S. Sankaranarayana Iyer And Ors. v. Lakshmi Ammal And Ors.

JUDGMENT Anantanarayanan, J.

(1) A. S. No. 462 of 1955 is an appeal by defendants 1 to 6 in the Court below in a suit instituted in forma pauperis by a Hindu widow for recovery of arrears of maintenance, and for enhancement of maintenance and raiment allowance. A. S. No. 492 of 1955 is an appeal by the widow upon grounds that she ought to have been granted enhanced maintenance and raiment allowance as prayed for. In this appeal there is a memorandum of cross-objections filed by respondents 5 and 6, particularly objecting, inter alia, to any enhancement of maintenance from the date of demand by the widow (15-12-1945), as decreed by the learned Additional Subordinate Judge of Tirunelveli.

(2) The background of facts may be briefly set forth as follows: One Sri V. Subbuswami Aiyar was a vakil of Vannarpet who had extensive properties, and he died in 1905 leaving a very rich estate. His four sons were Subramania Aiyar, Srinviasa Aiyar, Ramachandra Aiyar and Sankaranarayana Aiyar (first defendant). Ramachandra Aiyar died without issue on 1-7-1919 leaving his widow Lakshmi Ammal (the present plaintiff). Subramania Aiyar died on 28-2-1922, again without children, but leaving two widows behind him. Defendants 1 to 4, of whom the first defendant died pendente lite, constituted the branch of Sankaranarayana, and defendants 5 and 6 similarly constituted the branch of Srinivasa Aiyar, who himself died in 1949. In 1924, Lakshmi Ammal (the present plaintiff) and the two widows of Subramania Aiyar, instituted claims for maintenance, and the relevant suits were O. S. Nos. 23, 35 and 39 of 1924. Those decrees of the learned Additional Subordinate Judge of Tirunelveli came up on appeal to the High Court, and the assets and income of the family at that time, as well as the principles upon which the widows ought to be granted maintenance and the quantum of maintenance to be determined in their cases, were dealt at length by the judgment of the Bench, Wallace and Tiruvenkata Achariyar JJ. in Srinivasa Ayyar v. Lakshmi Ammal, 54 Mad LJ 530: (AIR 1928 Mad 216).

We shall have occasion, subsequently, to refer to the facts as found in that judgment. It is sufficient here to state that the present plaintiff sent notices to the first defendant and his brother on 15-12-1945, intimating them of changes in circumstances, both with regard to the increased value of assets and income, and also with regard to the sharp increase in costs of living, and claiming enhanced maintenance. Taking all the relevant factors into consideration, the plaintiff claimed in the present suit maintenance at Rs. 250/- per mensem and a sum of Rs. 250/- per annum as raiment allowance. The learned Subordinate Judge has now granted the plaintiff Rs. 150/- per mensem instead of Rs. 100/- per mensem which was the amount allowed in the previous litigation, from 15-12-1945 (the date of her demand) till 31-12-1953, the future maintenance of Rs. 150/- per mensem with raiment allowance of Rs. 150/- per annum, together with a charge in respect of these claims upon the estate.

(3) In 54 Mad LJ 530: (AIR 1928 Mad 216) already referred to, the nature of assets held by this family, and the estimate of the annual income, are matters dealt with at some length. It is to be noted that even in that litigation of the year 1924, the Subordinate Judge who tried those suits for maintenance estimated the annual income as about Rs. 30,000/-. The High Court observed that the right to maintenance should be determined in such cases.

"having regard to the extent of the assets of her husband taken over by his successor.................. Each case has to be decided upon its facts. Where the assets of the husband which have been taken over are comparatively small, it has been held that the widow may be awarded even the whole of the income from her husband's share as it was at the time of his death. But in other cases, there is no fixed ratio between the income derivable from the husband's share and the proportion thereof which should be awarded to her for her maintenance. All that is required is that the allowance ought to be such as to enable her to live in comfort having regard to the means of the family. Such being the rule, it is not in our opinion open to the co-parcerners of her deceased husband, who have taken his properties by survivorship, to prescribe any arbitrary standard as regards the comforts the widow is entitled to have or the style in which she should live"

We must here emphasise that the High Court came to the conclusion even in 54 mad LJ 530: (AIR 1928 Mad 216) which related to estimates of 1924, that the learned Subordinate Judge then arrived at a fair approximation of the average annual income of this family.

