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(Kaki) Narasamma Vs. Kaki Venkataraju and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1926Mad534
Appellant(Kaki) Narasamma
RespondentKaki Venkataraju and ors.
Cases ReferredIn Raja Venkatappa Nayanim Varu v. Rajah Thimma Nayanim Varu
Excerpt:
- - he gives no reason for his finding on this point beyond the fact that the testator was in a very weak condition, that his body was swollen and the plaintiff was his second wife and threatened to make a disturbance if he did not accede to her wishes......maintenance to the plaintiff at the rate of rs. 2 per mensem if she surrendered possession of the lands at devarapalli; or if those lands remained in her possession he decreed that she should get no other maintenance at all. she was also given a right of residence in a portion of the defendant's house.2. on appeal the subordinate judge fixed the amount of maintenance at rs. 6 a month or rs. 72 a year with the proviso that the defendants should pay only rs. 32 a year so long as the plaintiff continued in possession of the devarapalli lands. the plaintiff appeals against this decision and there is a memorandum of objections on the other side.3. the plafntiff's husband, before he died, executed a will, which is ex. a, allowing his wife a sum of rs. 15 a month for her life besides the lands.....
Judgment:

1. This is a suit for the recovery of past and future maintenance from the plaintiff's stepson. The District Munsif awarded maintenance to the plaintiff at the rate of Rs. 2 per mensem if she surrendered possession of the lands at Devarapalli; or if those lands remained in her possession he decreed that she should get no other maintenance at all. She was also given a right of residence in a portion of the defendant's house.

2. On appeal the Subordinate Judge fixed the amount of maintenance at Rs. 6 a month or Rs. 72 a year with the proviso that the defendants should pay only Rs. 32 a year so long as the plaintiff continued in possession of the Devarapalli lands. The plaintiff appeals against this decision and there is a memorandum of objections on the other side.

3. The plafntiff's husband, before he died, executed a Will, which is Ex. A, allowing his wife a sum of Rs. 15 a month for her life besides the lands at Devarapalli and providing that the sum should be Rs. 10 a month so long as she lived in her son's house with the, rest of the family.

4. In a suit of this nature the only questions for consideration are : (1) whether the plaintiff is entitled to maintenance ; and (2) at what rate maintenance should be awarded.

5. The Courts below, however, allowed an issue to be raised as to whether the Will (Ex. A) was obtained by the plaintiff' from her husband by undue influence. The Subordinate Judge considered that the plaintiff was in a position to dominate the will of her husband and obtained an unfair advantage over him. He gives no reason for his finding on this point beyond the fact that the testator was in a very weak condition, that his body was swollen and the plaintiff was his second wife and threatened to make a disturbance if he did not accede to her wishes. The present suit has not been brought to enforce the provisions of the Will apart from the plaintiff's natural right to be maintained by her stepson. It is obvious that the plaintiff's husband had no power to bind his heirs by Will to pay maintenance at a definite fixed sum per annum or per mensem for the rest of the life of his surviving widow. The Will, therefore, is only useful as an indication of what in the view of the testator would be a reasonable rate of maintenance for his wife to have after his death. Seeing that the 1st defendant himself wrote the Will and got it registered, he cannot plausibly put forward a plea that the plaintiff exercised undue influence over his father. Nor do I consider the circumstances found by the lower Courts to exist as amounting to undue influence within the law. In this view of the case the provisions made in the Will, seeing that the provision in favour of the plaintiff was not an outright bequest of a definite item of property, become of secondary importance, and it is thus unnecessary to canvass the finding of the Subordinate Judge on the subsidiary points whether the Will was obtained by the exercise of undue influence and whether it is valid as a family arrangement. The Courts below have not found what income the defendant gets beyond the income from the house and lands. But P.W. 2 admitted that the 1st defendant had had no trade since 4 or 5 years ago. It is also not disputed that he has nine members of his family to maintain. It has not been found that the defendant has any immovable properties besides the house at Rajahmundry and a site on the road to Dowleshwaram. On the merits of the case I am unable to find that the rate of maintenance fixed by the Subordinate Judge is unreasonable. The fact that in 1912, when the Will was made, the plaintiff's husband would have given at least Rs. 15 a month is not proof that in 1919 when the suit was brought the 1st defendant's circumstances were such that Rs. 15 a month would be a reasonable allowance. In Raja Venkatappa Nayanim Varu v. Rajah Thimma Nayanim Varu : (1914)27MLJ656 it is pointed out that a maintenance allowance is liable to be increased or decreased by change of circumstances. The plaintiff has been a warded Rs. 32 a year so long as she continues in possession of Devarapalli lands. It is not stated that she is no longer in possession of those lands. The question whether she should get Rs. 32 a year and the income of the Devarapalli lands, or 72 without them, is one which will come up when the decree is executed.

6. Upon the objection memorandum it is contended that the District Munsif's decree should be restored on the ground that the plaintiff is not entitled to get more than one-third of the total income of the family when the 1st defendant has nine members to maintain. I am not inclined to reduce the amount below Rs. 6 a month seeing that the 1st defendant was one earning and may again earn something to supplement the income from the lands and house. No satisfactory reasons have been shown for altering the decree of the lower appellate Court, which, on the face of it, appears to be a fair provision to make for the plaintiff's needs after fully considering the 1st defendant's present income and his obligations. The second appeal and the memorandum, of objections are therefore both dismissed. The parties will bear their own costs throughout.


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