1. This appeal involves an important question as to interpretation of Section 25 the Hindu Adoption and maintenance Act 1356. Any interpretation of that Section likely to affect large number of cases. In view of the importance of the question we think it is proper that a full bench consider the question. Post the case before a full Bench. In pursuance of the above said order of the High Court dated 16-11-72 and made herein this Appeal having been referred to a full bench and Letters patent coming on for hearing on Monday the 16th day of April, 1973 and upon persuing the judgment and decree of the High Court dated 9-9-1970 and passed in Appeal No. 19/69 and upon hearing the arguments of Mr. N.V.B Sankara Rao Advocate for the Respondent and having stood over for consideration till this day Court delivered the following:—

JUDGMENT

(Judgment of the Court delivered by the Hon'ble the Chief Justice)

2. There were two brothers G. Chenchu Naidu and Narrappa Naidu. They constituted a Hindu Joint family. They owned ‘A’ Schedule immovable properties at Kesavaram village. Chenchu Naidu died undivided some 37 years before without leaving any issue. The plaintiff is the widow of Chenchu Naidu. She claimed maintenance from Narappa Naidu who was the sole surviving coparcener. As a result of some mediation the Plaintiff and Narappa Naidu came to an agreement. Narappa Naidu paid 400/- in full quit of maintenance keeping in view the property of the family. She executed a registered relinquishment deed on 14-9-1936 whereby she gave up her rights in the family immovable property and also gave up her right of maintenance against the family. She agreed not to raise any dispute about her maintenance thereafter.

3. While so, she instituted a suit for recovery of past and future maintenance. She clamed 1½ putties of paddy, Rs. 300/- per annum towards clothing and utensils, and Rs. 3000/- towards provision for residence. She also claimed Rs. 4950/- arrears of maintenance of six years. She contended that the amount paid under Exhibit B-1, the relinquishment deed, was temporary and as the cost of living had increased, the amount was insufficient. It was also stated that the defendant, who is the widow of Narappa Naidu, is receiving a large income from the family properties. Therefore she is entitled to the enhanced maintenance.

4. The suit was resisted by the defendant mainly on the ground that under Exhibit B-1, the plaintiff bad relinquished her right to maintenance. Therefore she cannot claim any maintenance, leave aside the enhanced maintenance.

5. The trial Court framed appropriate issues and after recording the evidence produced by the parties dismissed the suit by its judgment dated 1-6-1966. It was found that the plaintiff's maintenance claim was permanently settled under Exhibit B-1.

6. On appeal, our learned brother M. Krishna Rao J., decreed the plaintiff's Suit. He held that “in more than one case it was held by this court that the maintenance holder was not debarred from ignoring the agreement or decree in seeking further relief”. He relied on S. Kameswaramam v. Subramanyam and C. Ambayamma v. Ganapathi. He observed that “in Muthyalamma v. China Appanna2-A it was held by a learned single Judge of this court that the expression agreement used in Section 25 of the Act does not cover a case where a claim for maintenance was once for all fixed at a lumpsm in fall settlement of the claim. The said decision has been recently overruled by a Division Bench of this Court in a judgment dated 31-3-1970 in Second Appeal No. 32 of 1968 (Seetharamaiah v. Padmavathi) wherein it was held that the agreement contemplated in Section 25 includes also an agreement as in the present case where the claim for maintenance was permanently settled by paying a lumpsum amount:”

7. Following the said decision of the Division Bench the learned Judge decreed the plaintiff's suit as mentioned in his judgment.

8. When the L.P.A against the judgment of the learned Judge came before a Bench of this Court on 16-11-1972 the Bench directed the case to be referred to a Full Bench in view of the importance of the question involved. That is how the case has come before us.

9. The question thus arises on Section 25 of the Hindu Adoptions and Maintenance Act (hereinafter called the Act) which was passed for protecting the rights of maintenance of those who are entitled to such maintenance adequately. While we construe the section so as to produce the effect intended by the Legislature, we ought not, in construing it, to give more retrospective effect to it than what was plainly intended by the legislature, because if we do so, we shall run the risk of interfering with honest transactions which were entered into and were closed prior to the Act for all intents and purposes. The construction of Section 25 therefore raises the question of the limits of its restrospectivity.

