(1) In the village of Kolnad in the District of South Kanara, defendant 1 Krishna Bhat was living in the year 1943 with his wife Lakshmi and his little daughter Rohini. Krishna Bhat who is defendant 1 in the suits out of which these two appeals arise, is an agriculturist owning areca gardens and paddy fields. In the year 1943 he took another wife and according tot he allegations of the first wife Lakshmi she was driven out of the matrimonial home having been subjected to acts of cruelty. In the year 1951 a demand was made by Lakshmi for the payment of maintenance to her and that demand not having been complied with, a suit was instituted by Lakshmi on August 26, 1958 for past and future maintenance. The suit brought by her is Original Suit No. 364 of 1958 out of which R.S.A. 90 of 1964 arises.
(2) In the year 1960 Rohini in her turn brought another suit against her father for past and future maintenance, and that suit was O. S. 11 of 1960 and the corresponding appeal is R. S. A. 134 of 1964. In both these suits, Krishna Bhat's mother Mookambike was also made a supplemental defendant on the ground that on May 31, 1951 under Exhibit B-7, item 1 in the schedule to the plaint and portions of item 2 in that schedule were sold for no consideration to her by Krishna Bhat with the intention of defeating the maintenance claims.
(3) Lakshmi asked for maintenance consisting of 1 candy of areca and 10 maunds of rice every year and she claimed a sum of Rs. 3,460/- as arrears of maintenance for the period between 1954 and 1958. Rohini asked for future maintenance at a slightly smaller rate consisting of 10 maunds of areca and 7 maunds of rice. She claimed past maintenance at Rs.360/- a year for the period between 1954 and 1960, and the aggregate of it was Rs. 2,340/-. In addition she asked for marriage expenses amounting to Rs. 1,500/-
(4) In the suit brought by Lakshmi the Munsiff made a decree for future maintenance consisting of 8 maunds of areca and 5 maunds of rice to be delivered each year to her. He awarded past maintenance of a sum of Rs. 500/- calculated at Rs. 100/- for each year for a period of five years.
(5) In Rohini's suit the Munsiff awarded future maintenance at the same rate at which it was awarded to her mother. But past maintenance was awarded by the Munsiff of a sum of Rs. 650/- in the aggregate. A sum of Rs. 1,500/- was also awarded, in addition, towards marriage expenses.
(6) All the parties to the two suits were dissatisfied with the decrees made by the Munsiff in this way. So in the suit brought by Lakshmi she appealed from the decree made by the Munsiff, claiming higher future maintenance and a larger sum of money towards past maintenance. Defendants 1 and 2 took a cross-objection to those parts of the decree by which they were dissatisfied. Likewise in Rohini's suit defendants 1 and 2 appealed from the decree made in her favour and Rohini took a cross-objection to those parts of the decree by which her claim to future and past maintenance was reduced.
(7) In the appeal preferred by Lakshmi and the cross-objection preferred by defendants 1 and 2 in that appeal, the Subordinate Judge maintained the decree with respect to future maintenance and enhanced the past maintenance to a sum of Rupees 760.10 p. but reached the conclusion that that sum of money was payable for the period of 1 year and 5 months commencing from December 21, 1956 when the Hindu Adoptions and Maintenance Act, 1956 came into force.
(8) In the appeal preferred by defendants 1 and 2 in which there was a cross-objection by Rohini, the Subordinate Judge maintained the decree for future maintenance but enhanced the amount which had been awarded by the Munsiff towards the past maintenance, to a sum of Rs.1,270/- payable in respect of the period between December 21, 1956 when the Hindu Adoptions and Maintenance Act came into force and, the date of institution of the suit.
(9) It should be mentioned that the Munsif had recorded a finding that the alienation by defendant 1 in favour of his mother, defendant 2 under Exhibit B-7 was a make-believe alienation entered into with an intention to defeat the maintenance claims of Rohini. By his decree he created a charge on the suit schedule properties in respect of the maintenance he awarded to Lakshmi. A similar charge for similar reasons was also created in the suit brought by Rohini.
(10) But the Subordinate Judge was of the view that the charge created by the Munsif in favour of Lakshmi and Rohini could not be sustained, since, in his opinion, the creation of that charge was not authorised by the Hindu Adoptions and Maintenance Act. The charge was thus deleted from the decrees made in both the suits and there was a variation with respect to the past maintenance in both the suits as mentioned above.
