Chundru Venkanna and Another vs Chundru Satyanarayanamma

Satyanarayana Raju, J.—Appeal No. 10 of 1950: This is a Defendants'' appeal against the decree and judgment of the Court of the Subordinate Judge, Rajahmundry awarding maintenance and giving other incidental a reliefs to the Plaintiff.

The Plaintiff is the wife of the first Defendant. They lived together for about 20 years, when the Plaintiff left him in March, 1947. After the Plaintiff left the first Defendant, the first Defendant married again. The suit was filed for recovery of future and past maintenance at the rate of 100 bags of paddy every year, for residence the B Schedule property and for delivery m movables described in C and D Schedules.

The learned Subordinate Judge held that the Plaintiff was entitled to maintenance by reason of the second marriage of the first Defendant. He found that the first Defendant owned 2cl/2 acres of wet land yielding 168 bags per year. Having regard to the other circumstances mentioned by him,1 he awarded future maintenance at the rate of 40 bags per year and past maintenance from March, 1947 to March, 1948, at the rate of 20 bags per year. As regards the moveable, he awarded Rs. 390 and, obviously by over-sight, he did not give any amount; towards residence. The Defendants have preferred the above appeal questioning the rate of maintenance.

The Plaintiff has preferred Appeal No. . 773 of 1950 in so far as the decree of the lower Court went against; her.

In A.S. No. 10 of 1950, learned Counsel for the Appellants contends that the finding of the learned Judge that the yield from the suit lands is 14 bags per acre is not supported by the evidence adduced in the case. P. Ws. 3, 4, 7 and 9 examined on the side of the Plaintiff depose that the rent of one acre of land is 12 bags whereas in the case of direct cultivation it yields 20 bags per acre. On the side of the Defendants, D. Ws. 2, 3 and 5 depose that the yield of one acre is 10 bags. The learned Judge, after considering the entire oral evidence, put the yield at 14 bags per acre. Sitting appeal, we do not think we are justified in interfering with the finding arrived at by the learned Judge on a consideration) of the oral evidence.

If so, the yield from 12-1/2 acres is 168 bags per year, It is also in evidence that the first Defendant has debts to the extent of Rs. 2,500. He has an old mother living with him but she has got 7 acres of wet land which she got from her husband. The first Defendant has no children.. Having regard to the aforesaid circumstances the learned Judge fixed the rate of maintenance at 40 bags per year which is less than l/4th of the income from the lands owned by the first Defendant. We cannot say that the rate of future maintenance fixed is unreasonable and, therefore, there is no justification for interfering with, it.

Appeal No. 773 of 1950.- In Appeal No. 773 of 1950, it is contended that, on the- basis of the income, the learned Subordinate Judge should have given maintenance at the rate of 60 bags. We do not think having regard to the aforesaid circumstances that there is any justification for enhancing the rate of maintenance.

The Plaintiff specifically claimed residence and valued that relief at Rs. 200 in the plaint. In her evidence she also stated that she wanted a house to reside. There is no cross-examination on behalf of the Defendants. The judgment does not disclose that the learned Subordinate Judge applied his mind to this aspect of the case. The Plaintiff is certainly entitled to be provided with residence and in the circumstances we do not think that the claim made by her is ''unreasonable. We therefore award Rs. 200 towards her right for residence. 5

Counsel for the Appellant then contended '' that the Subordinate Judge was wrong in awarding arrears of maintenance at a rate less than that fixed for future maintenance. In support - -of this contention he relied upon the judgment of our learned brother Umamaheswaram, J., in Eluri Krishnamurthy and Others Vs. Eluri Suryakantamma, (A). At pages 206 and 207 (of Andh LT): (at page 9 of AIR) the learned Judge stated the law thus;

In my opinion there is no discretion left in -the Court either to cut down the period or reduce the amount of past maintenance. The learned advocate for the Appellant, no doubt, drew my attention to the decisions of the High Courts o� Allahabad, Bombay and Nagpur in which it is held that there is a wide discretion exercisable by the Court in awarding arrears. Those decisions take into consideration a number of circumstances such as the want of the widow during that period,, the debts contracted by her supporting herself and the oppressive result of a sudden claim for a large sum by way of arrears. If the right of the widow is a legal one and if under the Law of Limitation she is entitled to claim arrears of maintenance for a period of 12 years, I am unable to understand how the Courts are entitled to exercise a wide discretion in cutting down the period or the rate of arrears. If as already stated, she has waived or abandoned her claim for arrears, she might not be entitled to claim any amount. By her conduct she might have led the coparceners to believe that she would not claim any past maintenance and she might thereby be estopped. I, therefore, find it difficult to follow the passage in Mayne''s Hindu Law, 11th edition, at page 830, or the reasoning of the decisions mentioned in foot-note (f).

