Case Note & Summary
The case involves a writ petition filed by the defendant (brother) challenging an order of the Civil Judge and JMFC, Yelburga, dated 02.03.2024, in O.S. No.61/2021, which granted interim maintenance of ₹4,000 per month to each of the three plaintiffs (married sisters) in a partition suit. The plaintiffs had filed the suit seeking partition and also claimed mesne profits. They filed I.A. No.1 under Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking subsistence allowance and maintenance, alleging they had a share in the properties but were unable to maintain themselves. The Trial Court allowed the application and directed the defendant to pay maintenance. The defendant challenged this order before the High Court under Article 227 of the Constitution of India. The High Court framed the question whether interim maintenance can be granted in a partition suit when the plaintiffs have also claimed mesne profits. The Court noted that the plaintiffs had already claimed mesne profits, which is the appropriate remedy for being kept out of possession of their share. The Court held that granting interim maintenance under Section 151 CPC in such circumstances is not permissible, as the remedy lies in claiming mesne profits or seeking maintenance under personal law. The Court quashed the impugned order and dismissed the application for interim maintenance.
Headnote
A) Civil Procedure - Interim Maintenance - Section 151 CPC - Partition Suit - Married sisters sought interim maintenance from brother in a partition suit where they also claimed mesne profits - The Court held that interim maintenance cannot be granted under Section 151 CPC when the plaintiffs have claimed mesne profits, as the appropriate remedy is to claim mesne profits or seek maintenance under personal law - The order granting maintenance was quashed (Paras 1-6).
Issue of Consideration
In a suit for partition, whether an order of interim maintenance can be passed in favor of married sisters (Plaintiffs) against their brother (Defendant), when the Plaintiffs have also claimed mesne profits.
Final Decision
The High Court allowed the writ petition, quashed the impugned order dated 02.03.2024 passed by the Civil Judge and JMFC, Yelburga in O.S. No.61/2021, and dismissed I.A. No.I filed by the respondents.
Law Points
- Interim maintenance cannot be granted in a partition suit under Section 151 CPC when plaintiffs have claimed mesne profits
- Married sisters are not entitled to maintenance from brother in partition suit
- Remedy for plaintiffs is to claim mesne profits or seek maintenance under personal law
Case Details
2025 LawText (KAR) (11) 48
WP No. 103885 of 2024 (GM-CPC)
Sri. Shriharsh A. Neelopant (for petitioner), Sri. Shivanand Malashetti (for respondents R1 and R2)
Dyamappa S/o Late Basavantappa Kadannavar
Smt. Bhimavva Basavantappa Kadannavar, Smt. Sharanavva Basavantappa Kadannavar, Smt. Basavva W/o Late Balappa Kadannavar
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging an order granting interim maintenance in a partition suit.
Remedy Sought
Petitioner (defendant) sought to quash the order dated 02.03.2024 passed by the Civil Judge and JMFC, Yelburga in O.S. No.61/2021 and to dismiss the application I.A. No.I filed under Section 151 CPC by the respondents (plaintiffs).
Filing Reason
The Trial Court granted interim maintenance of ₹4,000 per month to each plaintiff (married sisters) in a partition suit, which the defendant brother challenged as being without jurisdiction.
Previous Decisions
The Trial Court allowed I.A. No.1 and granted maintenance of ₹4,000 per month to each plaintiff.
Issues
Whether an order of interim maintenance can be passed in a suit for partition in favor of married sisters against their brother when the plaintiffs have also claimed mesne profits.
Submissions/Arguments
Petitioner argued that the Trial Court erred in granting interim maintenance under Section 151 CPC when the plaintiffs had already claimed mesne profits.
Respondents argued that they were entitled to maintenance as they had a share in the properties and were unable to maintain themselves.
Ratio Decidendi
In a suit for partition, interim maintenance cannot be granted under Section 151 CPC when the plaintiffs have also claimed mesne profits, as the appropriate remedy for being kept out of possession is to claim mesne profits or seek maintenance under personal law.
Judgment Excerpts
The question to be resolved is: In a suit for partition, whether an order of interim maintenance can be passed in favor of married sisters (Plaintiffs) against their brother (Defendant), when the Plaintiffs have also claimed mesne profits.
The Trial Court granted maintenance of ₹4,000/- per month in favour of each of the plaintiffs, to be paid by defendant No.2 (the plaintiffs’ brother).
Procedural History
The respondents (plaintiffs) filed O.S. No.61/2021 for partition and mesne profits before the Civil Judge and JMFC, Yelburga. They filed I.A. No.1 under Section 151 CPC seeking interim maintenance. The Trial Court allowed the application on 02.03.2024. The petitioner (defendant) challenged this order by filing WP No. 103885 of 2024 under Article 227 of the Constitution of India before the High Court of Karnataka, Dharwad. The High Court heard the matter and passed the order on 25.11.2025.
Acts & Sections
- Code of Civil Procedure, 1908: Section 151
- Constitution of India: Article 227
