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Gowardhan Sheocharan And Others v. Smt. Gangabai .
Structured Summary of the Provided Opinion
Factual and Procedural Background
The respondent/plaintiff, Mst. Gangabai, sued for (a) maintenance at Rs. 200 per month; (b) arrears of maintenance Rs. 6,000 (for twelve years before suit); and (c) Rs. 5,000 cash to build a house. The trial Court decreed maintenance at Rs. 75 per month for future maintenance, arrears of Rs. 3,600 at Rs. 25 per month for twelve years, and awarded a house at Mahasamund for the plaintiff's residence.
The defendants (appeal) sought reduction of future maintenance to Rs. 50 per month, disallowance of arrears, reduction of arrears from date of suit until filing of appeal, and that the Mahasamund house not be given for separate maintenance. The plaintiff filed a cross‑objection seeking higher maintenance (Rs. 200 per month), higher arrears (Rs. 50 per month), and Rs. 5,000 for a separate house.
The opinion summarizes the facts of family property: Kapil died in 1940 leaving property (houses and lands in three villages and movables). His son Sheocharan (defendant No.1) and the plaintiff (a widow of his predeceased son Dauwa) are relevant parties. Defendants alleged a 1955 partition and an earlier settlement that, they say, satisfied the maintenance claim; the trial Court found no proved settlement and assessed family income and maintenance accordingly. This judgment disposes of the appeal and the cross‑objection.
Legal Issues Presented
- Whether the defendants are legally liable to maintain the widow (plaintiff) despite a prior partition between coparceners in 1955.
- Whether the Hindu Adoptions and Maintenance Act, 1956 (particularly Sections 21 and 22) displaces the general Hindu law rule that a widow is entitled to maintenance from coparceners who hold her husband's share by survivorship.
- Whether an alleged 1955 settlement/partition (and a claimed written agreement) satisfied the plaintiff's maintenance claim.
- Whether lands acquired after the husband's death (specifically the Kanharpuri lands) are to be taken into account in fixing the quantum of maintenance.
- Proper quantum of maintenance and arrears (including whether arrears should be awarded at the same rate as future maintenance or may be reduced).
- Whether the plaintiff was entitled to Rs. 5,000 for constructing a separate house in addition to being given a family house.
Arguments of the Parties
Appellants / Defendants
- Contended there was neither legal nor moral liability to maintain the plaintiff because of a partition in 1955 which, they said, exhausted joint family property available for maintenance.
- Argued that Kanharpuri lands were acquired subsequently and thus should be excluded from assessing maintenance.
- Maintained that a written settlement/partition (allegedly executed in 1955) satisfied the plaintiff's claim for maintenance; they produced only a copy and asserted two agreements kept with Panchas.
- Relied on the Hindu Adoptions and Maintenance Act, 1956, arguing that Sections 21 and 22 limit the liability of maintenance and that the primary liability is on the father‑in‑law (thus Sheocharan, as husband's brother, was not liable).
- Contended that no arrears should be awarded because the widow was voluntarily residing with her brother (away from husband's family).
- Sought reduction of future maintenance to Rs. 50 per month and disallowance or reduction of arrears.
Respondent / Plaintiff (Mst. Gangabai)
- Sought future maintenance of Rs. 200 per month, arrears at Rs. 50 per month for twelve years, and Rs. 5,000 to construct a house.
- Opposed the defendants' claim that the 1955 settlement/partition satisfied her maintenance rights; the plaintiff produced no evidence supporting surrender of her rights.
- Argued that Kanharpuri lands (acquired by Kapil in 1940) should be counted in the joint family estate for fixing maintenance.
