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Madras High Court
ISMAIL,NATARAJAN
Guruswami Mudaliar - Appellant
Versus
Angaivarkanni Ammal - Respondent
Decided On : 06/26/1973
HINDU LAW - MAINTENANCE - WIDOW - RIGHT TO PAST MAINTENANCE - WHETHER CAN BE DENIED ON GROUND OF NON-RESIDENCE IN FAMILY HOUSE - WHETHER CAN BE DENIED ON GROUND OF ABANDONMENT OR WAIVER - HINDU WOMEN'S RIGHTS TO PROPERTY ACT, 1937.
Fact of the Case:
Plaintiff, the widow of Arunachala Mudaliar, filed a suit for partition of her half share in the A Schedule property and for payment of past profits and future profits till delivery of possession. The defendants, sons of Kandaswami Mudaliar, contended that the plaintiff was residing in the family house and was being maintained by Kandaswami Mudaliar till his death in 1956, and that after his death, she was paid maintenance regularly. They also claimed that there was a family arrangement and an arbitration settlement in respect of the plaintiff's share. The plaintiff denied the family arrangement and the arbitration settlement and claimed that she was not paid any maintenance after the death of her husband.
Finding of the Court:
The court found that the family arrangement pleaded by the defendants was not true, but the arrangement as evidenced by Exhibit B-1 was true. However, the court held that Exhibit B-1 itself contained a clause that if the defendants failed to perform any of the obligations in Exhibit B-1, the document would become void and the plaintiff would be entitled to enforce her original rights. The court found that the defendants had not performed their obligation under Exhibit B-1 and therefore the plaintiff was entitled to institute the suit. The court also found that the alienations said to have been made by the defendants were not true and in any event, were not binding on the plaintiff.
Issues: 1. Whether the plaintiff was paid any maintenance in pursuance of the family arrangement or under Exhibit B-1 after the death of Arunachala Mudaliar in 1944 so as to disentitle her to claim past maintenance in the present action? 2. Whether the learned Judge was right in fixing the future maintenance at Rs. 1,000/- per annum and past maintenance at Rs. 625 per annum? 3. Whether the learned Judge was right in awarding past maintenance for a period of twelve years?
Ratio Decidendi: 1. The court held that the plaintiff was entitled to claim past maintenance as she was not paid any maintenance after the death of her husband and the family arrangement pleaded by the defendants was not true. 2. The court held that the learned Judge was right in fixing the future maintenance at Rs. 1,000/- per annum and past maintenance at Rs. 625 per annum as there was no error in the assessment of income from the properties. 3. The court held that the learned Judge was right in awarding past maintenance for a period of twelve years as there was no plea of abandonment or waiver by the plaintiff and the plaintiff was entitled to her legal right of maintenance.
Final Decision: The appeal was dismissed with costs.
ISMAIL, J. :- The second defendant in O. S. No. 74 of 1962, on the file of the court of the Additional Subordinate Judge II, Chingleput is the appellant herein. There were two brothers by name Arunachala Mudaliar and Kandaswami Mudaliar and Arunachala Mudaliar died on 20-6-1944 leaving behind the plaintiff in the suit, his widow. Defendants 1 and 2 are the sons of Kandaswami Mudaliar. The third defendant is the widow of Kandaswami Mudaliar while the fourth defendant is the daughter of Kandaswami Mudaliar. Kandaswami Mudaliar himself died in the year 1956 leaving behind defendants 1 to 4 as his heirs. One Panchakshara Mudaliar son of Munuswami Mudaliar, junior paternal uncle of Kandaswami Mudaliar filed a suit for partition in O. S. No. 36 of 1940 and a preliminary decree was passed on 12-1-1948, and a final decree was passed on 17-1-1950. The suit properties which are covered by Schedules A to H are the properties that were allotted to the branch of Kandaswami Mudaliar and others in the said suit in O. S. No. 36 of 1946. The A Schedule property is a house property, while the B to H Schedule properties are agricultural lands. The suit was Instituted by the plaintiff as the widow of Arunachala Mudaliar for partition of her half sharp in the A Schedule property and for payment of past profits of Rs. 1080/- for plaintiffs share for three years in respect of the Schedule A property by defendants 1 to 4 and also future profits till delivery of possession. She also claimed past maintenance at Rs. 1,000/- per annum for twelve years prior to suit and future maintenance at Rs. 1,500/- per annum payable by defendants 1 to 4 and prayed for charge for the said payments over plaint Schedules B to H properties and the half share of defendants 1 to 4 in plaint Schedule A property. The prayer in this form came to be made in view of the fact that at the time of the death of Arunachala Mudaliar the Hindu Women's Rights to Property Act, 1937 enacted by the Central Legislature was held to apply only to non-agricultural property since agricultural property was included in the provincial List to the Government of India Act 1935 and the Provincial Legislature extended the Act to agricultural lands only in 1946. The other defendants are said to be alienations of the suit properties from defendants 1 to 4 and the plaintiff contended that the said alienations were not binding on her.
2. The defence of defendants 1 to 4 was that till the death of Kandaswami Mudaliar in 1953(56?) the plaintiff was residing in the family house and was being maintained by him and she used to visit her parent's house only now and then; after Kandaswami Mudaliar's death, she was living separately; from the time of Kandaswami Mudaliar's death, the plaintiff was being paid regularly for her maintenance and other requirements fifteen bags of paddy per year and Rs. 15/- per month as per arrangements made by relations and mediators in full quit of her interest in the family properties; in or about the end of 1950(?) there was an arbitration because the plaintiff claimed more and it was settled by the arbitrator that the plaintiff should in lieu of her share and the interest in the family properties be paid Rs. 15/ per month and 160 marakkale or 20 bags of paddy every year and also be given a gold chain of ten sovereigns. This agreement has been reduced into writing as per Exhibit B-1 dated 15-11-1959. The defendants further contended that the plaintiff issued notice in March 1960 demanding share in the properties and making other claims and since the claim was untenable, a suitable reply was given. The defendants challenged the correctness of the incomes from the properties as alleged in the plaint and put forward the contention that they were exaggerated and gave their own version as to what the income from the properties would be. They further contended that they have not taken possession of all the properties allotted to Kandaswami Mudaliar's branch in O.S. No. 36 of 19
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