(11) The parties to these two litigations are still feeling dissatisfied with the decrees made by the Subordinate Judge, and so Lakshmi appeals in R. S. A. 90 of 1964, while Rohini appeals in R. S. A. 134 of 1964. Defendant 1 has taken a cross-examination in each of these two appeals to those parts of the decrees of the Subordinate Judge which are adverse to him.
(12) After a discussion of the oral and documentary evidence in the case, the Munsiff reached the conclusion that the annual yield from the properties of which defendant 1 was in possession, consisted of 7 candies of areca, 49 1/2 maunds of rice and 820 coconuts. He discussed the report of the Commissioner who had been appointed to make a report about the income and who had stated in his report that defendant 1 was deriving an annual income of 10 candies of areca, 80 maunds of rice, 1950 coconuts and 12 maunds of cashew. But the Munsiff was of the opinion that the Commissioner had in some cases made an excessive estimate of the income, and that in addition, the deduction which he made towards expenses was insufficient. So it was that the Munsiff made his own independent estimate of the income, and, this estimate which he so made, formed the basis of the estimate of the maintenance to which in his opinion Lakshmi and Rohini were respectively entitled.
(13) Lakshmi and Rohini contend in the appeals preferred by them that the estimate made by the Munsif was much too conservative and that the deduction which he made towards expenses was extremely excessive. Mr. Ganapati Bhat appearing for them contends that there was scant justification for departing from the report made by the Commissioner who had made a correct estimate of the income, and the Munsiff was not justified in depending upon the provisions of the Madras Cultivating Tenants Payment of Fair Rent Act for deducting the income when it was admitted that not all the properties were in the possession of tenants, and that one of the properties which was producing the largest income was under the personal cultivation of defendant 1.
(14) It was further contended that there was no justification for reducing the arrears of maintenance or for restricting the period for which those arrears were claimable to the period subsequent to December 21, 1956.
(15) The other and far more serious submission made by Mr. Ganpati Bhat was that the Subordinate Judge was in error in deleting the charge which was created by the Munsiff, and, that by that deletion, he had in effect brought about a nullification of the decrees made by the Munsiff.
(16) Mr. Ullal appearing for defendant 1 contends that the Munsiff had over-estimated the income, and made the complaint that the Subordinate Judge had prepared an extremely perfunctory judgment which contained no discussion of any part of the material relating to income. He made the further criticism that many of the contentions which were urged before the Subordinate Judge and which arose out of pleadings and the arguments, were neither considered nor discussed by the Subordinate Judge.
(17) The questions which arise for determination in these two appeals and in the respective cross-objection are these:
1) Whether the estimate made by the Munsif of the income in which the Subordinate Judge expressed concurrence without discussion is for any reason erroneous?
2) Whether the maintenance awarded to Lakshmi in the one case and to Rohini in the other, is inadequate as contended by them, or whether it is excessive as contended by defendant 1?
3) Whether the Subordinate Judge was right in removing from the decree of the Munsif the charge which had been created by him?
4) Whether Lakshmi and Rohini are entitled to a larger sum of money towards arrears of maintenance, or whether as contended for defendant 1, they are not entitled to any arrears at all?
5) Whether the alienation made by defendant 1, in favour of defendant 2 was wrongly pronounced to be ineffective by the Munsiff; and
6) Whether, as contended on behalf of defendant 1, Rohini in any event could not claim maintenance from her father who was willing to maintain her and whether she is not entitled to a decree for her marriage expenses when her father defendant 1 was willing to get her suitably married?
(18) I shall first consider the correctness of the estimate of the income. That estimate related to as many as five items of properties in the possession of defendant 1 and owned by him. Item 1 is a land called the punjigadde land. Item 2 is called the Kolnad land. item 3 is described as Aremudi land. Item 4 is referred to as Palligadde property and item 5 is known as the Challa land. I should mention here that items 4 and 5 are referred to by the Munsiff as different parts of item 4, but I consider it more convenient to refer to them as separate items.
(19) Before proceeding to discuss the evidence relating to the income from each one of these items, I should express my strong disapprobation of the manner in which the Subordinate Judge prepared his judgment in respect of that matter. The Munsiff had before him the Commissioner's report and the evidence given by the parties, and, to every part of that material on record he alluded in the course of his discussion and pointed out the evidentiary value of each one of such pieces of evidence. But very strangely the Subordinate Judge made no discussion of any part of that evidence. All that he did was to dispose of that matter in one short paragraph in which he stated that the Munsiff had after an elaborate discussion made his estimate of the income, and that that estimate cannot be said to be excessive.