- Maintained claim for full arrears at the same rate as future maintenance.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ramamoorthy v. Sitharamamma, AIR 1961 Andh Pra 131 (FB) | Supports view that Sections 21 and 22 of the Hindu Adoptions and Maintenance Act do not affect the general Hindu law rule that a widow entitled to maintenance from coparceners who hold her husband's share by survivorship. | The Court relied on this decision to hold that Sections 21 and 22 create additional liabilities but do not displace the traditional right of a widow to maintenance from coparceners holding the deceased husband's share. |
| Veeraju v. Narayanamma, AIR 1953 Mad 159 (Full Bench) | Holds that a widow has a right of maintenance against surviving coparceners in respect of the share of her deceased husband; later authority states maintenance should consider income at time of suit. | The Court accepted the principle that the widow's maintenance is to be assessed with regard to the family income at the time of suit and applied that to include accretions to joint family property. |
| Krishnamurthy v. Surayakantamma, (S) AIR 1955 Andhra 5 | States that while awarding maintenance the relevant consideration is the share the husband would have had on partition if he were alive at the time of filing the suit (i.e., income at suit time). | The Court followed this approach in treating accretions and family income at time of suit as relevant when fixing maintenance; the Court also referenced this case regarding observations about arrears though it ultimately allowed discretion on arrears. |
| Hari v. Narmadabai, ILR (1949) Nag 964 | Affirms the normal rule that the widow gets roughly the share to which her husband would have been entitled on partition if living. | The Court cited this authority to support including accretions (Kanharpuri lands) in the estate for computing the widow's entitlement. |
| Mt. Ekradeshwari v. Homeshwar, AIR 1929 PC 128 | Explains broad factors for fixing maintenance: aggregate facts, income, past life, condition, necessities, prospects, scale of living, age, habits and class of life of parties; and that a Hindu widow is not bound to reside with husband's relatives and does not forfeit maintenance by residing with her own family. | The Court applied these multifactorial considerations in fixing maintenance and relied on the principle that the widow's choice to live with her brother does not forfeit arrears or maintenance rights. |
| Gurushiddappa v. Parwatewwa, ILR (1937) Bom 113 : AIR 1937 Bom 135 | Recognized authority supporting the view that courts have discretion when awarding arrears and may consider equitable factors in reducing arrears below the rate of future maintenance. | The Court relied on this line of authority (with Dattatraya Maruti) and on textual commentary (Mulla) to hold that the trial Court had discretion to fix arrears at a lower rate and that such discretion was properly exercised here. |
| Dattatraya Maruti v. Laxman Jettappayya, ILR (1942) Bom 584 : AIR 1942 Bom 260 | Supports the proposition that courts have discretion in awarding arrears and may reduce the rate for equitable reasons. | The Court invoked this authority (along with Gurushiddappa) to uphold the trial Court's discretion in awarding arrears at a lower monthly rate than future maintenance. |
Court's Reasoning and Analysis
The Court proceeded in an ordered analysis addressing each contested point, applying relevant principles and authorities set out in the record:
- Partition argument and survivorship: The Court rejected the appellants' principal contention that a 1955 partition extinguished liability. It explained that the widow's right to maintenance arises because her husband left an interest in the joint family property at his death; coparceners cannot, by subsequent partition among themselves, defeat that right. Because Sheocharan obtained the whole joint family property by survivorship (including the deceased husband's share), he remained legally bound to maintain the widow. The mere fact that he subsequently allotted shares to his sons did not negate that obligation.
- Interpretation of the Hindu Adoptions and Maintenance Act, 1956 (Sections 21 & 22): The Court read Sections 21 and 22 as creating additional moral liabilities on certain relations but not as displacing the established Hindu law rule that a widow may claim maintenance from coparceners who hold her husband's share. The Court cited Ramamoorthy v. Sitharamamma in support of that interpretation.
- Alleged 1955 settlement / written deed: The defendants asserted a written settlement; only a copy was produced and witnesses claimed two agreements were executed and kept with Panchas. The Court found this story improbable: the copy filed purported to be executed in 1957 whereas the settlement was said to be in 1955; mutation was never effected in the plaintiff's name and defendants never gave her possession. The trial Court's findings that the settlement was not proved were affirmed.
- Inclusion of Kanharpuri lands (acquired in 1940) in computing maintenance: The Court held that accretions to the joint family property should be taken into account when fixing maintenance, reasoning that if the husband had been alive at the suit date such accretions would be divisible in partition; hence the widow's share should reflect the estate at the time of suit. The Court cited Veeraju, Krishnamurthy and Hari in support.
- Quantum of maintenance: The trial Court calculated net agricultural yield as 50 gadas of dhan priced at Rs. 200 per gada, yielding Rs. 10,000 per year from family lands. The deceased husband's share of income was estimated at approximately Rs. 3,000 per year. Evidence (plaintiff's witness) suggested Rs. 70–75 per month as sufficient for reasonable comforts. The trial Court's figure of Rs. 75 per month was accepted as just and reasonable; the appellate Court found no basis to raise it to Rs. 200 or reduce it to Rs. 50.
