Skip to content


Thayammal Vs. Muthuswami Gounder and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtChennai High Court
Decided On
Case NumberAppeal No. 206 of 1963 (Pauper)
Judge
Reported inAIR1971Mad282
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 23, 23(2) and 23(3)
AppellantThayammal
RespondentMuthuswami Gounder and ors.
Cases Referred and Kiran Bala v. Bankim Chandra
Excerpt:
.....of hindu adoptions and maintenance act, 1956 - petition for maintenance against heirs of deceased husband - maintenance to be calculated according to income of deceased husband - wife entitled to get maintenance in accordance with her status - wife not entitled to whole income of husband in absence of any evidence to prove that for reasonable comforts in life wife requires entire income of husband. - - as the plaintiff was not even an attesting witness in exhibit b-3 and as the consent is stated to have been obtained on 30th november, 1959, three days before the suit notice was issued by the plaintiff, we are satisfied that the settlement deed exhibit b-3 was not executed with the consent of the plaintiff we confirm the finding of the court below that exhibit b-3 was not executed..........is the widow of ramaswami gounder. defendants 1 and 2 are the brothers of the plaintiff's husband. defendants 3 and 4 are the sons of the second defendant and defendants 5 to 7 are the sons of the third defendant. pending appeal in this court, the third defendant died and his legal representatives were brought on record. defendants 1 and 2 and the plaintiff's husband were members of the hindu joint family. plaintiff's husband died about twelve years before suit without any issues. the family owned about 370 acres of land in kerala state and about 130 acres in pollachi taluk. according to the plaintiff till about 1952, she lived along with defendants 1 and 2 when due to certain misunderstandings between her and defendants 1 and 2, she was driven out from the joint family.....
Judgment:

Kailasam, J.

1. This appeal is preferred in forma pauperis by the plaintiff in the suit for past and future maintenance against the judgment of the Subordinate Judge, Coimbatore.

2. The plaintiff filed the suit claiming a sum of Rs. 72,000/- by way of arrears of maintenance upto the date of suit, and sum of Rs. 24,000/- per annum by way of future maintenance and for a charge over the suit properties for payment of arrears and future maintenance. The plaintiff is the widow of Ramaswami Gounder. Defendants 1 and 2 are the brothers of the plaintiff's husband. Defendants 3 and 4 are the sons of the second defendant and defendants 5 to 7 are the sons of the third defendant. Pending appeal in this Court, the third defendant died and his legal representatives were brought on record. Defendants 1 and 2 and the plaintiff's husband were members of the Hindu joint family. Plaintiff's husband died about twelve years before suit without any issues. The family owned about 370 acres of land in Kerala State and about 130 acres in Pollachi Taluk. According to the Plaintiff till about 1952, she lived along with defendants 1 and 2 when due to certain misunderstandings between her and defendants 1 and 2, she was driven out from the joint family house.

According to the plaintiff the reason for being driven out is that her mother filed a suit for maintenance against the sister's husband of defendants 1 and 2, and she could not induce her mother to come to terms as per the wish of defendants 1 and 2, and as she herself wanted to adopt a son to her husband and asked the consent of defendants 1 and 2. She further stated that she waited till the suit filed by her mother was disposed of, and in December, 1959, she gave notice claiming maintenance. The defendants resisted the suit and pleaded that till the end of November, 1959, the plaintiff was being maintained by the defendants. As amongst the defendants there was a partition of the Kerala properties on 9th October, 1954, and in November, 1959, it was stated that there was a family arrangement by which with the consent of the plaintiff, the Madras State properties were also divided making suitable provision for the maintenance of the plaintiff. A partition deed and a settlement deed in favour of the plaintiff were executed on 30th November, 1959; but later on the plaintiff declined to register the documents.

