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Manubothula Rama Rao Vs. Manubothula Venkayamma and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1931Mad705
AppellantManubothula Rama Rao
RespondentManubothula Venkayamma and anr.
Cases ReferredSundara Bai Sahiba v. Tirumal
Excerpt:
.....fund money. clearly not. the answer to the argument is that if the plaintiff wished to make the husband's property in the gudivada jurisdiction charged for her decree amount it was obligatory upon her to sue in the gudivada court, and in that suit there is no doubt upon the rules and orders upon [the subject that she could have asked for a personal remedy against her husband, because the rules of jurisdiction based on personal residence laid down in section 20 are subject to the limitations as to the place of suing where immovable properties are concerned as laid down by sections 16 to 18. she having failed to do that, and having brought her suit in the ellore court, must be held to have relinquished that particular relief which might have been open to her of getting a charge on her..........costs of respondent (plaintiff).second appeal no. 1281 of 1929.7. this second appeal arises from a suit brought by the same wife as in the other second appeal against her husband in the gudivada munsif's court for having the amount of the decree awarded to her in the first suit in the elloro district munsif's court made a charge upon certain property of the husband in the gudivada jurisdiction. this was occasioned by the fact that in the first suit the plaintiff did not ask that any amount decreed to her might be made a charge upon the husband's property and i am told that this was because the husband had no property in the ellore jurisdiction. however that may be the second suit, the subject of this second appeal, was met by the defence that the suit was incompetent by reason of order.....
Judgment:

Pandalai, J.

1. These are connected second appeals. The main suit out of which the litigation arose was brought by a Hindu wife against her husband, the appellant in S.A. No. 1432 of 1927, for future maintenance and arrears of maintenance. The first Court dismissed the suit, but the appellate Court awarded the plaintiff arrears of maintenance at the rate of Rs. 10 a month and future maintenance at the rate of Rs. 12 a month so long as the defendant remained in his present service in the railway and thereafter at Rs. 10 a month.

Second Appeal No. 1432 of 1927.

2. In this appeal the appellant's main point is that there should not have been any decree for maintenance because the respondent (plaintiff) has not established her right to maintenance according to Hindu law. The facts established are that the appellant married the respondent some 21 years before the suit, of which for the first 13 years they lived in harmony together and for the remaining period of eight years the parties lived separately. The wife accuses the husband of cruelty, abandonment, and domestic infidelity. The husband denies these charges and says that the wife has only herself to blame and that he is willing to take her back. As usual both these charges and explanations were found by the lower appellate Court ' to be somewhat exaggerated, But the truth as found by the lower appellate Court is that the relations between the spouses have bean so estranged for the last eight years that they have found it impossible live together and have more or less reconciled themselves to that fact. During the period the husband has not maintained his wife. The wife was, it seems seriously ill, for two years at Ellore but the husband who was then employed at Hyderabad made no inquiries and paid no thought to the wife's condition. After she became a little better, she and her maternal uncle went to Hyderabad in 1920 and asked the appellant to take her into the house. He refused and sent them a way. Sometime later the husband came to the neighbourhood of the wife's residence on some business but never cared to go to the wife or to make any inquiries of her. He now excuses himself upon the ground of rain and badness of the road which are excuses merely. On the evidence I have not the slightest doubt that the appellate Court came to the correct conclusion that the husband has deserted his wife and neglected his duty to maintain her. In these circumstances the plaintiff was clearly entitled to a decree.

3. The decree actually awarded Rupees 12 a month after suit so long as the defendant is in railway service and Rs. 10 after he retires. The respondent asks that the limitation may be removed. I think it right not merely in the circumstances of the husband but also to prevent further estrangement between the parties that this limit should be removed and I consider that a sum of Rs. 12 a month is by no means excessive having regard to the fact that the husband's salary is well over Rupees 120 and that he is supposed to have saved something and will on retirement become entitled to his provident fund money. I therefore modify the decree of the lower appellate Court by removing the limit for the payment of Rupees 12 to the period of the defendant's employment.

4. The result is that there will be a decree for Rs. 12 a month from the date of plaint. The words in the decree of the lower Court

until he retires from the railway employment and thereafter at Rs. 10 a month

will be deleted accordingly.

5. The only other matter arising in this appeal is that a small error has crept into the decree of the lower Court which makes it discrepant with the judgment. The lower Court awarded the plaintiff her full costs in the first Court and the lower appellate Court which of course includes the institution fees and then gave the Government a charge upon the whole of the decree obtained by the plaintiff for court-fees payable to Government by the plaintiff who brought the suit in forma pauperis. But in the decree of the lower appellate Court the institution fees are not included in mentioning the costs due to the plaintiff. That decree will therefore be amended by adding institution fees, namely, Rs, 179-13 0 to the plaintiff's costs in the first Court and in the lower appellate Court payable by the defendant.

6. The second appeal (1432 of 1927) substantially fails and is dismissed with costs of respondent (plaintiff).

Second Appeal No. 1281 of 1929.

7. This second appeal arises from a suit brought by the same wife as in the other second appeal against her husband in the Gudivada Munsif's Court for having the amount of the decree awarded to her in the first suit in the Elloro District Munsif's Court made a charge upon certain property of the husband in the Gudivada jurisdiction. This was occasioned by the fact that in the first suit the plaintiff did not ask that any amount decreed to her might be made a charge upon the husband's property and I am told that this was because the husband had no property in the Ellore jurisdiction. However that may be the second suit, the subject of this second appeal, was met by the defence that the suit was incompetent by reason of Order 2, Rule 2. That defence has been upheld by both the Courts below.

8. In second appeal the appellant (wife) urges that those decisions are wrong, The decision in Rangamma v. Vehalayya [1888] 11 Mad. 127 is a direct authority which would be binding in this case if the husband's properties sought to be made liable in the second suit were within the same jurisdiction as that in which the first suit was brought. It is argued that, as in this case the property sought to be made liable is in the Gudivada jurisdiction whereas the first suit brought for personal remedy was brought in the Ellore Court, that makes the decision inapplicable. I think there is no such distinction on principle. According to Order 2, Rule 2, Clause (1):

Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

9. Clause (3) is:

A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

10. There is in my opinion nothing in those rules which limits their operation to cases where of two reliefs open to a plaintiff on the same cause of action both are cognizable by the same Court. On the contrary they are operative even where these reliefs taken separately and alone would be cognizable in different jurisdictions. Several illustrations of this may be given. In the case of a mortgage with a personal covenant the jurisdiction within which the suit must be brought on the mortgage is where the property is situate. If a suit were to be brought on the personal covenant alone, it may have to be brought in a different jurisdiction; but that could not enable the plaintiff to first sua on the personal covenant and then sue on the mortgage. I do not lose sight, of course, of the provisions of Order 34, Rule 14, which makes it plain that, but for that rule, what I have said above about a mortgage would be right. Take again a case where there are two persons liable on a promissory note, each of whom is living in a different jurisdiction. A suit can be brought in either the one or the other but with leave under Section 20 (b). Can a plaintiff bring a suit in one jurisdiction against one debtor without impleading the other or asking for leave and then bring another suit against the other debtor in the other jurisdiction and justify himself on the ground that the prohibition of Order 2, Rule 2, only applies to cases where both reliefs are open in the same Court? Clearly not. Therefore it seems to me the argument that because the plaintiff could not have asked the Ellore Court to give her a decree charging the property in the Gudivada jurisdiction she is entitled to bring another suit in the Gudivada jurisdiction for that relief is not right. The answer to the argument is that if the plaintiff wished to make the husband's property in the Gudivada jurisdiction charged for her decree amount it was Obligatory upon her to sue in the Gudivada Court, and in that suit there is no doubt upon the rules and orders upon [the subject that she could have asked for a personal remedy against her husband, because the rules of jurisdiction based on personal residence laid down in Section 20 are subject to the limitations as to the place of suing where immovable properties are concerned as laid down by Sections 16 to 18. She having failed to do that, and having brought her suit in the Ellore Court, must be held to have relinquished that particular relief which might have been open to her of getting a charge on her husband's Gudivada property.

11. The appellant's learned advocate in the latter half of his address argues that in the suit brought in the Ellore Court the plaintiff might have asked for relief against the Gudivada property and on that footing asked me to give that relief in the second appeal which has already been disposed of. But that argument, while it is contradictory to the earlier portion of his own argument is not based upon any authority which is applicable and is directly contrary to the decision in Sitabai v. Laxmibai (1916) 40 Bom. 337. The only approach to support for that argument is found in an observation contained in Sundara Bai Sahiba v. Tirumal, Rao Sahib [1910] 33 Mad. 131. That was a suit brought on the original side of this Court against the defendant who was living outside the original jurisdiction of this Court for maintenance charging it upon property in Madras. The question arose whether such a suit was a suit for land within the meaning of Section 12, Letters Patent. It was held that it was, and in so holding their Lordships made an observation that ' where in a suit for maintenance the plaintiff only prays for a decree charging her maintenance on ancestral property without specifying any particular portion of that property, the suit may not be a suit for land as she does not claim any relief against any specified property.'

12. Apart from the fact that this was an observation merely, it was made in a case which depended upon the meaning of the words 'for land' in Clause 12, Letters Patent, and not upon the Coda of Civil Procedure where the words of Section 16 are:

for the determination of any other right to or interest in immovable property.

13. Having regard to the difference in language I am not able to say that the learned advocate's first argument on this point was not right or that the second argument is.

14. The result is that the decision of the lower Courts dismissing the suit as incompetent is right and the second appeal must be dismissed with costs.


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