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Ganta Kondamma Vs. Ganta Seethamma - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberLetter Patent Appeal No. 22 of 1972
Judge
Reported inAIR1973AP319
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 25
AppellantGanta Kondamma
RespondentGanta Seethamma
Appellant AdvocateN.V. Sankara Rao, Adv.
Respondent AdvocateN. Subba Reddy, Adv.
Excerpt:
.....rule that a statute should be interpreted if possible, so as to respect vested rights, and such a construction should never be adopted if the words are open to another construction. 32. when it is not disputed that under the traditional hindu law as well as even after the act came into force, it is possible for a widow to relinquish her right of maintenance, we fail to see how the previous operation of such law can be disregarded because of section 25 of the act. '38. distinction was clearly made in that judgment between the agreement fixing the amount of maintenance and an agreement relinquishing the right of the maintenance itself. it was a case where at best the decision could have been distinguished on facts......if any. if a widow entitled to receive maintenance had entered into an agreement to receive a fixed maintenance per mensem, per annum or for whole life and had expressly contracted not to claim any increase in future even in case of change of circumstances it was held to be binding upon the widow. see a. mouleswara rao v. a. durgamba, air 1924 mad 687 and purushottamdas v. rukmini, air 1937 bom 358.16. it would thus be plain that a widow or a person entitled to receive maintenance under hindu law could agree not to claim enhancement in the amount of maintenance fixed and that was binding on such widow or person. likewise the widow or the person entitled to maintenance could agree to receive a lump sum or some property in lieu of maintenance and relinquish the right to.....
Judgment:

Ekbote, C.J.

1. There were two brothers G. Chenchu Naidu and Narappa Naidu. They constituted a Hindu Joint Family. They owned ' A ' schedule immovable properties at Kesavaram village. Chenchu Naidu died undivided some 37 years before without leaving no issue. The plaintiff is the widow of Chenchu Naidu. She claimed maintenance from Narappa Naidu who was the sole surviving coparcener. As a result of some mediation, the plaintiff and Narappa Naidu came to an agreement. Narappa Naidu paid Rs. 400 /- in full quit of maintenance keeping in view the property of the family. She executed a registered relinquishment deed on 14-9-1936 whereby she gave up all her rights in the family immovable property and also gave up her rights of maintenance against the family. She agreed not to raise any dispute about her maintenance thereafter.

2. While so, she instituted a suit for recovery of past and future maintenance. She claimed 1/2 putties of paddy, Rs. 300 /- per annum towards clothing and utensils, and Rs. 3,000 /- towards provision for residence. She also claimed Rs. 4,950 /- arrears of maintenance of six years. She contended that the amount paid under Exhibit B-1, the relinquishment deed was temporary and as the cost of living had increased, the amount was insufficient. It was also stated that the defendant, who is the widow of Narappa Naidu, is receiving a large income from the family properties. Therefore she is entitled to the enhanced maintenance.

3. The suit was resisted by the defendant mainly on the ground that under Exhibit B-1, the plaintiff had relinquished her right of maintenance. Therefore she cannot claim any maintenance, leave aside the enhanced maintenance.

4. The trial Court framed appropriate issues and after recording the evidence produced by the parties dismissed the suit by its judgment dated 1-6-1966. It was found that the plaintiff's maintenance claim was permanently settled under Exhibit -1.

5. On appeal, our learned brother M. Krishna Rao, J., decreed the plaintiff's suit. He held that ' in more than one case it was held by this Court that the maintenance-holder was not debarred from ignoring the agreement or decree in seeking further relief. ' He relied on S. Kameswaramma v. Subramanyan, : AIR1959AP269 and C. Ambayamma v. C. Ganapathi, : AIR1969AP213 . He observed that ' in Muthyalamma v. China Appanna, 1968-1 Andh WR 429, it was held by a learned single Judge of this Court that the expression agreement used in Section 25 of the Act does not cover a case where a claim for maintenance was once for all fixed at a lump sum in full settlement of the claim. The said decision has been recently overruled by a Division Bench of this Court in a Judgment dated 31-3-70 in Second Appeal No. 432 of 1968 ( Andh Pra ) ( Seetharamaiah v. Padmavathi ) wherein it was held that the agreement contemplated in Section 25 includes also an agreement as in the present case where the claim for maintenance was permanently settled by praying a lump sum amount. '

6. Following the said decision of the Division Bench, the learned Judge decreed the plaintiff's suit as mentioned in his Judgment.

