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Jayanti Bhagavanula Narasimham Vs. Jayanti Venkatasubbamma (Dead) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1932)62MLJ433
AppellantJayanti Bhagavanula Narasimham
RespondentJayanti Venkatasubbamma (Dead) and ors.
Cases ReferredZemindar of Oorcaud v. Meenakshi Animal
Excerpt:
- - ramadoss for the appellant takes no exception, his argument being that it does not apply to a case like this, where the suit for maintenance was brought after the partition......of the sons of her husband's brother kakulayya. in 1919 a suit for partition was brought and the family property was divided. the 2nd respondent and his sons got a share, the other three branches, now represented by the appellant and by various respondents, being allotted the remaining 5/8. in 1924 the first respondent filed a suit for maintenance, impleading all the former co-parceners as defendants. the suit was defended only by the 2nd respondent and his sons (the 1st, 2nd and 3rd defendants). the 5th, 7th and 9th to 11th defendants appeared by a pleader, but filed no written statements and the rest of the defendants did not appear at all. in the result, the 1st respondent was given a decree for certain sums of money, 3/8 of which were to be paid by the 2nd respondent and his sons.....
Judgment:

Waller, J.

1. The plaintiff, who is the first respondent in this second appeal, is the widow of one Narasimham. He died about thirty years before the suit and she adopted the 2nd respondent, one of the sons of her husband's brother Kakulayya. In 1919 a suit for partition was brought and the family property was divided. The 2nd respondent and his sons got a share, the other three branches, now represented by the appellant and by various respondents, being allotted the remaining 5/8. In 1924 the first respondent filed a suit for maintenance, impleading all the former co-parceners as defendants. The suit was defended only by the 2nd respondent and his sons (the 1st, 2nd and 3rd defendants). The 5th, 7th and 9th to 11th defendants appeared by a pleader, but filed no written statements and the rest of the defendants did not appear at all. In the result, the 1st respondent was given a decree for certain sums of money, 3/8 of which were to be paid by the 2nd respondent and his sons and the other 5/8 by the other three branches, the District Munsif observing that the pleaders on both sides had agreed 'to the division of the liability in accordance with the shares of the different sets of the defendants. The plaintiff lodged an appeal, claiming a higher rate of maintenance and the 8th to 11th defendants filed a memorandum of objections, pleading that they should not have been made liable at all. The 4th to 7th defendants appeared by a pleader, but filed no memorandum of objections. The Subordinate Judge enhanced the rate of maintenance and at the same time dismissed the memorandum of objections, holding that the plaintiff's right to maintenance out of the entire family property was not affected by the partition. The 8th defendant has now filed a second appeal, putting forward the same plea, that the plaintiff's claim for maintenance was sustainable only against the share allotted to the first three defendants as representing her husband. We have been referred to no decision that bears directly on the question at issue. The Subordinate Judge relied on two cases of this Court. One was Subbarayalu Chetti v. Kamalavalli Thayaramma I.L.R. (1911) 35 M. 147 : 21 M.L.J. 493, where it was held that a widow's right to maintenance was enforceable against the whole family and not merely against her late husband's branch of it and that her right would not be affected by a suit for partition filed after her suit for maintenance in other words, her claim was to be treated as that of a widow of a member of an undivided family. To that rule Mr, V. Ramadoss for the appellant takes no exception, his argument being that it does not apply to a case like this, where the suit for maintenance was brought after the partition. The other decision, which is referred to in Subbarayalu Chetti v. Kamalavalli Thayaramma I.L.R. (1911) 35 M. 147 : 21 M.L.J. 493 is Jayanti Subbiah v. Alamelu Mangamma I.L.R. (1902) 27 M. 45 : 12 M.L.J. 270 It laid down that the widow of an undivided co-parcener had a right of maintenance against the surviving co-parcener or co-parceners, but only to the extent of her husband's share or interest in the joint family property and that, wherever it becomes necessary to enforce her right, it should be made a specific charge on a reasonable portion of that property, not exceeding in value her husband's share. In Subbarayalu, Chetti v. Kamalavalli Thayaramma I.L.R. (1911) 35 M. 147 : 21 M.L.J. 493 this view of the law was accepted, the Judges observing:

It may be that a decree would not be enforceable against a member of a joint family which gave something more than the interest of the deceased husband which passed by survivorship to the surviving members.

2. If this be the correct rule--and we must accept it as correct--it seems to us to follow that, when the widow of a co-parcener sues for maintenance after there has been a. partition, she cannot enforce her right against any of the surviving co-parceners except those who have taken her husband's share. If her right to relief against the family property is limited to the value of her husband's share and that share has already been defined and separated, it would be idle to give her relief against any of the co-parceners other than those who have succeeded to that share; no other share is liable.' If the value of her claim is less than that share, there is no reason why any other share should be resorted to. If it exceeds it, no other share is chargeable for the excess. Several other cases were cited for the respondents. Two of them Sivanananja Perumal Sethuroyer, Zemindar of Oorcaud v. Meenakshi Ammal (1870) 5 M.H.C.R. 377 and Srinivasa Iyengar v. Thiruvengadathaiyangar I.L.R. (1912) 38 M. 556 : 25 M.L.J. 644 do not really touch the point. In the first, the only co-parceners were the widow's sons and step-son, the latter of whom contended that his stepbrothers' divided share alone was liable and it was that contention that was overruled. The second was a similar case in which a similar contention was put forward and rejected. In another case Kantppa v. Chinna Nallammal A.I.R. 1927 M. 1189 a Bench of this Court followed the ruling in Jayanti Subbiah v. Alamelu Mangmmna I.L.R. (1902) 27 M. 45 : 12 M.L.J. 270 holding that, if a widow's right to maintenance was limited to the value of her husband's interest in the joint property, her maintenance might reasonably be charged against that interest alone. No doubt, in the result the Judges gave a charge over the whole property, but that was because another maintenance-holder had a prior charge over the whole, which might have been utilised to defeat a subsequent charge over a part of it. Another case cited in Bala Tripura Sundaramma v. Suryanarayana (1914) 17 M.L.J. 188 resembles and follows the Sivanananja Penumal Sethuroyer, Zemindar of Oorcaud v. Meenakshi Animal (1870) M.H.C.R. 377.

3. We are of opinion that the appeal must be allowed. A memorandum of objections has been filed by the 5th and 7th respondents, supporting the appellant. It must, we think, be allowed under Order 41, Rule 33. In view of the course taken by the case in the Courts below, they and the appellant will pay their own costs. The first three defendants will pay the whole decree amount and the 1st respondent's costs throughout and she will pay the fee due to the Government.


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