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Rundibala Roy Vs. Putubala and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. Nos. 2386-87 of 1979
Judge
Reported inAIR1985Cal47,88CWN877
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 4, 18(1) and 25; ;Transfer of Property Act, 1882 - Section 100
AppellantRundibala Roy
RespondentPutubala and ors.
Appellant AdvocateTarun Chatterjee, Adv.
Respondent AdvocateDipti Kana Bose and ;Tapas Kumar Midya, Advs.
DispositionApplication dismissed
Cases Referred(Karpakambal Ammal v. Ganapathi Subbayyaa). It
Excerpt:
- .....she is not claiming as a dependant in this case. she is claiming here as the decree-holder of a decree passed during the lifetime of the husband who conceded a decree in favour of putubala (which is now put into execution) and once a decree is passed it cannot be set aside or be extinct without any due process of law which has never been done in this case; it may be mentioned here that mr. chatterjee argued that the husband died in 1975 long after the h.a.m. act came into force and that the date of his death is the material date. mr. chatterjee overlooks one fact that it was throughout the intention of the parties (and the decree was to that effect), that the said properties would stand charged and agreement would subsist till her death. otherwise the husband himself would have taken.....
Judgment:
ORDER

Asha Mukul Pal, J.

1. This revisional application arising out of Section 115 of the Civil P. C. made by Rundibala Roy. second wife of late Nagendra Nath Roy and her minor sons is directed against judgment and order passed by Sri S. N. Milra. Munsif. Khatra on 31-5- 1979 whereby he allowed J. Misc. Case No. 11, 77 and J. Misc. Case No. 1/79 arising oul of Title Execution Case No. 6/76 and 1, 77 respectively and further declaring (herein that Putubala was entitled to execute for Rs. 724/- as maintenance for the year 1381-82 B.S. and also to execute for Rs. 387/- against the judgment-debtors as would appear from his order) and finally declaring that the main execution case by Putuhala would be proceeded with.

2. The ease of Putubala is that Nagendru Nath Roy married her in 1945, She lived with him for about four years. In 1955 Nagendra Nath drove her away from his house and refused to maintain her. In 1954 Nagendra Nath Roy married again and R-undibala (one of the petitioners hereint became his second wile. Putubala filed a suit on 10-6-55 in forma pauperis claiming for a decree for maintenance against the husband Nagendra Nath Roy. On 30th Aug, 1956 a compromise decree was passed and one of the said clauses of the compromise decree was that some properties would be charged for the maintenance of Putubala during her lifetime. Nagendra Nath paid her maintenance during his lifetime; he died in 1975. There were arrears of maintenance and Putubala executed the compromise decree.

3. The case of Rundibala in this revisional application is that after the death of Nagendra Nath Pulubala became the heir of the deceased having inherited two annas share of Nagendra Nath and her case is that after her inheritance she became disqualified to gel maintenance from the other heirs of Nagcndra as the right of maintenance of the opposite parly was abolished and obliterated by the Hindu Succession Act (Para 5(d) of the presenr-petition) and as such the execution case for the sale of charged property and for [he recovery of arrears of maintenance was not maintainable.

4. The learned . Munsif however rejected this contention and held that Putubala became the heir was immaterial when a valid decree by consent by a competent Court was passed in favour of Putubala and she was not disqualified to get maintenance or to enforce the decree for maintenance against the heirs even after becoming herself the heir of Nagendra Nath.