10. It cannot be in doubt that a statute is deemed to be retrospective which takes away or impairs any vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty or attaches a new disability in respect of transactions or considerations already past. But a statute would not be called a retrospective statute merely because a part of the requisites for its action is drawn from a time antecedent to its passing.

11. Section 25 of the Act, if read in this context, it would be easily seen that it is retrospective in its operation. It not only disregards certain contracts already concluded i.e contracts not to increase the amounts of maintenance but it expressly states that even if the claim of maintenance is merged in a decree or is made subject of an agreement entered into prior to the Act, its quantum can be enhanced if circumstances warrant.

12. It is now firmly held that no statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require such a construction. And the same rule involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater restropective operation than its language renders necessary.

13. We must therefore look at the general scope and purview of the Act, and at the remedy sought to be applied and consider what was the former state of the law, and what it was the legislature contemplated.

14. Now under the traditional Hindu law, the amount of maintenance, whether it is fixed by a decree or by agreement, was liable to be increased or diminished, whenever there was such a change of circumstances as would justify a change in the rate, See S. Sankaranarayana v. Lakshmi Ammal . AIR 1960 Mad. 294. Smt. Saraswathi v. Smt. Rupa . AIR 1972 Orissa 193., Siddilingappa v. Sidava . 1878 2 Bom. 624., and Rajender v. Putto . 1879, 5 Cal. Cr. 18..

15. What is thus plain is that the rate of maintenance could be enhanced if the income was materially increased or there was material increase in the cost of living, provided of course that this increase was not anticipated and allowed for at the time of the decree or agreement. Likewise the quantum of maintenance could be reduced if the income had diminished.

16. This increase or decrease in the rate of maintenance was, however, subject to an agreement of the maintenance, if any. If a widow entitled to receive maintenance had entered into an agreement to receive a fixed maintenance, per mensum, per annum or for whole life and had expressly contracted not to claim any increase in future even in case of change of circumstances was held to be binding upon the widow. See A. Mouleswar v. A. Durgamba . AIR 1924 Mad. 687. and Purushottmdas v. Rukmini . AIR 1937 Bom. 338..

17. It would thus be plain that a widow or a person entitled to receive maintenance under Hindu law could agree not to claim enhancement in the amount of maintenance fixed and that was binding on such widow or person. Likewise the widow or the person entitled to maintenance could agree to receive a lumpsum or some property in lieu of maintenance and relinquish the right to maintenance.

18. It was clear that the right to maintenance did not rest on contract of the parties but on the provisions of the Hindu law which expressly governed the rights and duties of the different members of the Hindu family. Such a right, however, could be restricted by agreement or could be surrendered or relinquished altogether for a consideration.

19. It is true that right to future maintenance was not transferable under the provisions of the Transfer of Property Act. It continues to be so. This however, did not mean that the right to maintenance could not be given up or relinquished as it did not and even now does not amount to transfer within the meaning of Section 6(dd) of the Transfer of Property Act.

20. This then the position of law in so far it is relevant for our purpose prior to the Act. The Act has undoubtedly brought about some material and important alterations and modifications in the rule of Hindu law relating to maintenance. The Act, however, is not exhaustive on the law of maintenance; but in respect of all matters dealt with in the Act it supersedes the rules of the law of maintenance previously applicable to Hindus. The Act also supersedes any other law contained in any legislation Central or State in so far as such legislation is inconsistent with the provisions of the Act.

21. What then is the alteration or modification which S. 25 of the Act makes in the rules of Hindu law relating to quantum of maintenance or right to surrender or relinquish the right to maintenance? In our judgment the section makes one substantial change and i.e that it supersedes the agreements, if any where under the maintenance holders bad contracted not to claim enhancement in the maintenance fixed in the agreement or decree. To this extent undoubtedly section 25 is retrospective as it disregards any such term of the decree or the agreement. That is the direct effect of the few introductory words of Section 25 of the Act. They read:

“The amount of maintenance, whether fixed by a decree of Court or by agreement, either before or after the commencement of this Act…”

