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Smt. Saraswati Hotiani Vs. Smt. Rupa Hotiani and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 21 of 1959
Judge
Reported inAIR1962Ori193
ActsHindu Law
AppellantSmt. Saraswati Hotiani
RespondentSmt. Rupa Hotiani and anr.
Appellant AdvocateG.K. Misra and ;S.C. Mohapatra, Advs.
Respondent AdvocateB. Mohapatra and ;R.K. Mohapatra, Advs.
Cases ReferredP. Veerayya v. P. Chellamma
Excerpt:
.....gita banik, 1996 (2) glt 246, are not good law]. - 4. the plaintiff's claim for a share in the joint family properties must clearly fail. hence he urged that the plaintiff has a good case for enhancement of the quantum of maintenance fixed by sidheswar in 1941. 8. as regards the quantum of maintenance for a hindu widow the leading decision of the privy council in mt. i may quote the following observations of their lordships :maintenance depends upon gathering together of all the facts of the situation, the amount of tree estate, the past life of the married parties, a survey of the conditions, 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 made of living, and to the..........'elicit fromhim whether his lands measuring 8 acres wereany way less fertile than the lands of the jointfamily. hence if he was getting only about 20pudugs for 8 acres of land, the total income forabout 51 1/2 acres cannot be more than about 130pudugs which is very nearly equal to the yieldestimated by the defendants witnesses.thus in view of the answer given in cross-examination by p- w. 4 -the trial court was justified in preferring the defence evidence as regards the gross yield which was estimated at 120 pudugs. the lower court rightly excluded 8 acres from the total extent of the properties because that represented the remuneration for the lambardar and after the death of sidheswar there was no certainty of defendant no. 1 being continued in the post of lambardar. in any case, as it.....
Judgment:

Narasimham, C.J.

1. This is an appeal by the plaintiff against the judgment of the learned Subordinate Judge of Sambalpur in a suit brought for maintenance against her step-mother-in-law (defendant No. 1) and the alienee (defendant No. 2) of a portion of the joint family properties,

2. The following genealogical tree shows the relationship of the parties;

BASUDEB

__________________________________|_____________________________________________

| | | | | |

Sidheswar Dwarika Shyamsunder Bimbadhar Gangadhar Damodar

| Dead Mst Usha D. 4 Dead Mst.Daimati D. 5 D. 6

| Radhika D.3 D.7

| |

|_________________ Mrutanjoya D. 8

| |

Ist Wife 2nd Wife

Mst Sukanti Mst. Rupa D.1

Pitabas (Dead)

Mst Sarswati

PlaintiffPitabas, husband of the plaintiff predeceased his father on 24-4-38 while in a state of jointness with him. Sidheswar married defendant No. 1 after the marriage of the plaintiff With his son Pitabas, presumably in the hope of begetting sons through her but defendant no. 1 proved barren. Sidheswar died on 20-6-54 leaving considerable properties in villages Lupurasinght and Khanapali which have now devolved on his surviving widow defendant No. 1. Sometime in 1941 the plaintiff filed an application to sue in forma pauperis her father-in-law for maintenance (Ext. A) case No. 3 of 1941. While that application was pending, Sidheswar executed a registered deed of maintenance (Ext. A) on 5-8-41 in her favour agreeing to give her annual maintenance of 12 pusthamos of rice (then valued at Rs. 96/-) and cash of Rs. 96/-per annum, and also making the aforesaid maintenance a charge on the properties described in the deed. Soon after the execution of the deed the plaintiff did not press her pauper application and allowed it to be dismissed for default. The present suit was brought on 11-2-1955 witn in eight months after the death of Sidheswar.

3. The plaintiff put forward two alternative claims. Firstly she urged that she was entitled to half the share of the properties of the joint family. In the alternative, she claimed maintenance at a higher rate saying that the deed of maintenance Ext. A executed by her father-in-law in 1941 was never acted upon and that she had never agreed to the maintenance fixed therein. She also claimed arrear maintenance saying that even during the life-time of her father-in-law she was never paid anything. There was also a claim for recovery of valuable ornaments which, according to her were handed over to Sidheswar when she became a widow and which were never returned to her.

4. The plaintiff's claim for a share in the joint family properties must clearly fail. It is true that the plaintiff's husband Pitabas died only on 24-3-38 whereas the Hindu Women's Rights to Property Act was passed in .1937. But the parties belonged to Sambalpur district which was then a Partially Excluded area and that Act was extended to that district only on 14-12-38 by a Notification No. 8306-J, published in the Orissa Gazette (1938 Part III, page 897). The Orissa Legislature in 1944 passed the Hindu Women's Rights to Property (Extension to Agricultural Lands) Act (1 of 1944) which was extended to the Partially Excluded areas or: 9-9-54 with retrospective effect. Thus as the plaintiff's husband Pitabas died nearly 8 months prior to the application of the aforesaid Act to Sambalpur district with retrospective effect, the benefits of that Act will not be available to the plaintiff and she will be entitled only to maintenance.

