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Laxmibai Ganpatrao Mahajan Vs. Radhabai Krishnaji Mahajan - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 41 of 1942
Judge
Reported inAIR1944Bom235(2); (1944)46BOMLR399
AppellantLaxmibai Ganpatrao Mahajan
RespondentRadhabai Krishnaji Mahajan
DispositionAppeal allowed
Excerpt:
hindu law-maintenance-widow-charge for maintenance-family property- partition-charge attaches to share of husband's heirs.;under hindu law, a widow in a joint family has a right to be maintained out of her husband's share in the family property and a charge for it can be levied on that share. if the property is partitioned afterwards, the charge attaches to the share taken by the husband's heirs. the widow can assert no claim for her maintenance on the property falling to the share of other coparceners.;lakshmidevamma v. veera reddi [1939] mad. 877, f.b, followed.;basappa v. mallamma [1940] a.i.r. mad.458, dissented from. - - 1 contended that as the family was still joint and as her charge was prior to that obtained by the plaintiff in the maintenance suit of 1933, she was perfectly.....sen, j.1. the plaintiff-appellant brought this suit for a declaration that the decree obtained by defendant-respondent no. 1 in special suit no. 581 of 1923 was not executable against the properties in suit and for a permanent injunction restraining defendant no. 1 from proceeding with the execution of an award decree obtained by her against the said properties.2. the parties to the suit were related in the following manner :- nageshrao | __________________________________________ | |ganpatrao (died in 1916) krishnaji (died in 1920)= laxmibai (plaintiff) = radhabai (defendant no. 1) | | narayan (defendant no. 3). gopal (defendant no. 2), (adopted).krishnaji died in 1920. in the same year defendant no. 3 filed suit no. 453 of 1920 against defendant no. 1. and others for accounts. in 1923.....
Judgment:

Sen, J.

1. The plaintiff-appellant brought this suit for a declaration that the decree obtained by defendant-respondent No. 1 in Special Suit No. 581 of 1923 was not executable against the properties in suit and for a permanent injunction restraining defendant No. 1 from proceeding with the execution of an award decree obtained by her against the said properties.

2. The parties to the suit were related in the following manner :-

Nageshrao

|

__________________________________________

| |

Ganpatrao (died in 1916) Krishnaji (died in 1920)

= Laxmibai (plaintiff) = Radhabai (defendant No. 1)

| |

Narayan (defendant No. 3). Gopal (defendant No. 2),

(adopted).

Krishnaji died in 1920. In the same year defendant No. 3 filed Suit No. 453 of 1920 against defendant No. 1. and others for accounts. In 1923 defendant No. 1 adopted her natural brother, defendant No. 2, and in the same year defendant No. 2 filed Suit No. 581 of 1923 for partition. The matters in dispute in both these suits were referred to arbitration, and on October 31, 1927, an award decree was made by which the adoption of defendant No. 2 by defendant 1 was declared invalid, and defendant No. 1 was given a decree for maintenance at the rate of Rs. 500 per year in respect of which a charge was created on the properties in suit. It was also found, on accounts being taken, that Rs. 5,000 were due from defendant No. 1's father to defendant No. 3. Thereafter defendant No. 2 was again adopted by defendant No. 1 in the year 1933 after which defendant No. 2 filed Suit No. 102 of 1933 for partition against defendants Nos. 1 and 3 and others. This suit was decided on April 24, 1937; defendant No. 2's adoption was held valid, but the suit was dis-' missed because the Court found that defendant No. 2 was in possession of property of more value than his half share in the family property. The plaintiff filed Suit No. 205 of 1933 against defendant No. 3, her son, for maintenance and obtained an award decree in respect of which a charge was created on the properties in suit. Thereafter in execution she obtained possession of the said properties. After this in 1937 defendant No. 1 filed a darkhast for the execution of the award decree in Suit No. 581 of 1923, and it was on account of that darkhast that the present suit was filed, the plaintiff's contention being that defendant No. 1 was not entitled to enforce the charge created in her favour on the suit properties in the said decree. Defendant No. 1 contended that as the family was still joint and as her charge was prior to that obtained by the plaintiff in the maintenance suit of 1933, she was perfectly entitled to proceed against the properties in suit in execution of her decree.

