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indira Bai Patel Vs. B.A. Patel - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberC.C.C.A. No. 95 of 1970
Judge
Reported inAIR1974AP303
ActsCode of Civil Procedure (CPC), 1908 - Sections 11; Evidence Act, 1872 - Sections 115; Hindu Adoptions and Maintenance Act, 1956 - Sections 25
Appellantindira Bai Patel
RespondentB.A. Patel
Appellant AdvocateM.V. Bharati, Adv.
Respondent AdvocateM.P. Ugle and ;N.V. Deshpande, Advs.
Excerpt:
.....on which strong reliance has been placed by mr. it is well settled that the plaintiff, as the widow of manik rao or as the mother of the last male-holder madhukar, would be entitled to claim maintenance on the basis of their share of income from the family properties......for a direction to the defendant to render an account of the profits realised from him from the suit properties from 1958 till the date of delivery of possession of the plaintiff's share ; or in the alternative for enhancement of the maintenance payable by the defendant to the plaintiff from rs. 65/- to rs. 500/- per month with effect from the date of suit; for allotment of one room in the first floor and three rooms in the ground floor of the plaint 'b' schedule house to the plaintiff for her separate residence and for payment of rupees 10,000/- towards arrears of maintenance.2. the defendant b. a. patel and the late husband of the plaintiff one manik rao patel the sons of maruthi alia annaji sadasiva patel, constituted a hindu co-parcenary . their father had settled down at.....
Judgment:

Kondaiah, J.

1. This appeal by the plaintiff is directed against the dismissal of her suit by the Fist Additional Chief Judge, City Civil Court, Hyderabad for cancellation of the compromise decree in O. S. No. 14 of 1961 on the file of the 4th Additional Judge, City Civil Court, Hyderabad; for partition of the plaint 'A' & 'B' schedule immovable properties into two equal shares and for delivery of possession of one such share and for a direction to the defendant to render an account of the profits realised from him from the suit properties from 1958 till the date of delivery of possession of the plaintiff's share ; or in the alternative for enhancement of the maintenance payable by the defendant to the plaintiff from Rs. 65/- to Rs. 500/- per month with effect from the date of suit; for allotment of one room in the first floor and three rooms in the ground floor of the plaint 'B' Schedule house to the plaintiff for her separate residence and for payment of Rupees 10,000/- towards arrears of maintenance.

2. The defendant B. A. Patel and the late husband of the plaintiff one Manik Rao Patel the sons of Maruthi alia Annaji Sadasiva Patel, constituted a Hindu Co-Parcenary . Their father had settled down at Hyderabad in the year 1914. The defendant was practicing as an advocate in the Civil Courts at Hyderabad till the year 1951 when he was appointed as a District and Sessions Judge by the erstwhile Hyderabad State Government. The plaintiff's husband who studied upto VIII standard , was working as part-time clerk in the library called Marathi Grantha Sangrahalaya at Hyderabad and also doing insurance business as an agent and earning some decent income. The joint family possessed Item 1 to 9 ('A' Schedule) dry lands situate in Shelgaon and Navkot Wadi villages in the district of Parshani now in the State of Maharastra. It also possessed items 10 & 11 , house properties situate at Parbhani. The plaint 'B' Schedule property was claimed by the plaintiff as joint family property, but the defendant asserts that it is his self acquired property. On August 20, 1944 Manik Rao Patel died undivided leaving behind him his widow , the plaintiff and his only son called Madhukar and the defendant his undivided elder brother. After the death of Manik Rao, the defendant and the members of his family including the plaintiff and her son lived together in the plaint 'B' schedule house situate in Sultan Bazar, Hyderabad till 12-1-1950 when the plaintiff's som Madhukar died at the age of 11 or 12 years. The plaintiff thereafter lived with the members of the defendant's family till she filed O. S. 14/1961 for partition of the family properties and for possession of her half share. The suit claim for partition and possession of her share was resisted by the defendant on the ground that she was not entitled to any share in the family properties as her husband and son died as members of an undivided Hindu Coparcenary , except reasonable maintenance. The suit was posted peremptorily to September 23, 1961 for trial. On that day, the parties entered into a compromise whereunder a sum of Rs. 65/- per month was payable by the defendant to the plaintiff towards her maintenance and two rooms in the plaint 'B' schedule house were allotted for the residence with a charge created on some of the family properties. The present suit was instituted in forma pauperis on 31-10-1964 for cancellation of the compromise decree on the ground that it was vitiated by fraud , undue influence, coercion and misrepresentation; and for partition and possession of her share in the plaint schedule properties ; or in the alternative for enhancement of the maintenance from Rs. 65/- to Rs. 500/- per month. The defendant resisted the claim of the plaintiff on the ground that the suit is barred by limitation , that the claim in so far as items 10 and 11 of the plaint 'A' schedule are concerned, is barred under Order 2, Rule 2, Civil P.C. that the compromise decree in O.S. No. 14/1961 is valid and binding on the plaintiff but not vitiated by any fraud , undue influence, coercion or misrepresentation , that there was no severance of status between the plaintiff's son Madhukar and the defendant in 1949-50 before his death and that there is no justification for the enhancement of the maintenance awarded under the compromise.

