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HIGH COURT OF ORISSA
R.L.NARASIMHAM,S.BARMAN, JJ.
Saraswati Hotiani
Versus
Rupa Hotiani
First Appeal No.21 of 1959
Decided On : 29-03-1962
MAINTENANCE - HINDU LAW - QUANTUM OF MAINTENANCE - ENHANCEMENT - FACTORS TO BE CONSIDERED - CHANGE IN CIRCUMSTANCES - DECIMATION OF FAMILY MEMBERS - INCREASE IN NET INCOME - STANDARD OF COMFORT - MAINTENANCE FIXED BY AGREEMENT - ENHANCEMENT JUSTIFIED.
Fact of the Case:
The plaintiff, a Hindu widow, filed a suit for maintenance against her step-mother-in-law (defendant No.1) and the alienee (defendant No.2) of a portion of the joint family properties. The plaintiff claimed half the share of the joint family properties or, alternatively, maintenance at a higher rate than that fixed by a registered deed of maintenance executed by her father-in-law in 1941. She also claimed arrear maintenance and the recovery of valuable ornaments which she alleged were handed over to her father-in-law when she became a widow.
Finding of the Court:
The court found that the plaintiff was not entitled to a share in the joint family properties as the Hindu Womens Rights to Property Act was extended to the district where the parties belonged only after the death of her husband. The court also rejected the plaintiffs claim for recovery of ornaments and arrear maintenance, holding that the evidence was not believable. However, the court found that the quantum of maintenance fixed by the deed of maintenance in 1941 should be enhanced due to the abnormal increase in the cost of living after the Second World War and the decimation of the joint family members, which reduced the burden on the family.
Issues: 1. Whether the plaintiff was entitled to a share in the joint family properties. 2. Whether the plaintiff was entitled to maintenance at a higher rate than that fixed by the deed of maintenance executed in 1941. 3. Whether the plaintiff was entitled to arrear maintenance and the recovery of valuable ornaments.
Ratio Decidendi: 1. The court held that the plaintiff was not entitled to a share in the joint family properties as the Hindu Womens Rights to Property Act was extended to the district where the parties belonged only after the death of her husband. 2. The court held that the quantum of maintenance fixed by the deed of maintenance in 1941 should be enhanced due to the abnormal increase in the cost of living after the Second World War and the decimation of the joint family members, which reduced the burden on the family. 3. The court held that the plaintiff was not entitled to arrear maintenance and the recovery of valuable ornaments as the evidence was not believable.
Final Decision: The court modified the lower court's order and declared the plaintiffs right to maintenance at the rate of 20 pasthamos of rice and cash of Rs.120/- per annum. The court also made half of the properties described in Schedule B attached to the plaint, except Hamid Settlement plots Nos.130, 1838, and 1309, subject to the charge for securing the maintenance with effect from 11-2-55. The court also maintained the trial court's declaration in favour of the plaintiff regarding her rights of residence in a suitable portion of the house described in schedule C.
Judgement
NARASIMHAM, C. J.:-
This is an appeal by the plaintiff against the judgment of the learned Subordinate Judge of Sambalpur in a suit brought for maintenance against her step-mother-in-law (defendant No.1) and the alienee (defendant No.2) of a portion of the joint family properties.
2. The following genealogical tree shows the relationship of the parties:
Pitabas, husband of the plaintiff predeceased his father on 24-4-38 while in a state of jointness with him. Sidheswar married defendant No.1 after the marriage of the plaintiff with his son Pitabas, presumably in the hope of begetting sons through her but defendant No.1 proved barren. Sidheswar died on 20-6-54 leaving considerable properties in villages Lupurasinght and Khanapali which have now devolved on his surviving widow defendant No.1. Sometime in 1941 the plaintiff filed an application to sue in forma pauperis her father-in-law for maintenance (Ext.A) case No.3 of 1941. While that application was pending, Sidheswar executed a registered deed of maintenance (Ext.A) on 5-8-41 in her favour agreeing to give her annual maintenance of 12 pusthamos of rice (then valued at Rs.96/-) and cash of Rs.96/-per annum, and also making the aforesaid maintenance a charge on the properties described in the deed. Soon after the execution of the deed the plaintiff did not press her pauper application and allowed it to be dismissed for default. The present suit was brought on 11-2-1955 within eight months after the death of Sidheswar.
3. The plaintiff put forward two alternative claims. Firstly she urged that she was entitled to half the share of the properties of the joint family. In the alternative, she claimed maintenance at a higher rate saying that the deed of maintenance Ext.A executed by her father-in-law in 1941 was never acted upon and that she had never agreed to the maintenance fixed therein. She also claimed arrear maintenance saying that even during the life-time of her father-in-law she was never paid anything. There was also a claim for recovery of valuable ornaments which, according to her, were handed over to Sidheswar when she became a widow and which were never returned to her.
4. The plaintiffs claim for a share in the joint family properties must clearly fail. It is true that the plaintiffs husband Pitabas died only on 24-3-38 whereas the Hindu Womens Rights to Property Act was passed in 1937. But the parties belonged to Sambalpur district which was then a Partially Excluded area and that Act was extended to that district only on 14-12-38 by a Notification No.8306-J, published in the Orissa Gazette (1938 Part III, page 897). The Orissa Legislature in 1944 passed the Hindu Womens Rights to Property (Extension to Agricultural Lands) Act (I of 1944) which was extended to the Partially Excluded areas on: 9-9-54 with retrospective effect. Thus as the plaintiffs husband Pitabas died nearly 8 months prior to the application of the aforesaid Act to Sambalpur district with retrospective effect, the benefits of that Act will not be available to the plaintiff and she will be entitled only to maintenance.
5. The plaintiffs claim for recovery of ornaments was also rightly rejected by the lower court. Her evidence was to the effect that when she became a widow all the ornaments were removed from her person and they were left in the house of her father-in-law Sidheswar. It was alleged that they were never returned to her. Her witnesses have spoken about the ornaments and also given particulars about their weight, etc. But this story does not appear to be believable. Admittedly she did not claim these ornaments when she filed the Miscellaneous case No.3 of 1941 for permission to sue her father-in-law in forma pauperis. It is also strange that no suit was brought by her for recovery of ornaments till the death of her father-in-law in 1954, i.e., for nearly 13 years thereafter. The plaintiff does not appear to be a helpless widow because her father was a substantial man being the Gount
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