The amount of maintenance payable under a deed of settlement can be varied considering the changed circumstances, such as the vesting of the major portion of the properties and the income therefrom.

The judgment of the Court was as follows :-

These two appeals are by defendant No.1 against the common judgment and decrees passed in two suits of the two plaintiffs. The relevant facts are that the properties described in Schedule Ka to the plaints belonged to Manohar Mukherjee grandfather of the plaintiffs. He executed a deed of settlement in respect of these properties on 12-12-28 by which Mahendra Nath Mukherjee father of the defendant No.1 was given the Ka schedule properties of the plaints mentioned also in the deed. Under the terms of the settlement each of the plaintiffs were to get maintenance at the rate of Rs. 40/- per month from the said Monohar Mukherjee or his heirs out of the income of the Ka schedule properties and the properties were directed also to be charged for the maintenance Mahendra died in Jaistha, 1362 B. S. The plaintiffs, accordingly claimed in the suits from the defendant No.1 as heir of Mahendra the maintenance for 64 months with interest at the rate of 6%. A further prayer that their dues should be declared a charge on the Ka schedule properties or on the compensation money in respect of such of the said properties which vested in the State was also made.

2. The suit was contested by the defendant No.1 who filed written statement contending that the Ka schedule property except the Bhadrasan had vested in the State with effect from Baisakh 1362 B. S. Accordingly the defendant No. 1 was not liable to pay the arrears of maintenance and not liable to pay interest and there could be no charge on the Bhadrasan.

3. The learned Munsif came to the conclusion that the plaintiffs were entit1ed to arrears of maintenance, but in respect of the properties which vested in the State they could only proceed against the compensation money payable to defendant No. 1 subject to the limitation imposed by section 26 of the Estates Acquisition Act which provides that no portion of compensation in excess of 50% thereof shall be liable to attachment at any time in execution of decree including decrees for arrears of rent. The suits were accordingly decreed in a preliminary form and the decretal dues were declared to be a charges on such of the Ka schedule properties which did not vest in the State under the Estates Acquisition Act and also on the compensation money subject to the limitation under section 26.

4. On appeal the decree of the learned Munsif were affirmed subject to the modification that there would be no limitation in respect of the charge on the compensation money for the claims of the plaintiffs.

5. The present appeals are against the aforesaid decision by the said defendant. Mr. Manindra Nath Ghosh, learned Advocate appearing for the appellant has not disputed that in view of the provisions of the deed of settlement the properties which did not vest in the State as also the compensation money for the properties vested are charged with the maintenance claimed in the suit. His objection, however, is that the Courts below have erred in decreeing the suit for the full amounts of maintenance as provided in the deed without taking into consideration that such fixed amount would not be proportionate to the return from the amount received as compensation. He accordingly submits that the decree insofar as that amount is concerned should be set aside and the case should be sent back for determination of the amount payable after taking into consideration the return available from the compensation money with reference to the notional income the properties would have fetched at the time of dedication. He has referred to the decision in the case of (1) Syed Duriesh Mohideen v. Madras State represented by the Collector of Salem and Others, reported in AIR 1957 Madras 577. Mr. Mitter learned Advocate for the plaintiff-respondents has not objected to the determination of the amount payable to the plaintiffs in the light of the change of circumstances on the principle enunciated in the Madras case. He however adds that