and had no independent source of income for her and for her child’s maintenance. On the other hand, the petitioner is a man of means and he was running a partnership business in the name and style of M/s Subhash Photostat at 119 Man Sarover Building, nehru Place, New Delhi and is earning more than Rs. 10000/- per month. She claimed Rs. 6000/- per month as maintenance for her and for her child and Rs. 11000/- as litigation expenses.
4. Opposing the application the petitioner admitted that the respondent wife was living separately from 1.9.1997 but he vehemently denied that she was turned out by him. He also asserted that she was earning money by joining the business of her parents and as such had independent income. He denied that he was partner in M/s Subhash Photostat at 119 Man Sarover Building, Nehru Place, New Delhi and that his monthly income was Rs. 10000/- from the business. According to him, he was working with M/s Subhash Photostat at 119 Man Sarover Building, Nehru Place, New Delhi on a salary of Rs. 2000/- per month. He stated that he was only a petty employee at that shop and because of the physical and mental cruelty inflicted on him by the respondent wife he was disturbed and depressed and was unable to perform his work. He denied that the respondent wife was entitled to any maintenance.
5. In the rejoinder the respondent wife reiterated her own case and denied the allegations made by the petitioner husband.
6. Before deciding the application the learned trial court had recorded the statement of the petitioner-husband under Order 10 CPC. After hearing the parties the learned Additional District Judge held that the petitioner’s income is Rs. 10000/- per month approximately and accordingly fixed pendente lite maintenance @ Rs. 3000/- per month and litigation expenses at Rs. 5000/-.
7. Counsel for the petitioner has argued that the learned trial Judge has erroneously drawn a presumption that the petitioner had received money out of the sale consideration of the house in Rajouri Garden which is fetching income to him. He stated that the petitioner was only working as an employee in the business carried on by his brother-in-law for the past 10 years and was getting a salary of Rs. 2000/- per month. He further stated that now the petitioner is unemployed and does not have any income. He was residing with his mother in a flat at Tagore Garden which was owned by her mother and that her mother had disposed it off and she has now purchased another flat in Kalkaji Extension. he further stated that the petitioner is an illiterate person, therefore, he could not understand the question put to him by the court while recording his statement under Order 10 CPC and now the petitioner has been able to lay his hand on the documents which show that the house in Rajouri Garden was owned and it was disposed of by his elder brother for a sum of Rs. 7,50,000/-. He has placed photo copy of certain document like agreement of sale, receipt for payment of money, Will etc. executed by his brother Ashok Behl and has requested that these documents may be taken into consideration.
8. Conversely the learned counsel for the respondent has argued that the petitioner in his statement under Section 10 CPC admitted that the Rajouri Garden house was owned by his late father and that it was disposed of by his mother after the death of his father and that the father had not left any Will in respect of that property. It is submitted that it means that the petitioner at least has 1/4th share in that property. It was also submitted that as per allegations now made and the documents filed the said property was sold for Rs. 7,50,000/- which is simply not believable. A property on a plot of land measuring 200 sq. yds. in Rajouri Garden in no case will fetch less than Rs. 50 lacs and, therefore, the petitioner got substantial amount out of the sale consideration from which he is earning regular income of not less than Rs. 10,000/-. It is also contended that the income of the petitioner was in his personal knowledge of the petitioner and he could not produce any material and evidence to show that his income from salary was Rs. 2000/- per month or that he was unemployed and had no income. He also stated that the respondent No. 1 was spending Rs. 900/- per month on the tuition fee of the minor daughter alone. it is stated that the learned Additional District Judge was justified in fixing the maintenance of the respondent.
9. The income of the petitioner was in his special knowledge. He had failed to produce any documentary evidence to substantiate his allegation that he was a mere employee at the shop of his brother-in-law and was getting monthly salary of Rs. 2000/-. Indeed now in these proceedings an affidavit of his brother-in-law is filed but no other document or material was produced to show the constitution of the business firm. In the statement recorded under Section 10 CPC the petitioner has told that the house in Rajouri Garden was owned by his father who had died intestate and the house had been sold by his mother. Now the argument of the counsel for the petitioner is that the house was disposed of by the elder brother of the petitioner namely Ashok Behl calendestinely without the knowledge of the petitioner and the petitioner came to know about the sale of this property after the sudden demise of Ashok Behl in a road accident recently. Photo copy of the agreement of sale says something contrary to it. It shows that on the execution of relinquishment deed by all the legal heirs of the owner, Ashok Behl had executed agreement of sale and other documents of this property. It is not the case of the petitioner that the petitioner had relinquished in the property in favor of his brother Ashok Behl. On the contrary before this Court argument advanced is that the brother had sold the property stealthly and this sale came to light after sudden demise of the brother in a road accident recently. It is not denied by the counsel that the petitioner on the death of his father had 1/4th share in the house. It is simply unbelievable that one of the brother disposed of the property without the knowledge of other heirs and without giving them their due shares in the sale proceed. The petitioner and his mother are living together. They cannot say that they did not get their share. This property ostensibly has been sold for a sale consideration of Rs. 7,50,000/-. Judicial notice can be taken that only a small portion of the actual sale consideration is shown in the agreement of sale or the sale deed in Delhi. It is not believable that a property on a plot of land measuring 200 sq. yds. could be sold in Rajouri Garden are for a paltry sum Rs. 7,50,000/-. The leaned Additional District Judge was, therefore, right in drawing the presumption about the monthly income of the respondent in view of these peculiar facts and circumstances. The petitioner now has tied to show that the photostat business is owned by Mrs. Usha Maini and not his brother in law as was alleged earlier. It may also be stated that even the Tagore Garden house has been sold for Rs. 2,05,000/- by the mother of the petitioner and a new flat has been purchased by her at Kalkaji Extension where the petitioner is now living with her. How much is real sale consideration of that flat is anybody’s guess.
10. The learned Additional District Judge seems right in assuming in the totality of the facts and circumstances that the monthly income of the petitioner is around Rs. 10,000/- per month and in finding the maintenance of the respondent wife and the minor child who is living with her at Rs. 3000/- per month. The litigation expenses are fixed at Rs. 5000/- which is also a modest sum keeping in view the cost of litigation.
11. For the reasons stated above, I do not find that the learned Additional District Judge has committed error of jurisdiction or material irregularity in the exercise of the jurisdiction warranting interference by this Court. The petition has no merit. It is dismissed. Parties are left to bear their own costs.