7. When the L. P. A. against the judgment of the learned Judge came before a Bench of this Court on 16-11-1972, the Bench directed the case to be referred to a Full Bench in view of the importance of the question involved. That is how the case has come before us.

8. The question thus arises on Section 25 of the Hindu Adoptions and Maintenance Act ( hereinafter called the Act ) which was passed for protecting the rights of maintenance of those who are entitled to such maintenance adequately. While we construe the section so as to produce the effect intended by the Legislature, we ought not, in construing it, to give more retrospective effect to it than what was plainly intended by the legislature, because if we do so, we shall run the risk of interfering with honest transactions which have entered into and were closed prior to the Act for all intents and purposes. The construction of Section 25 therefore raises the question of the limits of its retrospectivity.

9. It cannot be in doubt that a statute is deemed to be retrospective which takes away or impairs any vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty or attaches a new disability in respect of transactions or considerations already past. But a statute would not be called a retrospective statute merely because a part of the requisites for its action is drawn from a time antecedent to its passing.

10. Section 25 of the Act, if read in this context, it would be easily seen that it is retrospective in its operation. It not only disregards certain contracts not to increase the amounts of maintenance but it expressly states that even if the claim of maintenance is merged in a decree or is made subject of an agreement entered into prior to the Act, its quantum can be enhanced if circumstances warrant.

11. It is now firmly held that no statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require such a construction. And the same rule involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.

12. We must therefore look at the general scope and purview of the Act, and at the remedy sought to be applied, and consider what it was the legislature contemplated.

13. Now under the traditional Hindu Law, the amount of maintenance, whether it is fixed by a decree or by agreement, was liable to be increased or diminished, whenever there was such a change of circumstances as would jointly a change in the rate. See S. Sankaranarayana v. Lakshmi Ammal, : AIR1960Mad294 , Smt. Saraswathi v. Smt. Rupa, AIR 1962 Orissa 193, Siddalingappa v. Sidava, ( 1878 ) ILR 2 Bom 624 and Rajendar v. Putto, ( 1879 ) 5 Cal LR 18.

14. What is thus plain is that the rate of maintenance could be enhanced if the income has materially increased or there was material increase in the cost of living, provided of course that this increase was not anticipated and allowed for at the time of the decree or agreement. Likewise the quantum of maintenance could be reduced if the income had diminished.

15. This increase or decrease in the rate of maintenance was, however, subject to an agreement of the maintenance if any. If a widow entitled to receive maintenance had entered into an agreement to receive a fixed maintenance per mensem, per annum or for whole life and had expressly contracted not to claim any increase in future even in case of change of circumstances it was held to be binding upon the widow. See A. Mouleswara Rao v. A. Durgamba, AIR 1924 Mad 687 and Purushottamdas v. Rukmini, AIR 1937 Bom 358.

16. It would thus be plain that a widow or a person entitled to receive maintenance under Hindu Law could agree not to claim enhancement in the amount of maintenance fixed and that was binding on such widow or person. Likewise the widow or the person entitled to maintenance could agree to receive a lump sum or some property in lieu of maintenance and relinquish the right to maintenance.

17. It was clear that the right to maintenance did not rest on contract of the parties but on the provisions of Hindu Law which expressly governed the rights and duties of the different members of the Hindu family. Such a right, however, could be restricted by agreement or could be surrendered or relinquished altogether for a consideration.

18. It is true that right to future maintenance was not transferable under the provisions of the Transfer of Property Act. It continues to be so. This however, did not mean that the right to maintenance could not be given up or relinquished as it did not even now does not amount to transfer within the meaning of Section 6 (dd) of the Transfer of Property Act.

19. This then was the position of law in so far as it is relevant for our purpose prior to the Act. The Act has undoubtedly brought about some material and important alterations and modifications in the rule of Hindu Law relating to maintenance. The Act, however, is not exhaustive on the law of maintenance; but in respect of all matters dealt with in the Act it supersedes the rules of the law of maintenance previously applicable of Hindus. The Act also supersedes any other law contained in any legislation, Central or State in so far as such legislation is inconsistent with the provisions of the Act.