- Arrears of maintenance: The trial Court allowed arrears at Rs. 25 per month for twelve years. Although Krishnamurthy was noted to have observed that courts are not entitled to cut down arrears, there is contrary authority and commentary (Mulla, Gurushiddappa, Dattatraya Maruti) recognizing judicial discretion to reduce arrears where equitable considerations (e.g., long delay in enforcement producing a large accumulated sum that would be embarrassing to defendants) apply. The Court held that the trial Court exercised its discretion properly and declined to interfere with the reduced arrears award.
- Claim for Rs. 5,000 to construct a separate house: The Court refused this claim. It noted that the trial Court had already allowed a family house at Mahasamund; a widow can ask for residence in the family house and, where a reasonable provision for residence is made, she cannot insist on a separate newly constructed house.
- Costs and court‑fees: Both appeal and cross‑objection were dismissed with costs. The cross‑objection (filed in forma pauperis) will have court‑fees recoverable by the Collector from the respondent. The trial Court had observed the plaintiff probably had no funds for court‑fees. The appellate Court directed that court‑fees payable by the plaintiff be made a first charge on the suit's subject‑matter under Order 33, Rule 10 CPC and ordered a clause to that effect in the decree.
Holding and Implications
Final Disposition: The Court DISMISSED both the appeal and the cross‑objection with costs.
Direct consequences for the parties:
- The trial Court decree stands: future maintenance to the plaintiff at Rs. 75 per month; arrears of maintenance of Rs. 3,600 (Rs. 25 per month for twelve years); and the award of a house at Mahasamund for the plaintiff's residence.
- The plaintiff's claim for Rs. 5,000 for constructing a separate house was denied.
- Court‑fees payable by the plaintiff (filed in forma pauperis) are to be recovered by the Collector from the respondent and are declared a first charge on the subject‑matter of the suit under Order 33, Rule 10 CPC; an appropriate clause to that effect is to be added to the decree.
Broader legal implications: The opinion reaffirms settled principles rather than announcing new law: (a) a widow's entitlement to maintenance from coparceners who hold her husband's share by survivorship cannot be defeated by a later partition among coparceners; (b) accretions to joint family property up to the date of suit are relevant in fixing maintenance; and (c) courts have judicial discretion, in appropriate circumstances, to award arrears at a lower rate than future maintenance. The opinion does not purport to establish a novel precedent beyond applying and reconciling established authorities.
1. The suit out of which this first appeal arises was filed by the respondent Mst. Gangabai for (a) maintenance at Rs. 200/- per month; (b) arrears of maintenance Rs. 6,000/- for twelve years be fore suit; and (c) Rs. 5,000/- cash to enable her to build a house for her residence. The trial Court decreed the claim at Rs. 75/- per month for future maintenance, Rs. 3,600/- as arrears of maintenance at Rs. 25/- per month and allowed a house at Mahasamund for her residence. The defendants have fiied this appeal praying for re duction of future maintenance to Rs. 50/- a month, for disallowing arrears of maintenance and for reduction of the amount from the date of suit till the filing of appeal. They have also stated that the house in Mahasamund be not given for her separate maintenance. The plaintiff Mst. Ganga bai has filed a cross-objection for raising the amount of future maintenance to Rs. 200/- a month and the arrears to Rs. 50/- a month. She has also claimed Rs. 5,000/- for a separate house.
This judgment governs the disposal of the appeat and the cross-objection.
2. One Kapil died in 1940 leaving behind his son Sheocharan (defendant No. 1) and the plaintiff Mst. Gangabai, who is the widow of his predeceased son Dauwa. He left behind houses and lands in three villages as also movables as detailed in the plaint. The plaintiff states that the income from the properties left was about Rs. 25,000/- a year out of which she is entitled to maintenance. She brought the present suit for reliefs which have already been stated above.
3. The defendants stated that when Dauwa died in 1932, there were lands and houses in villages Saraipali and Mahasamund. The lands in Kanharpuri were acquired subsequently, though with the aid of the joint family income. They pleaded that Kanharpuri lands should be excluded from consideration in fixing maintenance. Sheocharan (defendant No. 1) and his sons had a partition in 1955 and at that time two-thirds of the lands at Saraipali were given to the plaintiff in full satisfaction of her claim for maintenance. No further maintenance can therefore be claimed. The extent of the joint family property was also denied.
4. The trial Court held that the lands at Kanharpuri also formed part of the joint family property. The income of the family was assessed at Rs. 10,000/- a year. The settlement of maintenance claim as pleaded by the defendants was not found proved. In the result, the claim was decreed as stated above.
