Subbarayudti and Others vs Papayamma

Chandra Reddy, J.—The Second Appeal arises out of a suit for maintenance instituted by the widow of one Veeramma, who was one of four brOrs. . This Veeramma died 30 or 40 years prior to the suit. Tho Plaintiff claimed maintenance at the rate of Rs. 600 per year and also past maintenance for one year at the same rate alleging that the family lands yield an annual income of Rs. 6,000. First Defendant and second Defendant''s father are brOrs. of Veeramma, Defendants 3 and 4 being the sons of Papayya, Anr. deceased brother. Defendants 5 to 9 are the sons of the first Defendant.

The defence to the suit was two-fold: (I) that the maintenance of the Plaintiff was settled previously at two putties of paddy per year and that tlie same was paid up to January, 1948; (2) that ,the family owned at the time of the death of the plain-rill''s husband 2 acres of wet, 10 acres of dry and 6 acres of pasture land and it is only on the basis of the income of these lands that th0 maintenance should be fixed and that the subsequent acquisitions should not be taken into account in ascertaining the income of the property for purposes of awarding maintenance.

The trial Court held against the Defendants on lite question of tho previous settlement of maintenance. On the issue bearing on the rate of maintenance, it found that tlie family income was Rs. 1,000 on the date of the suit and on that basis fixed the maintenance at Rs. 200. Evidently the question as to the relevant date to be taken into consideration for fixing tho maintenance, namely, whether it is the date of the death of the Plaintiff''s husband or the filing of the suit, was not agitated in the trial Court.

On appeal while confirming the finding of the trial Court on the first issue, the lower appellate Court differed from the trial Court as regards the income derived from the family properties and the rate of maintenance. It reached the conclusion that the income could be assessed at Rs. 2000 as on the date of the filing of the suit and that the maintenance should be enhanced to Rs. 400. The Defendants, aggrieved by this judgment, have preferred the second appeal.

Tho Plaintiff has filed a memo, of cross-objections contending that she should have bcea awarded Rs. 600 by way of maintenance.

The finding on the question of the previous settlement has not been assailed before me. On the second point, two contention.s have been put forward by Mr. Parthasarathi; onc is that the right of the plaiuliif to claim maintenance should be limited to the extent of the property as it stood on the death of her husband, and .alternatively that in any event the income of the family was grossly exaggerated by the Plaintiff and that the view of the Subordinate Judge as to the income from the lands is vitiated by his failure to lake into consideration several circumstances.

There is not much substance in the firsjt contention in view of the decision of the High Court of Madras in Bandi Veeraju and Others Vs. Bandi Narayanamma, was ruled there that in fixing Ihe rate of maintenance the income of the joint family at th- lime of the institution of the suit should he lake; into consideration and not as it stood on the dale ol her husband''s death. The- whole case-law on the subject, was reviewed by the learned Judge''s and (here is an elable discussion on the several principles governing tlie fixation of maintenance io a widow. Mr. Parthasarathi urged that this ruling of the Full Bench is not sound and that Mr. Justice Uma-maheswaram has cast a doubt on (he soundness of the doctrine of that ease. In view of the Full Bench decision of this (Joint in Subbarayudu v. Slate, Cri. Revn. No. 603 of 1954: ((S) M. Subbarayudu and Others Vs. The State, , which has laid down that Ihe rulings of the Madras High Court arc binding upon this Court we have to accept the decision in Bandi Veeraju and Others Vs. Bandi Narayanamma, , as binding on us. Fven otherwise, the concepts underlying that decision seem to be quite sound, if 1 may say so wilh respect. The difficulties envisaged by Mr. justice Umamahe-.swararn in Eluri Krishnamurthy and Others Vs. Eluri Suryakantamma, , ai page 205 (of Andh LT): (At pp. 8-9 of AIK) can be answered by a reference to a passage in ihe judgment of Rajamannar, C. J., at page 29 (of ILU Mad): (At p. 161 of AIR).

''Tier fortunes are bound up wilh the fortunes of the family. If the income of the family increases she will be entitled to the benefit: of it. Likewise if the income of the family decreases, she must submit to a reduction of her maintenance. The learned Advocate for the Appellants did not contest the proposition that the quantum of maintenance to which a widow is entitled is subject to variation, even when fixed by the Court, by reason of a change of circumstances. This feature is inconsistent with tlie contention of the Appellants that the widow''s maintenance should be fixed taking into consideration her husband''s share in the income of the joint family at the time of his death and at no subsequent time."

The learned Judges extracted with approval the observations of Mr. Justice Covindarajachari in Audemma v. Varadareddi, ILK (19 18) Mad 803 817: (AIR 1949 Mad 31 36) (D)

"If it is borne in mind that the widow''s right of maintenance is the truncated right which still remains out of what was at one time a claim to a share of the family property, there will lie no difficulty in tecognising that, as a necessary and logical conse-

quence of tlie nature of the right, possessed by the widow, her maintenance", would be dependent upon the varying fortunes of the family. Her comforts would dwindle if the family property is reduced; but, if tlie family becomes more affluent, she will be entitled to participate in that affluence." It there is no difficulty in fixing .the arrears of maintenance in spite of the variations from time to time owing to seasonal conditions and various other considerations in the income from the share of tlie Plaintiff''s husband as on tlie date of the latter''s death, there should be no difficulty iu doing it in spite of the fluctuations of the shares ini tlie joint family property. The learned Judge, in Eluri Krishnamurthy and Others Vs. Eluri Suryakantamma, , suggests the reasoning underlying the seventh rule laid down by the Full Bench of the Madras High Court in K. Peramanayakam Pillai Vs. S.T. Sivaraman and Another, , be adopted as the relevant date for fixing the maintenance of the widow, that is, "the share or in other words the fraction of the share which the alienee acquires is unalterably fixed-. on the date of tlie alienation and is not subject to fluctuation either by subsequent births or deaths in. the family and in all respects his rights must be determined and equities worked out as on the date of the alienation.'''' This rule is based on the doctrine that a man gets what he bargained for, and that since the alienee purchased the interests of a coparcener on a particular dale, it should'' not be subject to fluctuation. That principle cannot apply with force to the controversy arising in inquiries of this nature. The share ol the deceased coparcener, was not defined'' as on his death. The first contention, therefore, lacks substance and has to be repelled.

The second argument also is without force. The family possessed 30 acres of land on the dabe ofr the suit and the learned Judge, taking into consideration the evidence adduced for the Plaintiff as well as the Defendants, thought that the income from these lands could be reasonably fixed at Rs. 2000-and it cannot be said that the lower appellate Court acted unreasonably in arriving at that decision. In fixing the sum of Rs. 400 he has taken into consideration the status of the family and the needs of the Plaintiff. I am, of opinion that the finding of the Subordinate Judge is supported by the material on record and it is unimpeachable. It follows that the judgment and decree of the lower appellate Court should be confirmed in toto.

In the result, the appeal is dismissed with costs.

Coming now to tlie memo, of cross-objections I do I not think tlie Plaintiff is entitled to succeed. As I have pointed out above, the Subordinate judge has considered all the factors relevant in such an enquiry and came to the conclusion that a sum of Rs. 400 per year would be reasonable to meet the requirements of the widow. Therefore, there are no grounds to interfere with that decision. The memo, of cross-objections is also dismissed with. costs.