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Chimalakonda Ambayamma (Died) and anr. Vs. Chimalakonda Ganapathi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 1021 of 1962
Judge
Reported inAIR1969AP213
ActsHindu Adoption and Maintenance Act, 1956 - Sections 21, 22 and 25
AppellantChimalakonda Ambayamma (Died) and anr.
RespondentChimalakonda Ganapathi
Appellant AdvocateV. Jogayya Sarma, Adv.
Respondent AdvocateT. Veerabhadraiah, Adv.
Excerpt:
.....of maintenance - petitioner agreed to terms of agreement and compromised not to ask for increased maintenance - maintenance fixed by an agreement can be altered subsequently under varying circumstances under section 25 of act - widow clearly entitled to maintenance under hindu law and independent of sections 21 and 22 of 1956 act - held, alteration can be granted under changed circumstances. - - no doubt there are broad observations in that case to the effect that the right maintenance is a recurring right and the liability to maintenance after the act came into force is imposed by section 22 and there is no reason to exclude widows of persons who died before the act from the operation of section 22. those observations were not necessary for the purpose of that case, because the..........687) and kameswaramma v. thammanna, (1939) 2 mad lj 460 = (air 1939 mad 798), that a contract by a hindu widow with her husband's coparceners to receive a fixed maintenance per annum and not to claim increase in future, even in case of changed circumstances, is a valid agreement. section 25 of the act, however, altered this position. it reads:'the amount of maintenance whether fixed by a decree of court or by agreement, either before or after the commencement of the act, may be altered subsequently if there is a material change in the circumstances justifying such alteration.'a plain reading of the section would leave no doubt that a decree or agreement fixing maintenance will not bar a widow from claiming increased maintenance if the circumstances justify such alteration. it is.....
Judgment:

Jaganmohan Reddy, C.J.

1. This second appeal has been referred to this bench by our learned brother Basi Reddy J., as raising an important question under S. 25 of the Hindu Adoptions and Maintenance Act in respect of which it is said there is a conflict authority. There are two decisions of this Court: one of a Bench consisting of Subba Rao, C. J. and Mohd. Ahmad Ansari, J. (as they then were) in Kameswarmma v. Subrahmanyam, : AIR1959AP269 and the second of a Full Bench consisting of Chandra Reddy, C. J., Srinivasachari and one of us (the present Chief Justice) in Ramamurthy v. Sitaramma, : AIR1961AP131 (FB), which bear upon the question. Before we examine these cases, it is necessary to state briefly the facts which give rise to the question before us, viz., whether the death of the deceased whose widow is claiming enhanced maintenance should have been after commencement of the Act in order to get the benefit of Section 25 ofsaid Act There were two brothers Venkateswarlu and Padmanabham. Venkateswarlu died in 1906 or 1907 leaving a widow, the plaintiff-appellant, and a will Ext. B-3 dated 22-9-1906. Padmanabham had two sons, Sambamurthy and Ganapati. Under the terms of the will Venkateswarlu left all his properties to Sambamurthy burdened with a liability to maintain his widow at the rate of Rs. 20 per year. In 1927, the widow filed O. S. No. 542 of 1927 for enhancement of maintenance. In that suit there was a compromise and a decree was passed on 14-9-1928 enhancing the maintenance from Rs. 20 to Rs. 35 year. The decree further any increase in the maintenance. It may also be stated that there is a charge created on the property of the deceased in respect of this enhanced maintenance under the compromise decree. On 10-7-1933 Sambamurthy executed a settlement in favour of his brother, Ganapati by a registered document Ext. A-3. Thereafter he died though it is not relevant for the purpose of this second appeal as to the date purpose of this second appeal as to the date when he died, and the property was in his possession and enjoyment both under the settlement deed as also as the heir of Sambamurthy. In 1990 the widow filed a suit against Ganapati for enhancement of maintenance from Rs. 35 to Rs. 600 per year on the ground that the income of the property had increased and the cost of living also had gone up. The trial Court awarded her ten bags per year which at the prevailing rate amounted to Rs. 240 and decreed the suit. The District Judge, while agreeing with the finding by the trial Court is reasonable, nonetheless held having regard to Ramamoorthy v. Sitaramma, : AIR1961AP131 (FB) that an alienee was under no personal obligation to pay the maintenance. In this view he allowed the appeal and dismissed the suit.

2. The question which arises for consideration is whether the widow is entitled under Section 25 to claim increased maintenance having regard to the change in circumstances, notwithstanding the fact that under a prior decree she had been awarded maintenance and that she had agreed under the terms not to ask for increased maintenance.

3. Prior to the Hindu Adoptions and Maintenance Act, 1956, under the Hindu Law it has been held by the Madras High Court in Mouleswar Rao v. Durgamba, ILR 47 Mad 308 = (AIR 1924 Mad 687) and Kameswaramma v. Thammanna, (1939) 2 Mad LJ 460 = (AIR 1939 Mad 798), that a contract by a Hindu widow with her husband's coparceners to receive a fixed maintenance per annum and not to claim increase in future, even in case of changed circumstances, is a valid agreement. Section 25 of the Act, however, altered this position. It reads:

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

A plain reading of the section would leave no doubt that a decree or agreement fixing maintenance will not bar a widow from claiming increased maintenance if the circumstances justify such alteration. It is immaterial whether the decree or agreement was before or after the Act nor is there anything in the section to justify the conclusion that the initial right of maintenance to a widow must have accrued to her only after the commencement of the Act, i.e., that the death of the husband should have been place after the commencement of the Act.