20. What then is the alteration or modification which Section 25 of the Act makes in the rules of Hindu Law relating to quantum of maintenance or right to surrender or relinquish the right to maintenance In our judgment the section makes one substantial change and that is that it supersedes the agreements, if any, whereunder the maintenance holders had contracted not to claim enhancement in the maintenance fixed in the agreement or decree. To this extent undoubtedly Section 25 is retrospective as it disregards any such term of the decree or the agreement. That is the direct effect of the few introductory words of Section 25 of the Act. They read :

'The amount of maintenance, whether fixed by a decree of Court or by agreement , either before or after the commencement of the Act. '

21. The words used are of wide amplitude and admit no restrictive interpretation. In order that the section should apply, it is enough to show that the amount of maintenance is fixed in a decree or agreement. The Court then has jurisdiction to enhance its quantum so fixed if changes in the circumstances justify. The Court's discretion is not made subject to any contract between the parties or to any term of the decree by and under which the maintenance holder could not claim enhancement in the amount of maintenance, even if there has been a material change in the circumstances. If any such term is permitted to be effective even after S. 25 came into force, it would plainly be inconsistent with that section. Such a term in reality stands superseded by virtue of Section 25 read with Section 4 of the Act. Thus the necessary meaning and effect of those opening words of Section 25 is that notwithstanding any contract or term in a decree that the amount fixed shall in no case be increased the Court can direct enhancement in the quantum so fixed in the agreement or decree if the circumstances so justify. Even in the presence of any such condition, the agreement or the decree would be said to have fixed the amount of maintenance. It is immaterial whether the amount is fixed for a month, a year or even for life. It is now settled that the expression that the maintenance is to be paid to a widow for her life cannot be construed as involving a release of the right to have the amount raised if circumstance entitled her to it. See Subramaniam Pattar v. Vembammal, ( 1904 )14 Mad LJ 339. As long as the agreement shows that an amount of maintenance is fixed with nothing more, enhancement in it can claimed under Section 25 although there may be a condition that no enhancement shall be claimed.

22. What is plain is that it is those opening words which have been given liberal construction because Section 25f enacts a beneficial social legislation. The purpose of it is to protect helpless widows and others entitled to maintenance against the abuse of their position in the family. That is the true position of Section 25 of the Act can be seen from the following decisions, S. Kameswaramma v. Subramanyam, : AIR1959AP269 ; Seshi Ammal v. Thaiyu Ammal, : AIR1964Mad217 ; Raja Gopal Rao v. Sitha Ramamma, : [1965]3SCR122 and V . Rangamma v. V. Venkatarajulu, : AIR1966Mad428 .

23. All these decisions however, lay down only one thing and that is that notwithstanding any agreement by a widow or other maintenance holder not to claim higher rate of maintenance, even when changed circumstances warrant, such a person would be entitled to enhanced maintenance under Section 25 of the Act if there has been a material change in the circumstances.

24. It must be borne in mind that the said decisions do not relate to a question, as here where the right to maintenance itself was relinquished albeit in consideration of specified sum of money. In principle it would not make any difference if the right to maintenance is given up in lieu of some moveable or immovable property or in lieu of a certain amount. These decisions do not concern themselves with the question as to whether the right of maintenance which stood relinquished prior to the Act gets revived under Section 25 of the Act. These decisions therefore are not authorities for the proposition that even if right to maintenance is relinquished prior to the Act, the result of the opening words of Section 25 is to revive the right and the Court can enhance the amount of maintenance even if such a case. There is no justification for confusing the two distinct and separate and mutually exclusive problems. The operation of these decisions therefore cannot be extended to the cases of relinquishment of right to maintenance effected to prior to the Act. Any such appraisal of these decisions would open the floodgate of cases even where rights to maintenance was extinguished long prior to the Act. It is true that the word ' agreement ' appearing in Section 25f is of wider import and there is no justification to restrict the scope of that word. It must, however, be remembered that though the width of that word may not expressly or by necessary implication exclude any category of arguments, yet however comprehensive that word may be, the agreements in all cases must have fixed amount of maintenance for the operation of that section. What is thus plain is that any agreement which does not fix the amount of maintenance would not come within the purview of Section 25. Where an agreement releases or relinquish the very right to maintenance, can it validly be contended that even such an agreement fixes the amount of maintenance Distinction ought to be made between a lump sum amount fixed for maintenance for life and a lump sum amount paid as a consideration for relinquishment of the right to maintain itself. In one the right subsists and in the other it is extinguished. One is apt to go wrong if this difference is not borne in mind.