(20) It is astonishing that there was such grave misapplication of the appellate power which vested in the Subordinate Judge and which made it his imperative duty to discuss as the final fact finding authority every relevant piece of evidence so that he may make his own estimate of the income from the properties by the application of his own mind to that question. I am quite sure in my mind that, to every part of the evidence of which there was a discussion by the Munsiff there was a reference in the course of the argument advanced before him, having regard to the serious consequences flowing from the estimate of the income, on which would depend the estimate of the maintenance which could be awarded to the plaintiffs.
(21) Normally I would have set aside the decree of the Subordinate Judge and remitted the appeals to the concerned lower appellate court for a fresh disposal according to law, but both Mr. Ganpathi Bhat appearing for the plaintiff and Mr. Ullal appearing for defendant 1 preferred to have my own decision under the provisions of S. 103 of the Code of Civil Procedure, and for that purpose they have taken me though all the relevant oral and documentary evidence in the case. It would have been wasteful expenditure of public time and money had I remitted the appeals back to the Civil Judge, since any such remand would have contributed to the prolongation of the litigation and the inconvenient consequences flowing therefrom. So it is that I now propose to discuss the evidence touching income.
(22) I shall discuss that evidence with respect to each of five items to which I have referred.
(23) (after discussing evidence in paras 22 to 53 the judgment proceeds:) It therefore becomes clear that my estimate is not very different from the estimate made by the Munsiff except with respect to areca, the yield from which according to me is 1.2 candies in excess of that estimated by the Munsiff.
(24) The next question is whether, on the basis of this estimate of the income, the future or past maintenance awarded by the Subordinate Judge requires any modifications. I shall first deal with the quantum of the future maintenance awarded by the courts below before adverting to the decree made of for arrears.
(25) In her plaint, Lakshmi stated that the value of areca was Rs. 1,250/- a candy when her suit was brought in the year 1958. She also stated that rice was worth Rs.23.50 P. a mura. Mr. Ganapati Bhat pointed out that at that point of time the price of coconuts was Rs. 23/- and that three and half maunds of coconut oil worth Rs. 81/- Although defendant 1 stated something very vague in regard to the rates in his written statement and wanted the rates prevailing each year to be taken into consideration, he did not controvert the rates mentioned by Laxmi in her plaint. I am willing to accept the information imported by Mr. Ganpthi Bhat about the value of coconuts and coconut oil, and, at the rates specified above the total net income from all sources which defendant 1 would have received when Laxmi brought her suit was of the value of Rs. 11,582/-.
(26) When Rohini brought her suit in the year 1960, she stated that the price of areca had risen to Rs.1300/- a candy and that the price of rice was Rs. 26.50 a mura. So, it is obvious and undisputable that the price of areca and rice have been steadily on the increase during all these years.
(27) Mr. Ullal made the submission that in determining the maintenance which may be awarded to the two plaintiffs, I should take into consideration the value of the property of defendant 1 and the income therefrom as directed by section 23(2) of the Hindu Adoptions and Maintenance Act and that I should also not exclude from consideration the other claims for maintenance under the Act to which clause (3) of that sub-section refers. It was urged that after defendant 1 took a second wife in the year 1943, the number of persons entitled to maintenance has steadily increased with the expansion of the family year after year. He stated that defendant 1 had by second wife, three girls and five boys, when Laxmi brought her suit, and, that there has been a further addition to the family during the pendency of this litigation. The court of first instance awarded to Laxmi and Rohini future maintenance consisting of eight maunds of areca and five maunds of rice a year each. The value of these commodities, when suit was brought, works out at Rs. 620/- a year in respect of each of the plaintiffs and so, at the rate awarded by the Munsiff, the two plaintiffs would each be receiving Rs. 52/- a month towards their maintenance.
(28) I am not prepared to say that even if the composition of the family is of the magnitude mentioned by Mr. Ullal, a maintenance of Rs.1248/- to the two plaintiffs in the aggregate, is, to any extent excessive when it is remembered that the net income was as high as Rs. 11,582/-. But Mr. Ullal contended that under Exhibit B.8 which is a karkar executed by defendant 1 in favour of defendant 2, his mother, is under an obligation to deliver to defendant 2 by way of maintenance 26 maunds of rice and Rs. 200/- in cash every year. In the year 1942, it is not seriously disputed that the value of twenty six maunds of rice was Rs. 208/- and so, it turns out that so long ago as in the year 1941, the maintenance which was considered to be reasonable for defendant 2 was Rs.408/- a year. Since then, the cost of living has increased steadily in the same measure in which the cost of commodities has increased, and, I am not prepared to say that the sum of Rs. 620/- which has been awarded to each of the plaintiffs can be regarded as unreasonable. This is the view which I take even after taking into consideration the obligation of defendant 1 to give maintenance to defendant 2 as in Exhibit B. 8.