3. The trial Court framed the following 10 issues and an additional issue :-

1. Whether there was severance of status between the defendant and the plaintiff's son , Madhukar, in 1950 as pleaded by the plaintiff ?

2. Whether Items 1 to 9 , 11 and 12 of the plaint 'A' schedule are joint family properties in which the plaintiff is entitled to a share ?

3. Whether the parties are governed by the Mithila School or Mithakshara School of Hindu law ?

4. Whether the compromise decree passed in O. S. No. 14 of 1961 on the file of the 4th Additional Judge , City Civil Court is not binding on the parties as alleged ?

5. Whether the alienation of S. No. 32 was for a family necessity, and if so, has the plaintiff any right of adjustment inter parties ?

6. Whether the suit is not maintainable in view of the provisions of the Hindu Adoptions and Maintenance Act of 1956 ?

7. Whether the valuation given in the plaint is correct ?

8. Whether the suit is within limitation as far as the relief of cancellation of the compromise decree is concerned ?

9. Whether the plaintiff is entitled to any past or further maintenance, and , if so, to what amount ?

10. To what relief

Additional Issue : Whether the suit claim is barred under Order 2 , Rule 2, Civil P.C. so far as items 10 and 11 of the plaint A schedule are concerned ?

4. The plaintiff examined herself as P. W. 1 in addition to examining P. Ws. 2 to 5 and filing Exs. A-1 to A-6 in support of her claim. The defendant examined himself as D. W. 1 and one Madhava Rao as D. W. 2 and marked Exs. B-1 to B-16 in support of his defence.

5. The trial Court , holding against the plaintiff on all the material issues has dismissed the suit. Hence this appeal.

6. Mr. Bharathi, the learned counsel for the appellant, reiterated the contentions raised by his client in the lower Court.

7. The claim for partition of the plaint schedule immovable properties is based on two grounds. They are (I) The plaintiff's son Madhukar died on 12-1-1950 as a divided member of the family as there was severance of status in the joint family in the year 1949-50 some time before his death. (ii) The family is governed by the Mithila School and therefore, the plaintiff, being the widow of the defendant's brother , is entitled to the share to which her husband would have been entitled if he were alive.

8. Before examining the scope of the respective contentions on these two aspects , it is necessary to first advert to the question relating to the bar of the plaintiff's claim on the application of the principles of constructive res judicata, and also to the binding nature or otherwise of the compromise decree in O. S. No. 14 of 1961. Unless the decree in O. S. No. 14/1961 is cancelled , the plaintiff will not be entitled to urge her claim for partition of the plaint schedule properties. The appellant's contention that the compromise decree in O. S. No. 14/1961 was vitiated by fraud , undue influence, coercion and misrepresentation has not been established by any satisfactory evidence. It is well settled that the particulars of fraud, misrepresentation, undue influence or coercion must be given in the plaint and the same should be substantiated by the person who alleges them in order to successfully obtain the relief of cancellation of the compromise decree ; see Bishundeo v. Seogeni Rai, : [1951]2SCR548 . On a perusal of the record we are satisfied that there is no satisfactory evidence in support of the plaintiff's plea that the compromise decree was vitiated by fraud, undue influence , coercion or misrepresentation . Therefore, we affirm the finding of the trial Court on this aspect.