3. The trial Court held that the family became divided on the partition suit being filed by defendant No. 2, that neither the decree in Special Suit No. 10of 1933 nor the adoption of defendant No. 2 by defendant No. 1 extinguished the right of defendant No. 1 to recover her maintenance in terms of her decree, and that the plaintiff's decree had no priority over the charge in favour of defendant No. 1 created by the decree in Suit No. 581 of 1923. The suit was accordingly dismissed. In view of the fact that in defendant No. 2's partition suit it had been held that defendant No. 2 was in possession of pro-, perty in excess of his legitimate share and in view of the fact that, the properties in suit have remained throughout with the branch of defendant No. 3, the Court further held that the said properties, which the plaintiff has now obtained by filing a darkhast in execution of her maintenance decree, ' have now assumed the character of the separate properties of defendant No. 3.'

4. It seems to us that the equities in this case are strongly against defendant No. 1, In Suit No. 102 of 1933, which was filed by defendant No. 2 against defendant No. 3, defendant No. 1, her father Damodar, and others, it was held that Krishnaji, the husband of defendant No. 1, had taken away a sum of Rs. 41,700 and that this amount plus a further amount of Rs. 5,000 must be deemed to be with her and her father Damodar. This was held to be a larger share of the family property than defendant No. 2's branch was entitled to, In spite of this, shortly after she had adopted defendant No.; 2, the latter filed a suit for partition of the property that remained in possession of defendant No. 3's branch ; and now, several years after the partition suit, though after the partition defendant No. 2 became legally liable for her maintenance, defendant No. 1 seeks to enforce the decree obtained by her in 1927, i.e. six years before she had adopted defendant No. 2. Though the partition suit of 1933 was dismissed, the Court was constrained to observe, ' on the plaintiff (i.e., defendant No. 2) will fall the obligation of maintaining the adoptive mother (Radhabai, defendant No. 1).' Though it can be said that the partition suit which was dismissed merely effected a severance in the status of the family, it seems to us that the trial Court was right in holding that the properties in suit have become defendant No. 3's separate properties. The plaintiff has now obtained possession of the said properties in execution of her maintenance decree. It has next to be remembered that the charge in favour of defendant No. 1 created in 1927 was placed on properties which were then joint family properties of the undivided family and that since then a material change in circumstances has taken place. There has, in the first place, been the adoption of defendant No. 2, and next there has been a severance of status owing to the filing of the partition suit, the properties in possession of each branch, besides, having become their respective separate properties. It seems 'to us also that if the partition suit of 1933 had not been dismissed and a division of the properties ordered, the Court would undoubtedly have taken into consideration the charge created in favour of defendant No. 1 in 1927, and would have shifted the said charge to defendant No. 2's share. The question, therefore, arises whether this change of circumstances has any effect on defendant No. 1's charge.

5. The lower Court and the respondents have relied on Dodda Basappa v. Mallamma A.I.R. [1940] Mad. 458 for the proposition that where the widow has secured her right byfixing her claim against the whole joint family and getting a charge on a reasonable portion of the property, the right or charge cannot be taken away from her by any subsequent partition between the members of the family. The facts in that case were that defendant No. 1's husband had died leaving him surviving defendant No. 1, defendant No. 2 his son by the first wife and the plaintiff his brother. On the date of his death defendant No. 1's husband was a member of an undivided family consisting of himself, the plaintiff and defendant No. 2. Thereafter defendant No. 1 filed a suit for maintenance and residence against the plaintiff and defendant No. 2 and obtained a decree by which the maintenance decreed was made a charge on certain properties of the joint family, and in pursuance of which she was put in possession of the house in suit and she went on realising the said maintenance. About seven years after the date of the decree the plaintiff and defendant No. 2 effected a partition between themselves. The plaint alleged that by reason of the said partition the plaintiff was no longer bound by the said decree. On behalf of the plaintiff it was contended that it was open to the plaintiff to institute a suit by reason of the events that had happened subsequent to the date of the maintenance decree, that there had been a change of circumstances which would necessitate the modification of the said decree and that it was competent to the Court to modify the same in view of the said change of circumstances. A reference was made to the full bench decision in Lakshmidevamma v. Veera Reddi [1939] Mad. 877 where their Lordships had said (p. 883):