22. The words used are of wide amplitude and admit of no restrictive interpretation. In order that the section should apply, it is enough to show that the amount of maintenance is fixed in a decree or agreement. The Court then has jurisdiction to enhance its quantum so fixed if changes in the circumstances justify. The Court's discretion is not made subject to any contract between the parties or to any term of the decree by and under which the maintenance holder could not claim enhancement in the amount of maintenance, even if there has been a material change in the circumstances. If any such term is permitted to be effective even after Section 25 come into force, it would plainly be inconsistent with that section. Such a term is reality stands superseded by virtue of section 25 read with section 4 of the Act. Thus the necessary meaning and effect of those opening words of Section 25 is that notwithstanding any contract or term in a decree that the amount fixed shall in no case be increased, the Court can direct enhancement in the quantum so fixed in the agreement or decree if the circumstances so justify. Even in the presence of any such condition, the agreement or the decree would be said to have fixed the amount of maintenance. It is immaterial whether the amount is fixed for a mouth, a year or even for life. It is now settled that the expression that the maintenance is to be paid to a widow for her life cannot be construed as involving a release of the right to have the amount raised if circumstances entitled her to it. See Subramania Patter v. Vembamal . 1904 14 MLJ 339.. As long as the agreement shows that an amount of maintenance is fixed with nothing more enhancement in it can be claimed under Section 25 although there may be a condition that no enhancement shall be claimed.

23. What is plain is that it those opening words which have been given liberal construction because section 25 enacts a beneficial social-legislation. The purpose of it is to protect helpless widows and others entitled to maintenance against the abuses of their position in the family. That this is the true position of Section 25 of the Act can be seen from the following decisions. S. Kameswarmma v. Surbramanym . AIR 1959 AP 269., Seshammal v. Thaiyummal . AIR 1964 Mad. 217. Gopalrao v. Sitha ramamma,11 and V. Rangamma v. Venkatarajulu,12

24. All these decisions, however, lay down only one thing and that is that notwithstanding any agreement by a widow or other maintenance holder not to claim higher rate of maintenance, even when changed circumstances warrant, such a person would be entitled to enhanced maintenance under Section 25 of the Act if there has been a material change in the circumstances.

25. It must be borne in mind that the said decisions do not relate to a question, as here where the right to maintenance itself was relinquished albeit in consideration of specified sum of money. In principle it would not make any difference if the right to maintenance is given up in lieu of some movable or immovable property or in lieu of a certain amount. The decisions do not concern themselves with the question as to whether the right of maintenance which stood relinquished prior to the Act gets revived under Section 25 of the Act. These decisions therefore are not authorities for the proposition that even if right to maintenance is relinquished prior to the Act, the result of the opening words of Section 25 is to revive the right and the court can enhance the amount of maintenance even in such case. There is no justification for confusing the two distinct and separate and mutually exclusive problems. The operation of these decisions therefore cannot be extended to the cases of relinquishment of right to maintenance effected prior to the Act. Any such appraisal of these decisions would open the floodgate of cases even where right to maintenance was extinguished long prior to the Act. It is true that the word ‘agreement appealing in section 25 is of wider import and there is no justification’ to restrict the scope of that word. It must, however, be remembered that though the width of that word may not expressly or by necessary implication exclude any category of agreements, yet however comprehensive that word may be, the agreements in all cases must have, fixed amount of maintenance for the operation of that section. What is thus plain is that any agreement which does not fix the amount of maintenance would not come within the purview of Section 25. Where an agreement releases or relinquishes the very right to maintenance, can if validly be contended that even such an agreement fixes the amount on maintenance? distinction ought to be made between a lumpsum amount fixed for maintenance for life and a lumpsum amount paid as a consideration for relinquishment of the right to mainten itself. In one the right subsists, and in other it is extinguished. One is apt to go wrong if this difference is not to borne in mind.

26. Now the term ‘release’ has been defined as the relinquishment, concession, or giving up of a right, claim or privilege by a person in whom it exists or to whom it accrues, to the person against whom it might have been demanded or enforced. Vide Corpus Juris Secundum, Volume 76 page 629.

27. The relinquishment of a right according to this definition would not amount to a transfer of property. It may be that in view of language of a given instrument, it is possible to hold that a document entitled release deed may yet be found to be a transfer. But on that account every deed of relinquishment would not automatically become a transfer of property. If relinquishment means the extinction of right, we fail to see what would be left for transfer or sale.