The passage referred to runs as follows-

While the right to arrears of maintenance is a legal right, the Court has a discretion to award them at a lower rate than future maintenance.

The decision of the Privy Council in Ekra-deshwari Bahuasin v. Homeshwar Singh ILR 8 Pat 840: (AIR 1929 PC 128) (B), does not warrant the exercise of any such discretion either in cutting down the period or the rate. If the income of the family during the period for which the arrears are claimed is less than the income at the time of the institution of the suit, arrears may certainly be allowed at a lesser rate.

If by that observation the'' learned Judge meant that the aforesaid fact is exhaustive of the circumstances under which a Court can reduce the arrears of maintenance, we find ourselves unable to endorse his view. While the learned Judge''s attention was invited to the decisions of the High Courts of Allahabad, Bombay, and Nagpur, it is unfortunate that the decisions of the Madras High Court, which have considered this question have not been placed before him. It becomes therefore necessary to examine the decided cases of the Madras High Court which have a material bearing on this question.

The first of these cases is a Bench decision of Varadachariar and Pandrang Row, JJ., in Dandamudi Ramarayudu Vs. Dandamudi Sitalakshmamma and Another,

915 (C). At page 916 the learned Judges observe as follows:

It is well settled law that even the absence of a demand will not deprive a widow of her right to arrears, though 1Aiat circumstance may have to be taken into account in determining the extent of the liability to be imposed upon the Defendant for arrears due for a long period.

Dealing with the merits of the claim to the arrears, they said:

It seems to us that, the learned Judge was not in the circumstances justified in awarding past maintenance to the Plaintiff at the rate which he has adopted. It is well recognised that the Court will be justified, in drawing a distinction according to the circumstances of each case between the rate at which past maintenance is to be awarded, and the rate at which future maintenance is fixed. The circumstances of this case illustrate the necessity for such a distinction.

They then, proceeded to state that in a decree which the Subordinate Judge passed in 1934 at a time when paddy was selling at Rs. 2 or Rs- 3 per bag, he called upon the Defendant to pay the value of something like 1,200 bags of paddy at an average price of Rs. 8 per bag, which meant that the Defendant must sell about four times the quantity of paddy which the Judge had in mind when making the award. They also took into account that fact that in the year in which her husband died, the Plaintiff was a girl of 11 or 12, and whatever might be her needs in later years in life, she did not reasonably require the same amount for her maintenance when she was barely in her teens and was living with her parents. Having regard to those two circumstances the rate in respect of arrears of maintenance was reduced.

The decision of Curgeneven and Sundaram Chetty, JJ., in Javvaji Venkataratnamma Vs. Javvaji Seetaratnam, (D) discusses the principle at some length. At page 409 the learned Judges say:

It has been suggested to us that the Court, once having found that maintenance is due at a certain rate, is not competent to lower the rate in respect of die arrears of maintenance and that the Plaintiff has a legal right to receive them at the same rate. But we are unable to find in the Privy Council decision in ILR 8 Pat 840: (AIR 1929 PC 128) (B), which has been referred to as an authority, any justification for adopting this view. The discussion in that case really turned upon the date from which a widow who leaves her husband''s house ought to be granted maintenance and so far as we understand the observations of their Lordships the point with regard to the rate was adopted without argument, there being only an observation in conclusion that the amount according to the scale fixed by the Court below should run from the rate found appropriate. We cannot take this as an authority for the existence of an inflexible rule binding upon the Court in matter of this kind.............

They then referred to the decision of the Madras High Court In Panchakshara Chetty Vs. Pattammal and Others, (E), and observed that the said decision does not affirm such a proposition. They concluded that it was fully open to them to award arrears of maintenance at some rate less than fixed for the current maintenance having regard to the estimated needs of the Plaintiff during the years under reference and to the additional circumstances that she was: in receipt of an independent income. Ultimately they fixed the rate of maintenance in respect of arrears at two-thirds of the rate for the current maintenance.

