(1) The plaintiff is the appellant. She filed the suit for enhanced maintenance against her step-son. Plaintiff is the third wife of Voora Gurumurthi and the defendant is the son of the said Gurumurthi by his second wife. Gurumurthi died at Madras on 19-12-1930 leaving behind him hi son, the defendant and the plaintiff his widow and joint family properties consisting of a house No. 11 Reddiraman St. G. T. Madras and a shop in Pycrofts Road, Triplicane, items 1 and 2 of the plaint schedule. The plaintiff and the defendant entered into a settlement deed Ex. A. 1, dated 6-1-1931. The settlement deed provided that the plaintiff in full satisfaction of her right to maintenance, residence etc., over the joint family properties, would receive for the natural life Rs. 20 per mensem every month from February 1931 and receive two sarees of the value of Rs. 150 per annum. She was also given the option to reside in the family house or to receive a sum of Rs. 5 per mensem. The settlement further provided that the plaintiff would have no manner of right, title or interest or claim over the assets of the deceased Voora Gurumurthi except the rights created by the settlement deed.
(2) The main contention of the defendant in the suit was that the suit is not maintainable as by the settlement deed, the plaintiff has lost all her rights for claiming any enhanced maintenance. This contention was negatived by the trial court, but was accepted by the lower appellate court and this second appeal is preferred by the plaintiff.
(3) The question whether a maintenance holder can claim enhanced maintenance due to changed circumstances has been considered in various decisions. It is unnecessary to go into those decisions in view of the enactment of Act 78 of 1956. Sec. 25 of the Act provides that the amount of maintenance, whether fixed by a decree of court or by agreement, either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying the alternation. The section prima facie enables the wife, in spite of an agreement to claim additional maintenance by way of changed circumstances.
(4) Mr. Desikan, learned counsel for the respondent-defendant submitted that Ex. A. 1, the indenture entered into by the plaintiff and the defendant is not an agreement but is in the nature of a family settlement to which S. 25 is not applicable. I am unable to accept that contention. There was a dispute between the plaintiff, and the defendant as to the rights of the plaintiff and disputes were settled under Ex. A. 1. It may be in the nature of a family arrangement, but it does not cease to be an agreement between the parties. Sec. 25 is therefore applicable to this case also.
(5) A Bench of this Court in a recent decision in Seshi Ammal v. Thaiyu Ammal, : AIR1964Mad217 considered the scope of S. 25 of Act 78 of 1956. In that case, a Hindu wife agreed to receive maintenance at a particular rate binding herself not to claim at a higher rate even if the circumstances were to change. In spite of this stipulation that the wife would not claim higher rate of maintenance it was held that Sec. 25 of Act 78 of 1956 enabled the wife to ask for enhanced maintenance, in view of the changed circumstances since the fixation of the rate of maintenance. In view of S. 25 and in view of the decision of the Bench, the contention of the appellant has to be allowed.
(6) Regarding the quantum of maintenance the appellate court has found that the net income from the family property is Rs. 187-50 and that a sum of Rs. 67 per mensem towards maintenance and residence and Rs. 50 per annum towards clothing is reasonable. I am unable to say that the quantum awarded is not reasonable. For the period between 9-3-1960 and 1-4-1962, the learned Judge awarded a monthly maintenance of Rs. 40 as during this period the defendant was paying at the rate of Rs. 75 per mensem, discharging a mortgage on the family property. During that period as the defendant was getting only a sum of Rs. 112 the maintenance of Rs. 40 awarded to the plaintiff is reasonable.
(7) In the result, the appeal is allowed and there will be a decree fixing a sum of Rs. 40 per month as maintenance to the plaintiff from 9-3-1960 to 1-4-1962 and at Rs. 67 per month from 1-4-1962 onwards. She will be entitled to Rs. 50 per annum towards her clothing expenses from 9-3-1960. The appeal is allowed with costs. There will be a charge over item 1 of the plaint schedule. No leave.
(8) Appeal allowed.