25f. Now the term ' release ' has been defined as the relinquishment concession, or giving up of a right, claim or privilege by a person in whom it exists or to whom it accrues to the person against whom it might have been demanded or enforced. Vide Corpus Juris Secundum. Volume 76, page 629.

26. The relinquishment of a right according to this definition would not amount to a transfer of a property. It may be that in view of language of a given instrument, it is possible to hold that a document entitled release deed may yet be found to be a transfer. But on that amount every deed of relinquishment would not automatically become a transfer of property. If relinquishment means the extinction of right, we fail to see what would be left for transfer or sale.

27. In the instant case the deed (Exhibit B-1) is a plain relinquishment of right to maintain executed by the plaintiff entitled to be maintained in favour of the husband of the defendant who in law was obliged to maintain the plaintiff. We do not therefore consider any justification to hold that Exhibit B-1 is not a relinquishment deed but is a case of transfer of future maintenance as was contended by Sri. N. Subba Reddy, the leaned counsel for the plaintiff.

28. Exhibit B-1 expressly states that the plaintiff has relinquished or given up her right to maintain. She categorically said that she will have no right to family property out of which she had the right to be maintained. She did not stop at that. She further and quite unambiguously said that she has given up her right to maintenance and that she will not raise any dispute regarding the right to maintenance thereafter. We do not consider there could have been more apt and clear words to extinguish her right to maintenance. It would be misreading the deed if Exhibit B-1 is construed as fixing the amount of maintenance and keeping the right to maintenance alive. It would be contrary to the plain language of the deed and would be inconsistent with the intention of the parties so clearly expressed..

29. Furthermore the opening words of Section 25 are not capable of reviving or re-opening of the right to maintenance which had ceased to exist on the day of the Act.

30. We have already noticed the principles that the statutes are prospective and will not be construed to have retroactive operation unless the language admits of no other construction. Retrospective effect, likewise, shall not be given to a greater extent than what was plainly intended. Section 25 to antecedent transactions and events of relinquishments of the right to maintain solemnly concluded prior to the Act Is there anything in the section or in the context of the Act or anything which can be collected from its language which might give words prima facie having retroactivity regarding fixation of amount of maintenance a larger retroactive operation resulting in re-opening rights of maintenance relinquished and transactions and events already closed and concluded It is plain that unless one finds some express or necessarily implied words which create that result one should be slow in giving a greater or enlarged retrospectivity to Section 25. We do not think the introductory words of Sec. 25 can be so extended as to take within their fold even the cases where right to maintenance had come to an end and was not subsisting on the date of the Act. We have noticed that the distinction between an agreement fixing the amount of maintenance and an agreement extinguishing the right itself is plain and unmistakable. It is obvious that Section 25 will apply only to cases where right to maintenance is subsisting on the day of the Act. If the right had ceased or extinguished S. 25 has no application. After the extinguishment of right to maintenance it would cast no obligation on the defendant to pay the maintenance amount. Thus vested rights and obligations would be deemed to have been created. If such vested rights were intended to be affected, we would have expected a clearer language in that behalf. In : [1965]3SCR122 ( it was ) held :

'Now, before the Act came into force, rights of maintenance out of the estate of a Hindu dying before the commencement of the Act were acquired, and the corresponding liability to pay the maintenance was incurred under the Hind Law in force at the time of his death. It is a well-recognised rule that a statute should be interpreted if possible, so as to respect vested rights, and such a construction should never be adopted if the words are open to another construction. '

31. In the absence of anything in the Act to show that it is to have retrospective operation in re-opening the closed transactions and events and to have the effect of altering the law applicable to claim or obligation at the time when the Act is passed, it cannot be so construed.

32. When it is not disputed that under the traditional Hindu Law as well as even after the Act came into force, it is possible for a widow to relinquish her right of maintenance, we fail to see how the previous operation of such law can be disregarded because of Section 25 of the Act. It seems to us even in construing a provision which is to be a certain extent retrospective we ought nevertheless, to bear in mind that maxim as applicable wherever we reach the line at which the words of Section 25 cease to apply. We are therefore very clear in our mind that the opening words of Section 25f apply only to the agreements which fix the amounts of maintenance and give retrospectivity to the extent that even if the agreement enjoins not to enhance the amount of maintenance, it is retrospective even though the agreements were entered into prior to the Act. But beyond that we do not think these introductory words are capable of being extended even to an agreement whereby the right to maintenance itself is relinquished . Such an extension is not necessary and is not the logical corollary of the words and the proposition is clear that you ought not to give a larger retrospective power to the section even in an Act which is to some extent intended to be retrospective, then you can plainly see what the Legislature meant.

