Onkaramma vs Karisiddappa and Others

Padmanabhiah, J.—This is an appeal preferred by the Appellant-Plaintiff against the judgment and decree of the learned District Judge, Shimoga, in Regular appeal No. 80 of 1953, modifying those of the learned Subordinate Judge, Chikmagalur, in Original Suit No. 31 of 1951-52.

The facts that have given rise to this appeal are briefly as under:

The Plaintiff is the widow of one Put-put, son of Defendant 1. Defendants 2 and 3 and the father of Defendants 4 and 5 are stated to be the brooders of Plaintiff''s deceased husband. Plaintiff''s suit was one for maintenance on the ground that her husband, who was undivided. from the Defendants, died in the year 1942 i.e., about a year after she was married to him, and that the Defendants who are liable to maintain her had refused to do so. It is further alleged in the plaint that the Defendants became divided about a year prior to date of suit and that the Plaintiff was entitled to l/10th share in the lamely properties u/s 8(1) of Act 10 of 1937.

As the Plaintiff''s claim for maintenance and a share in the family properties was denied by the Defendants, she filed the suit in the trial Court claiming maintenance at the rate of Rs. 500/- per annum, and arrears of maintenance from 1942 up to date of suit, or in tire alternative, for 1/lOth share in the family properties and for possession of the same.

The Defendants disputed die claim of die Plaintiff on several grounds, the chief among them being that all the properties mentioned in the plaint schedule did not belong to the joint family, that the income of the family set out in the plaint was not true, that it did riot exceed Rs. 1,500/-, that the Defendants did not neglect to maintain the Plaintiff, that in die year 1950 the Defendants'' father effected a division of the family properties among the Defendants and Plaintiff where under the latter was allotted items 31 and 43 of the plaint schedule for her share, that the division was fair and binding on her and that the suit was liable to be dismissed.

In her reply statement, the Plaintiff intended that the division was needier fair nor binding on her and that the family was possessed of the properties mentioned] in the plaint .schedule, and denied the other allegations made in the mitten statement contrary to those contained in the plaint.

The learned Subordinate Judge decreed the suit for partition and possession of Plaintiff''s the share in 51 items of the properties mentioned in the plaint schedule and also granted arrears of maintenance of Rs. 1,400/- from September 1946 till June 1951 i.e., the date of suit, and also current maintenance at the rate of Rs. 115/-per mower) from that date till the date she got possession of her share in the family properties. Against this decision, the Defendants went in appeal.

The learned District Judge held that the learned Subordinate Judge was not justified in passing a decree for maintenance for the period from September 1946 till the date of suit after having granted her a share in the family properties, and he accordingly set aside that portion of the/ decree granting maintenance to he plaintiff Me forfeit bold, that the family owed debts to the extent of Rs. 9,000/- and that the Plaintiff was liable to the extent of Rs, 900/- therein and he accordingly created a charge for that amount on the Plaintiff''s l/10th share in the family properties.

The judgment and decree of the trial Court were modified to the extent indicated above. The lower appellate Court further directed that the Plaintiff may file a separate application under Order 20 Rule 12, Code of Civil Procedure, for ascertainment of mesne profits from die date of suit till her share was separated by metes and bounds and she was put in exclusive possession. As against that decision, the Plaintiff has come up in second appeal.

The two main points that were canvassed before us by the learned Counsel for the Appellant arc that the learned District Judge should not have disallowed maintenance to the Plaintiff as awarded by the trial court and that ho should not have saddled the Plaintiff with liability in respect of the alleged family debts which have not Been proved to be genuine and binding on the family. ft appears to us that there is no substance in the first ground urged by the learned Counsel for the Appellant.

The learned District Judge was right, in our opinion, in disallowing the maintenance awarded by the learned Subordinate Judge. It has to be remembered that the Plaintiff''s suit was one for maintenance or, in die alternative, for a share in the joint family properties. In such cases, a Plaintiff will be entitled to one or the other of the two reliefs and not for both. The learned Subordinate Judge, having granted the Plaintiff a share in the joint properties, which was one of the reliefs claimed by her, was not justified in granting her maintenance also when that relief was sought not as an additional relief but only as an alternative one.

In this connection, we would like to refer to the case reported in - Reajuddin Patwari and Others Vs. Syed Abdul Jobbar, . Therein the Plaintiff asked for possession of some property on the ground that the Defendants were trespassers. in the alternative, a claim was laid for assessment of a fair and equitable rent. The learned Judge I no Court below granted him one of the reliefs. The Plaintiff pressed in the cross-objections filed by him that he did not want the relief granted by I ho lower Court but wanted the other reliefs by way of ejectment.

This contention was negatived by their Lordships of the Calcutta High Court on the ground that the Plaintiff should be satisfied with either of the two reliefs which he applied for and when he succeeded in getting one. The case for the Plaintiff in this case is still worse .inasmuch as what she has been granted by the learned Subordinate Judge are two reliefs while she sought for only one of them.

The learned Counsel for the Appellant drew our attention to the proviso to Section 22, Hindu Law Women''s Rights Act, which is to the effect that no female relative who is entitled to a share u/s 8 and has obtained such a share shall, be entitled to claim maintenance. Relying on this proviso, the learned Counsel for the Appellant contended that the Plaintiff'' was entitled to maintenance until she got possession of the share that has been granted ; her and that, therefore, the trial Court was right in awarding maintenance also while the learned District Judge was wrong in disallowing it.

