1. The suit out of which this first appeal arises was filed by the respondent Mst. Gangabai for (a)maintenance at Rs. 200/- per month; (b) arrearsof maintenance Rs. 6,000/- for twelve years before suit; and (c) Rs. 5,000/- cash to enable herto build a house for her residence. The trial Courtdecreed the claim at Rs. 75/- per month forfuture maintenance, Rs. 3,600/- as arrears ofmaintenance at Rs. 25/- per month and alloweda house at Mahasamund for her residence. Thedefendants have fiied this appeal praying for reduction of future maintenance to Rs. 50/- amonth, for disallowing arrears of maintenance andfor reduction of the amount from the date of suittill the filing of appeal. They have also statedthat the house in Mahasamund be not given for herseparate maintenance. The plaintiff Mst. Gangabai has filed a cross-objection for raising theamount of future maintenance to Rs. 200/- amonth and the arrears to Rs. 50/- a month. Shehas also claimed Rs. 5,000/- for a separate house.This judgment governs the disposal of the appeatand the cross-objection.
2. One Kapil died in 1940 leaving behind his son Sheocharan (defendant No. 1) and the plaintiff Mst. Gangabai, who is the widow of his predeceased son Dauwa. He left behind houses and lands in three villages as also movables as detailed in the plaint. The plaintiff states that the income from the properties left was about Rs. 25,000/- a year out of which she is entitled to maintenance. She brought the present suit for reliefs which have already been stated above.
3. The defendants stated that when Dauwa died in 1932, there were lands and houses in villages Saraipali and Mahasamund. The lands in Kanharpuri were acquired subsequently, though with the aid of the joint family income. They pleaded that Kanharpuri lands should be excluded from consideration in fixing maintenance. Sheocharan (defendant No. 1) and his sons had a partition in 1955 and at that time two-thirds of the lands at Saraipali were given to the plaintiff in full satisfaction of her claim for maintenance. No further maintenance can therefore be claimed. The extent of the joint family property was also denied.
4. The trial Court held that the lands at Kanharpuri also formed part of the joint family property. The income of the family was assessed at Rs. 10,000/- a year. The settlement of maintenance claim as pleaded by the defendants was not found proved. In the result, the claim was decreed as stated above.
5. The first point which Shri A. P. Sen has raised in support of the appeal is that there is neither legal nor moral liability on the defendant to maintain the plaintiff. This is based on the fact that there was a partition between Sheocharan and his sons in 1955 and the learned counsel contends that by virtue of the partition there is nothing left now in the hands of the members of the joint family by way of joint family property to support a claim for maintenance. This contention is obviously without any substance. The right of a widow for maintenance legally arises because of the fact that her husband left an interest in the joint family property at the time of his death, and the coparceners of the family by merely dividing the joint family property in a partition cannot give a go-by to her right. In the instant case, Sheocharan, the father of the other defendants, had obtained by survivorship the whole of the joint family property, including the share of the plaintiff's husband. He was, therefore, legally bound to maintain her under the Hindu Law. The mere fact that he has given his sons shares separately in the joint family property is of no consequence.
6. It was also contended by Shri Sen that as the present suit was filed after the Hindu Adoptions and Maintenance Act, 1956, that Act applies to the right of the plaintiff for maintenance. He referred to Sections 21 and 22 and pointed out that the liability to maintain a widow is only on the father-in-law. Consequently, the defendant Sheocharan as husband's brother was not liable to maintain her. Reading Sections 21 and 22 together, we are of opinion that those sections are intended to create an additional liability of maintenance on moral consideration on certain relations of the dependants. These sections do not, in any way, affect the general rule of the Hindu Law that where a husband leaves share in the joint family property, his widow is entitled to maintenance out of it from those coparceners who hold that by survivorship. This view finds support from the decision in Ramamoorthy v. Sitharamamma, AIR 1961 Andh Pra 131 (FB).
7. The next question is whether there was a settlement in 1955 as alleged. It is stated by the defendants that the agreement was in writing. The deed is not produced; but only a copy is filed. The defendants' witnesses say that two agreements were executed by both the parties and kept with the Panchas. They were taken back by the plaintiff on the excuse that she needed them for mutation. This story is highly improbable. The copy filed purports to have been executed in 1957; whereas the settlement, according to the written statement, took place in 1955. It was never acted upon. Mutation was not effected in the name of the plaintiff and the defendants never gave over possession of the lands to her. The trial Court had discussed the matter in paragraphs 7 to 11 of the judgment and has concluded that the settlement has not been proved. We agree that there was no settlement of the claim.
8. The plaintiff was thus entitled to maintenance from the defendants on the ground that her husband died in a state of jointness leaving several items of coparcenary property. It is an admitted fact that the lands at Kanharpuri were purchased in 1940 by Kapil, father of Sheocharan and Dauwa. It is contended on behalf of the respondent that the lands in this village, which were subsequently acquired, should also be taken into account in fixing the quantum of maintenance. On the other hand, the appellants contend that as that property was acquired by the family after the death of the plaintiff's husband, it cannot be taken into account for that purpose.
9. In Veeraju v. Narayanamma, AIR 1953 Mad 159 a Full Bench of the Madras High Courtheld that the widow of a deceased coparcener has a right of maintenance against the surviving coparceners quoad the share of her deceased hubsand which survives to them. Later, it was observed that the rate of maintenance should be fixed taking into consideration the income of the joint family at the time of the institution of the suit and not as on the death of her husband. This view was followed in Krishnamurthy v. Surayakantamma, (S) AIR 1955 Andhra 5 where it was observed that while awarding maintenance to a widow what has to be taken into consideration is the share which her husband would have been entitled to on partition were he then living at the time of the filing of the suit. In Hari v. Narmadabai, ILR (1949) Nag 964 the same position was accepted by Bose, J., (as he then was) who observed that
'normally the widow gets roughly the share to which her husband would have been entitled on partition if he had been living.'
