1. This is an appeal against the dismissal of the plaintiff's suit by the joint Civil Judge (Senior Division) at Belgaum. The plaintiff is the present Swami of Sankeshwar Karveer Math. The plaintiff's Guru and predecessor-in-title had filed Special Suit No. 219 of 1910 on 20-7-1910 against three defendants. The first defendant in that suit was Pitre Swami. The second defendant in that suit was the defendant in this suit and the present plaintiff was defendant 3 in that suit.
That suit was for a declaration that the plaintiff in that suit, the Waikar Swami, was the duly installed Guru of the Sankeshwar Math and, therefore owner of the properties of the Math. Defendant 1 in that suit, Pitre Swanii, contended that he was the duly installed Swami and defendant 2 in that suit was the duly initiated disciple of the said Pitre Swami.
Defendant 3 in that suit, who is the present plaintiff, was said to be the duly initiated disciple of the plaintiff, namely Waikar Swami. That suit ended in a consent decree dated 25-10-1918. The first clause in the consent decree was that plaintiff Waikar Swami's name was to be entered against all the property in suit and after his death the property was to continue in the name of defendant 3 in that suit i.e., the present plaintiff, or in the name of the disciple made by him.
The second clause of the consent decree provided that defendant 2 in that suit i.e. the present defendant, should receive until his death Rs. 8,001/- out of the income of the property in suit every year and the said amount was to be continued to be paid in future every year after the property came into the possession of the plaintiff in that suit.
The plaintiff in the present suit has now filed this suit for the reduction of that amount on the principal ground that owing to change of circumstances and conditions the income of the property of the Math has gone down and it has become difficult and almost impossible for the plaintiff to pay the amount of Rs. 3,001/- to the defendant, as provided for under Clause 2 of the consent decree. The plaintiff states that the main source of the income of the Math is agricultural lands, but owing to the enactment of the Bombay Tenancy Act the income from the said lands has gone down and that there has also been a loss of income from villages in the Hyderabad State as they have been made 'Khalsa'.
It was also stated that one of the chief sources of income of the Math was from Kolhapur State, but the Ruler there refused to give possession of the property and that also led to a re-duction of the income of the Math.
The plaintiff, therefore, prayed that the amount of Rs. 3,001/- which was payable to the defendant under the consent decree and which was in the nature of either an annuity or maintenance, should be reduced, applying the principles of natural justice, equity and good conscience, in view of the change in the circumstances which had led to the reduction of the income of the Math.
2. The defendant resisted the suit, denying that there was any decrease in the income of the Math, but his chief contention was that the plaintiff was not entitled to ask the Court to reduce the amount which was provided for under the consent decree.
Even assuming that there was any decrease in the income of the Math, according to the defendant, that had nothing to do with the amount that was made payable to him under the prior decree.
3. in the trial Court, several issues were framed, but three of them were treated as preliminary issues. The trial Court came to the conclusion that it was not open to the plaintiff to get the terms of the compromise decree varied and that the suit was not maintainable in the form in which it was brought.
On the third issue the trial Court held that the Court-fee payable by the plaintiff was proper. On these findings plaintiff's suit was dismissed with costs.
4. in this appeal, Mr. Datar for the appellant has urged that the suit has been decided on a preliminary point and no evidence has been led on the question as to whether there has been any change in the income of the Math. Therefore, says Mr. Datar, we must assume for the purpose of the preliminary issue that the circumstances alleged by the Math are true.
But even assuming that there is any reduction in the income of the property belonging to the Math, as alleged by the plaintiff, the question is whether the plaintiff is entitled to get the amount mentioned in the decree altered by means of a suit like the one which he has brought. It is well settled that a consent decree can only be varied by consent. See 'Lachiram Dagduram v. Jana Yesu' : AIR1914Bom127 (A).
In this case the defendant is not giving his consent to any variation and the question, therefore, arises whether the plaintiff would be entitled to maintain the suit for the alteration of one of the terms of the consent decree, when no consent is forthcoming from the other side for its variation.
Mr. Datar says that really the Court must construe the consent decree as one under which an annuity or maintenance was provided for to the present defendant. Mr. Datar urges that in the case of maintenance decrees changed circumstances would be a valid ground for interference on the part of the Court for either a reduction or increase in the amount of maintenance provided.
Now, it is no doubt true that in the case of maintenance decrees sometimes a liberty clause is incorporated in the decree itself so that either of the parties can move the Court for either a reduction or increase in the amount of maintenance and that would be so even though the maintenance may be fixed by agreement.
But under Hindu Jaw the right to maintenance does not rest on contract but on the provisions of Hindu Law which expressly govern tile rights and liabilities of different members of a Hindu family. 'Sidlingappa v. Sidava' 2 Bom 624 (B). The right to maintenance is one accruing from time to time according to the wants and exigencies of the person entitled to maintenance. 'Narayanrao Ramchandra v. Ramabai' 3 Bom 415 (PC) (C).
In the present case it is not the plaintiffs case that the defendant was in any way entitled to receive any maintenance from the plaintiff its the prior suit. The only auestion that was involved in the prior suit was as to who was entitled to the office of the Jagatguru. Admittedly the present defendant had also put forth his right to the office and to the ownership of the properties' of the Math.
The suit, however, ended in a compromise, under which the plaintiff in that suit was to have his name entered against all the property in suit and after his death the property was to be entered in the name of the present plaintiff. The present defendant was to get an amount of Rs. 3,001/- every year out of the income of the. property in suit.
5. Mr. Datar has relied on the case of 'Raja Ram Pal Singh v. Surendra Bikram' (D). In that case, the plaintiffs had sued for recovering the balance of certain maintenance allowance granted to them under an agreement entered into between the members of a Talukdari family.
The suit was resisted on the ground that the profits of the Taluka had considerably diminished owing to economic depression and other causes and the plaintiffs were not entitled to get allowances at the rates fixed by the agreement.
The Oudh Court accepted.that contention and held that the defendants were entitled in justice equity and good conscience to be relieved of a portion of the allowance of the plaintiffs owing to changed circumstances. That case is, in our opinion, distinguishable on facts.
The agreement which was the basis of the suit in that case had replaced an earlier agreement, which was entered into during the pendency of certain suifs. But the second agreement, on which the plaintiffs sued to recover the maintenance allowance does not appear to have been incorporated in a decree.
Then it appeal's that the recipients of the maintenance allowance were members of a Talukdari family and as such would have been entitled to some maintenance out of the income of the Talukdari property.
6. in our opinion, the contention of Mr. Datar that the present consent decree should be treated as a maintenance decree and the Court should give him relief on the principles of natural justice, equity and good conscience cannot be accepted.
It may also be mentioned that nowhere in the plaint has it been stated that the income from the Math property has been reduced to such an extent that it is less than Rs. 3,001/-, which is the amount payable to the defendant every year under the consent decree.
We are, therefore, of the opinion that the view of the trial Court that the suit in its present form was not maintainable and that the plaintiff was not entitled to get the terms of the compromise decree in Suit No. 219 of 1910 varied is correct.
7. The appeal, therefore, fails and is dismissed with costs.
8. Appeal dismissed.