5. The first point which Shri A. P. Sen has raised in support of the appeal is that there is neither legal nor moral liability on the defendant to maintain the plaintiff. This is based on the fact that there was a partition between Sheocharan and his sons in 1955 and the learned counsel contends that by virtue of the partition there is nothing left now in the hands of the members of the joint family by way of joint family property to support a claim for maintenance. This contention is obviously without any substance.
The right of a widow for maintenance legally arises because of the fact that her husband left an interest in the joint family property at the time of his death, and the coparceners of the family by merely dividing the joint family property in a partition cannot give a go-by to her right. In the instant case, Sheocharan, the father of the other defendants, had obtained by survivorship the whole of the joint family property, including the share of the plaintiff's husband. He was, therefore, legally bound to maintain her under the Hindu Law. The mere fact that he has given his sons shares separately in the joint family property is of no consequence.
6. It was also contended by Shri Sen that as the present suit was filed after the Hindu Adoptions and Maintenance Act, 1956, that Act applies to the right of the plaintiff for maintenance. He referred to Sections 21 and 22 and pointed out that the liability to maintain a widow is only on the father-in-law. Consequently, the defendant Sheocharan as husband's brother was not liable to maintain her. Reading Sections 21 and 22 together, we are of opinion that those sections are intended to create an additional liability of maintenance on moral consideration on certain relations of the dependants. These sections do not, in any way, affect the general rule of the Hindu Law that where a husband leaves share in the joint family property, his widow is entitled to maintenance out of it from those coparceners who hold that by survivorship. This view finds support from the decision in Ramamoorthy v. Sitharamamma, AIR 1961 Andh Pra 131 (FB).
7. The next question is whether there was a settlement in 1955 as alleged. It is stated by the defendants that the agreement was in writing. The deed is not produced; but only a copy is filed. The defendants' witnesses say that two agreements were executed by both the parties and kept with the Panchas. They were taken back by the plaintiff on the excuse that she needed them for mutation. This story is highly improbable. The copy filed purports to have been executed in 1957; whereas the settlement, according to the written statement, took place in 1955. It was never acted upon. Mutation was not effected in the name of the plaintiff and the defendants never gave over possession of the lands to her. The trial Court had discussed the matter in paragraphs 7 to 11 of the judgment and has concluded that the settlement has not been proved. We agree that there was no settlement of the claim.
8. The plaintiff was thus entitled to maintenance from the defendants on the ground that her husband died in a state of jointness leaving several items of coparcenary property. It is an admitted fact that the lands at Kanharpuri were purchased in 1940 by Kapil, father of Sheocharan and Dauwa. It is contended on behalf of the respondent that the lands in this village, which were subsequently acquired, should also be taken into account in fixing the quantum of maintenance. On the other hand, the appellants contend that as that property was acquired by the family after the death of the plaintiff's husband, it cannot be taken into account for that purpose.
9. In Veeraju v. Narayanamma, AIR 1953 Mad 159 a Full Bench of the Madras High Court held that the widow of a deceased coparcener has a right of maintenance against the surviving coparceners quoad the share of her deceased hubsand which survives to them. Later, it was observed that the rate of maintenance should be fixed taking into consideration the income of the joint family at the time of the institution of the suit and not as on the death of her husband. This view was followed in Krishnamurthy v. Surayakantamma, (S) AIR 1955 Andhra 5 where it was observed that while awarding maintenance to a widow what has to be taken into consideration is the share which her husband would have been entitled to on partition were he then living at the time of the filing of the suit. In Hari v. Narmadabai, ILR (1949) Nag 964 the same position was accepted by Bose, J., (as he then was) who observed that
"normally the widow gets roughly the share to which her husband would have been entitled on partition if he had been living."
If the husband of the plaintiff in the instant case had been living on the date of the suit, all the accretions to the joint family property would be divided between the coparceners in a suit for partition. Accordingly, we agree with the trial Court that the lands in village Kanharpuri can also be taken into account in fixing the maintenance.
10. In determining the quantum of maintenance to be allowed, several factors have to be considered. Thus, in Mt. Ekradeshwari v. Homeshwar, AIR 1929 PC 128 their Lordships observed that:
"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 condition 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 mode of living, and to the age, habits, wants, and class of life of the parties. In short, it is out of a great category of circumstances, small in themselves, that a safe and reasonable induction is to be made by a Court of law in arriving at a fixed sum."