(29) It is true that both the courts took into consideration the income from Aremudi property consisting of four maunds of rice and twenty coconuts, but their value is very small and the deduction that has to be made for that reason stands cancelled out by the additions which I have made to the yield from areca. Whereas the courts below thought that the yield of areca was seven candies, I have estimated it as 8.2 candies.
(30) The next question is whether as contended by the plaintiffs the rate at which maintenance was awarded is susceptible of enhancement. Mr. Ganpati Bhat contended that the cost of living has increased so much and that the income of defendant 1 is so high that the maintenance awarded by the courts below is unreasonably inadequate. I do not think that I should enhance the maintenance determined by the courts below especially since the family of defendant 1 is now so big, and, even if it be said that such proliferation is attributable to utter thoughtlessness on the part of defendant 1. (sic) (he) is bound to maintain that big family. If by reason of alteration of material circumstances, the plaintiffs are entitled to found a claim for higher maintenance under the provisions of section 25 of the Hindu Adoptions and Maintenance Act, they would be at liberty to do so by resort to appropriate proceedings. But in these proceedings, I am not prepared to disturb the maintenance determined by the courts below on the materials before me.
(31) The next question to which I should refer is the fourth among the questions formulated by me for determination, and that question is whether the arrears of maintenance awarded by the courts below are excessive or insufficient as the case may be.
(32) It will be recalled that Laxmi claimed arrears of maintenance of a sum of Rs.3,460/- for five years, while Rohini claimed a sum of Rs. 2,340/- for the years between 1954 and 1960. The Munsiff awarded Rs. 500/- to Laxmi in the aggregate for a period of five years at Rs.100/- a year and to Rohini, awarded a sum of Rs. 650/-. But the Subordinate Judge enhanced the arrears payable to Laxmi to Rs.760/- and to Rohini to Rs. 1,270/-. The Subordinate Judge restricted the period for which arrears could be claimed as the period subsequent to December 21, 1956 when the Hindu Adoptions and Maintenance Act came into force. He must have thought that arrears were claimable only after that Act came into force and not during the earlier period. For this assumption there was not the slightest justification Laxmi made a demand for maintenance as early as in the year 1951 and her demand was not responded to even when the suit was brought in the year 1958
It is true as Mr. Ullal urges that a person entitled to maintenance who does not institute a suit for its recovery for an unduly long period cannot be awarded arrears of maintenance at the same rate at which future maintenance is awarded. The award of arrears at the same rate as future maintenance would cause undue hardship to the person who is liable to pay maintenance and would make available to the person who is entitled to the maintenance a fund which could be constructed only to the great detriment of the person liable to pay maintenance. This proposition has received recognition over a long period of time and generally speaking, it is in the discretion of the court to award arrears of maintenance at a smaller rate and quite often, arrears of maintenance are awarded only at a rate which is half the rate at which future maintenance is awarded. These are the principles by the application of which, the courts below should have quantified, it will transpire that a sum of Rs.760/- awarded to Laxmi would work out at less than half the rate at which she was awarded maintenance for the future.
(33) Although it is true that the Subordinate Judge awarded arrears only for a year and five months that restricted decree which he made is under appeal and although I have no doubt in my mind that he depended on a wrong comprehension of the provisions of the Hindu Adoptions and Maintenance Act for reaching his conclusion. I think I should not disturb the decree for a sum of Rs.760/- made in favour of Laxmi towards arrears of maintenance. That decree, in my opinion appears to be quite reasonable.
(34) In the case of Rohini Mr. Ullal urged that she never made any demand for arrears of maintenance. It is surprising that the Subordinate Judge awarded a maintenance of Rs.1,500/- which is very much in excess of the arrears (sic) in urging that on behalf of Rohini no demand was made for past maintenance since the notice which was issued on behalf of Laxmi, as rightly pointed out by Mr. Ganpathi Bhat, makes, in effect, a demand for maintenance on behalf of Rohini as well.
