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Manikka Mudaliar and ors. Vs. Soubagia Ammal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported inAIR1915Mad26; 25Ind.Cas.897; 25Ind.Cas.897a; (1914)27MLJ291
AppellantManikka Mudaliar and ors.
RespondentSoubagia Ammal
Cases ReferredBangaru Animal v. Vijayamachi Reddiar
Excerpt:
hindu law - joint family--maintenance--widow of brother--maintenance to be fixed with reference to family income at date of suit--wairer, effect of--charge upon property--personal decree. - .....is not contended that the property out of which the plaintiff seeks to be maintained is not joint family property; that the defendants did not take her husband's interest by survivorship and that formed in part the nucleus of this acquisition. it is also clear that if the family income had been reduced, the plaintiff would only get a reduced rate of maintenance and she would not be entitled to have it fixed with reference to the family income at the date of her husband's death. a daughter-in-law may not be entitled to claim any maintenance out of the self-acquired property in the hands of her father-in-law if her husband dies before his father. but she would be entitled to claim it out of the same property after it descends to her brothers-in-law as ancestral property. the character of.....
Judgment:

1. The Judge has awarded the sum of Rs. 50 per month for maintenance to the plaintiff, who is the widow of a deceased member of a joint Hindu family. The defendants, her husband's brother and brother's sons, appeal.

2. It is first contended that the District Judge is wrong in fixing the maintenance with reference to the present income of the family. The major part of the income is derived from the family trade in which the plaintiff's husband took part at the time of his death and which has developed considerably since. The District Judge estimates the present income at Rs. 17,500 a year. It is contended for the appellants that it was not more than Rs. 500 in 1897 when the plaintiff's husband died, and the rate of maintenance should be fixed with reference to that income

3. It is not contended that the property out of which the plaintiff seeks to be maintained is not joint family property; that the defendants did not take her husband's interest by survivorship and that formed in part the nucleus of this acquisition. It is also clear that if the family income had been reduced, the plaintiff would only get a reduced rate of maintenance and she would not be entitled to have it fixed with reference to the family income at the date of her husband's death. A daughter-in-law may not be entitled to claim any maintenance out of the self-acquired property in the hands of her father-in-law if her husband dies before his father. But she would be entitled to claim it out of the same property after it descends to her brothers-in-law as ancestral property. The character of the property at her husband's death does not, therefore, always limit her claim. The cases Adhihai v. Cursandas Nathu 11 B. 199 and Madhavrao Keshav Tilak v. Gangdbai 2 B. 639 support the view 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. We agree with the decision in Sultan Sahu v. Gangajah 13 Ind. Cas. 136. The decision in Bangaru Animal v. Vijayamachi Reddiar 22 M. 175 that altered circumstances would justify an increased rate of maintenance, proceeds on the same principle.

4. In the cases cited by Mr. Rangachariar there has been no change in the circumstances of the family and they are not, there fore, in point.

5. It is then argued that the family properties do not yield Rs. 17,500 a year and the rate of Rs. 50 is too high.

6. The defendants have not given any evidence as to the income; they did not file their account books, and we are, not prepared to say that the Judge is wrong in his estimate of the income, which is only approximate.

7. It is also urged that as the plaintiff was living with her father, she is not entitled to any past maintenance, but the finding is that when the two branches of the family became divided and began to live apart, she asked the defendants to make some arrangements for her and though they promised to do so eventually they failed to keep their promise. In these circumstances she was obliged to go to her father's house. There was no waiver by her of her claim.

8. It is unnecessary to make the maintenance a charge on the entire family property. It will be made a charge on items 4 to 25.

9. No reason is shown why a personal decree should be passed against the defendants. It will be modified in that respect also.

10. For these reasons we dismiss the appeal with costs with the modification of the decree above indicated.


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