28. In the instant case the deed (Exhibit B-1) is a plain relinquishment of right to maintain executed by the plaintiff entitled to be maintained in favour of the husband of the defendant who in law was obliged to maintain the plaintiff. We do not therefore consider any justification to hold that Exhibit B-1 is not a relinquishment deed but it is a case of transfer of future maintenance as was contended by Sri N. Subba Reddy, the learned counsel for the plaintiff.

29. Exhibit B-1 expressly states that the plaintiff has relinquished or given up her right to maintenance. She categorically said that she will have no right to family property out of which she had the right to be maintained. She did not stop at that. She further and quite unambiguously said that she has given up her right to maintenance and that she will not raise any dispute regarding the right to maintenance thereafter. We do not consider there would have been more apt and clear words to extinguish her right to maintenance. It would be misreading the deed if Exhibit B-1 is construed as fixing the amount of maintenance and keeping the right to maintenance alive. It would be contrary to the plain language of the deed and would be inconsistent with the intention of the parties so clearly expressed.

30. Further more the opening words of Section 25 are not capable of reviving or re-opening of the right to maintenance which bad ceased to exist on the day of the Act.

31. We have already noticed the principle that the statutes are prospective and will not be construed to have retroactive operation unless the language admits of no other construction. Retrospective effect, likewise, shall not be given to a greater extent than what was plainly intended. Is there then any reason to extend Section 25 to antecedent transactions and events of relinquishment of the right to maintain solemnly concluded prior to the Act? Is there anything in the Section or in the context of the Act or anything which can be collected from its language which might give to words prima facie having retroactivity regarding fixation of amount of maintenance a larger retroactive operation relating in re-opening rights of maintenance relinquished and transactions and events already closed and concluded? It is plain that unless one finds some express or necessarily implied words which create that result, one should be slow in giving a greater or enlarged retrospectivity to Section 25. We do not think the introductory words of Section 25 can be so extended as to take within its fold even the cases where right to maintenance had come to an end and was not subsisting on the date of the Act. We have noticed that the distinction between an agreement fixing the amount of maintenance and an agreement extinguishing the right itself is plain and unmistakable. It is obvious that Section 25 will apply one to cases where right to maintenance is subsisting on the day of the Act. If the right had ceased or extinguished section 25 has no application. After the extinguishment of right to maintenance it would cast no obligation on the defendant to pay the maintenance amount. Thus vested rights and obligations would be deemed to have been created. If such vested rights were intended to be affected. We would have expected a clear language in that behalf. In Gopal Rao v. Sitharamamma the Supreme Court held.

“Now, before the Act came into force, rights of maintenance out of the estate of a Hindu dying before the commencement of the Act were acquired, and the corresponding liability to pay the maintenance was incurred under the Hindu law in force at the time of his death. It is a well-recognised rule that a statute should be interpreted, if possible, so as to respect vested rights, and such a conduction should never be adopted if the words are open to another construction”

32. In the absence of anything in the Act to show that it is to have retrospective operation in re-opening the closed transactions and events and to have the effect of altering the law applicable to claim or obligation at the time when the Act is passed, it cannot be so construed.

33. When it is not disputed that under the traditional Hindu law as well as even after the Act came into force, it is possible for a widow to relinquish her right of maintenance, we fail to see how the previous operation of such law can be disregarded because of Section 25 of the Act. It seems to us even in construing a provision which is to a certain extent retrospective, we ought, nevertheless, to bear in mind that maxim as applicable wherever we reach the line at which the words of Section 25 cease to apply. We are therefore very clear in our mind that the opening words of Section 25 apply only to the agreements which fix the amounts of the maintenance and give retrospectivity to the extent that even if the agreement enjoins not to enhance the amount of maintenance, it is retrospective even though the agreements were entered into prior to the Act. But beyond that we do not think these introductory words are capable being extended even to an agreement whereby the right to maintenance itself is relinquished. Such an extension is not necessary and is not the logical corollary of the words and the proposition is clear that you ought not to give a larger retrospective power to the section, even in an Act which is to some extent intended to be retrospective than you can plainly see what the Legislature meant.

