1. The second defendant in O. S. No. 74 of 1962, on the file of the court of the Additional Subordinate Judge II, Chingleput, is the appellant herein. There were two brothers by name Arunachala Mudaliar and Kandaswami Mudaliar and Arunachala Mudaliar dies on 20-6-1944 leaving behind the plaintiff in the suit, his widow. Defendants 1 and 2 are the sons of kandaswami Mudaliar. The third defendant is the widow of Kandaswami Mudaliar while the fourth defendant is the daughter of Kandaswami Mudaliar. Kandaswami Mudaliar himself died in the year 1956 leaving behind defendants 1 to 4 as his heirs. One Panchakshara Mudaliar filed a suit for partition in O. S. No. 36 of 1946 and a preliminary decree was passed on 12-1-1948, and a final decree was passed on 17-1-1950. The suit properties which are covered by Schedules A to H are the properties that were allotted to the branch of Kandaswami Mudaliar and others in the said suit is O. S. No. 36 of 1946. The A Schedule property is a house property, while the B to H Schedule properties are agricultural lands. The suit was instituted by the plaintiff as the widow of Arunachala Mudaliar for partition of her half share in the A Schedule property and for payment of past profits of Rs. 1080/- for plaintiff's share for three years in respect of the Schedule A property by defendants 1 to 4 and also future profits till delivery of possession. She also claimed past maintenance at Rs. 1,000/- per annum for twelve years prior to suit and further maintenance at Rs. 1,500/- per annum payable by defendants 1 to 4 and prayed for charge for the said payments over plaint Schedules B to H properties and the half share of defendants 1 to 4 and prayed for charge for the said payments over plaint Schedules B to H properties and the half share of defendants 1 to 4 in plaint Schedule A property. The prayer in this form came to be made in view of the fact that at the time of the death of Arunachala Mudaliar the Hindu Women's Rights to Property Act, 1937 enacted by the Central Legislature was held to apply only to non-agricultural property since agricultural property was included in the provincial List in the Government of India Act, 1935 and the Provincial Legislature extended the Act to agricultural lands only in 1946. The other defendants are said to be alienees of the suit properties from defendants 1 to 4, and the plaintiff contended that the said alienations were not binding on her.
2. The defence of defendants 1 to 4 was that till the death of Kandaswami Mudaliar in 1953(56?) the plaintiff was residing in the family house and was being maintained by him and she used to visit her parent's house only now and then; after Kandaswami Mudaliar's death, she was living separately; from the time of Kandaswami Mudaliar's death, the plaintiff was being paid regularly for her maintenance and other requirements fifteen bags of paddy per year and Rs. 15/- per month as per arrangements made by relations and mediators in full quit of her interest in the family properties; in or about the end of 1950(?) there was an arbitration because the plaintiff claimed more and it was settled by the arbitrator that the plaintiff should in lieu of her share and the interest in the family properties be paid Rs. 15/- per month and 160 marakalas or 20 bags of paddy every year and also be given a gold chain of ten sovereigns. This agreement has been reduced into writing as per Exhibit B-1 dated 15-11-1959. The defendants further contended that the plaintiff issued notice in March 1960 demanding share in the properties and making other claims and since the claim was untenable, a suitable reply was given. The defendants challenged the correctness of the incomes from the properties as alleged in the plaint and put forward the contention that they were exaggerated and gave their own version as to what the income from the properties would be. They further contended that they have not taken possession of all the properties allotted to Kandaswami Mudaliar's branch in O. S. No. 36 of 1946 and they have taken possession only of the lands in Guduvancheri village and had not taken possession of the other lands. Yet another contention put forward by them was that a sum of Rs. 6,000/- was due from the family to third parties in the form of expenses incurred by defendants 1 to 4 in litigations initiated by Panchakshara Mudaliar referred to above. On the basis of these pleadings, the learned trial Judge framed the following issues-
1. Whether plaintiff is entitled to a half share in the plaint schedule properties?
2. Whether the family arrangement alleged in para 4 of the written statement of defendants 1 to 4 is true and valid?
3. Whether the settlement by arbitration in respect of plaintiff's share alleged in para 5 of the written statement of defendants 1 to 4 is true and valid?