If the husband of the plaintiff in the instant case had been living on the date of the suit, all the accretions to the joint family property would be divided between the coparceners in a suit for partition. Accordingly, we agree with the trial Court that the lands in village Kanharpuri can also be taken into account in fixing the maintenance.
10. In determining the quantum of maintenance to be allowed, several factors have to be considered. Thus, in Mt. Ekradeshwari v. Homeshwar, AIR 1929 PC 128 their Lordships observed that:
'Maintenance depends upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the condition and necessities and rights of the members, on a reasonable view of change of circumstances possibly required in the future, regard being, of course, had to the scale and mode of living, and to the age, habits, wants, and class of life of the parties. In short, it is out of a great category of circumstances, small in themselves, that a safe and reasonable induction is to be made by a Court of law in arriving at a fixed sum.'
The income from the husband's estate forms the upper limit for fixing the quantum of maintenance. However, it is not necessary that the maintenance should be fixed equal to the income from the husband's estate. The Court has to determine first what the widow would need for maintaining herself in such reasonable comforts as she would have been maintained while her husband was living.
11. In determining the income from the lands in the three villages, the trial Court has taken the net yield to be 50 gadas of dhan from the lands and has fixed the price at Rs. 200/- per gada. These figures were accepted before us as reasonable. Thus, the income from all the agricultural lands of the family come to Rs. 10,000/- per year. The share of the plaintiff's husband in the income would be nearabout Rs. 3,000/- per year. There may be a little more income from the house property; but it is not necessary to enter into details, as the quantum of maintenance depends upon the needs of the widow. The plaintiffs witness, Ganeshram (P. W. 4) hasstated that a sum of Rs. 70/- to Rs. 75/- per month would be enough to maintain the plaintiff in reasonable comforts in keeping with her status. The trial Court has accepted this as a reasonable estimate of the needs of the widow; and on reading the evidence, we do not find that the amount fixed should either be raised to Rs. 200/- or reduced to Rs. 50/-. Considering the income from the estate and the needs of the widow, the figure arrived at by the trial Court is just and reasonable.
12. The trial Court has allowed arrears of maintenance at the rate of Rs. 25/- per month for twelve years before suit. Shti Sen did not dispute that arrears for twelve years could be awarded, but contended that no arrears should have been given, as the widow is voluntarily residing with her brother away from the defendant's family. As held in Mt. Ekradeshwari's case, AIR 1929 PC 128 (supra), a Hindu widow is not bound to reside with the relatives of her husband; and the relatives of her husband have no right to compel her to live with them. Their Lordships have clearly laid down that the widow does not forfeit her right to property or maintenance merely on account of her going and residing with her family. Accordingly, the claim for arrears of maintenance cannot be resisted on the ground that the widow went away to live with her brother.
13. Shri R. P. Verma for the respondent argued that the arrears should haye been awarded at the same rate at which the maintenance has been fixed for future. It has no doubt been observed in Krishnamurthy's case, (S) AIR 1955 Andhra 5 (supra), that the Courts are not entitled to exercise discretion in cutting down the rate of arrears. The learned Judge refused to follow the passage in Mayne's Hindu Law, nth Edition, at page 830, quoted below:
'While the right to arrears of maintenance is a legal right, the Court has a discretion to award them at lower rate than future maintenance,'
Mulla, in his Principles of Hindu Law, I2th Edition, observed in paragraph 560-A (p. 713) that:
'Courts have got large discretion in awarding arrears and may take into consideration the fact that a sudden demand for a large sum by way of arrears would be inequitable and embarrassing.'
This view is based on the decisions in Gurushiddappa v. Parwatewwa, ILR (1937) Bom 113 : (AIR 1937 Bom 135) and Dattatraya Maruti v. Laxman Jettappayya, ILR (1942) Bom 584 : (AIR 1942 Bom 260). In this view, we consider that the Court below had discretion in fixing the arrears of maintenance at a figure lower than the figure for future maintenance. The plaintiff took no action to enforce her claim for arrears for twelve years and the amount accumulating in twelve years is a large sum which it would be difficult for the defendants to pay. We do not consider it proper to interfere with the discretion of the lower Court in this matter and hold that the amount of arrears awarded is proper.
14. Shri Verma in support of the cross-objection lastly stated that the plaintiff should have been allowed Rs. 5,000/- for constructing a house for her own residence. We do not see how thisrequest is justified. The Court below has allowed one of the houses at Mahasamund to the plaintiff. Before us it was said by the learned counsel for the appellants that they were prepared to give one of the houses at Saraipali, also; but the respondent refused to take that house. In our opinion, all that the widow can ask for is that her residence be provided in the family house; and when a reasonable provision is being mad& for her, she cannot insist upon having a new house constructed for her.
15. In the result, both the appeal and the; cross-objection fail and are dismissed with costs. The cross-objection was filed in forma pauperis. Court-fees payable on it will be recoverable by the Collector from the respondent Mst. Gangabai. Mst. Gangabai had brought the suit in forma pauperis and in connection with the recovery of Court-fees the trial Court observed that 'probably she may have no funds to pay this Court-fees'. The amount of court-fees payable by the plaintiff is a first charge on the subject-matter of the suit under Order 33, Rule 10 of the Civil Procedure Code. A clause shall be added in the decree that the amount of court-fees payable is a first charge on the subject-matter of the suit.