There is here a clear statement (referring to Smritichandrika) that the duty of maintaining the widow devolves on the persons who take the property pf the deceased undivided member of the family and it is emphasized that the duty is dependent on the taking of the property.

It was, however, held that the following observations made in the same case applied to the case (p. 883) :

While the family remains undivided the position is different. The property is held jointly and of necessity the amount required for a widow's maintenance has to be paid out of the estate regarded as a whole, but in no circumstances can she claim an allowance greater than the income of her husband's share in the estate;' and the following principles were deduced therefrom : When a member of an undivided family dies leaving him surviving his widow and his sons and brothers, her right to maintenance is against the entire joint family composed of the sons and brothers of the husband. It may be that if she waits until a partition takes place she may have a lesser right, i.e. instead of a right over the entire family, a right over those persons who take her husband's share. But if before a partition is effected, she gets her right declared, defined and reduced to a certainty by a decree of Court, her rights cannot be taken away by any subsequent partition effected among the members of the family.

6. It seems to us, however, that the facts of that case are not altogether similar to those of the present one. In that case when the maintenance suit was filed all the parties amongst whom there was a subsequent partition were present in the family, whereas in the present suit the widow herself later on adopted a sou, and almost immediately there was a partition between that son and the branch of defendant No. 3 ; and it can be said that the constitution of the family was altered by the said adoption. It is further undeniable that if therehad been no previous charge on the joint family property, the liability for maintaining the adoptive mother would now have rested on defendant No. 2 alone. In Dodda Basappa's case there was a step-son of the widow, and on a step-son there is no personal liability to maintain the widow such as exists in the case of an adopted son. (Mulla's Hindu Law, paragraphs 542 and 544, at pages 581-582, 9th edition).

7. The appellant has relied, on the other hand, on the full bench decision in Lakshmidevamma v. Veera Reddi. In that case the appellant's husband was at the time of his death a member of a joint Hindu family consisting of himself and the respondents who were his father, his brother, and his son by a predeceased wife. Some years after her husband's death and while the family was still joint, the appellant made a formal demand for maintenance, but subsequently and, as a result of the appellant's demand, a partition was effected by a registered deed, as a result of which the appellant's step-son obtained the share in the family properties which his father would have obtained had he lived. The appellant then filed a suit for maintenance, claiming a decree against all the respondents on the ground that her status as a widow gave her the right to be maintained out of the family estate as a whole and not merely out of that portion allotted to her step-son on partition. The full bench held that for the amount due to the appellant for maintenance after the date of the partition her step-son's share alone was liable and that in respect of that amount the appellant was entitled to a charge on her step-son's share only. Their Lordships relied on the statement of the law made by Bhashyam Ayyan-gar J. in Jayanti Subbiah v. Alamelu Mangamma I.L.R. (1902) Mad. 45, in the following words (p. 48) :-

When an undivided Hindu family consists of two or more males related as father and sons or otherwise, and one of them dies leaving a widow, she has a right of maintenance against the surviving coparcener or coparceners, quoad the share or interest of her deceased husband in the joint family property which has come by survivorship into the hands of the surviving coparcener or coparceners and though such right does not in itself form a charge upon her husband's share or interest in the joint family property, yet when it becomes necessary to enforce or preserve such right effectually, it could be made a specific charge on a reasonable portion of the joint family property such portion of course not exceeding her husband's share or interest therein.