4. Whether plaintiff is estopped from claiming a share in the suit properties?
5. Whether defendants' branch has not taken separate possession of their share?
6. Whether the alienations to D-1, D-5, D-7, D-15, D-20 and D-22 are binding on the plaintiff?
7. Whether there are debts due by the family? If so, whether plaintiff is liable for these debts?
8. Whether plaintiff is entitled to any profits, past and future, and if so, to what amount?
9. Whether plaintiff is entitled to maintenance? If so, at what rate?
10. Whether plaintiff is entitled to past maintenance? If so, at what rate?
11. To what relief, if any, is plaintiff entitled?
Additional issues framed on 24-9-1964:--
1. Whether defendants 1 to 4 performed their part of agreement?
2. If not, what is the effect of agreement?
3. The learned Second Additional Subordinate Judge, Chingleput, held that the family arrangement pleaded by defendants 1 to 4 was not true, but the arrangement as evidenced by Exhibit B-1 was true. Notwithstanding this, the learned Judge came to the conclusion that Exhibit B-1 itself contained a clause that if the defendants failed to perform any of the obligations in Exhibit B-1, the document would become void and the plaintiff would be entitled to enforce her original rights. The finding of the learned Judge in this behalf was that the defendants the court held that the concerned sale deeds had not been produced and the alienees had not come forward to support the alienations and therefore they said alienations were not true and in any event, were not binding on the plaintiff. With regard to the quantum of profit in respect of A Schedule property, the learned Judge arrived at the sum of Rs. 150/- per year and granted a decree for past profits for a period of three years for Rs. 450/- and further profits at the rate of Rs. 150/- per year. With regard to the quantum of maintenance referable to B to H Schedule properties, the learned Judge determined the future maintenance at Rs. 1,000 per year and the past maintenance at Rs. 625/- per year and awarded past maintenance for a period of twelve years and created a charge in respect of the same as prayed for by the plaintiff. To give effect to the above conclusions and the findings, a decree was passed on 26th April, 1966. It is as against this decree and judgment, the second defendant had preferred the above appeal.
4. Mr. P. Raghaviah, the learned counsel for the appellant, contended that the learned Judge erred in arriving at the quantum of maintenance at Rs. 1,000/- for future and at Rs. 625/- for past, and also granting past maintenance for a period of twelve years. In support of his contention, the learned counsel repeated the case of the defendants put forward before the trial Court, namely, that there was a family arrangement in 1956 under which some maintenance agreed to between the parties was paid to the plaintiff and subsequently there was the award by the arbitrators as evidenced by Exhibit B-1 and therefore it must be held that the plaintiff having received the maintenance in the case is not entitled to any decree for past maintenance in the present suit. In addition, the learned counsel challenged the correctness of the decree passed by the learned trial Judge giving past maintenance for a period of twelve years. Under these circumstances, the points that arise for consideration are-
(1) Whether the plaintiff was paid any maintenance in pursuance of the family arrangement or under Exhibit B-1 after the death of Arunachala Mudaliar in 1944 so as to disentitle her to claim past maintenance in the present action?
(2) Whether the learned Judge was right in fixing the future maintenance at Rs. 1,000/- per annum and past maintenance at Rs. 625 per annum?
(3) Whether the learned Judge was right in awarding past maintenance for a period for twelve years?
5. So far as the first point is concerned, we have no doubt whatever that the plaintiff was entitled to claim the maintenance in the present action. In support of the story put forward by defendants 1 to 4 that after the death of Kandaswamy Mudaliar in 1956, there was a family arrangement by the terms of which fifteen bags of paddy every year and Rs. 15/- per month was paid to the plaintiff in full quit of her interest in the family properties, there was no evidence worth the name except the interested testimony of the appellant, as D.W. 1. Ratna Mudaliar who was examined as D.W. 2. on behalf of the defendants himself stated that the plaintiff was residing in her mother's house after the death of Arunachala Mudaliar and she used to come to her mother-in-law's house for any VISHESHAM (Vishesham in Tamil omitted--Ed.). This evidence of Ratna Mudaliar further belies the case of the defendants that the plaintiff was residing in the family house till the death of Kandaswamy Mudaliar and was being maintained by him. Therefore, we have no hesitation in coming to the conclusion that after the death of Arunachala Mudaliar, the plaintiff was not residing in the family house and she was not being maintained by Kandaswamy Mudaliar, and the family arrangement pleaded by the defendants said to have taken place after the death of Kandaswamy Mudaliar was not true.
