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Panchakshara Chetty Vs. Pattammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1927Mad865
AppellantPanchakshara Chetty
RespondentPattammal and ors.
Cases Referred and Rangathayi Ammal v. Muniswami C.
Excerpt:
- .....are, that the rate of maintenance awarded to the plaintiff is excessive and that the claim for past maintenance is unsustainable. in the memorandum of appeal it is conceded that the plaintiff could be given maintenance at the rate of rs. 20 a month, though, in the written statement, not more than rs. 91 a month was stated to be the proper rate of maintenance awardable to the plaintiff. it is pretty clear from the evidence that the defendant's family is in affluent circumstances, possessing considerable landed property and also carrying on some lucrative family business. the evidence of p. w. 4, who is a relation of both parties and who was also cited as a witness by both sides and whose respectability has not been challenged, discloses that the family estate would be worth about a.....
Judgment:
ORDER

1. The 3rd defendant is the appellant. This appeal arises out of a suit brought by a plaintiff (respondent 1) for recovery of maintenance, past and future, and for other incidental reliefs. The learned Subordinate Judge has awarded maintenance at the rate of Rs. 55 per mensem, besides a lump sum as arrears of maintenance due for seven years and ten months prior to the date of suit.

2. The two main contentions pressed in this appeal are, that the rate of maintenance awarded to the plaintiff is excessive and that the claim for past maintenance is unsustainable. In the memorandum of appeal it is conceded that the plaintiff could be given maintenance at the rate of Rs. 20 a month, though, in the written statement, not more than Rs. 91 a month was stated to be the proper rate of maintenance awardable to the plaintiff. It is pretty clear from the evidence that the defendant's family is in affluent circumstances, possessing considerable landed property and also carrying on some lucrative family business. The evidence of P. W. 4, who is a relation of both parties and who was also cited as a witness by both sides and whose respectability has not been challenged, discloses that the family estate would be worth about a lakh and a half and that the amount of income from the lands would be between 500 to 600 kalams of paddy, each kalam being Rs. 4 to 5 in value and that the family business would yield a profit of Rs. 5,000 to 6,000 per annum. Even the second defendant as D. W. 1 admits that the family has been paying an income tax of about Rs. 280 per year in respect of two shops, one at Walajabad and the other at Conjeevaram. In the face of this admission, the estimate of the income given by P. W. 4 cannot be deemed to be an exaggeration. The learned Subordinate Judge is right in taking Rs. 10,000 as the annual income of the family and that seems to us to be a fairly reasonable estimate on a consideration of the evidence on both sides. Plaintiff's husband' s share in the family estate being one-ninth, the income derivable from that share may be safely estimated at Rs. 1,000 per annum. As observed by the Subordinate Judge no hard or fast rule can be laid down as to what particular fraction of that income should be awarded as maintenance to the plaintiff and all that can be stated is that in no event she can be allowed a rate of maintenance which would exceed the income from her husband's share of the family properties. Having due regard to that limit, the circumstances of each case have to be taken into consideration in fixing the rate of maintenance. The rate should be so fixed as to enable the plaintiff to live comfortably according to the standard of living usually adopted by the members of the families occupying a social status similar to that of her husband. In this case there is some evidence that the plaintiff had been frequently suffering from bodily ailments necessitating medical help. Considering all the circumstances of this case, we do not think that the rate fixed by the Lower Court is unduly liberal or that it has not been fixed by it in a sound exercise of its discretion. We see no sufficient grounds to interfere with that finding.

3. As regards the arrears of maintenance claimed by the plaintiff, the plaintiff's case is that, during the time of her stay in the defendant's family after her husbands' death, she was not properly looked after and had to leave that house and go over to her mother's house on account of the ill-treatment. She was staying in her mother's house for some years and finally the demand for maintenance was made by means of a lawyer's notice in March 1923. It has been laid down in a number of decisions that, in order to entitle her to past maintenance no demand is necessary. The non-payment of maintenance to a person entitled thereto constitutes prima facie proof of wrongful withholding, as observed by the Privy Council in Raja Yarlagada Mallikarjuna Prasada Nayudu v. Raja Yarlagada Durga Prasada Nayudu [1901] 24 Mad. 147 Defendants have, therefore, to rebut such prima facie proof by showing that there has been a waiver or adandonment on the part of the plaintiff. On page 157 their Lordships of the Privy Council have stated thus;

It may well be that, if he had been misled into the belief that the claim for maintenance was abandoned and had in consequence not set aside any portion of their annual income to meet such a claim, he would have had a good defence to the present action

4. This principle has been applied by this Court in two cases reported in Subramania Iyer v. Muthummal : (1911)21MLJ482 and Rangathayi Ammal v. Muniswami C. hetty : (1911)21MLJ706 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. There is nothing to show that the defendants were in any way misled by the plaintiff's conduct into believing that she would not enforce her claim for arrears of maintenance. In this case there was an actual demand in writing for maintenance both past and future, though it was a somewhat belated one, We see, therefore, no adequate grounds for disallowing the arrears of maintenance legitimately due to her, nor do we think fit to curtail the rate allowed by the Subordinate Judge in respect of past maintenance. But, however, the period for which he allowed past maintenance has to be reduced for obvious reasons. It is admitted before us at the hearing that the plaintiff's husband died on the 10th August 1915. It is admitted in paragraph 5 of the plaint that the plaintiff continued to live in the joint family of the defendants for over a year after her husband's death and then only she was obliged to leave the joint family and go away to Madras to her mother's house. She could not, therefore, claim past maintenance from 1st September 1915, as she has done and she could be allowed to have it only from 1st September 1916. The amount of one year's past maintenance, namely Rs. 660, excessively allowed by the lower Court should be disallowed.

5. In the result, subject to the slight modification indicated above, this appeal is dismissed with costs of the respondent 1 (plaintiff),


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