9. The decree between the same parties in the earlier suit, O. S. No. 14/1961 with regard to the same relief would also bar the plaintiff from reagitating the same question in this suit on the application of the principles of constructive res judicata. The submission of Mr. Bharathi that the earlier decree, being one obtained by consent and not after due and proper adjudication of the rights of the parties on the evidence on record, would not bar the present suit as the principles of res judicata will not apply to the case of a consent decree, cannot be acceded to. In Shankar Sitaram v. Balakrishna Sitaram, : [1955]1SCR99 it was ruled by the Supreme Court that a consent decree is as binding upon the parties thereto as a decree passed by invitum. Therein it was found that the earlier compromise decree was not vitiated by fraud, misrepresentation, misunderstanding or mistake and therefore the consent decree had the binding force of res judicata and the plaintiff was barred from reagitating the question of accounts in a fresh suit. Applying the aforesaid ruling of the Supreme Court, we are of the firm view that the compromise decree in O. S. No. 14/1961 had the binding force of res judicata and the plaintiff is barred from reagitating her claim for partition and possession of her share in the family properties and accounts from the defendant in respect of the income from the suit properties. That apart, a judgment by consent or default is as effective an estoppel between the parties as a judgment obtained from the Court after due contest on merits. Hence, the consent decree operates as estoppel by judgment ; see Sailendra Narayan v. State of Orissa, : [1956]1SCR72 . For the reasons stated above , we have no hesitation to hold that the plaintiff's claim for partition and separate possession of her half share and for accounts is barred on the application of the principles of constructive res judicata as well as estoppel by consent.

10. That apart, there is yet another hurdle for the plaintiff to succeed in her claim. The compromise decree was passed on 23-9-1961 and the present suit was instituted on 31-10-1964 which is admittedly after three years from the date of the compromise decree. The plaintiff can sue for the cancellation of the compromise decree within three years from the date of the decree sought to be cancelled or three years from the date of her knowledge of fraud. The plaintiff has not adduced any evidence as to when exactly she came to know of the fraud played by the defendant, if any, and therefore, we must hold that the suit is barred by limitation so far as her claim for partition and for possession of her share is concerned.

11. Even assuming that the suit is not barred by constructive res judicata or that the previous consent decree is not binding , the plaintiff cannot succeed in her claim for partition and possession of half share in the suit properties, unless she establishes that there was severance of status of the family in the year 1949-50 and that her son died as a divided member of the family. The Court below did not accept the evidence of the plaintiff or her witnesses about the declaration said to have been made by the defendant to Madhukar when he was ill, to the effect that the family was divided in status and that Madhukar's share of family properties would be given to the plaintiff. We are unable to believe this story of the plaintiff. There is absolutely no documentary evidence in support of this claim. Nor is there any acceptable oral evidence. We are also unable to agree with the plaintiff that the defendant would have made such a declaration to Madhukar, a young boy of 11 years who was laid up with typhoid. There was no necessity for the defendant to make such a declaration. Nor would Madhukar, a young boy of 11 years who was laid up with Typhoid have made a request to the defendant that his mother should be given after his death, his share of the family properties. This theory is not acceptable to us. We are unable to persuade ourselves to accept the plaintiff's version relating to the severance of status. This view of ours gains support from the fact that plaintiff infact lived with the defendant and the other members of the family in the house at Sultan Bazar, Hyderabad after the death of her son till 1961 when she filed the previous suit. We are, therefore, satisfied that Madhukar died as an undivided member of the defendant's family and there was no severance of status entitling the plaintiff to claim half share in the family properties.

12. The further submission of Mr. Bharati that the family is governed by the Mithila School of Hindu Law and therefore the plaintiff is entitled to half share of the family properties, also cannot be acceded to. There is no satisfactory evidence on this issue to prove the plaintiff's claim. In the previous suit, it was stated by the plaintiff that the parties are governed by Mitakshara School and now for the first time, this new plea has been set up. Even otherwise, the plaintiff's case cannot be accepted as it is a mixed question of fact and law and there is no evidence adduced by the plaintiff in this regard. For these reasons the plaintiff is not entitled for partition and possession of half share of the plaint schedule properties, even assuming that the claim is not barred by limitation or res judicata or estoppel.