It is in evidence that Rohini is living with her mother and is a college-going student. She stated in her evidence the details of her expenses and it is obvious that there are many items of expenditure to be met in the context of Rohini's education such as purchase of books, payment of college fees and the like. As in the case of Laxmi, the Subordinate Judge proceeded upon the incorrect assumption that she was not entitled to maintenance for the period anterior to the coming into force of the Hindu Adoptions and Maintenance Act. The period for which Rohini claimed maintenance was six years and a sum of Rupees 1,500/- awarded to her by way of maintenance is at a rate which is half the rate at which future maintenance was awarded to her. I am, therefore, of opinion that if Rohini is otherwise entitled to the maintenance, the rate at which she was awarded maintenance is by no means excessive although it was made on a wrong computation by the Subordinate Judge.
(35) The next question which should be discussed is whether Rohini whom defendant 1 was willing to maintain had she been willing to reside with him, was not entitled to any separate maintenance. Mr. Ullal depended upon clause (c) of S. 23(2) of the Hindu Adoptions and Maintenance Act and urged that it was the duty of Rohini to surrender to the parental control of her father and to live with him so that defendant 1 may look after her requirements and make arrangements for the pursuit of her education. Mr. Ullal pointed out that in her cross-examination Rohini admitted that she was unwilling to go to her father and that her disinclination was as old as her infancy.
(36) It is obvious that so long as there are circumstances justifying the separate residence of Rohini along with her mother, she is not bound to reside with her father even if there was an offer by him to maintain her if she lived with him. In clause (c) of section 23(2) is implicit the right to claim separate maintenance even by a daughter who has good reasons for living separately from her father. And I have no doubt in my mind that Rohini's refusal to live with her father was as unexceptionable as the separate residence of Laxmi after defendant 1 took a second wife, and, produced disharmony and unhappiness which made it difficult for Lakshmi to continue to reside with her husband in the matrimonial home. She could not have then left her little child Rohini in the house of her husband after he made a fresh matrimonial adventure through a marriage for the second time. A stepmother is no substitute for the natural mother, and when the natural mother who is supplanted by a step-mother is alive, and is able to look after her child, the insistence by defendant 1 that although he would not maintain his wife, his child by that wife should nevertheless reside with him is vexatious and a mere pretence.
(37) If as stated for defendant 1 by Mr. Ullal, his second marriage has brought forth a large number of children who alone would be the object of the second wife's affection and love, no one would be willing to accede to the suggestion that Rohini could ever hope to b e looked after well by defendant 1. Besides the irksomeness generated by introduction of a second wife into the family, ever since Lakshmi began to live with Rohini separately in 1943, defendant 1 made no endeavour whatsoever to make any arrangement for the maintenance of his first wife Lakshmi who was still quite young and of her little child Rohini who was still an infant. If Lakshmi was living separately and defendant 1 expressed at no stage any desire that she should live with him it would be vain for him to display any solicitude for the welfare of Rohini or to induce the conviction that at the stage when Rohini grew up with Lakshmi in her parental home and had to commence her education in a school or college she would have abandoned her mother's protection and courted the obvious perils which the return to her father would have surrounded her in my opinion, Rohini did not forfeit her right to separate maintenance by reason of her not surrendering in that way to the control or care of defendant 1 which would have done her very little good but incalculable harm.
(38) The view that I have taken receives support from the decision of this Court in Kanike Subbaraya Gowda v. Rukimini, 1964 Mys LJ (Suppl) 375 in which Kalagate J. said this:
'In this case, there is no dispute that the plaintiff is living separate, and that too with her mother Lakshmi. the circumstances under which the plaintiff is living with her mother are mentioned in her plaint as well as in her evidence which have not been disputed by the defendant. It is also clear that he never cared to take her back and maintain her. it is further clear that no maintenance had been awarded to the plaintiff from the date she went with her mother Lakshmi. In my opinion, these circumstances justify the plaintiff living separately from the defendant. Therefore, there is no force in the contention of the learned counsel that the plaintiff while living separate from her father is not entitled to claim maintenance from him.'
But it was urged that Rohini can claim maintenance only if she was unable to maintain herself out of her own earnings or other property and that it was not established by the production of any positive evidence by Rohini that there was no such source of maintenance for herself. Mr. Ullal also urged that there is not even an allegation in her plaint that she was unable to maintain herself out of her own earnings or other property. Mr. Ullal also relied upon the decisions of the High Court of Lahore and Kerala in support of the proposition that there is a presumption that an able-bodied person who has attained the age of majority is able to maintain himself or herself somehow and that I should therefore, draw a presumption that Rohini after she attained the age of majority was in a position to maintain herself out of her own earnings.