5. The plaintiff's claim for recovery of ornaments was also rightly rejected by the lower court. Her evidence was to the effect that when she became a widow all the ornaments were removed frpm her person and they were left in the house of her father-in-law Sidheswar. It was alleged that they were never returned to her. Her witnesses have spoken about the ornaments and also given particulars about their weight, etc. But this story does not appear to be believable. Admittedly she did not claim these ornaments when she filed the Miscellaneous case No. 8 of 1941 for permission to sue her father-in-law in forma pauperis. It is also strange that no suit was brought by her for recovery of ornaments till the death of her father-in-law in 1954, i. e., for nearly 13 years thereafter. The plaintiff does not appear to be a helpless widow because her father was a substan-tial man being the Gountia of his own village owning some properties. The plaintiff admitted that she was living most of the time in her father's house and she used to go to her father-in-law's house regularly, once a month or so. It is difficult to believe that for such a long period during the life-time of Sidheswar she would not have claim-ed her ornaments if in fact they had been kept in after father-in-law's house.

6. The same reasonings would apply as regards her claim for arrear of maintenance. Though she tried to make it appear as if the registered deed executed by her in 1941 (Ext. A) was never acted upon that she was never given maintenance by her father-in-laws it is difficult to accept this story, Ext. A was produced from her custody. When a portion of the property was alienated in favour of defendant No. 2 she promptly intervened and objected to the mutation of the name of defendant No. 2, and produced Ext. A to show that a charge had been created in her favour in respect of that property also. A lady who was astute enough to promptly assert her rights would not have kept quiet for such a long time without claiming arrear maintenance if really such arrear was due to her from her father-in-law. It is-therefore difficult to accept the plea that Ex. A was not acted upon and I would accept the finding of the lower court so far as the rejection of the plaintiff's claim for (1) recovery of ornaments and (2) recovery of arrear maintenance.

7. The main question in controversy between the parties is whether the maintenance fixed by Sidheswar in Ex. A in 1941 should now be enhanced, and if so what should be, reasonable quantum of maintenance. Admittedly the joint family has dwindled down and there are at present only two surviving members, namely plaintiff and defendant No. 1. Sidheswar left a daughter by his first wife wKose husband is D. W. 2, When Sidheswar married defendant No. .1 after the death of his first wife (even though by that time his son pitabas had already been married to the plaintiff) it may be reasonably inferred that he had hopes of be-getting children through defendant No. 1. When Pitabas died issueless leaving the plaintiff as: a childless widow Sidheswar has not lost all Slopes of begetting children through his second wife (defendant No. .1). This must have been one of the main considerations which weighed with hint when he agreed to fix the quantum of maintenance for the plaintiff as mentioned in Ext. A in 1941.

It was urged by Mr. Misra for the appellant that circumstances have changed considerably since then, and that not only have the prices of commodities gone up due to the general rise in prices after the War But the total net income of the joint family has increased more than four told, and that the burden on the family has also been very much reduced. Hence he urged that the plaintiff has a good case for enhancement of the quantum of maintenance fixed by Sidheswar in 1941.

8. As regards the quantum of maintenance for a Hindu widow the leading decision of the Privy Council in Mt. Ekradesnwari Bahuasin v. Homeshwar Singh, AIR 1929 PC 128 has laid down the various factors to be taken into consideration in fixing the quantum of maintenance. I may quote the following observations of their Lordships :

'Maintenance depends upon gathering together of all the facts of the situation, the amount of tree estate, the past life of the married parties, a survey of the conditions, 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 made 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 the 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-''

In view of my agreeing with the lower court that Ext. A was acted upon and that the plaintiff was in fact receiving maintenance according to the scale mentioned in it, it must be held that in 1941, according to the circumstances then prevailing, and the reasonable view which Sidheswar held of his begetting children through defendant No. 1 the quantum of maintenance fixed was fair.

9. But it is conceded by counsel for respondent also that this amount will have to be increased because the abnormal increase in the cost of living after the termination of the Second World War is too notorious. The prices have increased nearly four told since then and the income of the family from sale of paddy must also have in-creased proportionately. Mr. Mohapatra for the respondent however, while conceding that the cash amount of Rs. 38/- fixed in Ext. A may be proportionately increased, urged that there was no justification for increasing the amount of rice that was to be paid to the plaintiff namely 12 pesthumos. According to him the plaintiff would necessarily derive the benefit of the increase in the price of rice since then.