34. We have then to consider the decision of the Division Bench in S.A 432 of 1968 dated 31-3-1970. In that case, Exhibit B-1 dated 14-2-1935 was in question. Under the said agreement, the wife was to receive a sum of Rs. 2500/- in full settlement of her maintenance for her lifetime. She bad agreed that she would not be entitled to claim any farther enhancement of maintenance. It would be immediately seen that there was no relinquishment of the right to maintenance involved in that case. That question therefore was not relevant for a decision in that case. The learned Judges were of course right in holding that the expression ‘agreement’ used in Section 25 is comprehensive enough to take to even cases where a lumpsum was settled in lieu of maintenance. They relied on Seshi Ammal v. Thaiyu Ammal There can be no quarrel in so far as this proposition is concerned.

35. However with great respect to the learned Judges, we are bound to say that B. Mutyalamma v. Chinna Appanna(2-A) was not properly appreciated. Unfortunately even the learned single Judge, who referred the case to the Bench, missed the core point in the case.

36. The learned Judges in reference to that case said.

“The learned Judge, interpreting the expression ‘agreement’ used in Section 25, felt difficulty in accepting that it would include the agreement under which the right of maintenance is relinquished in lieu of a fixed sum. That was also a case where a person entitled to maintenance compromised and accepted a definite sum in lieu of her right to be maintained from the joint family property. With great respect to the learned Judge, we are unable to construe the words ‘agreement’ as of limited application so as not to cover cases where maintenance was fixed at a lumpsum in full settlement of such a claim.”

37. Let us examine B. Mutyalamma v. Chinna Appanna to see whether the facts and the law of that case were rightly understood. On a reading of that Judgment, it would be evident that nowhere it said that the word ‘agreement’ is of limited application. On the other hand it is plainly said it may be that the word ‘agreement’ used in section 25 is applicable to all kinds of agreements fixing the maintenance.

38. It is pertinent that the judgment refer to S. Kameswaramma v. Subrahmayam (1) wherein the term ‘agreement’ was given a comprehensive meaning.

39. That apart, the question involved in that case, as here was whether an agreement whereby the right to maintenance is relinquished would come within the purview of section 25 of the Act. The question in that case was not whether cases where maintenance was fixed at a lumpsum would fall within the ambit of section 25. It was expressly held therein that.

“where however a person entitled to be maintained compromises and accepts definite sum in lieu of her right to be maintained from the joint family property and relinquishes her right. I have no doubt that section 25 will not apply to such a case.”

40. Distinction was clearly made in that judgment between the agreement fixing the amount of maintenance and an agreement relinquishing the right of maintenance itself. The case belonged to the latter category and not to the first. The crux of the whole problem therefore seems to have obviously been missed in an attempt to appreciate the decisions in B. Mutyalamma v. Chinna Appanna. We are confident that if this important difference in facts and law applicable had been brought to their Lordships' notice they would not have disagreed with that decision. It was a case where, at best, the decision could have been distinguished on facts. In our Judgment. B. Mutyalamma v. B. Chinna Appanna was rightly decided. We have already noticed that in the Division Bench case no question of relinquishment of right to maintenance really arose. The said case does not give any decision on that question. It was not necessary for disposal of that case. That case, therefore, cannot be taken as an authority for the proposition that an agreement relinquishing the right to maintenance prior to the Act would still be governed by section 25 of the Act. What follows therefore is that in the present case, the learned single judge in following the said unreported decision of Division Bench has, with due respect, erred in deciding that the plaintiff, in spite of her relinquishment of their rights is entitled to a decree for enhanced maintenance. In fact to the instant case it is B. Mutyalamma v. B. Chinna Appanna which applies and in the light of that case the plaintiff's suit was liable to be dismissed.

41. In the view which we have taken of law and of Exhibit B-1, we have no manner of doubt that the plaintiff had relinquished her right to be maintained under Exhibit B-1. Section 25 would not apply to her case and consequently she will have no right to claim enhancement in the amount of maintenance as her right itself was extinguished and was not subsisting on the date of the Act. The trial court, in our judgment, was right in its conclusion although not in its reasoning. We would accordingly allow the appeal, set aside the judgment of the learned single judge and dismiss the plaintiffs suit. In the circumstances of the case, however, we leave the parties to bear their own costs through out.