(4) In Mt. Ekradeshwari Bahuasin v. Homeshwar Singh, 56 Ind App 182: (AIR 1929 PC 128), the Privy Council pointed out:

"Maintenance depends upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the conditions and necessities and rights of the members, on a reasonable view of change of circumstances possibly required in the future, regard being, of course had to the scale and the mode of living, and to the age, habits, wants and class of life of the parties"

In the present matter, this action for increased maintenance by the plaintiff was strenuously contested by defendants 1 to 4 and defendants 5 and 6, upon grounds that the assets of the family had dwindled owing to failure to realise outstanding, and also owing to meagre compensation given by Government for estates taken over, while the wants and necessities of the other branches, particularly of first defendant's branch, had increased. The plaintiff contended that the assets were not merely intact, but were far more substantial, being in the shape of properties rather in the shape of outstandings, which was the situation in 1924. The income was estimated by the plaintiff at about Rs. 60,000/- per annum. The learned Subordinate Judge came to the conclusion that the income was certainly not less than Rs. 30,000/- per annum, and could probably be a little more. As regards cost of living, he has gone into the cost of living index figures which were made available to Court, and observed that those figures registered a sharp increase of over 300 per cent from 1935 to about 1952.

He has further observed that the cost of living index of 1924-25 was unlikely to have been materially different from, or appreciably higher than, the index figures of 1930 to 1939. Upon his own findings, the annual income which could have been derived and enjoyed by the husband of the plaintiff, if he were alive, would be about Rs. 7,500/- In that context, the claim of the plaintiff for enhanced maintenance aggregating to Rs. 250/- per mensem and raiment allowance of Rs. 250/- for the year, would still be less than 50 per cent of the share of her husband. Nevertheless, the lower Court granted the plaintiff only the rates that we have already referred to, while the difference between the previous decreed rate and the present rate has been granted as arrears of maintenance from the date of the plaintiff's demand (15-12-1945) to 31-12-1953. The question before us, therefore, is whether the estimate of assets and income by the learned Subordinate Judge is correct, and whether the plaintiff is entitled to further reliefs in these appeals.

(5) We might immediately state that we are satisfied, from a careful consideration of the date available in this suit, that the estimate of the learned Subordinate Judge errs, if at all, in being somewhat conservative. Though the defendants strenuously contended that the assets had shrunk, and the income was relatively precarious, the first defendant throughout declined to make a clean breast of the actual particulars of income, item by item. He even declined to file an affidavit regarding his assets and income, and certain accounts filed in the suit were found by the learned Subordinate judge to be unsatisfactory, and he was sceptical about them. The learned Subordinate Judge also found that debts to the tune of Rs. 50,000/- or 60,000/- contracted by first defendant, were so incurred in order to acquire further properties, and to increase the estate. Mr. K. Rajah Iyer for the plaintiff has drawn our attention to certain undeniable facts, which clearly point to the true state of affairs. Thus, the Kayathar properties alone comprised 128.91 acres of nanja and 507 acres of punja, while the Avenaperi properties are capable of yielding 7 1/2 kottas.

Of the compensation of Rs. 2,36,000/- for the Elavarasandal etc. villages acquired by Government, Rs. 1,18,000/- has been paid, and it is not as if the payment of the balance cannot be confidently anticipated. The Vannarpet house has been estimated at Rs. 1,50,000/- in value, from available date, and an estimate of Rs. 1,00,000/- at least would appear to be justified, even from a conservative point of view. The total annual income computed upon these data exceeds Rs. 6,000/-, which is the estimate by plaintiff and her brother-in-law Sitarama Aiyar (P.W. 2). At the least, therefore, the share of the annual income which could have been derived by the coparcener representing this branch, namely plaintiff's husband, would appear to be Rs. 7,500/- per annum. This, as we have earlier observed, would certainly justify the award of maintenance at the enhanced rate now claimed, that is, Rs. 250/- per mensem and Rs. 250/- per year as raiment allowance. Nevertheless, the learned Subordinate Judge granted only Rs. 100/- per mensem as maintenance and Rs. 100/- a year for clothing.

(6) The learned Subordinate Judge rightly emphasised that the fact that the number of defendants in the branch of the first defendant had increased, was no criterion in assessing the maintenance payable to plaintiff. As he observed, the fact that commitments have increased in the branch of one co-parcener, is no ground at all for giving diminished relief with respect to the claim for maintenance by the widow of another co-parcener, so long as she is claiming only a reasonable proportion of her husband's share of the income. Actually, we note that Srinviasa Aiyar and Sankaranarayana Aiyar became divided even by the time of this suit, and that those branches are separate. The plaintiff is the daughter of a retired Deputy Collector, who left substantial properties. She was married into a very rich family, and she had the misfortune to lose her husband even prior to the consummation of marriage.

She is accustomed to a life of some decency and comfort, and her claim commends itself to us that her allowance for maintenance should be proportionate to these circumstances, enabling her to have one or two servants to look after her in middle age. Privation per se is no virtue, and, while a Hindu widow is certainly expected to live a chaste life, which is further not extravagant or disproportionate to the means and income of her late husband, we are quite unable to concede that austerity or asceticism should be rightly expected of her by the coparceners of her deceased husband.