(39) Mr. Ullal relied upon two decisions in Muhammad Yar v. Ali Muhammad, AIR 1941 Lah 92 and Saraswati v,. Madhavan, : AIR1961Ker297 and both these decisions rested upon the interpretation of Section 488 of the Code of Criminal Procedure which opens with the words.
'If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself.'
I do not accede to the proposition that Rohini could be refused maintenance on the ground suggested. The allegation in the plaint is clear enough to include an averment that Laxmi was unable to maintain herself in any way and that she had no earnings or other property and Rohini was still an infant when Laxmi was obliged to leave the matrimonial home, and, defendant 1 never suggested that Rohini had at any stage acquired the ability to maintain herself out of her own earnings or that she had any other property which constituted a source of income.
(40) Rohini gave evidence that she was still a college-going student and in her cross-examination, it was not suggested to her that she had any independent earnings or that she had some property out of the income from which she could maintain herself. It is true that section 23(3) of the Hindu Adoptions and Maintenance Act entitles an unmarried daughter to claim maintenance only so long as she is unable to maintain herself out of her own earnings or other property. The question whether she has any earnings of her own or property out of the income from which she could maintain herself, is a question of fact to be decided in each case on the material on record, and, the Munsiff, it is obvious, had no doubt in his mind that she had no earnings of her own and no property to the income of which she was entitled. I have no doubt in his mind that she had no earnings of her own and no property to the income of which she was entitled. I have no doubt in my mind that it is not possible for defendant 1 to contend on the material on record that Rohini had any such earnings or property. It is clear that she had none, and, if that be so, there can be no occasion for any presumption that Rohini, merely by reason of the fact that she is an able-bodied person, has some earnings out of which she could maintain herself.
(41) The presumption suggested by Mr.Ullal that she is capable of earning an income is, in my opinion, an extravagant presumption. A college-going student, however healthy and able-bodied she may be cannot be presumed to be capable of making an earning of her own so long as she is making none, and I for one would be quite unwilling to make a contrary presumption, and, in a case like this, it would be extremely unreasonable to make one, when I know it for certain from the material on record that Rohini is a college student attending to her studies and exercising no independent avocation or profession and is being maintained by her mother and finds it possible to pursue her education with the little assistance that her mother is able to give her.
(42) Moreover section 20(3) of the Hindu Adoptions and maintenance Act does not speak of the capacity to earn an income but speaks of the existence of a source of income and the ability to maintain oneself with such income.
(43) Mr. Ullal next urged that the sum of Rs. 1,500/- awarded towards the marriage expenses f excessive. It is quite plain that it is by no means excessive. It is an indisputable fact that it is extremely difficult for anyone in these days to celebrate a marriage with the assistance of a small sum of Rs.1,500/- That being so, there is little justification for my disturbing that part of the decree.
(44) It was next urged by Mr. Ullal that in awarding future and past maintenance, the courts below overlooked the liability on the part of defendant 1 to pay debts of the magnitude of a little more than Rs. 13,000/-. But a debt of the magnitude of Rs.13,000/- and more, is not a very onerous burden when the net annual income of the property is as high as Rs. 11,582/- according to the computation referred to above. The courts below did take that factor into consideration although there is, in the judgment of the Munsiff a more detailed discussion about it than we find in the judgment of the Subordinate Judge, which does not contain any adequate discussion about it.
(45) The plaintiffs complain in both these appeals that the Subordinate Judge was in error in removing from the decrees of the Munsiff the charge created by him. The ground on which the Subordinate Judge removed the charge was that the Hindu Adoptions and Maintenance Act, 1956 does not authorise the creation o the charge. He was having in his mind the provisions of Section 27 of that Act which provides for the creation of a charge in the context of a dependant's claim for maintenance and appears to have been of the view that in the case of a person who is not a dependant, a charge under the Act is not possible. But what was overlooked by the Subordinate Judge was that the creation of a charge in respect of the maintenance claim by a wife and his unmarried daughter was permissible under the Hindu law even before the enactment of the Hindu Adoptions and Maintenance Act although the creation of that charge was in the discretion. Of the Court, and, that Section 4 of the Hindu Adoptions and Maintenance Act preserves that rule of Hindu Law unless in respect of that matter a specific provision was made by that Act. Section 4(a) reads:
'4. Save as otherwise expressly provided in this Act-- (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.'