A similar view has been taken by Pandrang Row and Venkataramana Rao, JJ., in Sivanandammal v. Narasinga Nainar, 1937 Mad WN 1228 (F). While holding that there was nothing in the circumstances of the case which justified the conclusion that there was waiver of the claim for maintenance, they pointed out that when a claim for maintenance was made for a long period, it was not quite fair that the same rate should be allowed during the period for which arrears were claimed as was allowed for the period subsequent to suit.

In Gurushiddappa Mallappa Vs. Parwatewwa Shivappa, a Division Bench of the Bombay High Court consisting of) Broomfield and Wassoodew, JJ., dealt with the contention that the rate at which arrears were allowed should be the same as the or to of future maintenance. The learned Judges pointed out that it was settled that the question of granting arrears was a matter of discretion and repelled the contention as not being one which was supported either upon authority or principle.

Mr. Kuppuswami, learned Counsel for the Appellant, confessed that he had not been able to find any decision of the Madras High Court or the other High Courts which had taken a contrary view.

In the Privy Council case ILR 8 Pat 840: (AIR 1929 PC 128 )(B) their Lordships were concerned mainly with the question as to for what period the arrears of maintenance should be granted. They held that a Hindu widow, who had left the residence of her deceased husband, not for unchaste purposes, and resided with her father, was entitled to maintenance and also to arrears of maintenance from the date of her leaving her husband''s residence, although she did not prove that she had incurred debts in maintaining herself and gave no reason or the change of residence. The judgment contains a discussion of the considerations that should guide the Court in fixing the rate of maintenance to be awarded, but nowhere has it been laid down in that decision as an inflexible rule that the rate of maintenance should be the same throughout.

Umamaheswaram, J., recognised that if the income of the family during the period for which the arrears are claimed is less than the income at the time of the institution of the suit, arrears may certainly be allowed at a lesser rate. That circumstance is by no means exhaustive of the "circumstances under which a Court can reduce the arrears. Indeed the question of fixing the rate of maintenance for arrears should be looked at from the standpoint of the person making the claim and the person who has to meet the claim, and the Court has to exercise a discretion. That discretion must, of course, be exercised having regard to the well-defined principles and cannot be an arbitrary or capricious one. The -decisions of the Madras High Court in Dandamudi Ramarayudu Vs. Dandamudi Sitalakshmamma and Another, , illustrate the circumstances which give the Court a discretion in awarding arrears at a rate lower than future maintenance. When a claim for arrears of maintenance is made for a long period, the absence of a demand is a circumstance that has to be taken into account in determining the extent of the liability to be imposed on the Defendant. In other words, laces on the part of the person claiming maintenance in making the claim is a circumstance justifying the award of a reduced rate for arrears. In such a case the award of a reduced rate may very well be justified because the person from whom maintenance is claimed might have been lulled into an impression that there might not be any claim against ham. The needs of the person making the claim during the period for which arrears have been claimed is Anr. circumstance which justifies the award of a lower rate for arrears.

There is an essential distinction between a right to maintenance and the quantum of maintenance. The right to arrears of maintenance is a legal right. But, in our opinion, the Court has a discretion to award them at a lower rate than future maintenance. The passage in Mayne''s Hindu Law the edition, at page 830, (quoted already), lays down the law correctly. That passage is in accord with the law stated in the three Bench decisions of the Madras High Court referred to above.

In the present case the arrears claimed by the Appellant are for one year. The Subordinate Judge has decreed future maintenance from the date of the suit at the rate of 40 bags or their value payable by the end of March each year but he awarded a reduced rate of 20 bags towards past maintenance for the year preceding the suit. While stating that the Appellant was not admittedly residing with the Plaintiff since March, 1947, and that there was no difficulty in giving her past maintenance for one year preceding the date of the suit, he stated that he would allow 20 bags towards past maintenance. No reasons at all have been assigned by the learned Subordinate Judge for awarding 20 bags only towards past maintenance for one year. Even before us learned Counsel for the Defendant has not relied upon any circumstances justifying the award of a reduced rate. We therefore, find that in respect of the period of one year for which arrears of maintenance have been claimed, the Plaintiff is entitled to be awarded 40 bags of paddy or its value.

No case has been made out for varying the decision of the lower Court in respect of sari sampans.

The decree of the Court below will therefore be modified by the award to the Plaintiff of a sum of Rs. 200 towards her right for residence and the award of 40 bags or their value in respect of her claim for past maintenance for one year. The Plaintiff will have her costs in A.S. No. 10 of 1950. In AS. No. 773 of 1950 there will be no order as to costs.