Assuming for the sake of argument that this proviso confers on a female a right to maintenance till she gets possession of her share, we are of opinion that the finding of the learned District Judge that the Plaintiff was not entitled to maintenance cannot be interfered with. It may be that a party is in law entitled to more than one relief, but nothing prevents him or her from foregoing a part of her right allowed under the law and being sates Bed: with something less.

The learned Counsel for the Appellant contended that the Plaintiff really intended to claim both maintenance and a share in her plaint but that as a result of the mistake on the part of her counsel the reliefs have been asked for in the alternative. We see no merit in this contention.

In the plaint, alternative reliefs are clearly sought for viz., the Plaintiff wants maintenance, or in the alternative, a share in the family properties. This is further clarified by the Plaintiff in the course of her evidence where she has stated that she wants a decree for maintenance or a share in the family properties, Even in valuing the suit for purposes of court-fee, it is such that the valuation is on the basis of alternative reliefs.

Thus it is clear that there could not have been any error on the part of the counsel who drafted the plaint in asking for tho reliefs desired by the Plaintiff. It is also seen that no application for Amendment of the plaint was filed in the trial Court. This also goes to show that there was no mistake on the part of the counsel who prepared the plaint. It was then contended by the learned Counsel for the Appellant that inasmuch as both maintenance and a share have been granted by the learned Subordinate Judge, the Plaintiff must be deemed to have taken her stand that she was entitled not only to maintenance but also a share.

This is really begging the question. We do not fie, anything in the records which goes to Klieate inat any such argument was advanced by the learned Counsel for the Plaintiff and therefore the possibility of the Court having suo mote granted these reliefs cannot be excluded.

Our attention was drawn by the learned Counsel for the Appellant to the case reported in - Gopal Krishnaji Ketkar Vs. Mahomed Jaffar Mohamed Hussein and Another, , for the proposition that the Court is compete it to grant an additional relief not applied for by the Plaintiff. This decision does not seem to support the contention of the learned Counsel. The facts therein are different from the facts in the present, case. The plain-, tiffs in that case claimed personal rights prior to-suit, which claim they did not put ward in the-plaint.

The evidence disclosed that Plaintiff 2 was in do facto management of the institution darga in that case and their Lordships opined that lie was entitled to the relief asked for by the Plaintiffs. Their Lordships further directed the High Court of Bombay to allow the amendment sought for in this behalf.

It is a cardinal principle of law that a. Court cannot grant two reliefs, as is done by the learned Subordinate Judge in this ease, when the Plaintiff wanted one of the two reliefs applied for and that too without giving an opportunity to the-other side to meet the claim for such a relief. It is not correct to say that the grant of two reliefs by the trial Court has not been questioned by the Respondents-Defendants.

The first ground in the memorandum of appeal filed before the lower appellate Court pertains to this. Therefore we are of opinion that the learned District Judge was right in disallowing the maintenance that was awarded to the Plaintiff by the learned Subordinate Judge;.

However, as regards the other contend on of the learned Counsel for the Appellant, that the learned District Judge should not have mulcted the Plaintiff''s share with liability for family debts to the extent of Rs. 900/-, we are inclined to agree. The learned District Judge has observer that the Plaintiff has not contradicted the liability of the family with, respect to the alleged family debts.

There is no satisfactory evidence in this behalf; on the other hand, it is contended for the Plaintiff that the debts have not neon proved and that, even if they arc true, they are not binding it the family. No doubt, it is true, as observed by the J learned District Judge, that provision must be made for family debts which arc payable from out of the joint family property, in order to determine what properties are available for partition.

If there are debts which are admitted by the parties to the partition, it will be possible to make provision for such, debts, but when there a clips p�t� with respect to the debts and also their binding nature, that question cannot be gone into in a suit for partition to which the alleged creditors of the family are not parties. After all, any finding as to the extent of debt duo to a creditor will not be binding upon him when he is no party to the suit.

Every member of the family will be liable loin all the debts binding on the family and the creditors will not be prejudiced if provision not made for their debts in the partition suit became they will always be at liberty to the suit; against the members of the family and the properties in their possession and obtain such relief as is available to them under the law.

We are of opinion that the learned District Judge was not correct in fixing the share of the family debts at Rs. 900/- as against the present Plaintiff and creating a charge for that amount on her share of the properties. We are inclined to set aside that portion of the decree.

Admittedly the family properties were divided among the members of the Defendants family in the vicar 1950, when the Plaintiff became entitled to l/10th share. It is also admitted that she was not put in possession of her share immediately after the partition near those circumstances, the Plaintiff to the purities arising from out of her snare the date of partition i.e. March 1950. ''The learned District Judge was not correct in allow the profits to the Plaintiff only from the date of suit. The decree as passed by the learned District dug has to be modified accordingly.

In the result, in modification of the deuce of the learned District judge, this appeal is partly allowed. we confirm the order of the learned Distinct Judge disallowing maintenance to the Plaintiff awarded by the trial Court. We further allow (ho profits arising out of the Plaintiff''s share HI the funnily properties from the date of partition as shown by Ex. I, to be ascertained wilder Order 20, Rule 12, Code of Civil Procedure.

We set aside the finding of the learned District Judge that the Plaintiff is liable to the extent of Rs. 900/- toward the debts of the family and that the same should be a charge on her l/10th lure. As parties have partly .succeeded and partly Jailed, we direct them to bear their own costs in this appeal. Court fee payable by Plaintiff will be a horde on her 1/10th share.