13. This brings us to examine her claim for alternative relief of enhancement of the maintenance. The maintenance awarded under the compromise decree is a sum of Rs. 65/- per mensum. She was also given two rooms in 'B' Schedule house for her residence. Now she claims to have three rooms in the ground floor and one room in the upstair. With regard to her claim for additional provision for her residence , we do not find any merit. There is no acceptable evidence in support of her claim. She is alone and she will not require four rooms in Sultan Bazar house. In fact, she was satisfied with two living rooms at the time of the compromise decree. We, therefore, hold that the two rooms in 'B' Schedule house already allotted to the plaintiff would be sufficient for her residence.

14. The only point that survives for our consideration is whether, on the facts and in the circumstances , the appellant is entitled to claim enhancement of the maintenance of Rs. 65/- per month awarded to her under the compromise decree in O. S. No. 14 of 1961 and if so, what is the proper and just amount that should be fixed in the altered circumstances. The Court below has rejected the claim of the plaintiff for enhanced maintenance on the ground that the compromise decree is a bar. This view of the Court below is erroneous and unsustainable. Prior to the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the 'Act') an agreement by a Hindu widow with her husband's coparceners to receive a certain amount of maintenance per month or per annum and not to claim increase in future , was held to be valid and binding on the widow, by the Madras High Court in Mouleswara Rao v. Durgamba, ILR 17 Mad 308 = (AIR 1924 Mad 687) and kameswaramma v. Thammanna, (1939) 2 Mad LJ 460 = (AIR 1939 Mad 798). But , however, this legal position has been altered by the enactment of Section 25 of the Act, which reads thus :-

'The amount of maintenance, whether fixed by a decree of Court or by agreement either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration.'

Section 25 entitles a maintenance holder to claim enhanced rate of maintenance if there is a material change in the circumstances justifying such alteration. The section will apply to cases where the quantum of maintenance has already been fixed either by a decree of Court or by agreement between the parties. 'A decree of Court' referred to in Section 25 is wide enough to take in a consent or compromise decree as there is no restriction with regard to the nature or type of the decree. The very intendment and object of Section 25 being to benefit the maintenance holder and thereby permit her to plead higher rate of maintenance in altered or changed circumstances , the expression 'a decree of Court' used therein must be construed liberally so as to take in all types of decrees including a consent or compromise decree. It may be noticed that the provisions of Section 25 are applicable to any case where the fixation of the quantum of maintenance was made either before or after the commencement of the Act. The heart of the matter is that in order to justify enhancement of maintenance , there should be material change in the circumstances justifying such enhancement. It may also be noticed that the expression used is 'altered' but not 'enhanced' . Alteration may be construed as enhancement or reduction depending upon the facts and circumstances which brought out the material change for the claim of maintenance. Hence, it admits of no doubt that enhanced maintenance due to change in the circumstances is permissible under Section 25 of the Act. We are fortified in this view of ours by the decision of a Division Bench of this Court in Chimalakonda Ambayamma v. Chimalakonda Ganapathi, : AIR1969AP213 . It was held therein that though the widow had agreed under the terms of the compromise decree not to ask for increased maintenance, she was still entitled to claim for the increase under S. 25 of the Act. For all the reasons stated , we hold that the plaintiff's alternative claim for enhanced maintenance is sustainable if there is a material change in the circumstances justifying enhancement.

15. This brings us to examine whether there is any material change in the circumstances justifying her claim for altered maintenance. The ground on which the plaintiff seeks enhancement is the abnormal rise in the cost of living. Mr. Ugle contends that there is no acceptable evidence for enhancement of the quantum of maintenance. It is stated by the plaintiff and her witnesses that there is a marked increase in the cost of the daily necessities. The Court can certainly take judicial notice of the abnormal cost of living. Hence we are of the firm view that there is a material change in the circumstances justifying enhancement of the maintenance amount of Rs. 65/- fixed under the earlier compromise decree.

