This appeal arises out of a suit for maintenance. Plaintiff is the widow of one Ramamohana Rao, who died in December 1923 aged about 15. His father was one Gantayya, now also deceased, and the defendant is the widow of Gantayya. The points taken in appeal are that the award of Rs. 60 per mensem for current maintenance, of arrears at the same rate and of costs upon the whole amount claimed by the plaintiff are excessive.
As regards the first point we find some slight difference between the estimated income which the lower Court has arrived at and the conclusion we would draw from the facts, There is no dispute with regard to the first item, namely, a sum of Rs. 2,200 derived from rents. The second item related to the commission business of the deceased Gantayya at Ellore and Bezwada. It seems clear from the evidence of Mr. Gangarazu (D.W 18) that in the Ellore business liabilities and assets about balanced each other and we are only concerned with the assets derivable from the Bezwada business. They admittedly consisted in a mortgage upon a house, upon which a decree was obtained and the property was purchased by D.W 17 admittedly on behalf of the defendant. The learned District Judge has taken the amount of the purchase-money, which came to Rs. 11,958, as the assets derived from this source and has estimated 9 per cent upon it as the net income. We observe however that the house itself was rented for a sum of Rs. 65 per mensem and was subsequently sold for Rs. 9,000, and it appears therefore that the correct figure to take for the capital value is this latter one, the interest at the rate of 9 per cent upon which will amount to about Rs. 800 per annum. The third item consists in certain Jute Mill shares said to yield Rs. 165 per annum. It is contended that these shares are worthless and in any case the figure is negligible. The fourth and remaining item consists in alleged money-lending transactions. The learned District Judge has acted upon a statement of Mr. Gangaraju which, correctly quoted, seems to have been that Gantayya's father, not Gantayya himself, had money-lending transactions to the extent of Rs. 5,000 to Rs. 6,000 per annum. He went on to say that Gantayya himself had invested funds to the extent of Rs. 10,000 in the commission agency business and without more therefore it seems plausible to hold that the money which had been utilised for lending by the father was so employed by the son and this seems to be in consonance with what the witness said in cross-examination, that he had money-lending business “to a small extent.” That the defendant herself carried on any such business after his death has not been substantiated by accounts and we find no evidence that she has done so. In these circumstances, we think that we must leave out of account the item of Rs. 450 which the learned District Judge has included. Thus the income virtually is only from rents and from the proceeds of the sale of the house and will amount to something like Rs. 3,000 per annum, as against Rs. 3,850 found by the lower Court. From this has to be deducted a sum to represent house-tax and costs of collection etc., so that we find that the net income in round figures would be about Rs. 2,400 instead of Rs. 3,200 as found by the lower Court. We do not think that there are any sufficient grounds for further reducing the amount by the costs incurred by the defendant in maintaining the will which Gantayya had executed in her favour, nor in respect of the legacies which she has to pay under that instrument. Accordingly if the income amounts to Rs. 200 per mensem we have to consider whether the sum awarded to the plaintiff upon that footing ought to be modified and we have come to the conclusion that, representing as it does about one-third of the total net income, it is a fair proportion and we think that irrespective of the proceeds of the promissory note for Rs. 10,000 which the plaintiff receives in respect of the katnam the figure awarded by the lower Court is reasonable and need not be modified.
The second point has reference to the rate of arrears. The award has been made at the same rate as for the current maintenance for a period of about five years and amounts to a lump sum of Rs, 4,500. This obviously will impose a very heavy strain upon the estate and it can hardly be expected that the defendant will be able to meet it without realising some of the capital assets. That however is not necessarily a consideration which should decide us, but it has been pressed upon us that during the period for which the plaintiff claims this amount she was a child of from 12 to 17 years of age and it is obvious that her needs must have been extremely moderate and that occasion for a good many of the expenses which she may now have to incur would not then have arisen. It has been suggested to us that the Court, once having found that maintenance is due at a certain rate, is not competent to lower the rate in respect of the arrears of maintenance and that the plaintiff has a legal right to receive them at the same rate. But we are unable to find in the Privy Council decision in Ekradeshwari Bahuasin v. Homeshwar Singh(1), which has been referred to as an authority, any justification for adopting this view. The discussion in that case really turned upon the date from which a widow who leaves her husband's house ought to be granted maintenance and so far as we understand the observations of their Lordships the point with regard to the rate was adopted without argument, there being only an observation in conclusion that the amount according to the scale fixed by the Court below should run from the date found appropriate. We cannot take this as an authority for the existence of an inflexible rule binding upon the Court in a matter of this kind, nor does the decision of this Court in Panchakshara v. Pattammal (2) affirm such la proposition. The discussion there related not to the rate at which arrears of maintenance should be granted but as to the circumstances in which the right to arrears arose, it being held that the absence of notice or other circumstances would not amount to an abandonment of the legal claim unless something amounting to waiver was established. The learned Judges in fact say that they do not in that case reduce the rate, an observation which we think shows that they regarded themselves as having some discretion in the matter. Accordingly we think that it is fully open to us to award arrears of maintenance at some rate less than that fixed for the current maintenance and having regard to the estimated needs of the plaintiff during the years under reference and to the additional circumstance that she was in receipt of an independent income of Rs. 750 per annum from the promissory note for Rs. 10,000, we think that a fair decision will be to give her maintenance at two-thirds of the rate of the current maintenance, or Rs. 40 per mensem. This will involve substituting Rs. 3,000 for Rs. 4.500 under this item.
There only remains the question of costs. The learned District Judge has required the defendant to pay costs estimated upon the plaintiff's claim, which was for maintenance at Rs. 150 per mensem. We agree with Mr. Varadachari on this point that the fair order as regards costs in the lower Court should be to pay proportionate costs upon the value of the relief now allowed to the plaintiff. With this modification the appeal is dismissed. The memorandum of objections filed by the plaintiff, which asks for enhancement of the rate, is also dismissed. In the appeal the parties will give and take proportionate costs. The memorandum of objections is dismissed without costs.
N.R.RDecree modified.