Muniyandi Gounder and others vs Bommayammal

Basheer Ahmad Sayeed, J.—This civil miscellaneous appeal is against the order of the learned Subordinate Judge allowing an appeal with

costs to the plaintiff setting aside the decree of the trial court dismissing the suit and remanding the suit for fresh disposal calling upon the trial court

to give findings on the two issues framed by him originally.

The plaintiff brought the suit against her husband when he was alive claiming separate maintenance on the ground that she was ill-treated and driven

out by the defendants who included the sons of another wife of the husband who was the first defendant. The reason for the plaintiff being driven

away was given as quarrels between her and defendants 2 and 3.

The father and the sons were members of a joint Hindu family having joint family properties. Defendants 1 and 2 filed a joint written statement

repudiating the claim of the plaintiff to separate maintenance on the ground that she had left the house of the first defendant of her own accord at

the instigation of her son-in-law.

During the pendency of the suit, the husband of the plaintiff died. Since the sons were already on record, on 12th November 1951, the second

wife of the first defendant was brought on record, while defendants 2 and 3 were recorded as the legal representatives of the deceased first

defendant. The third defendant filed an additional written statement raising the contention that by reason of the death of the first defendant the

plaintiff was not entitled to claim any maintenance but could claim only a share in the property equal to that of what her husband was entitled to.

The learned District Munsif after framing the necessary issues and hearing both parties, no oral or documentary evidence having been adduced,

came to the conclusion that the plaintiff was not entitled to any maintenance and therefore dismissed the suit.

Against that dismissal the plaintiff filed an appeal and in the appeal the learned Subordinate Judge took the view that the plaintiff was. not a widow

on the date of the filing of the suit that she became a widow only subsequent to the filing of the suit and that if he were to accept the reasoning of

the learned District Munsif it would tantamount to saying that a married woman had to file a suit even against her husband for partition. Incidentally

in paragraph 10 of his judgment the learned Subordinate Judge observed that the learned District Munsif ought to have, instead of dismissing the

suit which was not correct according to the District Munsif''s own reasoning, found that the suit had abated on account of the death of the first

defendant.

But in the latter part of this paragraph the learned Subordinate Judge stated that in his opinion the plaintiff would be entitled to maintenance up to

the date of the death of her husband provided she had proved that she had Justification for living apart from him and he therefore found the point in

favour of the plaintiff. Consequently he remanded the suit as stated above.

Defendants 2, 3 and 4 have now preferred this appeal questioning the propriety of the order of remand in view of the observations of the

learned Subordinate Judge in paragraph 10 of his Judgment already referred to above. Great emphasis has been laid by Mr. K.V. Srinivasa Aiyar

the learned counsel for the appellants that when the learned Subordinate Judge stated that the learned District Munsif ought to have found that the

suit had abated on account of the death of the first defendant he was not justified in remanding the suit for fresh disposal.

The contention of the learned counsel is that in view of that opinion, he ought to have dismissed the appeal instead of remanding the suit after

setting aside the decree of the lower court. Though it is true that the learned Subordinate Judge has made that observation, still, if the entire

paragraph is taken into consideration it would not mean that the learned Subordinate Judge found that there was no substance in the appeal and

that the suit had actually abated and therefore should be dismissed.

On the other hand, a reading of the entire paragraph 10 of his Judgment would show that there was necessity and it was just and proper that the

lower court should be directed to give its findings on issues 1 and 2 at any rate in regard to the right of the plaintiff to maintenance from the date of

the suit to the date of the death of the plaintiffs husband. That appears to be the unmistakable pronouncement of the learned Subordinate Judge.

That being so, there can be no question of any propriety in the learned Subordinate Judge having set aside the decree of the lower court and sent

down the suit for fresh disposal.

Mr. Srinivasa Aiyar however argues that a distinction should be drawn between the claim of a widow to maintenance out of the joint family

estate and the claim of a married woman against her husband for maintenance during his lifetime.

This distinction has not been ignored by the learned Judge by any means. He further contends that if a suit is brought by the wife against her

husband for maintenance for the period for which she was not maintained during the lifetime of the husband, on his death, the suit must be deemed

to have abated, and once the suit abates, there was no proceeding before the court to which any legal representatives could be added or brought

on record.

His further point is that the claim of a wife against a living husband is only a personal claim and the right to maintenance by the husband is also

personal to the husband, and that nobody else is liable to maintain the wife during the lifetime of the husband and therefore a personal claim like this

must in law abate once the husband, who is bound to discharge such an obligation, dies. He has also further invited my attention to Order XXII,

rule 2, C.P.C., which he contends does not apply; for, according to law, the right to sue not surviving, the same having abated on the death of the

husband of the plaintiff, there is no question of the sons of the deceased husband who are already co nomine defendants being brought on record.