So, that rule of Hindu Law which was in force immediately before the commencement of the Hindu Adoptions and Maintenance Act continued to operate unless a different provision was enacted by that Act or unless that Act made some other provision in regard to that matter, but it did not. So, the old Hindu Law rule continued to hold the field and since Section 27 of the Hindu Adoptions and Maintenance Act speaks only about a charge in the context of a dependant's claim for maintenance and since neither Laxmi nor Rohini is a dependant within the meaning of Section 21 of the Act, section 27 has no application and so, the old Hindu Law rule governed the matter. it was within the discretion of the Munsiff to create a charge in respect of the maintenance which he awarded to Laxmi and Rohini and since the Subordinate Judge proceeded upon the misconception that that charge was forbidden by the Hindu Adoptions and Maintenance Act, that charge created by the Munsiff has to be restored.
(46) But Mr. Ganapathi Bhat has pointed out that although the Munsiff was right in excluding from the charge the Aremudi property which is item 3 and survey Nos. 299/302, 301/1, and 301/2A of item 2, he was not right in excluding from the charge the challa property which is included in item No.4 in the plaint schedule. Mr. Ganapathi Bhat says that there is a litigation with respect to the aremudi property and the plaintiffs do not want a charge upon that property.
(47) If the plaintiffs do not want a charge, that charge should not be forced on them. But Mr. Ganapathi Bhati is right in contending that the Munsiff was in error in excluding the Challa property and so, that property will also be included in the charge created by the Munsiff. To that extent that part of the decree of the Munsiff will stand modified and this modification will be made only in R. S. A. 90 of 1964.
(48) Mr. Ganapathi Bhat submits that the charge created in the decree out of which R. S.A. 134 of 1964 arises is properly constituted and so, no modification is necessary with respect to that decree.
(49) The only question which remains to be considered is the argument by Mr. Ullal that the alienation by defendant 1 in favour of defendant 2 was wrongly pronounced ineffective. It was contended that under Exhibit B-8 an agreement executed by defendant 1 in favour of defendant 2 on October 29, 1942, defendant 1 agreed to pay maintenance to his mother consisting of 26 maunds of rice and Rs. 200/- in cash and that on May 31, 1951 a large sum of money was due to defendant 2 by way of arrears of maintenance. It was also pointed out that there were debts due by defendant 1 to other creditors and that defendant 1 was, therefore, obliged to make a sale of item 1 and three survey numbers of item 2 to his mother, defendant 2. Exhibit B-8 recites that a sum of Rs.5,000 represented the arrears of maintenance due to defendant 2 and that there was a debt of Rs.2,200/- payable to one Hima Bhat and another sum of Rs.1,635/- payable to Venkataraman Bhat. It also recites that a sum of Rs. 1,115 was received by defendant 2 at the time of the registration. The Munsiff did not believe that any arrears of maintenance were due to defendant 2. He pointed out that the debts stated to be due to other creditors were not proved. He further pointed out that there was evidence in the case that defendant 2 was carrying on money-lending business and that there was evidence given by the defendant's witness that the sum of money paid in the presence of the Sub-Registrar was the income from the money lending business.
(50) The Munsiff next pointed out the chronology of evidence which, in his opinion, justified the view that defendant 1 executed Exhibit B-7 in too much of a hurry, after the issue of a notice by Laxmi for the payment of maintenance due to her.
(51) it is obvious that the Munsiff was right in coming to the conclusion that the transfer under Exhibit B-7 was a gratuitous transfer made with the intention of defeating the claims of Laxmi and Rohini. Laxmi issued a notice both on her behalf and on behalf of Rohini on May 25, 1951 and the sale deed Exhibit B-7 was executed on May, 31, 1951. defendant 1 saw to it that a notice was despatched by defendant 2 demanding the so-called arrears of maintenance from him on May 28, 1951, three days after Laxmi had issued her notice. But that notice Exhibit B-20 issued by defendant 2 was given the date May 15, 1951 to make it appear that it was older than the notice issued by Laxmi. But that that notice was antedated in that way is very clear from the fact that it was not despatched until May, 28, 1951.