The following observations of Westropp C.J. in Savitribai v. Luxmibai and Sadasiv Ganoba I.L.R. (1878) 2 Bom. 573 were also referred to with approval (p. 886):

It would need very strong and distinct authority, in the ancient treatises of Hindu law, to convince, us that the widows of such separated husbands stand, as to maintenance out of such portion of the family estate as remains in the hands of the other ex-parceners, in a better position than the husbands themselves occupy with regard to any right to resort to that residue for a further share, albeit under the name and guise of maintenance.

Their Lordships came to the conclusion that a widow's right to maintenance merely attaches to her husband's share, and that on partition she had no claim against the assets forming the shares of the other members.

8. The observations of Bhashyam Ayyangar J. in Jayanti Subbiah v. Alamelu Mangamma which have been quoted' above had previously been interpretedby White C.J. in Subbrayalu Cketti v. Kamalavallithayaramma I.L.R. (1911) Mad.147 a case in which the plaintiff was a widow in a joint Hindu family having four branches, defendant No. 5 being the plaintiff's deceased husband's brother. After the plaintiff had filed a suit for maintenance, an agreement was come to amongst the surviving members of the family for partition of the family property. Sankaran Nair J., who had first tried the case, had held that no transaction amongst the defendants subsequent to the plaint could prejudicially affect the plaintiff's claim and that her claim must therefore be treated as that of a widow of a member of an undivided family. On behalf of the defendants it was contended that in the observations of Bhashyam Ayyangar J., referred to above, the words 'the surviving coparcener' meant defendant No. 5, the surviving member of the plaintiff's branch of the family, and not the other members of the undivided family. But their Lordships held that the words in question were intended to apply, not to the members of the branch of which the deceased man had been a member, but to the members of the joint family generally. They, therefore, held that the widow's right to maintenance was enforceable against the whole family and not only against the branch to which her husband had belonged.

9. The above interpretation was disapproved by the full bench in Lakshi-devamma's case, and Leach C.J. remarked (p. 884) : '...I am at a loss to understand how the fact that the partition took place after suit could make any difference.' In that case the suit had been filed after partition, while in Subbrayalu Chetti's case (supra) the partition had taken place after suit. The reason why this was held not to make any difference must be that the widow's right to maintenance 'merely attaches to her husband's share' even before partition ; and this, I think, is what Lakshmidevamma's case decides. Sir Dinshah Mulla in his Hindu Law, 9th edition, p. 592, takes the same view :

The only person who is under a legal obligation to maintain out of his own property the widow of a deceased Hindu is her own son. As regards others, her only right to maintenance is out of her husband's estate. That estate may be in| thehands of his male issues or it may be in the hands of his coparceners.... Butwhether it is in the hands of the one or the other, he is liable to maintain her, not because he is under a personal obligation to maintain her, but because he has in his hands her husband's estate.

10. In neither of the two cases, Subbrayalu Chetti v. Kamalavallithayaramma and Lakshmidevamma v. Veera Reddi, was a charge created in favour of the widow on any property ; and the question arises, whether the existence of such a charge at the date of the partition would make any difference. Such a charge had been created by a decree prior to the partition in Dodda Basappa v. Mallamma as in the present case. We are of opinion, with respect, that Lakshmidevamma1 s case has laid down the correct proposition of law. If, therefore, the widow's right to maintenance ' merely attaches to her husband's share' even before partition, she would be entitled to a charge for her maintenance, before partition, on nothing in excess of that share, though that share is not ascertained or defined at that stage and the property burdened with the charge is joint family property. That being so, the charge in this case must be deemed, in my opinion, to be a charge on defendant No. 1's husband'sundivided share in the joint family property as it existed in 1927 ; and the consequence of that must be that she should not be allowed to enforce her charge against the share that is now1 with the branch of defendant No. 3. The decision in Dodda Basappa v. Mallamma is no doubt in conflict with this view, and, with all respect, I believe that decision to be wrong and in conflict with Lakshmidevamma v. Veera Reddi, If the widow be allowed, after the partition, to enforce her charge against the property in separate possession of defendant No. 3's branch, she would be in a better position than her husband himself, were he alive now. This view appears to me to be supported by the following passage in Mulla's Hindu Law, 9th edition, p. 600 :

The claim, even of a widow, for maintenance, is not a charge upon the estate of her deceased husband, whether joint or separate, until it is fixed and charged upon the estate.