The defendants pleaded that the family settlement dated 30th November, 1959, made ample provision for her maintenance and therefore she was not entitled to any maintenance, much less maintenance before 1959 upto which year the plaintiff continued to stay in the joint family house. The learned Judge of the Court below found that the plaintiff never gave her consent to the settlement Exhibit B-3 dated 30th November, 1959 executed in her favour and therefore the defendants cannot resist the suit for maintenance on the ground that she had accepted the family arrangement. After considering the evidence of defendants 1 to 4 to the effect that the plaintiff gave her consent to Exhibit B-3, the learned Judge observed that if the plaintiff had really given her consent, her consent in the writing would have been obtained. Exhibit B-2 the partition deed of the same date was also not attested by the plaintiff. The plea that after consenting to the terms of Exhibit B-3, she declined to present it before the Registrar, for registration was rejected by the Court below.

On the evidence adduced on behalf of the plaintiff the lower Court came to the conclusion that there is no satisfactory evidence to show that the plaintiff gave her consent to Exhibit B-3. This finding was not seriously challenged before us. As the plaintiff was not even an attesting witness in Exhibit B-3 and as the consent is stated to have been obtained on 30th November, 1959, three days before the suit notice was issued by the plaintiff, we are satisfied that the settlement deed Exhibit B-3 was not executed with the consent of the plaintiff we confirm the finding of the Court below that Exhibit B-3 was not executed with the consent of the plaintiff. There can therefore be no doubt that the plaintiff is entitled to maintenance from out of the joint family properties.

3. The plaintiff has claimed maintenance from 1952, It is stated that she was driven out of the family house in 1952 as she could not induce her mother to compromise a suit filed by her for maintenance against the sister's husband of defendants 1 and 2 on the terms suggested by defendants 1 and 2 and as the plaintiff wanted to adopt a son to her husband. In 1954, the Kerala properties were partitioned as amongst the defendants, and the plaintiff did not protest against such partition without providing maintenance for her. In the plaint it is not alleged that defendants 1 and 2 asked the plaintiff to induce her mother to withdraw the maintenance suit. This would indicate that the plea that defendants 1 and 2 compelled her to induce her mother to withdraw the suit is an after-thought.

4. The voters list corrected upto 1960 in respect of both the villages of defendants 1 and 2 and that of the plaintiff contain the name of the plaintiff in both the villages. We do not think much importance can be attached to these entries. All that it would indicate is that the plaintiff would have lived in both the villages concerned at the time of enumeration. If the plaintiff had been driven out of the joint family house in 1952 she would not have kept quiet till about 1959. On the other hand, the evidence indicates that when the partition deed was executed as amongst the defendants, she was not satisfied as no provision for her maintenance was made and hence gave the suit notice Exhibit A-1. The oral evidence of the witnesses examined in both sides is highly interested and discrepant and cannot be relied on in determining the question as to whether the plaintiff was driven out of her house in 1952. Taking into account the circumstances mentioned above, we are in agreement with the finding of the Court below that the case of the plaintiff that she was driven out of the family house in 1952 has not been satisfactorily proved and therefore she will be entitled to maintenance only from the date of Exhibit A-1 3rd December, 1959.

5. The question that remains to be considered is the quantum of maintenance to which the plaintiff would be entitled to. The evidence let in by both the sides regarding the income from the properties is grossly exaggerated and therefore the question will have to be determined on the evidence of independent witnesses and the documents on record. D.W. 4 is the first defendant. He states that the family owned 363 acres in Kerala and that they sold about 20 acres and owned 343 acres. Out of the 343 acres 22 acres are ayan nanja with two crops. In addition to that, there was also converted wet lands, and about 25 acres are under wet cultivation. In Pollachi Taluk, Madras State, the family owns about 130 acres. In Marchinaickenpalayam, the family owns 13 vallams. There were two wells in it with motors and only five vallams are irrigated and the eight vallams are dry lands. In Rasichettipalayam, the family owns two vallams of thottam and six vallams of dry lands. There are two wells in it with oil engine. There are about 120 coconut trees in the tope. In Muthur vallams of dry lands are owned by the family.