16. We shall now advert to the quantum of maintenance that has to be fixed for the plaintiff. It is well settled that the quantum of maintenance has to be fixed on a consideration of the following material facts and circumstances ; (I) the amount of free estate and the net income from the family properties; (ii) the past life of the married parties and the families ; (iii) a survey of the condition and necessities and rights of the members of the family ; (v) scale and mode of living ; and (vi) age, habits, wants and class of living of the claimant for maintenance. See Mt. Ekradeshwari v. Homeshwar, (AIR 1929 PC 128) ; Nagendramma v. Ramakotayya, : AIR1954Mad713 ; M. Sathyanarayanamurty v. M. Jagamma, (AIR 1962 Andh Pra 439) and Thayammal v. M. Gounder, : AIR1971Mad282 .

17. The plaintiff's husband was part-time clerk in a library and also an insurance agent and was earning some decent income. The defendant who is the elder brother of the plaintiff's husband was practicing as an advocate in the civil courts at Hyderabad prior to 1951 when he was appointed as a District and Sessions Judge. After his retirement as District Judge, he worked as a member of the Revenue Tribunal in the State of Maharashtra. The plaintiff was living with her husband and thereafter with her son in the 'B' Schedule house at Sultan Bazar , Hyderabad. She is stated to have been a very orthodox Brahmin. She believes in doing certain pujas and going on pilgrimage to some holy places in the country. The family possessed about 210 acres of dry land in Parbhani district in the State of Maharashtra. Though the plaintiff and her witnesses depose that the net income of the family lands would be not less than Rs. 12000/- per annum. D. W. 1 says that the income from Items 1 to 6 of the plaint 'A' Schedule will be ranging from Rs. 3,000/- to 4,000/- and Items 8 and 9 would fetch Rs. 100/- . The net income from the family lands would be Rupees 5,200/- per annum even according to the evidence of D. W. 1. The net income of Rs. 5,3000/- as deposed to by the defendant would not work out to even Rs. 31/- per acre. Mr. Bharati contends that most of the lands are of rich blank cotton soil and taking into consideration the high price of agricultural produce prevailing in these years, the net income would be not less than Rs. 10,000/- which may word out to Rs. 50/- per acre on average. Just as the plaintiff and her witnesses are interested in exaggerating the net income of the family properties , the defendant is naturally interested in trying to show the income to be very much less. D. W. 1 has not maintained any accounts for the income from the family's agricultural properties. However, Mr. Ugle relies upon the evidence of P. W. 5 in support of his claim that the annual net income of the family lands would be not less than Rs. 5,000/- . It may be noticed that P. W. 5's evidence, on which strong reliance has been placed by Mr. Ugle does not render any assistance to this claim of the defendant . P. W. 5 has not cultivated the lands of the family. He is only a commission agent who purchased some of the agricultural produce from the defendant in some years. He can therefore speak only to the value of the produce purchased by him , but he is not the competent witness to speak to the annual income from the lands belonging to the joint family of the defendant and the plaintiff. In the circumstances, it cannot be said that what was sold to P. W. 5 was only agricultural produce that was actually harvested by the defendant in the family lands. As pointed out earlier, no accounts have been produced by the defendant in support of his evidence. That apart, the value of the agricultural produce has considerably risen in recent years. On a careful consideration of the entire material, oral and documentary, and the circumstances, we hold that the net income of the family lands would be not less than Rs. 6,000/- per year. It is well settled that the plaintiff, as the widow of Manik Rao or as the mother of the last male-holder Madhukar, would be entitled to claim maintenance on the basis of their share of income from the family properties. However, there is no rule of thumb having universal application that the widow should be allotted the entire share of income to which her husband , if alive, would have been entitled. Hence, we are unable to agree with Mr. Bharati that his client should be allotted half of the net income from the family properties and it should not be reduced. Taking into consideration the age of the plaintiff, the status of the family and that of the defendant who worked as a District and Sessions Judge, the mode of living of the members of the family and the reasonable wants of the plaintiff, we feel it just and proper to fix a monthly maintenance of Rs. 185/- per mensem from the date of the suit, i.e. 31-10-1964.

18. In the result, the maintenance amount of Rs. 65/- fixed for the plaintiff in O. S. No. 14/61 is enhanced to Rupees 185/- per mensem payable by the defendant from 30-10-1964. The appeal is allowed to the extent indicated above and dismissed in all other respects. There shall be no order as to costs. The plaintiff shall pay the court-fee payable on the memorandum of appeal.

19. Appeal allowed.


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