It has been taken for granted, in this passage, that the widow's claim can only be charged upon the estate of her deceased husband, whether joint or separate.

11. Mr. Manerikar on behalf of the respondents, however, has contended that it is unfair to his client to make use of a finding by the Court of a partition in the suit of 1933 to the effect that the plaintiff must be deemed to be in possession of about Rs. 46,000 and to hold that the property of which the plaintiff has now obtained possession is the separate property of defendant No. 3's branch. He has further pointed out that all that the judgment in the partition suit of 1933 stated was that Krishnaji had taken sums aggregating Rs. 46,700 and that as he had not accounted for the same, the plaintiff was deemed to be in possession of this amount. He has also pointed out that the effect of the prior transactions had been duly taken into account by the arbitrators in making the award decree of 1927, so. that the charge in favour of defendant No. 1 was created after all those circumstances had been duly taken into consideration. We think, however, that it is not possible for us, particularly in view of the fact that no appeal was filed from the decision in the partition suit of 1933, to go behind the finding that the plaintiff and his mother must be deemed to be in possession of over Rs. 46,000, i.e., a larger share than would fall legitimately to their share; and we must hold that the trial Judge came to the correct conclusion in holding that what defendant No. 3's branch is in possession of has now assumed the character of the separate property of that branch.

12. That being so, it seems to us that the decision in the Madras full bench case applies to the facts of this case, and that, therefore, the plaintiff is entitled to the relief she has asked for and defendant No. 1 should not, in view of the altered circumstances, be allowed to come in the way of the plaintiff's claim. The present suit must be regarded as an attempt to get the charge created in favour of defendant No. 1 in 1927, if it at all or in any sense subsists on defendant No. 3's separate property after the partition, removed from the said property.

13. The appeal will, therefore, be allowed with costs throughout, the decree of the lower Court set aside and there will be a decree for the plaintiff stating that the decree obtained by defendant No. 1 in Special Suit No. 581 of 1923 is not executable against the property in suit and containing a permanentinjunction restraining defendant No. 1 from proceeding with the execution of the award decree in Suit No. 581 of 1923 against the said property.

Divatia J.

14. I concur. As the point involved in this appeal has some im- portance and is not covered by any authority of this Court, I would like to add a few words to what my learned brother has just said.

15. I entirely agree with the general principle laid down in Lakskmidevamma v. Veera Reddi [1939] Mad. 877, that a widow's right to maintenance merely attaches to her husband's share and on partition she has no claim against the assets forming the shares of the other members. In that case the partition was effected before the maintenance decree while here it is made after the decree. But I see no distinction in principle between the two cases. Under Hindu law a widow has the right of maintenance because her husband had a share in the property. Before the partition that share is an undemarcated portion in the whole property. After the partition it becomes a separated share consisting of specific properties of the exclusive ownership of different branches. But if the right of maintenance attaches to the husband's share only, there is no reason why that right which might have been decreed in the husband's undivided share and which has gone to the other coparceners by survivorship should not be transferred to the separated share falling to the husband's branch when a coparcener comes into existence in that branch by adoption and gets his share by partition.