5. Mr. Chatterjee. Counsel for Rundibala contended before me that one cannot feature both as judgment debtor and decree holder. On the death of Nagendra Nath, Putubala became the heir. Therefore she became entitled to a share of the property left by Nagendra Nath. As such the property was only charged for maintenance and as the maintenance was the real intention for the said charge the said charge cannot have any further effect and it is bound to lapse. He refers to Section 4 of the Hindu Adoptions and Maintenance Act, 1956 and contends before me that this Act has an overriding effect on any other laws on maintenance before this Act came into force. Mr. Chatterjee's argument is that under Section 18(1) of this Act relating to maintenance a Hindu wife whether married before or after commencement of the Act shall be entitled to be maintained by her husband during her lifetime and under Section 19(1) it has been provided that she wilt be entitled after the death of her husband to be maintained from the estate of her hsuband. Mr. Chatterjee's argument is that as Pulubala herself being one of the heirs any question of maintaining her will not arise after Nayendra's death because under Section 22(1) of the H. A. & M. Act the question of maintenance comes up when a dependent is not himself or herself an heir or has been deprived of any share in the property left by the deceased. Here in this case Mr. Chatterjee contends Putubala herself becoming heir her claim for any further maintenance after her husband's death has no legal force at all Mr. Chatierjee referred to a Division Bench judgment of our Gtrort reported in : AIR1981Cal27 (N. Majumdar v. Indian Airlinest to sustain his argument that in such cases wife cannot claim any further maintenance but however after perusing the judgment I find that both the facts and the ratio in the said Division Bench judgment are quite different from the present one and as such the said Division Bench judgment does not apply in the present case. The said Division Bench judgment which was passed under the Special Marriage Act laid down the principle that an order for securing maintenance to the wife passed under Section 37 of the said Marriage Act against the husband creates an enforceable claim and not merely the personal obligation lapsing on the death of the husband and such an order may be enforced by instituting execution proceedings against the estate of the husband holding that a suit for the purpose of enforcing such claim does not lie. This case has no application in the present case in view of the fact, that in the present case there was a charge upon the property that the wife would be maintained out of the property till her death 'Ajeewan'. Therefore, it was the intention of the parties when the decree was passed with the sanction of the Court (as it was a consent decree) that property will be earmarked for her maintenance till she dies for her livelihood which they thought to be adequate to support her in life. Therefore she is not claiming as a dependant in this case. She is claiming here as the decree-holder of a decree passed during the lifetime of the husband who conceded a decree in favour of Putubala (which is now put into execution) and once a decree is passed it cannot be set aside or be extinct without any due process of law which has never been done in this case; It may be mentioned here that Mr. Chatterjee argued that the husband died in 1975 long after the H.A.M. Act came into force and that the date of his death is the material date. Mr. Chatterjee overlooks one fact that it was throughout the intention of the parties (and the decree was to that effect), that the said properties would stand charged and agreement would subsist till her death. Otherwise the husband himself would have taken steps or made any attempt to defeat or to cancel or to set aside the consent decree during his own lifetime. I say. this because it is a factual aspect of the matter which cannot be overlooked specially when the husband lived near about twenty years after the said consent decree. Mr. Chatterjee's contention that as soon as the H.A.M. Act came into operation this decree automatically lapsed is unacceptable to me. The said decree which was a consent decree could not be extinct or could not be inoperative or could lapse with the introduction of the H.A.M. Act which came after the said consent decree. In Mulla's Hindu law, 15th Ed. p. 1090. it has been stated 'it is fundamental and firmly established rule of interpretation that a statute which deals with rules of substantive law shall not be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary implication. There is clear indication in this section (Section 4 of Hindu Adoptions and Maintenance Act) read with other material sections of the Act that it is not intended that the provisions of the said Act will have retrospective effect'.

6. Mr. Chatterjee also refers to : AIR1959AP590 J. (Varahalamma v. J. Ammathalli). He draws my attention to para 8 of the said judgment where it has been observed :

'But it is obvious that as the Act confers upon the widow rights of succession in respect of the husband's property the right of maintenance allowed to her under the ordinary Hindu law would no longer be available. Obviously this means that the widow cannot exercise both the rights at one and same time and if she desires to take a share in the husband's property, she could not claim maintenance. The fact that maintenance was being given to her in lieu of her share in the husband's property cannot deprive her of her right of maintenance where she did not take the share in her husband's property'.