10. As early as 1878 in Sidingapa v. Sidava, ILR 2 Bom 624 (FB), it was pointed out that while considering whether the maintenance payable to a Hindu widow should be varied from time to time, regard should be had not only to the increase or decrease in the total income from the joint family property but also to the additions to the burden on the family Or reduction to such burden on the family. I may quote the following observations at page 630:

'The very possible necessity of varying the maintenance from time to 'time and of enquiring into the circumstances of the claimant or of the family estate or of the family itself shows how unstable maintenance suits are in small cause Courts. We say family itself because additional burden may from time to time be cast upon the Family estate Other widows, besides previous claimants, may be thrown upon it for support, by the death of their husbands or the number of sons and daughters of the male coparceners may have increased.'

On the same principle if the burden on the estate is diminished due to decimation amongs members of the family and extinction of some branches, there may be an equally good case for increasing the quantum of maintenance payable to the widow. In Bangaru Animal v. Vijaya-machi Reddiar, ILR 22 Madras .175 the learned lodges emphasised this aspect in the following words :

'We do not doubt that these cases enunciate a correct principle and if altered Circumstances may justify a suit for reduction of maintenance they may equally justify a suit for its increase.'

They relied on Sreeram Buttacharjee v. Puddo-mookhee Debia, 9 Suth WR 152 where at was pointed out that the principles for increasing the maintenance & for decreasing the maintenance due to change of circumstances are just the same. It is true that the Position of a maintenance holder cannot be equated to the position of a co-sharer in all respects and she cannot claim any increase in the maintenance in the same proportion, in which a co-sharer may claim an increase in, his share if the number of other co-sharers gradually dwindles down. The only. limitation on this rule is that, in any case, the maximum amount of maintenance wnich a widow can claim cannot exceed the share which her husband would have had if he had lived. This Is the ceiling. But subject to this limit there seems no reason why a widow also should not be benefited from the increase in the net income due to the reduction in the number of its members-.

This aspect also has been emphasised in a decision of the Madras High Court reported in P. Veerayya v. P. Chellamma, AIR 1939 Mad 37, There it was pointed out that where a suit is filed for enhancement of maintenance on the ground of changed circumstances the Court must look not only into the needs of the widow but also any change of those other circumstances to which the Court had regard in fixing rate of original maintenance. One of these circumstances is 'the reasonable view of change of circumstances possibly required in the future' as pointed out in Privy Council decision mentioned above. The same principle applies where the original rate of maintenance was fixed by an order of Court or by agreement between the parties. Once it is found that the reasonable anticipation of increase in the family which Sidheswar had in 1941, not only failed to materialise but on the contrary the family has dwindled down, this itselE would provide good reason for enhancing the rate of maintenance. In the aforesaid Madras decision it was further observed that the Court must also have regard to any reasonable change in the standard of comfort and in the conventional necessities of the widow due to improvement in the circumstances of the family to which she belongs. The learned Judge further observed :

'To this extent a change in the wealth of the family is a valid factor, for it is common experience that conventional standards of comfort and conventional necessities grow with the growth of Income,'

It is too well known that after the termination of the Second World War and the attainment of independence the general standard of living has gone up even in remote villages and what Wight have appeared to be an unnecessary luxury in 1941 may become a conventional necessity now.

There is therefore no reason why the plaintiff should be denied the advantage of this change in the situation especially when the burden On the family has been drastically reduced by natural causes leaving only one widow (defendant No. 1) as the sole heir to the entire pint family proper-ties. The debts which existed during the lite time of Sidheswar were according to D. W. 2 completely paid off. In my opinion, therefore, apart from the rise in prices and the consequent increase in the family income, the decimation of the members of the joint family leaving only one widow as the sole heir thereby lessening the burden on the family, is also a material change in the circumstances which would justify increase in the quantum of maintenance fixed in 1941.

11. In finding the quantum of maintenancethe first question for consideration is as regardsthe net yield from the lands of the joint family.The plaintiff's witnesses have estimated the yieldat 200 pudugs of paddy and also estimated the an-nual income from other crops at about Rs. 500/-per annum. The defendant's witnesses howeverstated that the total yield from the lands is only120 pudugs of paddy per annum. The trial courthas preferred the evidence of (he defendants'witnesses. Some corroboration of their estimateis found in the answer given by the plaintiff'sOwn witness Biswahath Panda (P. W. 4) in cross-examination. He admitted that he has got 8 acres ofland in village Lupersingba from which he wasgetting only 20 to 22 pudugs. The total extentof the properties of the Joint family was originallyabout 54 acres out of which 2.54 acres have beenalienated in favour of defendant No. 2. P. W- 4was not re-examined with a view to 'elicit fromhim whether his lands measuring 8 acres wereany way less fertile than the lands of the jointfamily. Hence if he was getting only about 20pudugs for 8 acres of land, the total income forabout 51 1/2 acres cannot be more than about 130pudugs which is very nearly equal to the yieldestimated by the defendants witnesses.