6. As far as Exhibit B-1 is concerned, no doubt the plaintiff denied having executed the same. However, it is seen that one Ethiraja Mudaliar, the brother of the plaintiff has attested Exhibit B-1. Agreeing with the learned trial Judge, we are clearly of the opinion that Exhibit B-1 was executed by the plaintiff with the full understanding of the terms. However, Exhibit B-1 itself provided for a payment of Rs. 15/- to be paid, before the 10th of every English month and the delivery of paddy of 20 bags within 15th of Masi. With regard to the payment of Rs. 15/- defendants 1 to 4 relied on Exhibit B-2 dated 5-12-1959 being a receipt given by one Subramania Mudaliar. The defendants wanted to connect that receipt for Rs. 25/- with the alleged payment by the defendants to the plaintiff of Rs.15/-. There is absolutely no evidence whatever to connect this payment of Rs. 25/- to Subramania Mudaliar under Exhibit B-2 with the alleged payment of Rs. 15/- per month to the plaintiff and agreed in Exihibit B-1. Consequently, atleast with regard to two of the terms of the agreement namely, payment of Rs.15/- before the 10th of every English month and the delievery of twenty bags of paddy before the 15th of Masi every year, there has been failure or default, on the part of the defendants. If so, as per the terms of Exhibit B-1 itself, the arrangement became void and the plaintiff was entitled to institute a suit to enforce her rights. Therefore on point No. 1, we hold that after the death of Arunachala Mudaliar, the plaintiff was not maintained by Kandaswamy Mudaliar and even though Exhibit B-1 was true breach was committed by the defendants and consequently, it became inoperative and void entitling the plaintiff to file the present suit to enforce her rights.
7. With regard to the second point, Mr. Raghaviah contents that the learned Judge has not properly appreciated the evidence in arriving at the quantum of maintenance payable by the defendants. The learned Judge has discussed the question of future maintenance in paragraph 21 of his judgment and the question of quantum of past maintenance in para 31. The plaintiff claims that the income from B to H Schedule properties would be Rs. 3,000/- to Rs. 4,000/- per annum, while the appellant contended that the income therefrom was only Rs. 1,000/- per annum. After referring to the evidence of the appellant as D.W.1 in this behalf, the learned Judge arrived at the reasonable income of the properties at Rs. 2,000/- per annum and on that basis fixed the future maintenance at Rs. 1,000/- per annum. Mr. Raghaviah's contention is that there has been no proper discussion of the evidence of the appellant in this behalf by the learned Judge and Rs. 1,000 has been fixed rather arbitrarily. We are unable to accept this argument. Even with regard to the quantum of income, there is no independent evidence except that of the interested testimony of the appellant himself as D.W. 1. If so, we do not see any error committed by the learned Judge in arriving at the figure of Rs. 1,000/- after taking into account the exaggerated claim made by the plaintiff and the attempt to show a reduced income made by the appellant herein. Therefore, we do not see any error whatever in fixing the future maintenance at Rs. 1,000/- per annum.
8. Equally with regard to past maintenance, nothing has been brought to our notice with reference to the evidence available on record to conclude that the learned Judge committed any error in fixing the figure at Rs. 625/- per annum. Therefore, we answer the second point also against the second defendant-appellant.
9. Then there remains the third point, that is, whether the learned Judge erred in awarding past maintenance for a period of twelve years. It was contended that the very fact that the plaintiff did not take any action for such a long time would clearly show that either the plaintiff was in receipt of maintenance or she had abandoned or waived her right. We are unable to accept this alternative argument. With regard to the allegation as to the plaintiff having been in actual receipt of maintenance, we have discussed the matter under point No. 1 and have given our decision that the appellant's case in this behalf was not true and the plaintiff was not in receipt of any maintenance. With regard to the alternative plea, admittedly no such plea was put forward either before the trial Court or even in the grounds of appeal before this court. A plea of abandonment or waiver is not always one of law and that is a matter which has to be expressly pleaded and proved because abandonment or waiver involves a conscious and deliberate act on the part of the person who has got a right to or interest in certain property which he or she deliberately and with the full knowledge of the existence of the right or interest gives up the same. There being no such plea in the present case it will be unfair to the plaintiff-respondent to allow the appellant to put forward this plea for the first time in the course of the arguments.