In the present case the property was charged for maintenance and that was also done by a decree of the Court and the decree cannot be lost in view of the introduction of H.A.M. Act which if it has overriding effect on any other Acts but cannot have any overriding effect on a decree passed by a competent Court.

7. Mrs. Bose, Counsel for Putubala argues that a secured decree is not a mere personal obligation. She further argued H.A.M. Act is not retrospective. This can be enforced after the demise of the husband. Her further argument is that Section 22 of the H.A.M. Act does not apply in this case because Putubala got the property secured for the maintenance for her lifetime before the Act came into force. Undisputedly the consent decree came into operation before the Act came to be passed and in my view after going through the scheme of the Act this Act cannot apply in any of the cases where (may it be a question of maintenance or may it be a question of adoption) matter in question had been settled before the Act came into force more so in this case because a valid decree was passed by a competent Court which was meant to be subsisting throughout her life by using the word 'Ajeewan'.

8. Mr. Chatterjee argued that question of retrospectiveness is not an issue in this case; what he meant, he contended, was that where maintenance was an issue the whole aspect could be reconsidered in the light of altered circumstances as in this case when Putubala became an heir afterwards and in such cases consent decree could not be any bar. He cited several decisions all under H.A.M. Act wherein although fixed amount was provided in a consent decree, the amount was re-fixed due to changed circumstances either because the cost of living and/or husband's income became higher and the wife was awarded in spite of the said consent decree a higher amount of maintenance. But this argument of Mr. Chatterjee does not hold good in this case in view of the fact that this Act itself (H.A.M. Act) to which Mr. Chatterjee mainly confined his argument, in its very scheme makes it prospective. Moreover, if this is made to be retrospective consequences would be sometimes absurd creating anomalous situation.

9. Mr. Chatterjee laid stress upon the provisions of Section 25 of the H. A. M. Act where it has been provided that amount of maintenance whether fixed by a decree of Court or by agreement, either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration. This section does not apply in this case for the reasons following : -- This section applies to a case where the amount of maintenance had been fixed by an agreement and that amount may be altered subsequently if there is a material change in the circumstances, but it does not apply in cases where a charge has been made upon the property for the lifetime maintenance of the deserted wife by a remarrying husband fixing principally not for payment of an amount (which is a token one and negligible in this case) but delivery of a certain quantity of paddy to be given for the purpose of food and living.

10. Mr. Chatterjee also refers to : [1965]3SCR122 (Raja Gopala Rao v. Sitharamamma) and also : AIR1969AP213 (C. Ambayamma v. C. Ganapathi), but in my view the Supreme Court judgment instead of furthering the case of his client does in fact help Putubala. It has been held in the said Supreme Court judgment that a statute has to be interpreted, if possible, so as to respect vested rights and if the words are open to another construction, such a construction should never be adopted. In this case there was a vested right by making a charge upon the property and that cannot be divested by the subsequent introduction of H. A. M. Act, specially in this case or cases like the present one where charge was created by taking into consideration of all the circumstances and aspects of the matter as manifest from the said consent decree and if at this stage Nagendra Nath's second wife and sons force Putubala to relegate to a partition suit that would amount to defeat the vested right of Putubala which had been created by her husband who never had taken any steps to set it aside or to negative it or to disown it although he lived 20 years after that.

11. The judgment reported in : AIR1969AP213 (supra) only gives a right to a claim for enhanced maintenance although maintenance was fixed by a compromise decree. I have already said before that facts of the said case are distinguishable from the present case where it is not a case of alteration of a fixed amount but a case of execution of a charge secured for maintenance of the wife for lifetime by agreeing to deliver a certain quantity of food grains mainly and not money.