With regard to the cost of living indices, the facts speak for themselves, and we must certainly take judicial notice of the fact that, with prevailing prices, even an allowance of Rs. 250/- per mensem may not at all imply any great standard of life, considered relatively with regard to the wealth and background of this family. There is absolutely nothing in the evidence to reinforce the suggestion of the defendants that the plaintiff was really claiming more, in order to enrich her sister, her brother-in-law (P.W. 2) and the children of that family. On the contrary, it is clear that the defendants never made a true disclosure of the value of the assets and income, and the income probably exceeds the estimate arrived at by the trial Court.

(7) We have therefore no hesitation in concluding that the appeal of the plaintiff must be allowed upon this aspect, and that she is entitled to increased maintenance at the rate of Rs. 250/- per mensem and to Rs. 250/- per year for clothing as claimed by her.

(8) With regard to the enhanced maintenance decreed by the Lower Court at the difference between the previous rate and the rate decreed in suit, for the period 15-12-1945 to 31-12-1953, more or less as constituting arrears of maintenance, it is strenuously contended that this is illegal. The contention may be put in the following form. Since the previous rate was granted by a decree of Court, it is the rate governing the parties, unless it is varied by another decree, or unless the decree bears, on its own face, provision for varying the rate in accordance with changed circumstances, or a machinery, for determining this. In such a state of affairs, the defendants are not liable for any arrears, since they satisfied the claim of the plaintiff for maintenance at the reduced rate decreed for the period prior to suit, even though the plaintiff might have made a demand on 15-12-1945.

The decisions upon which this proposition is sought to be maintained, as a question of law, are (1) an early decision in Sreeram Buttacharjee v Puddomookhee Debia, 9 Suth WR 152, (2) the decision of Wadsworth, J. in Veerayya v. Chellamma, ILR 1939 Mad 234: (AIR 1939 Mad 37), where this early decision has apparently been followed, (3) a Bench decision of the Nagpur High Court, in Trimbak Wamanrao v. Mt. Bhagu Bai, ILR 1941 Nag 437: (AIR 1939 Nag 249), which does not really relate to the matter in the form in which it now presents itself, and (4) the decision of the Nagpur High Court in Savitribai v. Radhakishan, AIR 1948 Nag 44, where alone an observation is to be found to the effect, that in a suit for variation of maintenance claim, the enhancement can take effect only from that date of the suit, and cannot affect the question of arrears.

(9) The matters appears to merit careful scrutiny, particularly as we find that no clear line of reasoning upon this aspect is evidence in the authorities which have been cited. Again, of these authorities, the decision of the Nagpur High Court in AIR 1948 Nag 44, is alone in point, and we shall how proceed to analyse the implications of the proposition of law involved, especially as that decision merely contains an assertion that the enhancement ought not to be allowed from any date previous to the date of the suit, where a prior decree for maintenance has been granted as between the parties.

(10) It is well known that, at one stage, the entire question of a claim for arrears of maintenance was in doubt, as a legal claim, and the grant of this relief was held to be within the discretion of the Court. But it has since been settled law, by a series of decisions, which it is not necessary to set forth here, that even a demand and refusal need not precede the claim for arrears, and that mere non-payment of maintenance would prima facie constitute proof of wrongful withholding. In Nagendramma v. Ramakottayya, , a Bench decision of this Court, to which one of us was a party, the case law has been exhaustively reviewed, and the following observations are significant.

"The question of arrears is allied to that of quantum of maintenance and it falls within the range of the right to maintenance. It is a legal right not depending upon any demand and refusal for its enforcement, although a demand may show that the person demanding is in necessitous circumstances and is insisting upon her rights............... But in Madras a long series of decisions have held that the right to arrears is an absolute right, defeasible only on proof of waiver, abandonment, estoppel or limitation; in other words, that apart from these considerations, a Court has no discretion either to disallow arrears totally, or to cut down the period for which they are to be granted"

(11) In this context, and before proceeding further with this line of reasoning, it may be desirable to state some undeniable facts. The plaintiff made the demand for maintenance at the enhanced rate through Exhibit A-47 dated 15-12-1945, sent to both Sankaranarayana Aiyar and Srinviasa Aiyar by her Advocate. This was followed subsequently by another letter dated 14th November, 1953 (Exhibit A-50) and it is admitted that the claim of the plaintiff was repudiated in 1945-46 itself by reply notices Exhibits A-48 and A-49. The plaintiff states in her evidence.

"The brothers were saying that they will consult the other and pay me; so I kept so long.............. But they postponed. So I sent Exhibit A-542 (copy.)"

We are hence satisfied that the plaintiff did make a demand, that the demand was met by refusals, but that the plaintiff was reluctant to proceed to sue because the defendants representing these branches were promising to give her some relief, and that this state of negotiation and the reluctance of the plaintiff to proceed to the extreme of a suit, were responsible for the delay.

