1. The Second Appeal and cross-objections arose out of the judgment and decree passed in AS No. 22/1972 dated 28-10-1974 on the lie of the District Judge, Visakhapatnam which was directed against the judgment and decree in OS, 27/68 dated 6-11-1971 on the file of the Subordinate Judge, Visakhapatnam.
2. The plaintiff filed the suit for maintenance at the rate of Rs. 100 per month Rs. 300 as provision for separate residence and Rs, 100 for cooking utensils. The plaintiffs husband Ammakonda shed in 1942 while he was a member of the joint Hindu family consisting of himself and the two defendants who us the step-brothers of the plaintiffs husband. According to the plaintiff she was unable to endure the ill-treatment caused to her by the defendants and she was, therefore, made to leave for her parents' house and to have residence there. She issued a registered legal notice, the original of Ex A-1 to the defendants claiming maintenance. The defendants gave a reply notice on 21-3-1942 under Ex A-2 imputing her with unchastity by alleging that she eloped with one Ramulu son of Chamanthula Veeranna and as such she is not entitled to claim any maintenance. The plaintiff did not chase to file suit for declaration of her right to maintenance within twelve years after the receipt of Ex A-2, but Kept quiet. She issued another notice to the defendants on 13-2-1967 claiming maintenance at Rs. 200 per month. The defendants again gave a reply denying the plaintiffs claim reiterating the plea taken by them in the previous reply notice Ex. A-2. The plaintiff therefore, filed the above-mentioned suit claiming maintenance at the rates mentioned above. The suit was resisted by the defendants on the grounds (1) that the plaintiff is not entitled to maintenance's on account of' her unchasity and (2) that the suit was barred by limitation since it was not filed within 12 years from 21-3-1942 when the defendants denied the plaintiff's status as the wife of Ammakonda on account of her unchastity.
3. The learned Subordinate Judge held that the plaintiff continued to be the legally wedded wife of Ammakonda, that the suit claim was not barred by limitation that the plaintiff's husband was entitled to 1/4th share from out of the total extent of Acs. 4-70 cents of the joint family and hence a monthly maintenance of Rs. 50/- would be just and proper and charge is created on the specified extent of Acs. 1-1-171/2 cents.
4. Aggrieved with the said judgment and decree the defendants preferred appeal AS No. 22/72 before the District Judge. The learned District Judge agreed with the contentions of the defendants that under Art. 129 of the old Limitation Act a suit by a Hindu widow for declaration of her rights for maintenance should be filed within 12 years from the date on which the right to sue is denied and id the Court comes to the conclusion that the right of the plaintiff to claim maintenance was denied under Ex.A-2 i.e., on 21-3-1942, the suit which was filed on 19-6-1967 would be barred by limitation under Art.129 of the Limitation Act. But the learned District Judge agreed with the learned Subordinate Judge in holding that the plaintiff's status as the wife of Ammakonda is not denied either in the reply notice Ex.A-2 or in the written statement filed defendants merely alleged in Ex.A-2 that the plaintiff eloped with Ramulu and that mere elopement would not bring to an end the marital relationship between the plaintiff and Ammakonda and had not created as per the caste custom and practice and that as the defendants did not deny the status of the plaintiff as the wife of Ammakonda, Art.129 of the Limitation Act has no application to the plaintiff's case. The learned District Judge finally modified the rate of maintenance by fixing at Rs.40 instead of Rs.50 per month and also by creating a charge on an undivided 1/4th share in the plaint schedule land instead of a charge on Acs.1-171/2 cents created by the learned Subordinate Judge.
5. Aggrieved with the judgment and decree passed by the learned District Judge, the defendants again preferred the second appeal in this court. The plaintiff also preferred cross-objection having been aggrieved with the reduction of quantum of maintenance from Rs.50 to Rs.40 per month.
6. When the second appeal came for hearing before our learned brother Muktadar, J., the appellant's counsel contended that it is Article 120 of the Limitation Act that is applicable to the case, because the defendants in their reply notice Ex. a-2 have categorically stated that the plaintiff ceased to be wife of Ammakonda in view of her unchaste life, while the respondent's counsel contended that the court has to see the manner in which the suit has been framed for the purpose of considering the question as to which Article of the Limitation Act is applicable and as the plaintiff has asked for the arrears if maintenance, it is Art.128 but not Article 129 of the Limitation Act., 1908 that is applicable. The learned single Judge felt that an important question of law was involved and as such suit it should be decided by a Division Bench and he made a reference to that effect. It is under these circumstances that the matter came up before us.