4. Section 25 was considered in : AIR1959AP269 (supra) by a Bench. Subba Rao, C. J. (as he then was), examining the position of Hindu Law as existed prior to the enactment and after citing the provisions of Section 25 dealt with the contention that the section did not enlarge the pre-existing right of a widow for maintenance but only gave a statutory recognition to it. He observed at p. 14 (of Andh WR) = (at p. 270 of AIR) thus:

'The Act both amended and codified the law relating to maintenance among Hindus. The word `agreement' is admittedly comprehensive enough to take in an agreement of either description. The Legislature does not expressly or by necessary implication exclude any category of agreements fixing maintenance from the operation of the section. If there was a valid reason for binding the parties to the term agreed upon between them, there would also be equal justification for protecting the widow from being bound by an unjust agreement precluding her from claiming enhanced maintenance in changed circumstances. We do not, therefore, see any justification not to give the widest meaning to the word `agreement' which it can bear. We hold that notwithstanding the agreement by the widow not to claim higher rate of maintenance in the changed circumstances, she would be entitled to enhanced maintenance under the provisions of the Act if there was a material change in the circumstances.'

In that case, the husband died in 1916 and after his death, his widow filed a suit in which a compromise decree was passed on 29-7-1924 awarding her maintenance at Rs. 240 a year. It was also agreed between the parties that the plaintiff should not raise any dispute claiming enhanced rate of maintenance and that the defendants should not raise any dispute for reducing that rate. In the view of the law, which was discussed, it was held that the widow was entitled to maintenance Rs. 2,400 per year as determined by the trial Court. In that case it was argued, as in this case, that Sec. 25 applied only to a widow whose husband died after the Act came into force. But that argument was repelled, holding that Section 25 does not impose any such restrictions or limitations. The Act is an amending and codifying Act and under section 4 thereof, save as otherwise expressly provided in the Act, the pre-existing law ceases to have effect with respect to any matter for which provision is made in the Act or if it is inconsistent with any of the provisions of the Act. In dealing with this aspect of the matter, references seems to have been made to Section 21 and 22 of the Act and the learned Chief Justice observed that even in respect of those two provisions, the same rule will apply and that it made no difference whether the husband died before or after the commencement of the Act. These observations in relation to Sections 21 and 22 came up for consideration by the Full Bench in : AIR1961AP131 (FB) (supra), to which one of us (the present Chief Justice) was a party. The Full Bench inasmuch as the consideration that are relevant for an interpretation of Section 25 do not bear on Section 22. Chandra Reddy, C. J., speaking for the Full Bench, said at p. 356 (of Andh WR) = (at p. 134 AIR)

'.............On the other hand, the language of this section contrasted with that of Section 22 also lends some countenance to the theory that Section 22 is restricted to persons claiming maintenance from the estate of a Hindu dying after the commencement of the Act.'

A perusal of Section 22(2) would show that there is a specific reference to the date of the death occurring after the commencement of the Act. Be that as it may, we are not considering the effect of Section 22 in this case as the defendant is not sought to be made liable under that provision.

5. In an appeal against the Full Bench decision in : AIR1961AP131 (FB) (supra), their Lordships of the Supreme Court in Gopal Rao v. Sitharama, : [1965]3SCR122 , referred to : AIR1959AP269 (supra) and approved of the decision therein. Bachawat, J., speaking for the Court after setting out the facts in : AIR1959AP269 (supra) observed at p. 1974:

'The question arose whether in spite of this agreement the plaintiff could claim increased maintenance in view of the Sec. 25 of the Hindu Adoptions and Maintenance Act, 1956. It was held that in spite of the aforesaid terms of the compromise she was entitled to claim increased maintenance under Section 25. This conclusion follows from the plain words of Section 25 under which the amount of maintenance, whether fixed by decree or agreement either before or after the commencement of the Act, may be altered subsequently. The decision was, therefore, plainly right. No doubt there are broad observations in that case to the effect that the right maintenance is a recurring right and the liability to maintenance after the Act came into force is imposed by Section 22 and there is no reason to exclude widows of persons who died before the Act from the operation of Section 22. Those observations were not necessary for the purpose of that case, because the widow in that case was clearly entitled to maintenance from the estate of her deceased husband dying in 1916 under the Hindu Law as it stood then, independently of Ss. 21 and 22 of the Act, and in spite of the compromise fixing the maintenance before the commencement of the Act, the widow could, in view of Section 25, claim alteration of the amount of the maintenance.'

6. This decision clearly affirms the view taken by the Bench in Kameswaramma's case : AIR1959AP269 (supra), and in so far as this case is concerned, does not leave the applicability of S. 25 in any doubt. Two recent judgments, one of the Madras High Court in Seshi Ammal v. Thaiyu Ammal, : AIR1964Mad217 and the other of the Mysore High Court in Vedavathi Williams v. Rama Bai, AIR 1964 Mys 265, have also taken a similar view.

7. Before we part with this case, it has been brought to our notice that the plaintiff widow died on 24-9-1964 a fact which Mr. Veerabhadrayya does not contest. In view of this, her heirs will be entitled to claim the maintenance at the enhanced rate which both the Courts have found to be reasonable, namely, 10 bags of paddy a year only up to the said date, namely, 24-9-1964.

8. In the result, the appeal is allowed, the judgment and decree of the District Judge reserved and those of the trial Court restored with costs throughout. The legal representatives of the appellant will pay from out of her estate the count-fee payable on the second appeal to the Government.

9. Appeal allowed.


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