On the other hand, he contends that the proper procedure which ought to have been followed was to obtain an order under O. 22, R. 4, C.P.C. to

make the sons come on record as the legal representatives of the deceased.

I do not think that I can accept these contentions of the learned counsel for the appellants. In my view, so far as the claim of the plaintiff was for

maintenance for the period during which she was denied maintenance by the husband, that is a right which had already accrued to her and she was

only seeking to enforce that right which had accrued to her during lifetime of her husband.

That right she should still be entitled to maintain even after the death of her husband and if she obtains a decree she should be entitled to enforce

the same against those persons who hold the property in which the deceased husband had a right, because the claim to maintenance having already

accrued during the lifetime of the deceased husband, it would in effect be a debt payable by the husband and such a liability after the death of the

husband would still be liable to be enforced or recovered from those persons who are entitled to his share of the property either by survivorship or

by right of inheritance.

It is only in this light that the learned Subordinate Judge has directed that the suit should be reheard and the issues arising in the suit should be

decided by the learned District Munsif.

Mr. Seshagiri Sastri, the learned counsel for the respondent-plaintiff, has invited my attention to the decision in Sri Raja Bommadevara Raja

Lakshmi Devi Amma Garu Vs. Sri Raja B. Naganna Naidu Bahadur Zamindar Garu and Another, & also another decision in Raghunath

Ambaidas Shet Chitode Vs. Dwarkabai Jagannath Shet Chitode, . The principles discussed therein seem to apply to the facts of the present case.

One of these decisions no doubt arose before the Madras Hindu Women''s Right to Property Act, Act 18 of 1937, came into force. But still the

decision is good authority for the case before me. That decision still applies to the facts of the present case. In Mayne''s Hindu law, pages 830-31

following observations occur:

The claim for arrears accrued due during the lifetime of the husband is not a personal cause of action but is one against the property in the hands of

either the heir or the surviving coparcener and she could recover the same without proving that she contracted debts to maintain herself. While the

right to arrears of maintenance is a legal right, the court has a discretion to award that at a smaller rate than future maintenance.

There is a further observation of the learned author to the effect that maintenance has been held to accrue from the day to day and to be apportion

able. In support of these observations the decisions referred to are Raghunath Ambaidas Shet Chitode Vs. Dwarkabai Jagannath Shet Chitode, ''

Sri Raja Bommadevara Raja Lakshmi Devi Amma Garu Vs. Sri Raja B. Naganna Naidu Bahadur Zamindar Garu and Another, ''Subba Rao V.

Nagalakshmamma'', 45 Mys. H.C.R. 485 (C) and Rangappaya Aithala and Others Vs. Shiva Aithala and Others,

In my view since the plaintiff who became a widow subsequent to the suit is entitled to claim maintenance which had become due to her during the

lifetime of her husband, she can certainly enforce her right against the sons of the deceased husband who are now in charge of the joint family

properties. Therefore it must be held that they have been properly recognised as the legal representatives under O. 22, R. 2, C.P.C.

Besides, whether they were brought on record under O. 22, R. 2, or under O. 22, R. 4, C.P.C. seems to be purely technical in so far as the

defendants are already sued by the plaintiff as being liable for the maintenance which she was claiming against her husband who was one of the

coparceners along with the said defendants.

Therefore, on a consideration of the entire facts I am inclined to hold that the learned Subordinate Judge was right in having remanded the suit

for fresh disposal to the limited extent which he has indicated in his judgment. This civil miscellaneous appeal is therefore dismissed with costs. No

leave.

(This appeal having been set down for being mentioned, the Court delivered the following Judgment) :

At the instance of Mr. K.V. Srinivasa Aiyar, this matter was posted for being mentioned.

I am unable to understand what exactly he desires to be done in regard to the order already passed dismissing the civil miscellaneous appeal which

was preferred against the order of the learned Subordinate Judge remanding the suit for fresh trial in the light of his observations.

Mr. K.V. Srinivasa Aiyar contends that there can be no decree passed against the estate, if any, left by the deceased husband of the respondent. I

have not passed any such decree at all. What has been done by me in disposing of the appeal is only to dismiss the civil miscellaneous appeal and

confirm the order of remand passed by the learned Subordinate Judge. The point, that Mr. K.V. Srinivasa Aiyar wants to raise may be urged

before the executing court, if he is so advised.