Thus in view of the answer given in cross-examination by P- W. 4 -the trial court was justified in preferring the defence evidence as regards the gross yield which was estimated at 120 pudugs. The lower Court rightly excluded 8 acres from the total extent of the properties because that represented the remuneration for the lambardar and after the death of Sidheswar there was no certainty of defendant No. 1 being continued in the post of lambardar. In any case, as it in the nature of remuneration for services rendered as Gountia It cannot be held to be joint family property. Thus the extent of the lands now in the possession of the joint family comes only to about 43 acres for which the estimate of 100 pudugs made 'by the lower court seems quite fair.

12. But the learned lower court committed an error in applying the rate of bhag rent fixed in the O. T. R. Act tor the purpose of estimating the net income. Neither defendant No. 1 nor any of her witnesses stated that the lands were let out to bhag--chasis. On the other hand, p. W. 2 who is none else but the son-in-law of defendant No. 1 and who was looking after her case admitted that defendant No. 1 herself had five plough-bullocks. It was also brought out during Ithe examination of P. W. 5 that during Sidheswar's life time there were 6 guties working under him and that there were other servants to do menial work for him. There is no evidence that after the death of Sidheswar these servants were discharged. On the other hand, the aforesaid admission of D. W- 2 shows that even after the death of Sidheswar the lands continued to be in the personal cultivation of defendant No. 1. Hence the court was in error in assuming that the lands must have been let out on bhag.

The reasonable inference is that the lands are in the personal cultivation of defendant No. 1. Out of the gross yield, 50 per cent may have to be deducted as representing the cost of cultivation and other inevitable expenses such as payment of rent etc. P. W. 4 himself admitted that the cost of cultivation may come to about 50 pudugs of paddy. Thus the net yield of the land measuring 43 acres may be estimated to be 50 pudugs of paddy. Considering the fact that at present apart from the plaintiff the only other surviving member of the joint family is defendant No. ,1. I think the reasonable rate of maintenance would be 20 pudugs of paddy per annum which is equivalent to 20 pasthamos of rice (See the evidence of D. W. 2). As regards cash also the sum of Rs. 32/- fixed by Sidheswar in 1941 in Ext. A must be increased as the prices have increased at least four times if not more since then. I would therefore fix the cash amount of maintenance at Rs. 120/- per year.

13. The next question is whether thisamount of maintenance should be a charge onthe entire joint family property or only on aportion of it. It was pointed out in Bansidharv. Mr. Champo Bibi, AIR 1947 Oudh 150 (atp. 155) that the property that may be chargedfor meeting a widow's obligation is ordinarilythat which would have constituted the husband'sshare. In AIR 1939 Mad 37 (already referred to)it was held that it would be unreasonable to encumber family properties to a greater extent thanis necessary to secure the payment of maintenance.I think it will suffice if half of the 43 acres representing the share which would have devolvedon the plaintiff's husband if he had been aliveis secured for the maintenance of the plaintiffThe lower Court's order in this respect mustaccordingly be confirmed. It is not necessarytherefore to encumber 2.54 acres (represented byHamid Settlement plots 130. 1838 and 1309) whichwere alienated in favour of the defendant No. 2as half of the remaining property would suffice forthe purpose of securing maintenance to the plaintiff as directed above.

14. The enhanced maintenance as directed above snail be payable from the date of institution of the suit namely 11-2-1955 following the principles laid down in. 9 Suth W. R. 152 and also reiterated in AIR 1947 Oudh 150.

15. In the result therefore the lower Courts order is modified and the plaintiff's right to maintenance at the rate of 20 pasthamos* of rice and cash of Rs. 120/- per annum is declared, and half of the properties described in Schedule B attached to the plaint except Hamid Settlement plots Nos. 130, 1838, and 1309 are made subject to the charge for securing the maintenance with effect from 11-2-55. The properties which are the subject matter of the charge may be demarcated, if either party so desires, by the appointment of a pleader Commissioner.

Similarly the trial Court's declaration in favour of the plaintiff regarding her rights of residence in a suitable portion of the house described in schedule C is maintained. She may get the portion of the house 'also demarcated by the pleader Commissioner, Her claim to a share in the joint family property or for arrear maintenance and the recovery of her ornaments is dismissed. The trial court's order directing the plaintiff to pay court-fee is maintained so far as the court-fee payable in the trial court is concerned, but as she has substantially succeeded in this appeal the court-fee payable on the memorandum of appeal shall be paid by the defendant No. 1 (respondent No. 1).

Barman, J.

16. I agree.


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