(52) What is even more sinister is the fact that although defendant 1 was willing to receive the notice Exhibit B-20 on May 31, 1951, he deferred receiving the notice issued by Laxmi until June, 13, 1951, and in between he executed the sale deed in favour of his mother which incorporated fictitious recitals. The recitals as found by the Munsiff that defendant 2 was entitled to receive a sum of Rs. 5,000/- as arrears of maintenance is a make-believe recital. It is unthinkable that although the maintenance karar Exhibit B-8 was executed by defendant 1 in favour of his mother in the year 1942, on maintenance under the karar was paid by him for a long period of nine years and that defendant 2 had allowed as large a sum as Rs.5,000 to accumulate towards those arrears. If, as pointed out by the defendant's own witness D. W. 4 the amounts paid by defendant 2 to his son in the presence of the Sub-registrar was her income from the money-lending transaction, the fact that she was able to start and carry on money-lending business is what falsifies the case of the defendants that defendant was not paid any maintenance at all between the years 1942 and 1951.
(53) The Munsiff was right in pointing out that even the debts which were recited in Exhibit B.8 were fictitious debts. Defendant 1 made an admission n his cross-examination that Bheema Bhat and Venkataramana Bhat who are the two creditors named in Exhibit B-7 were unwilling to depose in his favour and that unwillingness is, it is plain, attributable to the fact that they were unwilling to speak to a falsehood.
(54) So, it follows that Exhibit B-7 had no other purpose than the evasion of the maintenance claims of Laxmi and the nominal transfer of the property in favour of the second defendant was to see that the property so transferred may be out of the reach of Laxmi. Defendant 1 admitted in his cross-examination that he was advised by his uncle that if he sold the property to the mother, he could recover it back after her death and he accepted that advice and made a sale. This is what he said in that context;
'My maternal uncle Ishwara Bhat advised me to sell to my mother on the ground that after her death the property would come to me, without difficulty.'
This Ishwara Bhat is D. W. 4 to whose evidence I have already referred.
(55) It is, therefore, obvious that on defendant 1 coming to know that Laxmi had issued a notice demanding from him maintenance he and his uncle collaborated together and bolstered up the document Exhibit B-7 recording a nominal and sham sale to defendant 2 in the hope that Laxmi and Rohini would not be able to reach the properties so conveyed.
(56) Section 39 of the Transfer of Property Act makes it clear that if the sale was executed in that way. Laxmi and Rohini could proceed against the property conveyed without to any extent being kindered by the gratuitous sale to defendant 2.
(57) Mr. Ullal asked attention tot he evidence given by D. W. 4 that he had produced a certified copy of the promissory not executed by defendant 1 in favour of Bhima Bhat and that the original of the promissory note was produced in some other case. But what is of importance is that Hima Bhat was not called to give evidence and that it was the duty of defendant 1 to call him and if defendant 2 admitted that Bhima Bhat declined to give evidence, as already observed by me, the inference is that the promissory note to which exhibit B-7, refers and to which D. W. 4 referred was not the promissory note executed in favour of Bhima Bhat.
(58) What emerges from the discussion so far made can be summed up as follows:
(a) Future maintenance and the arrears of maintenance awarded by the courts below are correctly estimated;
(b) The plaintiffs are entitled to the charge created by the Munsiff in respect of the maintenance awarded to them. In addition, Laxmi is entitled to a charge even on the Challa or Chanila Property as it is otherwise called;
(c) The plaintiffs are entitled to enforce their maintenance claims even against the properties nominally alienated in favour of defendant 2 and that alienation does not bind them.
(d) The decree made in respect of marriage expenses in favour of Rohini is unexceptionable.
(59) That being so, I modify the decrees made by the Subordinate Judge in both these matters by restoring the charge made in favour of the plaintiffs by the Munsiff and by inclusion of a charge in favour of Laxmi even of the Challa or Chanila property which is included in item No. 4 in the schedule to the plaint produced by her. With this modification in the decrees of the Subordinate Judge both the appeals and the cross-objections have to be, and are, dismissed.
(60) But I make an elucidation that in the decree of the Munsiff which he made in favour of Rohini, he stated that the maintenance awarded by him was payable by defendant 1 until she gets married and until she is able to maintain herself out of her own earnings and the elucidation that should be made is that the liability of defendant 1 shall come to an end when Rohini gets married or even while she is in an unmarried stage, if she is able to maintain herself out of her own earnings or other property.
(61) the appeals succeed to the extent indicated above and the Cross-objections are dismissed.
(62) In the appeals preferred by the plaintiffs, they will be entitled to costs to the extent of their success and the defendants will bear their own. In the cross-objections, there will be no direction in regard to costs
(63) The decrees will be drawn up independently in the case of Rohini and Laxmi in these matters.
(64) Ordered accordingly