10. Mr. Raghaviah then relied on the decision of this court in Seshamma v. Subbaravadu, ILR (1895) Mad 403 in which a claim for past maintenance for six years was denied and contended that it is a matter in the discretion of the court, when the widow had not remained or resided in the family house, not to grant any past maintenance. The judgment is a short one and does not discuss any principle on the basis of which the contention now put forward by the appellant can be sustained. On the other hand, a judgment of the Privy Council as well as a decision of this court is directly on this point to hold that a widow cannot be denied her claim to past maintenance on any such ground. The decision of the Privy Council in Ekradeshwari Bahuasin v. Homeshwar Singh, (1929) 56 Ind App 192 = AIR 1929 PC 158 as given in the headnote itself states:--
'A Hindu widow who has left the residence of her deceased husband not for unchaste purposes, and resides with her father is entitled to maintenance, also to arrears of maintenance, from the date of her leaving her husband's residence, although she does not prove that she was incurred debts in maintaining herself and gives no reasons for the change of residence.'
This decision directly negatives the contention put forward by the appellant in this behalf. The above judgment of the Privy Council was considered by a Bench of this Court in Sobhanadramma v. Narasimhaswami : AIR1934Mad401 . On the right of the widow to claim past maintenance, this court held-
'The principle of this and the subsequent decisions appears to be that the claim to maintenance which arises when it is unlawfully withheld is legal right. A demand and refusal is not necessary to create the right. They are only of evidentiary value to show that afterwards the withholding must have been wrongful or that there could not be any support for the theory of abandonment or waiver. In the same way mere non-payment of maintenance, though by itself it does not constitute the withholding wrongful, is still evidence to show that the withholding was wrongful. The only legal answer to such a claim is either abandonment or waiver or such conduct on the part of the plaintiff as May have misled the defendant into thinking that such a claim would not be made thereby inducing him not to make any provision to be made out of the current income of the estate or of the person liable. For the rest, the discretion of the Court when applied to the grant of arrears of maintenance will be found to have either been exercised in adjusting the rate at which the arrears have been awarded or in limiting the period by inference from facts of an implied waiver or abandonment or conduct such as abovementioned.'
The Bench referred to the decision of this court is Panchakshara v. Pattammal : AIR1927Mad865 and deduced the principle thus:--
'There is no doubt that the plaintiff's claim for past maintenance is a legal right, and unless adequate grounds are shown for inferring that she has waived or abandoned that claim the defendants cannot escape liability.'
We have already referred to the fact that in the present case, the appellant along with the other contesting defendants put forward the express case of payment of maintenance under the family arrangement and therefore the appellant could not have pleaded any case of abandonment or waiver. Consequently, applying the principles of the above decisions, it must be held that there is absolutely no justification for the court to refuse the arrears of maintenance for period in question to the plaintiff.
11. However, Mr. Raghaviah referred to and relied on a decision of the Bombay High Court in Dattatraya Maruti v. Laxman Jettappa : AIR1942Bom260 and contended that when a widow comes forward suddenly with a demand for a huge sum by way of arrears of maintenance that will be considered to be an inequitable demand and embarrassing to the estate and therefore such a claim should not be entertained. We are unable to agree that the decision of the Bombay High Court lays down any such proposition. With reference to the facts of that case, the Bombay High Court held that the demand for an exaggerated amount of Rs. 1,000/- by way of arrears would be inequitable and embarrassing to the estate and therefore reduced the claim from Rs. 1,000/- to Rs. 500/-. Consequently, this is a matter to be considered with reference to the facts of each case and the Bombay High Court did not lay down any unalterable and fixed principle of law that whenever a widow comes to the Court with a demand for lump sum payment by way of arrears of maintenance, the court should treat such a demand as inequitable and embarrassing to the estate.
12. Under these circumstances, we are clearly of the opinion that there are no merits in this appeal. The appeal therefore fails and it is dismissed with the costs of the first respondent.
13. Appeal dismissed.