1. These three appeals arise out of a suit filed by the plaintiff Mahadevi against the defendants Sidraraappa and Chandrashekhar, brothers of her husband for partition and separate possession of the joint family properties or in the alternative for maintenance at the rate of Rs. 300/- per month for 12 years prior to the suit and at the same rate in the future. The relevant facts necessary for the disposal of these appeals may be briefly stated as follows:--
Plaintiff's husband Shivasharnappa and the defendants are brothers- Shivasharanappa died in June. 1944 leaving behind the plaintiff and his brothers, the defendants. After his death the defendants maintained the plaintiff paying Rs. 75/- per month for about eighteen months. Thereafter it appears the plaintiff left the family house and went and settled at Bijapur. She filed a suit for partition of the family properties in the court of the Civil Judge, Sholapur, in O. S. No. 54 of 1948 claiming therein one-third share. The trial Court dismissed the suit and on appeal by the plaintiff, the High Court of Bombay permitted the plaintiff to withdraw the suit with liberty to file a fresh suit if so advised. The plaintiff filed the present suit on 15-6-1959 in the first instance for partition claiming one-third share on the ground that there was an earlier partition between her husband and the defendants sometime in the year 1942, but the properties had not been divided by metes and bounds.
Later on she amended her plaint by adding one more prayer that in case she was not entitled to get one-third share in the joint family properties, she may be given past and future maintenance at the rate of Rs. 300/- per month. The defendants resisted the claim of the plaintiff and inter alia they contended that there was no partition between them and their deceased brother Shivasharanappa as alleged by the plaintiff and that she was not entitled to one-third share in the joint family properties. However they conceded the claim of the plaintiff for maintenance and said that they were willing to pay such maintenance consistent with the income from the family properties taking into consideration the status of the parties. They pleaded that the claim of the plaintiff for maintenance at the rate of Rs. 300/- per month was excessive- On these pleadings, number of issues were raised by the trial court.
The trial court negatived the contention of the plaintiff that there was an earlier partition between Shivasharanappa and the defendants and came to the conclusion that Shivasharanappa died as a member of the joint family, The trial court further held that the plaintiff was not entitled to one-third share in the joint family properties, but accepted the case of the plaintiff that she was entitled to maintenance being a widow of a deceased coparcener. The trial court awarded past maintenance at the rate of Rs. 100/- per month for 12 years prior to the suit and future maintenance at the rate of Rs. 150/- per month. Aggrieved by this decision, the plaintiff has filed R. F. A- 65 of 1967; defendant-1 has filed R. F. A. 25 of 1966, and defendant-2 has filed R. F, A. 33 of 1966. As all these appeals give rise La common questions of law and fact, they are disposed of by this common judgment.
2. The plea of the plaintiff that there was a partition during the lifetime of her husband sometime in the year 1942 and in that partition movables were divided and the immovables were not divided and. therefore, she was entitled to one-third share in the immovable properties has no basis. Although the plaintiff has stated in her evidence that there was such a partition, it could be gathered from the evidence on record, that there was no such partition between Shivasharanappa and bis brothers and that Shivasharanappa died as an undivided member. It is in evidence that for a year prior to his death, Shivasharanappa was residing separately with the plaintiff. From that circumstance it is contended that there was a disruption of the joint family. From the mere fact that Shivasharanappa lived separately, it cannot be held that there was a disruption in the joint family status. P. W- 5 gives evidence to the effect that there was partition between the brothers, but he does not give the day, the month and the year on which the partition took place. At the time he gave evidence in the year 1965, he was aged about 38 years.
If the case of the plaintiff is to be accepted that the partition took place in the year 1942, this witness was hardly about 15 years of age then and it is improbable that he would know anything about the partition between the brothers or he would be a panchayatdar at the partition. The other witnesses examined on behalf of the plaintiff do not speak anything about the partition as such. The burden of proof of partition is upon the plaintiff. The plaintiff having placed no satisfactory evidence, the trial court, in our opinion, was justified in negativing her plea in this respect.
3. There remains however the important claim of the plaintiff as to maintenance- The plaintiff has claimed maintenance for the past and future at the rate of Rs. 300/- per month. The trial court on a consideration of the material before it was of the view that it was reasonable that the plaintiff should be given past maintenance at the rate of Rs. 100/- per month and future maintenance at the rate of Rs. 150/- per month.