33. We have then consider the decision of the Division Bench in S. A. 432 of 1968 dated 31-3-1970. In that case, Exhibit B-1 dated 14-12-1935 was in question. Under the said agreement, the wife was to receive a sum of Rs. 2,500 /- in full settlement of her maintenance for her lifetime. She had agreed that she would not be entitled to claim any further enhancement of maintenance. It would be immediately seen that there was no relinquishment of the right to maintenance involved in that case. That question therefore was not relevant for a decision in that case. The learned Judges were of course right in holding that the expression ' agreement ' used in Section 25 is comprehensive enough to take in even cases where a lump sum was settled in lieu of maintenance. They relied on : AIR1964Mad217 . There can be no quarrel in so far as this proposition is concerned.

34. However with great respect to the learned Judges, we are bound to say that ( 1968 ) 1 Andh WR 429 was not properly appreciated. Unfortunately even the learned single Judge, who referred the case to the Bench, missed the core point in the case. The learned Judges in reference to that case said :

'The learned Judge interpreting the expression ' agreement ' used in Section 25 felt difficulty in accepting that it would include the agreement under which the right of maintenance is relinquished in lieu of a fixed sum. That was also a case where a person entitled to maintenance compromised and accepted a definite sum in lieu of her right to be maintained from the joint family property. With great respect to the learned Judge we are unable to construe the word ' agreement ' as of limited application so as not to cover cases where maintenance was fixed at a lump sum in full settlement of such a claim. '

35. Let us examine ( 1968 ) 1 Andh WR 429 to see whether the facts and the law of that case were rightly understood. On a reading of that judgment, it would be evident that nowhere it said that the word ' agreement ' is not a limited application. On the other hand it is plainly said ' It may be that the word ' agreement ' used in Section 25 is applicable to all kinds of agreements fixing the maintenance. '

36. It is pertinent that the judgment refers to : AIR1959AP269 wherein the term ' agreement ' was given a comprehensive meaning.

37. That apart the question involved in that case, as here, was whether an agreement whereby the right to maintenance is relinquished would come within the purview of Section 25f of the Act. The question in that case was not whether cases where maintenance was fixed at a lump sum would fall within the ambit of Section 25. It was expressly held therein that :

'Where, however, a person entitled to be maintained compromises and accepts definite sum in lieu of her right to be maintained from the joint family property and relinquishes her right. I have no doubt that Section 25 will not apply to such a case. '

38. Distinction was clearly made in that judgment between the agreement fixing the amount of maintenance and an agreement relinquishing the right of the maintenance itself. The case belonged to the latter category and not to the first. ( The crux of the whole problem therefore seems to have obviously been missed in an attempt to appreciate the decision in ( 1968 ) 1 Andh WR 429 ). We are confident that if this important difference in facts and law applicable had been brought to their Lordships ' notice, they would not have disagreed with that decision. It was a case where at best the decision could have been distinguished on facts. In our judgment, ( 1968 ) 1 Andh WR 429 was rightly decided. We have already noticed that in the Division Bench case no question of relinquishment of right to maintenance really arose. The said 2 case does not give any decision on that question. It was not necessary for disposal of that case. That case, therefore, cannot be taken as an authority for the proposition that an agreement relinquishing the right to maintenance prior to the Act would still be governed by Section 25 of the Act.

39. What follows therefore is that in the present case, the learned single Judge in following the said unreported decision of Division Bench has, with due respect, erred in deciding that the plaintiff in spite of her relinquishment of her rights is entitled to a decree for enhanced maintenance. In fact to the instant case it is ( 1968 ) 1 Andh WR 429, which applied and in the light of that case the plaintiff's suit was liable to be dismissed.

40. In the view which we have taken of law and of Exhibit B-1, we have no manner of doubt that the plaintiff had relinquished her right to be maintained under Exhibit B-1. Section 25 would not apply to her case and consequently she will have no right to claim enhancement in the amount of maintenance as her right itself was extinguished and was not subsisting on the date of the Act. The trial Court, in our judgment, was right in its conclusion although not in its reasoning. We would accordingly allow the appeal set aside the judgment of the learned single Judge and dismiss the plaintiff's suit. In the circumstances of the case, however, we leave the parties to bear their own costs throughout.

41. Appeal allowed.


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