6. So far as the income from Kerala lands are concerned, D.W. 4 stated that he would realise about one bandy of paddy per acre. In arriving at the income from the Kerala lands, the learned Subordinate Judge accepted the evidence of P.W. 4, the irrigation inspector, Chittoor Taluk. Kerala State and the Income-tax returns Exhibits B-4 to B-13 and the assessment orders thereon furnished by the defendants. According to P.W. 4, the family owns 343 acres out of which 23 acres are registered nanja lands, and in about five acres nanja cultivation is carried on in punja lands. There are five wells with three engines and the wells irrigate forty acres. He stated that there are about 75 cocoanut trees. He further stated that about 70 acres are lying fallow. The witness added that one acre of nanja, if leased out, would fetch one bandy of paddy as rent. Each bandy would contain 70 paras of paddy valued at Rs. 3 per para.

The witness further admitted that the defendants are paying Agricultural Income-tax. Exhibits B-4 to B-13 would show that the net income from the Kerala lands would be about Rs. 20,000 per annum. The learned Judge accepted the correctness of the assessment orders and fixed the income from Kerala lands at Rs. 20,000 per annum. We see no reason for not accepting the finding of the learned Subordinate Judge. The plaintiff has not adduced any satisfactory evidence for not accepting the income-tax returns filed by the defendants. We therefore confirm the finding of the lower Court that the net income from the Kerala lands would be Rs. 20,000 per annum, net.

7. Regarding the lands in Pollachi Taluk the assessment orders relating to Muthur lands only have been filed as Exhibits B-15 and B-16. D.W. 4 admitted in cross-examination that Exhibits B-15 and B-16 relate to Muthur lands only. The learned Judge has estimated that the net income would be roughly about Rs. 10,000. It is not clear as to whether the assessment orders which the learned Judge took into account refer to other lands in Pollachi Taluk. The learned counsel for the plaintiff submitted that even if the evidence of the fourth defendant is accepted. the income from Pollachi lands would be at least Rs. 25,000. The fourth defendant has admitted in his cross-examination that the groundnut yield will be thirty bags per vallam, that is four acres. He also admitted that the price at which groundnut is being sold is Rs. 13 to Rs. 15 per bag. Calculating on this rate, the groundnut produce from Marchinaickenpalayam, Rasichettipalayam and Muthur lands which are seven vallams of thottam lands and 34 vallams of dry lands, would be about 1,860 bags, fetching a price of Rs. 25,000/-.

But the witness in the latter part of his cross-examination corrected himself and stated that the net income will be 17 to 18 bags of groundnut per vallam in Muthur lands and in the other lands also the income will be more or less the same. He stated that the yield would be forty bags per vallam in Thottam. The learned counsel submitted that the admission made by the fourth defendant must be accepted and the income should be taken at least as Rs. 25,000/- per year. We feel that his estimate may be on the high side and it would be safe to fix the net income from the Pollachi Taluk properties at Rs. 16,000 per annum. We are therefore satisfied that the family is possessed of properties which are fetching a net income of Rs. 36,000 per annum.

8. The question arises as to the amount of maintenance to which the plaintiff would be entitled to. On behalf of the plaintiff Mr. Mohan Kumaramangalam, the learned counsel submitted that taking into account the status that is given to a widow in modern times and the recognition of her right to property by various enactments though she would not be entitled to a share in the immoveable property as her husband died before the various enactment conferring property rights on the widow came into force, she would at least be given the share of the income which her husband would have got. On the other hand, it is contended on behalf of the defendants that what she is entitled to is that much of an amount which would satisfy her reasonable wants including not only the ordinary expenses of living, but what she might reasonably expend for religious and other duties incident to her station in life. It was pointed out that the widow is living in an extremely frugal manner being satisfied with seven white sarees a year and therefore a maintenance of Rs. 1,500 a year would be ample to meet her requirements.

9. The method of determination of quantum of maintenance under the Hindu Adoptions and Maintenance Act, 1956, is provided in Section 23 of the Act. The various circumstances that are to be taken into account in determining the amount of maintenance are stated in Section 23(2) and (3) of the Act. But in this case as the death of the husband of the plaintiff was before the Act came into force, the law as it stood prior to the Act governs. Generally stated, the maintenance to be awarded to a widow, with the same degree of comfort as she had in her husband's house. The position and status of the deceased husband and of the widow and the reasonable wants of the widow should all be taken into account.