7. Sri c. Poornaiah, the learned counsel for the appellants, contends that the defendants took an unequivocal plea in Ex A-2 that the relationship of wife and husband between the plaintiff and Ammakonda ceased when she eloped with Ramulu deserting her husband and living with him for ten days in other villages and the defendants denied categorically the relationship of the plaintiff and Ammakonda as wife and husband and hence the limitation starts from the date of denial of plaintiffs status as wife of Ammakonda under Ex. A-2 and hence the suit is barred by limitation since it was not filed within the period of 12 years from 21-3-1942 as prescribed under Article 129 of the old Limitation Act.
8. A careful examination of the recitals of Ex. A-8 which were extracted by the learned District Judge in para 11 of his judgment makes it abundantly clear that the defendants had denied the plaintiffs status as wife of Ammakonda, on account of the unchastity with which she was imputed. The Courts below, therefore, are not correct in holding that the defendants did not deny in Ex. A-2 the plaintiff's status as wife of Ammakonda.
9. When the status of wife and husband between the plaintiff and Ammakonda was denied under Ex. A-2 dated 21-3-1942 by the defendants, Art. 129 of the old Limitation Act comes into play for the purpose of deciding whether plaintiff's suit is within time barred by limitation.
10. Art 129 (old) thus reads as follows:--
'129. By a Hindu for a declaration of his right to maintenance. Twelve years. When the right is denied.'
Under Art. 124 a suit for declaration of plaintiffs right to maintenance has to be filed within a period of 12 years from the date when the right is denied. if, them is no denial of the right the plaintiff's suit for maintenance is not barred by limitation even if it was filed 12 years after the date of her husband's death. It is the denial of the plaintiff's status as wife of her husband that sets the starting point of limitation under Article 129, In Mt. Shibbi v.Jodhsingh (AIR 1933 Lah 747) the Division Bench of the Lahore High Court held that Art 129 is intended to apply to cases where the status of a person on the basis of which maintenance is claimed is denied.
11. Sri Bhujanga Rao the learned counsel for the respondent contends that the suit for the recovery of arrears of maintenance for 12 years is maintainable, even though the right to maintenance was denied long before 12 years of the date of the suit. In support of this contention he relied upon the observations made by the Full Bench of the Madras High Court In Ratnamsari v. Akilandammal, (1903) ILR 28 Mad 241 at p. 313.
12. The Full Bench in the above cited case observed as follows:--
'Art. 129 of Act XV of 1877 provides a period of twelve years to be reckoned from the time when the right is denied, to obtain a declaration of one's right to maintenance, If such suit were not a mere declaratory one how are we to at count for Article 128 which prescribes a period of twelve years for a suit for recovery of arrears of maintenance. Reading Arts l28 and 129 together, it is obvious that though the right to maintenance may have been denied long before twelve years of the date of suit, the suit for recovery of arrears of maintenance for twelve years preceding the suit can be maintained'
We do not think the Full Bench that a suit for declaration of plaintiff's right to maintenance can be filed even after 12 years from the date of denial of her right. According to the learned judges, if once the Plaintiff obtains declaration of her right to maintenance, for recovery of maintenance for 12 years the suit can be maintained that the Full Bench observed that a suit for recovery of arrears of maintenance for 12 years is maintainable even though the right to maintenance may have been dented lone before 12 years of the date at suit. This cannot be understood that a suit for declaration of one's right to maintenance can be filed even after the 12 year's period of limitation prescribed under Art. 129 from the date of denial of right to maintenance. It should be understood that a suit for declaration of plaintiff right to maintenance should be filed within 12 years as prescribed by Article 129 of the Limitation Act from the date of denial of the plaintiff's right to maintenance and if such a suit is decreed, the right cannot be extinguished by lapse of time and the plaintiff can notwithstanding the non-payment for over 12 years Prior to the suit, sue and recover the arrears within the period of 12 years prescribed under Art. In other words it is open to the plaintiff to file a suit for recovery of arrears of maintenance for twelve years preceding the suit under Art. 128 after obtaining decree for maintenance even though the plaintiffs right to maintenance denied long before 12 years of the of date for recovery of arrears. This the proper interpretation of the view the Full Bench mentioned above.
13. The plaintiff in this case did not file a suit and obtain a decree declaring her right to maintenance within 12 years after her right to maintenance was denied by the defendants under Ex A-2. In such a case the question of her right to recover the arrears does not arise at all. We cannot, therefore, agree with the contention of Sri Bhujanga Rao. We hold that the plaintiffs suit is undoubtedly barred by limitation. We therefore dismiss the suit and set aside the judgments and decrees of the Courts below. In the result, the second appeal is allowed with costs throughout and the cross-objections are dismissed.
14. Appeal allowed, cross-objections dismissed.