12. This charge, in my opinion, is in nature of a charge contemplated under Section 100 of the Transfer of Property Act although executable without a fresh suit and it cannot lapse by the death of the husband and the argument of Mr. Chatterjee that a judgment-debtor cannot be a decree-holder because she inherits a share in the property loses its force, When Mrs. Bose submits in Court that her client would not claim her share except what is charged and what has been provided in the said compromise decree but in any event whether she abandons her share or not even if she does not the argument of Mr. Chatterjee is not tenable because in a partition suit all the parties (where the share are admitted) stand on an equal footing to participate to get their shares of the deceased's property may she or he be a plaintiff or the defendant. The question of anomaly as apprehended by Mr. Chatterjee would not arise because the suit that has been filed by Rundibala is a partition suit and Putubala is a defendant in that suit. In any event Court cannot allow a consent decree charging a property for the benefit of a wife as it was so done to lapse. It may be mentioned that such consent decree as I said before was not for a fixed amount but for a fixed quantity of grains which shows that parties were alive to all the contingencies that might happen in future, before that decree by consent was passed. The consent decree as it is, in my view, is not defeated by the introduction of- Hindy Adoptions Act on the reasons mentioned above.

13. I have discussed hereinbefore that the contention of Mr. Chatterjee that a decree-holder cannot be a judgment-debtor has no force in such a case. Such a charge can always be executed. Long before 1956 Act (Hindu Succession Act.) came into force giving the Hindu widows absolute right of succession. Hindu Women's Rights to Properly Act. 1937 came into force which introduced important changes in the law of succession on certain females. In 1937 Act the Hindu women were given a limited estate to introduce a new right to her. I may here refer on this aspect Mayne's Treatise on Hindu Law and Usage, 11th Ed. (1950 Ed.) page 832. Such a situation as in the present one could have arisen also under H. W. R. P. Act. 1937 but according to Mayne at page 832 'a decree actually settling the amount of maintenance and making it a charge upon the property, was held to be enforceable even after the death of the person against whom the decree was obtained'. In the said passage of Mayne two judgments were referred to reported in (1907) ILR 30 Mad 326. (Subbanna. Bhatta v. Subbanna Gopamma) and also (1882) ILR 5 Mad 234 (Karpakambal Ammal v. Ganapathi Subbayyaa). It has been held in the latter case (Full Bench decision) that a decree for maintenance against a Hindu directing an annual payment made by him to the decree-holder during her lifetime can be executed after the death of the judgment-debtor against his sons to the extent of the assets of the deceased taken by them. In this case also it was a decree by consent. In the former case too a decree for maintenance against a member of an undivided family can after his death be executed if the decree created a charge on the joint family property. Both these cases were cited with approval in 1950 Edition of Mayne.

14. Mr. Chatterjee argues Putubala can join in the partition suit. At this stage and at her age if. the Coyrt dislodges the widow from her own right already vested which she has been enjoying so long during her husband's lifetime accepting the argument of Mr. Chatterjee that she has lost the right of maintenance created by a charge because of the passing of the H. A. M. Act it would virtually throw the widow to a stage of impecunious condition forcing her to a fresh litigation to have a share for her maintenance. I am yet to be convinced that it was the intention of the legislature in passing the H. A. M. Act. In any event the Court cannot inlerpret the Act in such a way as to create such a situation which would hinder the cases of those for whose benefit it was passed.

15. Considering all the circumstances my considered view is this that the consent decree never lapsed, execution proceedings were valid and the learned Munsif was correct in his approach. The learned Munsif very correctly observed that decree-holder Putubala got the decree against Narendra Nath and thus the decree is executable against the persons who inherited the properties of Late Nagendra Nath. He has correctly said that even if Putubala was entitled to maintenance she could not have it on the face of the compromise decree. The reason given in the judgment of the learned Munsif is perfectly justified and the order cannot be interfered with. On the Law itself the said decree is executable as it was sought to be done. H. A. M. Act has no application in this case because the language of the compromise decree is clear enough to give her the maintenance out of that which was charged for it.

16. Considering all these aspects of the matter as I said before and after hearing both the counsel of the parties f cannot but hold that the judgment and order passed by the learned Munsif cannot be interfered with. Hence, it is ordered : Rule is discharged. Application is dismissed. Stay order is vacated. Records to go down immediately.


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