(12-13) The question is whether, under the circumstances, enhanced maintenance could be granted from the date of demand and refusal, notwithstanding the fact that the previous decree was not sought to be varied by a suit at that stage. The right of the Court to grant enhanced maintenance, in view of changed circumstances, is an ample power which is not in dispute. It now finds statutory recognition in the Hindu Adoptions and Maintenance Act (78) of 1956), in Sec. 25, as follows:

"The amount of maintenance, whether fixed by a decree of Court or by agreement, either before or after the commencement of the Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration."

The very expression 'arrears of maintenance' is not a happy or precise one; if it implies that these are dues based upon some mere contract, which is invariable as between parties, and which further involves some positive agreement, demand or refusal, it is actually misleading; for this liability stems from the personal law governing the parties, and essentially is not a contractual obligation, though Courts have recognised the validity of contract by which it may be affected.

(14) It has to be noted that the early decision in 9 Suth WR 152, really related to the enhancement of maintenance fixed by a family arrangement, and it aid down the broad rule that mere cessation of payments is not a ground for enhancement. It was so understood by Wadsworth, J. in ILR 1939 Mad 234: (AIR 1939 Mad 37) at page 241 (of ILR Mad): (at p. 40 of AIR), and he was also referring to circumstances under which the payments under the old decree had ceased. The Bench decision of the Nagpur High Court in ILR 1941 Nag 437: (AIR 1939 Nag 249), did not deal with this issue, as we have earlier observed, but at page 449 (of ILR Nag): (at p. 254 of AIR), there is a remark to the effect that the Courts should determine the right to the figure claimed existed when the cause of action accrued. The dictum laid down at page 449 (of ILR Nag): (p. 254 of AIR), was that

"unless a decree provides on the face of it machinery for its own alteration, variation can only be obtained by a separate suit properly framed for the purpose"

This states the true position at law, if we may say so with respect and has to be followed. But it is not the point before us. AIR 1948 Nag 44, was actually a case by the plaintiff or reduction of the amount fixed in a maintenance decree on the ground of altered circumstances, and the learned Judges observed:

"Therefore, down to the bringing of the suit for variation, the decree-holder has a right to the figure fixed in the decree. It follows that in such case there can be no retrospective variation either up or down. Whatever is decided in the subsequent suits, takes effect only from the date of that suit"

(15) With great respect, we are unable to follow this decision, particularly as the reasoning upon which the proposition is based has not been made clear. It is undoubtedly true that the rate determined by the decree must prevail unless it is varied, but this does not necessarily imply that a Court has no power to vary that rate from a period anterior to the date of the suit brought for the variation. That would entirely depend upon the time from which the changed circumstances have prevailed, the reasonableness of the claim of the maintenance-holder to an enhanced allowance, the existence or absence of a specific demand and refusal, etc. It is one thing to state that the parties are governed by the rate until a variation is effected, and quite another to confine the power of Court to determine the period for which the right to enhanced maintenance should prevail.

Actually, as Mr. K. Rajah Iyer for the maintenance-holder pointed out, if this strict logic is to be adhered to, the Court should grant enhanced maintenance varying the rate of the previous decree only from the date of its own subsequent decree, and not from the date of suit. We think that the confusion arises from the fact that "arrears of maintenance' are frequently interpreted as akin to some kind of contractual obligation, so that the payment of maintenance at a particular rate is held to absolve the person liable to pay maintenance from payment of arrears determined upon some other rate, upon the argument that a superseding allowance should take effect only from the date of the second suit, where a previous maintenance decree had been in existence. The institution of such a second suit, or a delay in instituting it, may depend upon a variety of circumstances; in a case like the present, for instance, it may be actually due to a demand met by a formal refusal, but really accompanied by some kind of subsequent negotiation, or a climate for settlement, where relief is promised.

We do not think that the power of the Court to grant enhanced maintenance can be so circumscribed, or so rigidly affected. We hence hold that, appropriate to the facts of the present case, we would be amply justified in confirming the decree for arrears of maintenance from the date of demand 15-12-1945 to 31-12-1953, which is a reduced rate in comparison with the rate we are now decreeing in these appeals. We further direct that the charge given by the Lower Court be confirmed, upon the basis of the reliefs given in these appeals.

(16) The appeal of the plaintiff is therefore allowed accordingly, and the appeal of the defendants and the memorandum of cross-objections are together dismissed with costs throughout (Advocate's fee one set). The contesting respondents should pay the Court-fee due to Government.

(17) These appeals having been set down for being mentioned this day, the Court made the following ORDER (18) One set of costs which has been awarded will be in A. S. No. 492 of 1955 and the fee Certificates will be permitted to be amended accordingly.

(19) Order accordingly.