The income from the husband's estate forms the upper limit for fixing the quantum of maintenance. However, it is not necessary that the maintenance should be fixed equal to the income from the husband's estate. The Court has to determine first what the widow would need for maintaining herself in such reasonable comforts as she would have been maintained while her husband was living.
11. In determining the income from the lands in the three villages, the trial Court has taken the net yield to be 50 gadas of dhan from the lands and has fixed the price at Rs. 200/- per gada. These figures were accepted before us as reasonable. Thus, the income from all the agricultural lands of the family come to Rs. 10,000/- per year. The share of the plaintiff's husband in the income would be nearabout Rs. 3,000/- per year. There may be a little more income from the house property; but it is not necessary to enter into details, as the quantum of maintenance depends upon the needs of the widow. The plaintiffs witness, Ganeshram (P. W. 4) has stated that a sum of Rs. 70/- to Rs. 75/- per month would be enough to maintain the plaintiff in reasonable comforts in keeping with her status. The trial Court has accepted this as a reasonable estimate of the needs of the widow; and on reading the evidence, we do not find that the amount fixed should either be raised to Rs. 200/- or reduced to Rs. 50/-. Considering the income from the estate and the needs of the widow, the figure arrived at by the trial Court is just and reasonable.
12. The trial Court has allowed arrears of maintenance at the rate of Rs. 25/- per month for twelve years before suit. Shti Sen did not dispute that arrears for twelve years could be awarded, but contended that no arrears should have been given, as the widow is voluntarily residing with her brother away from the defendant's family. As held in Mt. Ekradeshwari's case, AIR 1929 PC 128 (supra), a Hindu widow is not bound to reside with the relatives of her husband; and the relatives of her husband have no right to compel her to live with them. Their Lordships have clearly laid down that the widow does not forfeit her right to property or maintenance merely on account of her going and residing with her family. Accordingly, the claim for arrears of maintenance cannot be resisted on the ground that the widow went away to live with her brother.
13. Shri R. P. Verma for the respondent argued that the arrears should haye been awarded at the same rate at which the maintenance has been fixed for future. It has no doubt been observed in Krishnamurthy's case, (S) AIR 1955 Andhra 5 (supra), that the Courts are not entitled to exercise discretion in cutting down the rate of arrears. The learned Judge refused to follow the passage in Mayne's Hindu Law, nth Edition, at page 830, quoted below:
"While the right to arrears of maintenance is a legal right, the Court has a discretion to award them at lower rate than future maintenance,"
Mulla, in his Principles of Hindu Law, I2th Edition, observed in paragraph 560-A (p. 713) that:
"Courts have got large discretion in awarding arrears and may take into consideration the fact that a sudden demand for a large sum by way of arrears would be inequitable and embarrassing."
This view is based on the decisions in Gurushiddappa v. Parwatewwa, ILR (1937) Bom 113 : (AIR 1937 Bom 135) and Dattatraya Maruti v. Laxman Jettappayya, ILR (1942) Bom 584 : (AIR 1942 Bom 260). In this view, we consider that the Court below had discretion in fixing the arrears of maintenance at a figure lower than the figure for future maintenance. The plaintiff took no action to enforce her claim for arrears for twelve years and the amount accumulating in twelve years is a large sum which it would be difficult for the defendants to pay. We do not consider it proper to interfere with the discretion of the lower Court in this matter and hold that the amount of arrears awarded is proper.
14. Shri Verma in support of the cross-objection lastly stated that the plaintiff should have been allowed Rs. 5,000/- for constructing a house for her own residence. We do not see how this request is justified. The Court below has allowed one of the houses at Mahasamund to the plaintiff. Before us it was said by the learned counsel for the appellants that they were prepared to give one of the houses at Saraipali, also; but the respondent refused to take that house. In our opinion, all that the widow can ask for is that her residence be provided in the family house; and when a reasonable provision is being mad& for her, she cannot insist upon having a new house constructed for her.
15. In the result, both the appeal and the; cross-objection fail and are dismissed with costs. The cross-objection was filed in forma pauperis. Court-fees payable on it will be recoverable by the Collector from the respondent Mst. Gangabai. Mst. Gangabai had brought the suit in forma pauperis and in connection with the recovery of Court-fees the trial Court observed that "probably she may have no funds to pay this Court-fees". The amount of court-fees payable by the plaintiff is a first charge on the subject-matter of the suit under Order 33, Rule 10 of the Civil Procedure Code. A clause shall be added in the decree that the amount of court-fees payable is a first charge on the subject-matter of the suit.
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