4. There is no dispute In this case that the plaintiff was maintained by the defendants for about eighteen months by paying at the rate of Rs. 75 per month after the death of her husband. Thereafter the plaintiff left the family house. The reason is not apparent from the records but she began to reside in Bijapur. Then she started making a claim of her husband's one-third share in the joint family properties and in this direction she also filed a suit which she ultimately withdrew in the High Court. Thereafter, there is no evidence to indicate that she ever made a demand for maintenance until the plaint was amended in the present suit. It appears to us that she did not make a demand for maintenance presumably thinking that she would get her husband's share in the joint family properties, basing her claim that there was an earlier partition between the brothers. There is also some evidence to indicate that she had some jewels and money.
These circumstances by themselves (will not disentitle the widow who other-wise under law is entitled to be maintained from out of the joint family properties. However, Mr. C. B. Munavallil and Mr. Tarakaram appearing for the defendants relied upon two decisions in support of their contention that if the widow had not made demand before the suit, the court had discretion either to allow past maintenance or reject it. The first decision is that of the Madras High Court in Seshamma v. Subbarayadu, (1895) ILR 18 Mad 403. In that case a Hindu widow brought a suit against her husband's brother to establish her right to maintenance and to recover arrears for six years, but she had made no demand before suit. The Madras High Court held on the facts of that case, that she was not entitled to a decree for arrears and incidentally observed that the Court had discretion to award arrears of maintenance and that the same could be refused where a widow had chosen to live apart from her husband's family without sufficient cause.
This view, in our opinion, may not be correct in view of the decision of the Privy Council in Ekradeshwari Bahuasin Saheba v. Homeshwar Singh, AIR 1929 PC 128, in which it was held that a widow who had left the residence of her deceased husband, not for unchaste purposes, was entitled not only to future maintenance, but also to arrears of maintenance from the date of her leaving her husband's residence, though she did not prove that she had incurred debts in maintaining herself and gave no reason for the change of her residence. The second decision is that of the Bombay High Court in Dattatraya Maruti Shanbhag v. Laxman Jattappa Shanbhag : AIR1942Bom260 . In that case it was however pointed out that courts dealing with claims for arrears of maintenance by a widow had a very large discretion to grant or withhold those arrears and to limit the period for which arrears of maintenance could be awarded with special reference to the urgent needs and necessities of the widow.
It was further pointed out that silence on the part of the widow for a long period and omission to demand maintenance might justify an inference that the claim had been waived and abandoned, and the conduct on the part of the widow such as to lead the person in charge of the estate to believe that he would not be called upon to meet suddenly a claim for a large sum of money which he would not reasonably be able to pay and which ordinarily he ought to have found from the current income, was a matter to be considered in deciding whether a claim for arrears of maintenance ought to be allowed in whole or part. In the case on hand, the circumstances viz., that soon after the death of her husband, the plaintiff waa maintained for eighteen months and thereafter she left the family house and Instituted proceedings against the defendants do not indicate that she intended to abandon her claim for maintenance nor dp they disentitle her in any way to claim maintenance.
The real question is at what rate the past maintenance is to be awarded to the plaintiff So far as the future maintenance is concerned, we find no reason to interfere with the finding of the trial court. It is dear from the evidence that the defendants are in possession of considerable immovable properties from which they are deriving an average annual rent of Rs. 4.000/- and in addition have got a flourishing cloth business at Gulbarga, and other agricultural lands yielding considerable income. On the basis of what the defendants themselves have admitted and proved by the documents produced by them before the trial court, the trial court has fixed the rate of maintenance. Though the trial court has not given detailed reasons to arrive at the figure of Rs. 150/ per month. In our opinion. It was right in awarding future maintenance at that rate.
5. So far as the past maintenance is concerned, we agree with the trial court that plaintiff is entitled to twelve years past maintenance. Although the sum awarded by the trial Court in this regard cannot be said to be excessive in any manner taking into consideration the status of the parties, as the defendants have to pay in one lump sum a large sum of money, by wav of past maintenance for a period of 12 years which they may have to find from out of current income. It would be equitable to reduce the past maintenance to Rs. 75/- per month.
6. For the reasons stated above, the appeals filed by the defendants are partly allowed reducing the past maintenance to Rs. 75/- per month and in other respects the appeals are dismissed. As a result of what we have stated above, the plaintiff's appeal fails and It is accordingly dismissed. In the circumstances of the case, we direct the parties to bear their costs in these appeals. Institution fee due on the Memorandum of Appeal in R. F. A. 65 of 1967 shall be recovered from the plaintiff. There shall be a charge in respect of past and future maintenance, decreed as above, on the plaint schedule properties.