16. In the present case I have no difficulty in coming to the conclusion that neither in law nor in equity is the widow Radhabai entitled to be maintained out of the properties which are now the separate properties of Narayan's branch. At the time of Radhabai's award decree in 1927 Narayan was the sole coparcener in the joint family, and the decree was therefore properly passed against him. Thereafter Radhabai adopted Gopal in 1933, and the latter filed a suit for partition. In that suit it was held that Radhabai's husband Krishnaji had taken away monies which would amount to more than his share in the joint family property, and that therefore Gopal was not entitled to recover any property from Narayan. The result was that the property in Narayan's hands became his separate property. The suit was no doubt dismissed on the ground that Krishnaji had already taken away his share in the joint property. But take a normal case and suppose Gopal had succeeded in getting a half share by partition. Could it then have been said that in spite of that share being taken by Gopal his mother Radhabai would still be entitled to continue to take her maintenance from the property falling to the share of Narayan's branch and have a charge on it without any claim on the property which fell to her husband's branch In fact in such a suit the Court directing the partition could have and should have fixed the liability of Radhabai's maintenance on the property taken by her son Gopal and the properties over which a charge had been created would have been assigned to Copal's share or if they remained with Narayan the charge would have been transferred on the share taken by Gopal. The mere fact therefore that Krishnaji had taken away more monies than he would be entitled to should not make any difference in the application of the law. It is true that at the time when the award decree was passed in 1927 the arbitrators had taken cognisance of the fact that Krishnaji had taken away monies during his lifetime, and it is probable therefore that the amount of maintenance was reduced. But that does not affect the question whether, once a partition has been made between Radha- bai's branch and Narayan's branch, she can insist on continuing her right of maintenance against Narayan. At the time when the award decree was passed Radhabai had not validly adopted a son. If she had not subsequently adopted Gopal at all, the property in the hands of Narayan would have been liable for Radhabai's maintenance, but if Radhabai chose to adopt a son to her husband and the adopted son wants a partition of his half share, he can only get it burdened with his mother's maintenance and the joint undivided property in Narayan's hands which carried on the burden till then must, on being his separate property, be free from that burden.

17. It is urged on behalf of the respondents that Radhabai had got a vested right in her favour by virtue of the award decree. But there is no question of vested right A maintenance decree is liable to be varied by subsequent change of circumstances. One of the circumstances is the adoption of a son by the widow getting maintenance, on account of which a partition takes place in the family. It has been observed in the full bench case in Lakshmi-devamma v. Veera Reddi that even if a partition takes place after the maintenance suit was filed, that would not necessarily entitle the widow to claim her maintenance from the whole joint family property. Even if such a partition takes place after the maintenance decree is passed, there is, in my opinion, no vested right in the widow. The learned Judge below has placed reliance on a decision of the Madras High Court reported in Dodda Basappa v. Mallamma A.I.R. [1940] Mad.458. In one circumstance that case can be distinguished from the facts of the present case. There the widow had already obtained a decree against her own step-son and her husband's brother. In the present case at the time when Radhabai obtained the award decree there was no son in her branch at all, and it may be said about the Madras case that as the widow had already obtained a decree against her own step-son along with her husband's brother, it cannot be changed after the partition between them. In my opinion, however, the fact that the partition decree is also obtained against a member of the widow's branch does not affect the general principle which has been enunciated in the Madras full bench case. Even if the son subsequently gets his share in the property by partition, there is no reason why the liability for maintenance should not be transferred to the widow's branch. In the case of a bona fide suit for partition the share which falls to the widow's branch, and that share alone, must be held liable for her maintenance. It has no doubt happened in the present case that Radhabai has worsened her position by making the adoption. If she had not adopted, she could have continued her right of maintenance according to the award decree against the joint property in Narayan's hands. By virtue of the adoption and because of the partition suit brought by the adopted son, it now transpires that although he would be otherwise entitled to get a share, he cannot get anything because his father had taken away more than his share. But that result is due to the finding inthe previous suit to which Radhabai was a party that Krishnaji had taken away more monies than would have fallen to his share, and there is also a further finding that some of those monies were in the hands of Radhabai and her father Damodar. She has therefore to look for her maintenance to her adopted son because by virtue of the decree in the partition suit the properties in Narayan's branch became his separate properties in which Radhabai's husband had no share at all. I think, therefore, that the learned Judge below was wrong in holding that Radhabai wasi entitled to get maintenance from Narayan's branch. The plaintiff, i.e. Narayan's mother, who is now in possession of the property charged for Radhabai's maintenance, is entitled to succeed on the ground that those properties are, since the partition suit of Gopal, free from any claim for Radhabai's maintenance.

18. I, therefore, agree that the decree of the lower Court should be reversed and the appeal allowed.


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