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Bhagirathi Vs. Anantha Charia and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in(1894)ILR17Mad268
AppellantBhagirathi
RespondentAnantha Charia and ors.
Cases ReferredRangamma v. Vobalayya I.L.R.
Excerpt:
hindu law - maintenance--suit to recover arrears of maintenance due under a personal decree and to establish a charge for future maintenance on the family property. - - the district judge further held that appellant's claim against the 17th defendant must fail, and in support of his opinion he relied upon the decisions in saminatha v. 5. though several grounds of claim are united in this suit, each ground of claim is good as against all respondents......against them. nor did appellant then ask that her maintenance be made a charge on ancestral or family property. vadiraja charia died since and defendants 1 to 16 repudiated their liability to pay maintenance under the decree passed against him. on the death of vadiraja charia, the family property devolved on respondents, and at the date of the suit there were arrears of maintenance under the former decree to the extent of rs. 90. the first 16 defendants sold items of property 3 and 4 to the 17th defendant, and appellant's case is that the alienation can only be upheld subject to her claim for maintenance. the plaint prayed for a decree establishing her right to receive maintenance for her life at the rate of rs. 30 per annum as per decree in original suit no. 137 of 1870, and rs. 90.....
Judgment:

Muttusami Ayyar, J.

1. Appellant is a Hindu widow and defendants 1 to 16 are her husband's brothers and nephews. In Original Suit No. 137 of 1870 the former obtained a personal decree against Vadiraja Charia, her father-in-law, for maintenance at the rate of Rs. 30 per annum. To that suit her husband's five brothers were also made parties, but there was no personal decree against them. Nor did appellant then ask that her maintenance be made a charge on ancestral or family property. Vadiraja Charia died since and defendants 1 to 16 repudiated their liability to pay maintenance under the decree passed against him. On the death of Vadiraja Charia, the family property devolved on respondents, and at the date of the suit there were arrears of maintenance under the former decree to the extent of Rs. 90. The first 16 defendants sold items of property 3 and 4 to the 17th defendant, and appellant's case is that the alienation can only be upheld subject to her claim for maintenance. The plaint prayed for a decree establishing her right to receive maintenance for her life at the rate of Rs. 30 per annum as per decree in Original Suit No. 137 of 1870, and Rs. 90 for arrears of maintenance on the responsibility and by the sale of the properties 1 to 4 mentioned in schedule A attached to the plaint, and such other relief as the Court might deem fit to grant in the circumstances of this case. The District Judge considered that appellant was bound to have asked in the former suit that her maintenance be made a charge on the family property, and held that the present suit was barred by Section 43 of the Code of Civil Procedure. The District Judge further held that appellant's claim against the 17th defendant must fail, and in support of his opinion he relied upon the decisions in Saminatha v. Rangathammal I.L.R. 12 Mad. 285 and Rangamma v. Voballayya I.L.R. 11 Mad. 127 I do not think that the decision Of the Judge can be supported except so far as it relates to the 17th defendant.

2. Appellant's maintenance has not been declared a charge on the property alienated, and the District Judge was right in upholding the alienation against her claim. I am also of opinion that neither of the cases relied on by the Judge is in point. In Saminatha v. Rangathammal I.L.R. 12 Mad. 285 both suits were brought against the same person, and it was held that no second suit should be brought to recover arrears of maintenance which might have been recovered in execution of the decree passed in the prior suit. The point decided in Rangamma v. Vobalayya I.L.R. 11 Mad. 127 was that a personal decree for maintenance and a declaration that it is a charge on family property are two remedies referable to the same cause of action, viz., the right to receive maintenance, and that two separate suits cannot be brought in respect of the two remedies against the same defendant.

3. In the present case appellant rests her claim to arrears on the ground that they constitute a personal debt of Vadiraja Gharia and his sons and grandsons. Defendants 1 to 16 are bound to discharge it under Hindu law from the family property which has devolved on them by right of survivorship. Their liability to pay their father's and grandfather's debt arose only on the death of Vadiraja Charia.

4. As regards plaintiff's claim to future maintenance, it is tenable against defendants 1 to 16, the ancestral property surviving to them and passing into their management only on the death of Vadiraja Gharia. The right to maintenance being enforceable against them, the right to have it made a charge on family property is also enforceable along with it.

5. Though several grounds of claim are united in this suit, each ground of claim is good as against all respondents. It is urged on respondents' behalf that the suit is framed as if it was a suit to execute the decree already passed in Original Suit No. 137 of 1870; but the clause in the plaint which contains the prayer is open to the construction that it prays for relief similar to those in the former decree. I would, therefore, sot aside the decree of the Judge and remand the case for disposal on the merits. The costs incurred in this Court will abide and follow the result and be provided for in the revised decree.


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