In Mt. Ekradeshwari v. Homeshwar 56 Ind App 182 = 1929 57 MLJ 50 = AIR 1929 PC 128 the Privy Council observed that the quantum of maintenance would depend upon a gathering together of all the facts of the situation, the amount of free estate the past life of the married parties and the families, a survey of the condition and 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 mode of living, and to the age, habits, wants, and class of life of the parties. In short, their Lordships observed that is out of a great category of 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.

Their Lordships also proceeded to observe, that there may be circumstances in which the past mode of life of the widow has been demonstrably on a penurious and miserly scale, or on the other hand, on a quite extravagant scale having regard to the total income of the husband, and that in such a case the scale was suited to his own position in life, that is a sound point from which to state the estimate. It is unnecessary to refer to the figures relating to the income of the family and also the members in the case before the Privy Council. It is clear that the fact that the past mode of life of the widow has been demonstrably on a penurious and miserly scale or on the other hand, on a quite extravagant scale would not be helpful to decide the quantum of maintenance payable to the widow.

In Audemma v. Varada Reddi : (1948)1MLJ30 a Bench of this Court on a consideration of the case-law on the subject held that the widow's claim for maintenance out of the joint family property is absolute in the sense of not being liable to be reduced because of the possession of any property by her in her own right as stridhanam, and that she would be entitled to an amount necessary and sufficient for maintaining herself in the manner which she was maintained by her husband. In Nagendramma v. Ramakottayya : AIR1954Mad713 a Bench of this Court after referring to the various decisions held that the Privy Council case 56 Ind App 182 = 1929 57 MLJ 50 = AIR 1929 PC 128, should be followed. The learned counsel referred to the decisions of other High Courts, namely M. Satyanarayanamurthi v. M. Jaggamma, AIR 1962 AP439 and Kiran Bala v. Bankim Chandra : AIR1967Cal603 . The decisions in those cases were rendered on the particular facts of those cases and are not helpful in deciding the quantum of maintenance in this case.

On a consideration of the case-law, we are satisfied that the maintenance that is to be awarded should be determined taking into account the value of the estate, position and status of the deceased husband and of the widow and the reasonable wants of the widow. We are not able to accept the contention of the learned counsel for the defendants that as the widow was living in an extremely frugal manner a small sum of maintenance would suffice, for, such a plea was not accepted by the Privy Council 56 Ind App 182 = 1929 57 MLJ 50 = AIR 1929 PC 128. To accept such a contention would result in victimising widows leading frugal lives and rewarding those spending extravagantly.

10. Mr, Mohan Kumaramangalam on behalf of the plaintiff widow submitted that the Court will have to take into account the changed status of the widow in the modern society brought about by the several enactments and change in social outlook and therefore in providing for the reasonable wants of the widow, the income to which the husband would be entitled to should be awarded as maintenance. While we accept the contention that the status of a Hindu widow has undergone a great change and she is given a much higher status now after the several enactment providing her with a right to property and the change should be recognised in fixing the quantum of maintenance we are unable to accept the contention that in all cases. the entire income of the husband should be given as maintenance for what the widow is entitled to is maintenance and not the extra income of the deceased husband. It may be that if the income of the deceased husband is limited and would be required to maintain the widow in reasonable comforts the entire amount may be given as maintenance.

In the present case, it may be pointed out that there is no evidence on the side of the plaintiff widow as to what her requirements are to provide her reasonable comforts in life. In the absence of any such material, we are unable to agree with the contention that the entire share of income of her husband should be given to her as maintenance. We have found already that the income to the share of the plaintiff's husband would be Rs. 12,000 per annum or Rs. 1,000 per month. As it is not possible for the widow to live in the family house, she may have to find an accommodation either in the village or in the nearest town. To have all reasonable comforts consistent with the status of her husband, after a careful consideration. we are of opinion, that an inclusive sum of Rs. 500/- per month would be the proper amount of maintenance. We therefore fix the amount of maintenance at Rs. 500 (five hundred) per month. The plaintiff would be entitled to the maintenance from 3rd December, 1959. She would be entitled to costs on the amounts decreed. She will pay the court-fee. There will be a charge on the joint family properties for payment of past and future maintenance.

11. Order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //