1. These two appeals arise out of a suit for maintenance filed on 5th December, 1940 by the appellant in A.S. No. 262 of 1945, against her. step-son who is the appellant in A.S. No. 393 of 1945, and his paternal grand-mother who was the second defendant in the suit. The plaintiff asked for future maintenance at the rate of Rs. 720 per year, arrears of maintenance at the same rate restricted however to the consolidated amount of Rs. 4,000 and a provision for expenses of plgrimage estimated at Rs. 280. She also alleged that some of her jewels valued at Rs. 1,500 were with the defendants, and she prayed for their delivery or payment of their value. The learned Subordinate Judge of Nellore who tried the suit decreed the plaintiff's claim for maintenace at Rs. 360 per annum. He decreed arrears at the same rate but limited to three years prior to the suit. The claim for jewels or their value was negatived. Rs. 280 were directed to be paid to the plaintiff towards expenses of pilgrimage. The amounts decreed to the plaintiff were charged on items 15 to 76 of the plaint A Schedule.
2. In her appeal the plaintiff seeks enhancement of the rate of maintenance and also prays for a decree for Rs. 4,000 towards arrears. A direction is also sought as to her right of residence. The correctness of the decree granted by the Court below as to costs is questioned as also its finding as regards the jewels. In the appeal filed by the step-son (first defendant) it is argued that the plaintiff is not entitled to any maintenance at all as her claim was settled in 1913, that in any event the rate of maintenance should be reduced and the decree as to arrears vacated, that the charge should not have been imposed on what is described as almost the entire immoveable property owned by the first defendant and that it should be confined to a reasonable portion of the property.
3. The material facts and relationship may be shortly stated. The second defendant is the only child of one Chennuri Varadareddi and his wife Pitchamma. The second defendant married one Pallamreddi Mallareddi who admittedly had no ancestral property of his own. Seshureddi was the only child of this marriage. The plaintiff is Seshureddi's first wife, and the first defendant is his son by his second wife Kamalamma. Seshureddi married the first defendant's mother in May, 1912, and the plaintiff left the family house in 1913. Chennuri Varadareddi executed a will on 16th December, 1901 whereby he bequeathed his properties to his daughter, the second defendant and to his grandson Seshureddi. On 12th May, 1912, by which time Chennuri Varadareddi had died, Seshureddi and the second defendant divided the properties bequeathed to them by Varadareddi's will, Seshureddi taking 8 acres 23 cents of wet land, 6 acres 90-1/2 cents of dry land and outstandings of the value of Rs. 1,487-10-0, while the second defendant took 9 acres 481-1/2 cents of wet land, 6 acres 90-1/2 cents of dry land and outstandings of the value of Rs. 3,012-10-0. An extent of 3 acres 6 cents of wet land and outstandings of the value of Rs. 1,711-2-7 were allotted to the testator's widow Pitchamma for life with a remainder in favour of Seshureddi and the second defendant. It is recited in the deed of partition (Ex. P. 2) that as Mallareddi, the second defendant's husband, had no property of his own, some immoveable and moveable property was gifted to him, evidently referring to Ex. D. 18 whereby 2 acres 25 cents of wet land was given to him absolutely. This land remained in his possession and enjoyment till his death in 1927. The first defendant came of age in 1933. Considerable immoveable properties were thereafter acquired by him.
4. The learned Subordinate Judge finds that the extent of the properties owned by the first defendant on the date of suit is 44 acres of wet land and 20 acres of dry land including what was got from Chennuri Varadareddi and what the first defendant subsequently acquired. On the basis of certain leases exhibited in the case the learned Subordinate Judge estimates the income of each acre of wet land at half a putty and calculating at the rate of Rs. 65 a putty he assesses the annual income from the wet lands at Rs. 1,430 out of which he states that ' the plaintiff's husband's share if he were alive on the date of the suit would be one half i.e., Rs. 715 '; but as the first defendant has to support his mother also the learned Subordinate Judge takes one half of Rs. 715 rounded off at Rs. 360 per annum and adopts this as the proper rate of maintenance awardable to the plaintiff. The income from the dry lands is left out of account as this is held to be just sufficient to pay the taxes on the entire lands dry and wet.
5. We have listened to very elaborate arguments from the learned Counsel on both sides, but it seems to us that the principal points arising for determination lie within a short compass.
6. It is first argued on behalf of the first defendant that the plaintiff's claim for maintenance was settled at Rs. 600 in 1913, and that she is consequently not entitled to claim any more maintenance out of her husband's estate. On her side the plaintiff put forward the case that in or about 1914, it was settled by certain mediators that she should be given 6 acres of land and a portion of a house in full satisfaction of her claim for maintenance and residence but that her husband resiled from that settlement and did not carry it out. The learned Subordinate Judge held that there was no settlement either in the manner alleged by the plaintiff or in the manner alleged by the first defendant.
7. In support of his case that the plaintiff's claim for maintenance was settled in 1913, the first defendant examined a mediator, D.W. 2 and his own grandmother D.W. 9. As we are in substantial agreement with the judgment of the learned Subordinate Judge on this matter it is unnecessary for us to deal with this question at any great length. In the first place it is highly improbable that the claim for maintenance of a young woman of 23 or 24 years would have been settled at the exceptionally low figure of Rs. 600. The first defendant alleges that a receipt was obtained from the plaintiff in acknowledgment of the payment of Rs 600 to her; but this receipt has not been produced, and the explanation of the first defendant for its non-production is altogether unacceptable. All that he says in his evidence is that the receipt is 'now missing' and that he suspects that the plaintiff's relations in the village took it from his house. He then refers to P.W. 1 and his two brothers who he says are related to the plaintiff, and states that they belonged to his faction and that they used to go through his papers in his absence. He admits in cross-examination that he never complained to the police about the loss of the receipt and that he never asked P.W. 1 and the others if they had taken it. It is curious that when P.W. 1. was himself in the witness box the only suggestion that was made to him in cross-examination was that 'he looked into the first defendant's records in connection with a certain suit' which he, the first defendant and some others filed in the Court of the District Munsiff of Nellore. The evidence as to the loss of receipt is thus of the vaguest kind, and we are altogether unable to believe it.
8. Shortly after the deed of partition dated 12th May, 1912, whereby inter alia the tiled house in which the family was residing was allotted to the share of the second defendant, the second defendant and her husband Mallareddi filed O.S. No. 1017 of 1912, in the Court of the Additional District Munsiff, Nellore against Seshureddi and the plaintiff for evicting the latter from the said house. Seshuredi did not defend the suit. The present plaintiff filed a written statement, but ultimately withdrew her contest and submitted to a decree reserving however her right of maintenance and residence. This reservation is embodied in Ex. P. 3.
9. In view of the strained relationship between the parties disclosed by these proceedings, it is most unlikely that if the plaintiff's claim for maintenance were settled as the first defendant alleges, there would not have been a document in writing to evidence the settlement, if not a registered document. D.W. 2, the alleged mediator, is unable to give any details of the settlement and contradicts himself to a certain extent as to its probable date, to which circumstance, however, we do not attach much importance as the settlement took place a long time ago, if it took place at all. The second defendant who was examined as D.W. 9 says that she does not remember whether Rs. 600 was actually paid, and that she was not present at the time of the arrangement but was present only when the document was taken with regard to maintenance. She then adds that Seshureddi executed a document to the plaintiff for maintenance and that she cannot give the contents of the documents. The mediator D.W. 2 does not mention that there was any document embodying the terms of the arrangement or that Seshureddi executed a document in favour of the plaintiff, the first defendant's case being that there was only a receipt obtained from the palintiff in token of the payment to her of the amount settled to be paid in full satisfaction of her claim. In these circumstances, we agree with the learned Subordinate Judge that the settlement alleged by the first defendant has not been made out.
10. The main contest between the parties is as to the amount of maintenance which may legitimately be awarded to the plaintiff. It has been argued by Mr. Umamaheswaram on behalf of the first defendant that the first defendant is liable to maintain the plaintiff only because he has succeeded to the property of Seshureddi as heir, that the plaintiff's maintenance must therefore be assessed having regard to the extent of the estate left by Seshureddi at his death in 1920 and that the later acquisitions by the first defendant were made with the help of monies borrowed by him from his grandmother, the second defendant or from others or with the help of gifts made to him by the second defendant from time to time. He contends further that even if those acquisitions were rightly taken into consideration in assessing the plaintiff's maintenance, adequate allowance should have been made by the learned Subordinate Judge for the debts which the first defendant had to borrow from his grandmother or from others for making those acquisitions. He states that the debts amounted to about Rs. 16,000 and complains that the learned Subordinate Judge was not justified in not accepting as genuine the account books produced by the first and second defendants to prove the loans given by the second defendant and that the learned Subordinate Judge also erred in not giving the first defendant an adequate opportunity of examining his other creditors or their clerks and to exhibit their account books to establish the first defendant's borrowings from them. The correctness of the figures as to the extent of the properties owned by the first defendant at the time of the institution of the suit is also questioned.
11. While supporting the accuracy of the figures adopted by the learned Subordinate Judge regarding the extent of the property owned by the first defendant at the time of the institution of the suit and his finding that the first defendant acquired properties after 1933 from out of the income of the properties which he got in 1920 and without the help of any loans from the second defendant or any body else. Mr. Subba Rao, the learned advocate for the plaintiff, argues that the estimate as to the income made by the learned Subordinate Judge is unduly low and that if a proper estimate is made his client should have been awarded maintenance at the rate of Rs. 60 per mensem, that it was quite open to the Court to take the entire property into consideration at the date of suit and that the first defendant's liability cannot be restricted to or based upon the extent of the property to which he succeeded in 1920.
12. There was some discussion before us as to whether the partition of 1912 between Seshureddi and the second defendant was real or was a mere sham. The learned Subordinate Judge was inclined to treat it in the latter way, but we do not think that there is any justification for it. There is no doubt some suspicion that the tiled house in which the family was living was specially allotted to the second defendant in order to enable her to turn the plaintiff out of the house, the plaintiff and the second defendant being admittedly at loggerheads for sometime previously. But this, in our opinion, is insufficient to sustain the finding that the transaction was not intended to be acted upon. We do not see anything strange or suspicious in the allotment of some property to Pitchamma for life for her maintenance. She was certainly entitled to be maintained out of the properties of her husband Varadareddi. The allotment of three acres and odd and of about Rs. 1,700 of out-standings cannot be said to be in excess of her right. No suspicion need attach either to the gift of 2 acres 25 cents of land to Mallareddi. On Mallareddi's death that property would devolve on Seshureddi and not on Mallareddi's wife, the second defendant, and if the object of the parties in entering into the partition was to prejudice the plaintiff's right of maintenance that object cannot be achieved by giving Mallareddi any property. Besides, the extent of the property given to him was quite negligible. There is no undue disparity between the shares allotted to Seshureddi and the second defendant, and it must be remembered that even if the partition were not there the second defendant would be entitled to a half of her father's property under his will, Seshureddi being entitled only to the other half. The partition therefore must, in our opinion, be treated as one binding on the parties.
13. It is claimed on behalf of the plaintiff that the first defendant is bound to maintain her irrespective of the possession of any property, and that the learned Subordinate Judge was therefore quite justified in having regard to the comparative affluence of the first defendant at the time of the suit in estimating the maintenance awardable to the plaintiff and that in this view it is unnecessary to find out how the first defendant acquired the several properties, as the only point relevant according to this argument would be as to what property he owned at the time when he was sought to be made liable.
14. We are unable to accept the proposition that a step-son under Hindu law is under a personal obligation to maintain his step-mother. At page 603 of Mullah's Hindu Law, 10th edition it is stated that,
A Hindu is under a legal obligation to maintain his wife, his minor sons, his unmarried daughters, and his aged parents whether he possesses any property or not.
15. In the notes to this section it is further stated that, a Hindu is not under a personal obligation to maintain his sister, his step-mother, his daughter-in-law, or his sister-in-law, though the obligation to maintain them may arise from possession of property. At page 604, under Section 544 this proposition is reiterated as follows:
A step-son is under no personal obligation to' maintain his step-mother; but if he inherits his father's estate, he is bound to maintain her out of the estate, she being a person whom his father was legally bound to maintain as his wife.
16. Bai Daya v. Natha Gobindlal I.L.R.(1885) 9 Bom. 279 and Narbadabai v. Makadeo I.L.R.(1880) 5 Bom. 99 are cited in support.
17. In Mayne's Hindu Law, 10th edition at page 824 it is declared that,
The maintenance of a wife, aged parents and a minor son is a matter of personal obligation arising from the very existence of relation and quite independent of the possession of any property, ancestral or acquired.
18. Under footnote (z) is given Bai Daya v. Natha Gobindlal (1885) I.L.R. which is quoted evidently with approval. In that case it was definitely held that the obligation to maintain one's parents does not extend to one's step-mother.
19. Mr. Subba Rao's principal reliance is on Srinivasa, Iyengar v. Thiruvengadathaiyangar (1912) 25 M.L.J. 644 : I.L.R. Mad. 556 which was followed in Bala Tripurasundaramma v. Suryanarayana : (1893)3MLJ80 . In Srinivasa Iyengar v. Thiruvengadathaiyangar (1912) 25 M.L.J. 644 : I.L.R. Mad. 556 it was held that the mother of a co-parcener is entitled to have a provision made for her maintenance out of the entire family property including the share of her step-son as well as the share of her own son. Mr. Subba Rao argues that the word 'mother' includes a step-mother, but in what context it is so included is clearly pointed out by Sundara Aiyar, J., at page 566 in Srinivasa Iyengar v. Thiruvengadathaiyangar (1912) 25 M.L.J. 644 : I.L.R. Mad. 556. The learned Judge first quotes the text of Vyasa which states:
Even childless wives of the father are pronounced equal sharers and so also are all the paternal grandmothers: they are declared equal to the mothers,
and then goes on to apply the text to a case where the right of maintenance is sought to be enforced against the share of the claimant's husband which had gone by survivorship to her son and step-son.
20. In Papamma v. Apparao : (1893)3MLJ80 it is pointed out that etymologically the word ' Matha' refers to the natural mother, that in its primary sense it connotes only the natural mother, and that while in a secondary sense it may include a step-mother
There must be a special reason either in the subject-matter of the text or in the context for departing from the ordinary meaning.
21. Dealing with the right to give away a son in adoption it was held in this case that it is confined to the natural mother and does not extend to a step-mother.
22. In Kumaravelu v. Virana Goundan I.L.R.(1883) Mad. 29 which among other decisions is approved in Papamma v. Apparao : (1893)3MLJ80 it was held that a step-mother is not entitled to succeed to her step-son in preference to a sapinda. In Navaneethakrishna Marudappa Thevar v. The Collector of Tinnevelly : AIR1935Mad1017 reference is made at page 671 to a long line of cases in Madras which have consistently held that a step-mother is not a mother for the purpose of the law of inheritance. In contrast it is pointed out at page 666 in the same decision that in dealing with partition it is made clear by the text and commentaries that a mother includes a step-mother. Dealing with the text of Manu on which the personal obligation of a Hindu son to maintain his mother and father is based, it was ruled in Bai Daya v. Natha Govindlal I.L.R.(1885) 9 Bom. 279 that the primary meaning of the word ' Matha ' is natural mother and that it is only in a secondary or figurative sense that it could mean step-mother, and that the conclusion that it is intended to be used in the latter sense must be drawn from the context or from a comparison of cognate texts. The learned Judges in Bai Daya v. Natha Govindlal I.L.R.(1885) 9 Bom. 279 concludes that the expression ' Mother ' in Manu's text and the expression 'parents ' in the Mitakshara should be read in their natural sense, and that there is no legal obligation on the part of a Hindu to support his step-mother independently of family property.
23. We are in entire agreement with the view taken in Bai Daya v. Matha Govindlal : (1893)3MLJ80 the correctness of which so far as we are aware has never been questioned. The decisions in Srinivasa Iyengar v. Thiruvengadathaiyangar (1912) 25 M.L.J. 644 : I.L.R. Mad. 556 and Bala Tripura-sundaramma v. Suryanarqyana (1914) 17 M.L.T. 188 are clearly distinguishable as they deal with the right of a Hindu widow to be maintained out of her deceased husband's interest in the family property which on his death has survived to his coparceners, namely, her sons and her step-son. It may be pointed out that at one time under the law of the Mitakshara a Hindu mother was, at the partition of coparcenery property, entitled to be allotted a share equal to that of her son or step-son, and that the practice of allotting shares upon partition to females has long since become obsolete in southern India and that the right survives only as a right for provision of maintenance which must not in any case exceed the share of her son. (See Mulla's Hindu law, 10th edition, pages 399, 400 and 401 and Subramania Chetti v. Arunachala Chetti I.L.R.(1904) Mad. 1 .
24. The next question that falls to be considered--and indeed this is the main question in the case--is as to whether the plaintiff's maintenance should be based on the extent of the property owned by the husband at his death or on the property owned by the first defendant at the time of the suit. Dealing with a widow's right of maintenance it is stated in Mullah's Hindu Law, 10th edition, at page 613 that,
A widow, who does not succeed to the estate of her husband as his heir, is entitled to mainte-nance (1) out of her husband's separate property; also (2) out of property in which he was a co-parcener at the time of his death.
25. It is admitted that Seshureddi had no coparcenery property when he died. As is recited in the deed of partition Seshureddi's father, Mallareddi had no property whatever and was therefore given by his son and wife 2 acres 25 cents out of what they got under Varadareddi's will. The property owned by Seshureddi in 1920 was the property which he got as legatee under his grandfather's will, the two legatees having divided Varadareddi's property by metes and bounds under the deed of partition of 1912.
26. It is not denied that the plaintiff has a right to be maintained by her step-son out of her husband's separate property which has devolved on him (the first defendant); but it is maintained on his behalf that the plaintiff's right of maintenance is limited to such property and that the later additions made by him to it must be altogether left out of account. On behalf of the plaintiff reliance is principally placed on the decision in Manicka Mudaliar v. Sowbagia Ammal : AIR1915Mad26 . Dealing with a case where a widow of a deceased member of a joint Hindu family claimed maintenance against her husband's brother and brother's sons who had considerably enlarged the family estate since the death of her husband, it was held that
The share the husband would get if he had been alive at the time of the suit should be taken into consideration and not the share, if any, he was entitled to on his death.
27. After pointing out that the property out of which the plaintiff sought to be maintained was joint family property, that the defendants took the plaintiff's husband's interest by survivorship and that it formed the nucleus of the subsequent acquisition, Sankaran Nair and Spencer, JJ., held in that case that the plaintiff would get a reduced rate of maintenance if the family income diminished and that on the same principle she should be entitled to an increased rate of maintenance if the family income expanded.
28. In Veerayya v. Chellamma : AIR1939Mad37 Wadsworth, J., held following Manicka Mudaliar v. Sowbagia Ammal : AIR1915Mad26 that
The maximum which can be awarded to a widow will be the amount of the income of the share to which her deceased husband would have been entitled had he been alive and a coparcener at the date of the suit for maintenance.
29. The learned Judge notices that in Rangathayi Ammal v. Muniswami Chetti : (1911)21MLJ706 and Subbarayulu Chetti v. Komalavalli Thayaramma : (1911)21MLJ493 the income of the husband's share was taken to be the income of the share which he. would have got if a division had taken place in his lifetime, and that this was also apparently the basis of the decision in Jayanti Subbiah v. Alamelu Mangammal : (1902)12MLJ270 in which the right of maintenance was treated as being limited to the share of the deceased husband which had come by survivorship to the coparcener. The learned Judge then observes that,
on this question of the date with effect from which the husband's share is to be estimated, there is a very clear ruling of a Bench of this Court in Manicka Mudaliar v. Sowbagia Ammal : AIR1915Mad26 .
which is later than the case he first referred to. As the decision in Manicka Mudaliar v. Sowbagia Ammal : AIR1915Mad26 had not been challenged by subsequent rulings of this Court in the 24 years which had elapsed since the decision was passed the learned Judges took it to be authoritative and allowed maintenance on the basis of the income of the share to which the plaintiff's deceased husband would have been entitled on the date of the suit had he been alive and a coparcener.
30. Mr. Umamaheswaram for the first defendant suggests that the conflict noticed by Wadsworth, J., must be resolved by a decision of a Full Bench. He points out that in Rangathayi Ammal v. Muniswami Chetti : (1911)21MLJ706 it was assumed without demur that the widow's right to be maintained out of the interest of her deceased husband in the coparcenary property which on his death survived to the remaining coparceners should be calculated with reference to the share to which he would have been entitled if a partition had taken place between him and the remaining coparceners before his death, and that the law was stated in similar terms in Srinivasa Iyer v. Lakshmi Ammal (1927) 54 M.L.J. 530 Ramzan v. Ram Daiya I.L.R.(1917) All. 96 and Gurushiddappa v. Parwatewwa I.L.R. (1937) Bom. 113. It seems to us that it is unnecessary for the purpose of this case to decide whether the view indicated in Rangathayi Ammal v. Muniswami Chetti : (1911)21MLJ706 or that taken in Manicka Mudaliar v. Sowbagia Ammal : AIR1915Mad26 is the correct one. All the cases which have been referred to in this context are cases where the claim for maintenance by a widow was directed against the coparcenary property in which at one time her husband was a sharer. If it is borne in mind that the widow's right of maintenance is the truncated right which still remains out of what was at one time a claim to a share of the family property, there will be no difficulty in recognising that as a necessary and logical consequence of the nature of the right possessed by the widow, her maintenance would be dependent upon the varying fortunes of the family. Her comforts would dwindle if the family property is reduced; but if the family becomes more affluent, she will be entitled to participate in that affluence.
31. This line of reasoning, however, would seriously apply to a case where a widow is claiming maintenance out of her husband's separate property. During his lifetime the husband was under a personal obligation to maintain his wife irrespective of the possession of any property. On his death that obligation fastens to his separate property in the hands of an heir or devisee. It is well settled that in the case of a devise, which makes no provision for the maintenance of the testator's widow, the devise may not be invalid in its entirety, but the right of the widow to maintenance can be enforced against the property in the hands of those to whom it has been bequeathed. It is obvious, however, that if the heir or devisee is the full owner of the property subject only to the discharge of the obligation as to maintenance there is no apparent principle on which it can be held that the widow would be entitled to have her maintenance enhanced if the heir or the devisee acquires more property, or that her maintenance should be reduced if he fritters away a portion of the property which he got from her deceased husband. She is entitled to be maintained with the same degree of comfort and reasonable luxury as she had in her husband's lifetime, and when the obligation to maintain her arises out of the devolution of her husband's separate property under the law of inheritance or out of a testamentary disposition of the property by him she is not entitled to enlarged maintenance by reason of the subsequent growth of the property in the hands of the heir or the devisee; nor can her maintenance be reduced on the ground that because of his imprudence a portion of the property was spent away or lost.
32.In Mayne's Hindu Law at page 829 after referring to the moral liability of a father-in-law to maintain his son's widow out of his own separate property and how when his sons or in their default, his widow, daughter or daughter's son, succeed to his estate that moral liability as transmitted to them on his death becomes in their persons a legal liability, it is stated that the measure of that liability is restricted to the amount of the estate to which they have succeeded, and that this rule obtains both under the Mitakshara and the Dayabhaga law. The decision in Rajanikanta Pal v. Sajanisundaree Dassee is quoted in support of this proposition. We note that there was no discussion of this aspect either in the judgment of the Privy Council or in that of the Calcutta High Court (Sajanisundaree Dassee v. Jogendra-thandra Sen I.L.R. (1930) Cal. 745 which was the judgment under appeal in. the Privy Council. The observation of the Judicial Committee however is entitled to weight and seems to us to be in consonance with the principle we have enunciated. It is true that the obligations of a father-in-law to maintain his daughter-in-law is a mere moral liability during his lifetime, while in the case of a husband there is a legal obligation to maintain his wife; but this, in our opinion, makes no difference in dealing with the nature and extent of the liability of the heir who has succeeded to the property of the father-in-law in the one case or of the husband in the other.
33. No distinction has been or can be suggested between the husband's heir and the husband's devisee who may quite possibly be an utter stranger to the family. It would seem strange if a devisee from the husband could be directed to pay enhanced rate of maintenance to the widow when by his own efforts he made considerable additions to the property he got from the testator. The same principle should, in our opinion, be applied to an heir, and the extent of the obligation must therefore be defined in terms of the estate existing at the time of the death of the last holder.
34. This necessitates an enquiry into the extent of the estate in 1920 when Seshureddi died. It is not in dispute that the only addition which he made to the immoveable property he obtained under the deed of partition is an extent of 93 cents purchased under Ex. D-19 in 1914. There has been considerable discussion before us as to the extent of the outstandings possessed by Seshureddi in 1920. It has been contended on the one hand on behalf of the first defendant that the outstandings which Seshureddi got in 1912 of the extent of Rs. 1,487 must have been spent away in maintaining himself and his family till 1920 and on the expenses of his second marriage; but this seems to us to be a mere speculation based on no tangible evidence. It is contended on the other hand, that the extent of the outstandings in 1912 must have been much larger than what is disclosed in the deed of partition; but this theory too has no reliable evidence to support it. We are in agreement however with the learned Subordinate Judge in his estimate of the outstandings and cash belonging to the first defendant in 1933 at about Rs. 11,000. There is ample documentary evidence in support of it. (See Exs. P-8-b, P-8-n, P-8-m and P-8-0), The parties are undoubtedly thrifty and careful in the management of their properties. In view of the clearly established fact that Seshureddi had out-standings of the value of about Rs. 1,500 in 1912 and that the first defendant had outstandings and cash of about Rs. 11,000 in 1933, we would not be wrong in estimating the outstandings which Seshureddi would have possessed in 1920 at over Rs. 3,000. In any event the outstandings were not inconsiderable.
35. We are not impressed with the argument that the income from the wet lands would be appreciably more than half a putty of paddy per acre. The learned Subordinate Judge's estimate is based on leases, and apart from the exaggerated oral evidence on both sides there is no reliable material on which it could be said that the income would be distinctly larger even if the lands are cultivated by the first defendant himself. If we take the extent of the wet land owned by Seshureddi in 1920 at a little over 9 acres the income would be 4-1/2 putties of paddy on the basis of the learned Subordinate Judge's estimate. In estimating their money value, however, it seems to us that we should take into consideration the prices that have prevailed since 1942 and not the prices that prevailed in 1940. It is admitted by counsel on both sides that for over four years, if not five, a putty of paddy has been selling at Rs. 140. On this basis the income from the lands owned by Seshureddi would be about Rs. 630. We see no reason not to accept the learned Subordinate Judge's estimate that the income of the dry lands is not likely to be much more than the taxes which have to be paid in respect of the entire wet and dry lands. The income from the estimated outstandings at the time of Seshureddi's death cannot, calculated at the rate of six per cent. per annum, be more than Rs. 180. Adding this to the income from the wet lands the total income cannot exceed Rs. 810 per annum.
36. It has been pointed out on behalf of the first defendant that his mother Kamalamma is entitled to maintenance as also the second defendant out of the properties owned by Seshureddi. It is said that the second defendant's properties should not be taken into account, reliance being placed for this purpose on Annapoornamma v. Veeramghava Reddi : AIR1940Mad547 . That was a case of a claim for maintenance by a widow out of joint family property, and in view of what we have already said regarding the nature of that right there can be no quarrel with the proposition that a widow's claim to be maintained out of 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. Here however the position is different. The second defendant as also the first defendant's mother were entitled to be maintained by Seshureddi during his lifetime, and they are also entitled to look to this property for maintenance if it becomes necessary. But it does not necessarily follow that if the second defendant claims maintenance out of her son's estate she can ask the Court to exclude from consideration, the fact that she owns considerable property which is sufficient to maintain her. As regards the first defendant's mother she has a right to look to her son also for her maintenance could not therefore be thrown entirely on the property which her husband had at the time of his death. No claim has so far been made either by the second defendant or by the first defendant's mother for maintenance against him, and there is no reason to think that it will be made hereafter, but even if any such claim should be made we do not see why in all the circumstances we have mentioned the plaintiff should be deprived of the provision of Rs. 360 per annum for her maintenance. The learned Subordinate Judge estimated that amount as necessary and sufficient for maintaining her in the manner in which she was being maintained by her husband. We have been shown no reason to differ from that conclusion. We therefore uphold the judgment and decree of the lower Court in regard to the quantum of the plaintiff's maintenance.
37. In the above view it is unnecessary for us to discuss whether the first defendant made out his case that the properties acquired by him between 1933 and 1940 were acquired without reference to the property he got from his father; nor is it necessary to fix or settle the exact extent of the property owned by him in 1940. There is no dispute that he made considerable additions to the property he got from his father. We may however observe that the criticism on behalf of the first defendant that the learned Subordinate Judge did not give him a reasonable opportunity of proving the several debts which he alleged he owed to others has not been made out; but we must at the same time observe that the learned Subordinate Judge was not justified in throwing any doubt on the genuineness or reliability of Exs. D-2, D-13 and D-14 which are respectively the first defendant's ledger, the second defendant's ledger and the second defendant's daybook. It is evident from the several seals which those books contain that they were in existence in 1932 at the latest. No adequate reason has been shown why these books should be regarded as having been concocted for the case. Whether and to what extent these books establish the first defendant's case that the second defendant made gifts of money to him or gave him loans with the help of which he purchased properties is quite another matter which for reasons already given we do not consider it necessary to discuss. In regard to the loans which he is alleged to have borrowed from others the first defendant himself states that he cannot say which particular lands he purchased with the money borrowed under each of the promissory notes executed by him in favour of those creditors. In view of our finding that the plaintiff's maintenance must be calculated on the basis of the property owned by her husband in 1920 and the estimate of the income of that property made by us, we do not consider that the plaintiff can legitimately ask for any larger maintenance than what has been decreed by the lower Court.
