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Mt. Mukundi Vs. Jagannath and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1937All42; 166Ind.Cas.436
AppellantMt. Mukundi
RespondentJagannath and ors.
Excerpt:
.....name had been entered against the share of her deceased husband in lieu of maintenance. 178: a material increase in the cost of living which renders the money allowance insufficient to give the widow the means of maintenance suitable to her degree and the circumstances of the family may well be sufficient to justify an increase of the money allowance......a hindu widow on a change of circumstances, such as a permanent deterioration in the value of the family property.5. there it was held at p. 392:the decisions in vijaya v. sripathi (1884) 8 mad 94 and ruka bai v. ganda bai (1875) 1 all 594 are express authorities on the question of the competency of civil courts to entertain suits for the reduction of maintenance for sufficient reasons such as the permanent reduction of the value of the property. maintenance decrees are by their very nature subject to such modification according to change of circumstances nubo gopal roy v. sreemutty amrit moyee dossee (1875) 24 w.r. 428. it is not expressly necessary to insert words to that effect to make the decree liable to variation according to circumstances motilal v. bai kashi (1892) 17 bom. 45......
Judgment:

Ganga Nath, J.

1. This is a plaintiff's appeal and arises out of a suit brought by her against the defendants-respondents for recovery of arrears of maintenance on the basis of an agreement dated 23rd January 1925 executed by Amir Singh, father of defendants 1, 2 and 3, since deceased, Chandra Bhan, defendant 4, and Badri Prasad, defendant 5, and two other persons Ram Sarup and Hardeo Sahai who are not parties to the suit. The defendants contested the suit on several grounds, one of which was that the plaintiff was not entitled to recover the arrears of maintenance at the rate fixed under the deed as the income of the property which was in their possession had fallen. Both the Courts below have found in favour of the defendants on this point. They have found that the income of the property has gone down by 25 per cent. Taking this fact into consideration as well as the cheaper rates, both the Courts below have reduced the amount of the plaintiff's maintenance by 25 per cent. The plaintiff has been given a decree for 3/4th of the money claimed by her. She has come here in second appeal. The only point which is for consideration in this appeal is whether the lower Courts were justified in reducing the plaintiff's maintenance. It has been urged on behalf of the appellant that as the amount of maintenance had been fixed tinder a deed of family settlement, the lower Courts were not justified in reducing the amount. As it was not clear as to what dispute this settlement related, the following issue was remitted to the lower Court:

Whether the deeds of agreement dated 23rd January 1925 were a settlement of the plaintiff's claim for maintenance or a settlement of plaintiff's claim of title to property.

2. The lower Court's finding is that the deeds in question embody a settlement of the plaintiff's claim for maintenance. This finding has been challenged by the learned Counsel for the appellant. The whole case as well as this finding are based on the agreement dated 23rd January 1925 referred to above and a deed which is called 'dastbardari' and was executed by the plaintiff on the same date. The recitals in both the deeds clearly show that the plaintiff's name had been entered against the share of her deceased husband in lieu of maintenance. The deed executed by the plaintiff herself states that her same had been entered against the share of her deceased husband as a Hindu widow in lieu of her maintenance. The recital in the agreement executed by the defendants is also to the same effect. It has been admitted by the plaintiff, vide paper No. B-22, that the plaintiff's husband was a member of the joint family at the time of his death. Taking into consideration these facts there can be no doubt that the finding arrived at by the lower Court is quite correct. As already stated, it has been found by the trial Court that the income of the property in possession of the defendants has fallen by 25 per cent. This finding has been accepted by the lower appellate Court. The question which arises for consideration is whether in view of this reduction of the income were the lower Courts justified in reducing the amount of the maintenance which was fixed under the agreement of 23rd January 1925. Reliance has been placed by the appellant on the case in Bhup Singh v. Lachman Kunwar (1904) 26 All. 321. The question which is for determination in this case did not actually arise there. There the question that was decided was that the widow would not, even if unchastity were proved against her, forfeit her right to the income of the assigned property in the absence of an express stipulation to that effect. It was observed (at p. 325):

As regards the merits of the claim it appears to us that the rule of Hindu law under which a widow's claim to maintenance becomes forfeited upon unchastity has no application to this case. The agreement of 30th October 1889 was an agreement under which an annuity was provided by way of compromise of a claim, not a claim for maintenance, but a claim of title to immoveable property, and the agreement expressly provided for the enjoyment of the annuity by receipt of rents during the lifetime of the plaintiff. If the parties had intended that the plaintiff's title should determine, in the event of her unchastity, provisions to this effect should have been made.

3. In the present case as the finding on the issue remitted to the lower Court will show, the agreement relates to the settlement of plaintiff's claim for maintenance and not of a claim of plaintiff's title to any immoveable property. Consequently that case cited above does not help the plaintiff. There can be no doubt that the amount of maintenance which has been fixed is liable to be altered according to, the change in the circumstances of that family. There are cases in which the amount of maintenance fixed under decrees have been changed. In Ruka Bai v. Ganda Bai (1875) 1 A11 594 a Hindu lady obtained a decree awarding her maintenance at a certain fixed rate and charging the assets of a certain firm with the payment of such maintenance. There was no provision in the decree that such rate was subject to any modification which future circumstances might render necessary. The assets of such firm having diminished, the proprietor of the same brought a suit for the reduction of such rate of maintenance. It was held that such suit was maintainable. In Bangaru Ammal v. Vijayamachi Reddiar (1899) 22 Mad. 175 a Hindu widow in 1867 obtained decree for maintenance against her husband's coparceners, but the decree created no charge on the land. The family estate having passed to a collateral relative, the widow sued him for maintenance at an increased rate with arrears, and asked for a charge on the estate alleging that prices had risen and that in other respects also circumstances had changed. It was held that the decree in the suit of 1867 was not a bar to the present suit. It was observed at p. 178:

A material increase in the cost of living which renders the money allowance insufficient to give the widow the means of maintenance suitable to her degree and the circumstances of the family may well be sufficient to justify an increase of the money allowance.

4. In Gopikabai v. Dattatraya (1900) 24 Bom. 386 it was held:

A suit will lie to obtain a reduction in the amount, of maintenance decreed to a Hindu widow on a change of circumstances, such as a permanent deterioration in the value of the family property.

5. There it was held at p. 392:

The decisions in Vijaya v. Sripathi (1884) 8 Mad 94 and Ruka Bai v. Ganda Bai (1875) 1 All 594 are express authorities on the question of the competency of civil Courts to entertain suits for the reduction of maintenance for sufficient reasons such as the permanent reduction of the value of the property. Maintenance decrees are by their very nature subject to such modification according to change of circumstances Nubo Gopal roy v. Sreemutty Amrit Moyee Dossee (1875) 24 W.R. 428. It is not expressly necessary to insert words to that effect to make the decree liable to variation according to circumstances Motilal v. Bai Kashi (1892) 17 Bom. 45. The claim of a Hindu widow for maintenance is not based on contract but on the provisions of the Hindu law, which expressly govern the rights and duties of the different members of a joint family Sidlingapa v. Sidava (1878) 2 Bom. 624 (F.B.).

6. There is no reason why the amount of maintenance fixed under an agreement should not be increased or reduced according to the circumstances of the family when the amounts fixed under the decrees could be. I therefore agree with the finding of the lower Court and find that the lower Courts were quite justified in reducing the amount according to the change in the circumstances of the family. There is no force in the appeal it is therefore ordered that it be dismissed with costs. Permission to file Letters Patent appeal is granted.


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