38. The next question of importance is that of the arrears. Both parties rely on the decision in Sobhanadramma v. Narasimhaswami (1933) 67 M.L.J. 712 : I.L.R. Mad. 1003. The learned Subordinate Judge himself refers to it in support of his view that the plaintiff should be given three years' arrears prior to the suit. In our opinion the plaintiff has totally failed to substantiate her case that she made a demand for her maintenance in 1933 and again in 1938. The alleged demand in 1933 rests on her sole testimony. P.W. 4 has been examined as the person through whom another demand was made in 1938, but P.W. 4 has shown himself to be an unreliable witness in so far as he deposes that the first defendant admitted to him that he had some jewels of the plaintiff with him. The learned Subordinate Judge rejected the plaintiff's claim in this regard, and as we shall show later in our judgment, we agree with him in this respect. That being so, it would be quite unsafe to act on the evidence of P.W. 4 that he made a demand on the first defendant on behalf of the plaintiff. The learned Subordinate Judge was himself not inclined to believe that any demand was made before the suit was actually filed. The result therefore is that for a period of 27 years from 1913 to 1940 there was no demand of any kind by the plaintiff, and in these circumstances it seems to us not unreasonable to infer that the plaintiff has impliedly abandoned the claim for the period prior to 1940. We do not therefore see any justification for decreeing any maintenance to the plaintiff for any period prior to the suit which was launched without even a suit notice. This part of the decree of the lower Court will therefore be vacated.
39. In regard to costs it has been argued by Mr. Subba Rao that it is the settled practice of this Court as pointed out in Annapoonamma v. Veeraraghava Reddi : AIR1940Mad547 to award to a plaintiff in a suit for maintenance her full costs of the suit even if her claim was not decreed in toto provided
The claim to maintenance is genuine and true and the amount claimed is not out of all proportion to the amount that is found to be due.
40. We think that the reason of the rule applies to this case, and that the plaintiff should be given her entire costs including the court-fee due on the plaint in the Court below in so far as they relate to the claim for maintenance. The learned Subordinate Judge has given the plaintiff her costs proportionate to her success. In this respect the decree of the lower Court will be varied.
41. The claim of the plaintiff that provision for her residence should be made in the family house can be shortly dealt with. As the learned Subordinate Judge points out, no such claim was made in the plaint itself, the plaintiff claiming only a consolidated amount of Rs. 60 for both maintenance and residence. This was estimated at Rs. 30 by the Court below and with that estimate we have already expressed our agreement. No separate provision for residence by way of allotting a portion of the family house for her use can therefore arise.
42. The only question that now remains is the claim of the plaintiff for her jewels. Here again, we agree with the learned Subordinate Judge that it is most unlikely that the plaintiff, a Hindu woman, would have left her jewels for so long with her husband or her mother-in-law or her step-son without making any claim whatever. The plaintiff's case is that she did not take her jewels with her when she left her husband's house in 1913. It is most unbelievable that no claim in this regard would have been made for in 27 years if there is any truth in the plaintiff's case. In Ex. P-3, the memorandum filed on the plaintiff's behalf in the suit relating to the tiled house from which she was sought to be evicted the plaintiff reserved her right to claim maintenance and residence but made no reservation whatever in regard to jewels. This also shows that her jewels could not have been left with her husband or her mother-in-law. We therefore agree with the learned Subordinate Judge that there is no substance in this claim.
43. Nothing has been said in the appeal about the provision for expenses of pilgrimage. This will therefore remain.
44. The result therefore is that the decree of the lower Court will be modified by the deletion of the provision as to arrears of maintenance and by awarding the plaintiff full costs of the suit in regard to her claim for maintenance. As regards the property chargeable with the plaintiff's maintenance it follows from our judgment that the plaintiff can at the highest claim a charge only on the immoveable properties owned by her husband at his death. The decree of the lower Court will therefore be modified by confining the charge granted to the plaintiff to the items of immoveable property owned by Seshureddi at his death. There will be no order as to costs of these appeals.
Frederick William Gentle, C.J.
45. I have had the advantage of perusing the judgment or my learned brother. I agree with the conclusions he expresses and the reasons given for them and I have nothing to add.
46. These appeals having been set down to be mentioned this day, the Court made the following.