Decided on August 16,1972



- (1.) The defendants in O. S. No. 2/1968 on the file of the Court of the District Judge, Eluru are the appellants in this appeal. The plaintiff's husband and the father of the defendants 1 to 3 were brothers. Their mother was the 4th defendant and the mother of defendants 1 to 3 was the Sth defendant in the lower court. The husband of the plaintiff died on 24-7-1946 as a member of the joint family. The joint family possessed the plaint A and B schedule properties and a share in Yadavalli Mokhasa village. After the husband's death provision for the maintenance of the plaintiff was made at the rate of Rs. 540/- per year. A settlement deed was executed on 2-9-1949, creating a charge on items 7, 8,10 and 14 of the A schedule properties. Having regard to the rise in the cost of living the plaintiff filed the suit out of which the appeal arises for enhancement of maintenance. She alleged that the income from' the A schedule properties was more than Rs. 60.000/- per year. She claimed that she should be awarded maintenance at the rate of Rs.5,400/- per year The defendants contested the suit. They raised various defences. The learned Subordinate Judge over-ruled the several defences, held that the net income of the defendants from the properties was about Rs.30,000- to Rs.40.000/- per year and awarded the plaintiff maintenance at the rate of Rs.2.000/- per par. The defendants have preferred this appeal, and the plaintiff has filed a memorandum of cross objections. The first submission of Sri Jagannadharao was that the learned District Judge did not discuss the evidence relating to the income from the properties but merely agreed with the argument of the counsel for the plaintiff that the income would be about Rs.30.000/- to Rs. 40.000/- per year. The learned Subordinate Judge did refer to the evidence though he did not say how be arrived at the figure mentioned by him. One of the Criticisms of the learned counsel was that the learned Subordinate Judge did not exclude the properties which had already been sold and, therefore, lost to the family. The 1st defendant himself as D.W.5 stated that he owned 30 acres of mamool wet land and 20 acres of dry land which was cultivated as wet. He also stated that he owned 120 acres of dry land. He stated that the paddy yield would be about 450 to 500/- bags per year, that the income from the mango garden was about Rs.3.000/- that the income from the lime garden was about Rs. 2.500/- per year and the yield from tobacco was about 15 patties per year. The price of one putti of tobacco was given by him as Rs. 500/-. The learned counsel stated that the price of each bag of paddy may be taken as about Rs. 40/-. According to the 1st defendant he had to spend 300 bags of paddy per year towards wages of farm servants and that it cost him Rs.1.000/- per acre to grow tobacco. Even on the basis mentioned by the 1st defendant the net income from the properties should be not less than Rs.18.500/-. Making due allowance for under estimation of yield and over estimation of yield and over estimation of expenses it may safely be held that the income from the lands would not be less than Rs. 25.000/- per year.
(2.) The second submission of Sri Jagannadharao, learned counsel for the appellants was that the plaintiff herself was possessed of considerable property namely five acres of wet land and 22 acres of garden land. He conceded that under the law as it obtained before the passing of the Hindu Adoptions and Maintenance Act, the income from these lands could not be taken into account in awarding maintenance to the plaintiff. But he submited that after the passing of the Act the separate income of the claimant had to be taken into account under Sec. 23 (2) and Sec. 23 (3) of the Act. It has been held by this court in Ramamma v. Seethannnamnta that Sections 21 and 22 apply only to estates of Hindus who died after the commencement of, the Act. Sri Jagannadharao contended that though sections 21 and 22 did not apply to the estates of Hindus who died before the comment cement of the Act, Section 23 applied to all claims for maintenance whether such claims came into existence before or after the commencement of the Act. I do not agree with this submission. Section 23 merely provides for the putters which may be taken into account in determining the maintenance payable under Sections 21 and 22 of the Act. It does not create or confer any right to claim maintenance. Sri Jagannadha Rao relied on Sec. 25 of the Act which provides that the amount of maintenance whether fixed by adecree of court or by agreement, either before or after the commencement of the Act may bo altered subsquently if there is a material change in the circumstances justifying such alteration. According to Sri Jagannadharao whenever the change is sought after the commencement of the Act, the amount of maintenance must be determined whh referencs to Sec. 23. I do. not agree with the submission of the learned counsel. Section 25 merely enables the altering of the amount of maintenance on proof of change of circumstances. In the case of claims which arise after the commencement of the Act the amount of maintenance has to be determined in accordance with the provisions of the Act. In the case of claims for maintenance which existed even before the commencement of the Act the amount of maintenance has to be determined with reference to the pre-existing law. All that Sec. 25 has done in the case of pre-existing claims for maintenance is to remove the bar that existed previously. Before the commencement of the Act a widow could bind herself not to claim enhanced maintenance and that would effectively, bar her from claiming enhanced maintenance. That bar has now been "removed by Sec. 25 and despite an agreement not to claim enhanced maintenance, a widow may so claim under the new Act. That is all Sec. 25 does not enable a person who had a claim for maintenance even before the commencement of the Act to claim maintenance on the basis of the provisions of Sec. 23 ; nor does it enable the persons liable to pay maintenance to have the rate of maintenance reduced on that basis. Sec. 25 does not touch Sec. 23.
(3.) The third submission, of Sri Jafannadharao was that the learned District Judge was in error in taking into account items 1 to 21 of plaint A schedule which were private lands in an estate of which the defendants were proprietors and which had been taken over by the Government. No doubt ryotwari pattas were granted to the defendants under Sec. 12 of the Abolition Act, but according to Sri Jagannadharao, the claim of the plaintiff for maintenance against those items was extinguished as a result of the estate being taken over. The learned counsel relied on the decisions of the Supreme Court in Rana Sheo Ambar Singh v. Allahabad Bank and Shivashankar v. Baikunth Nath . He submitted that the decision of the Madras High Court in Seethalakshmi v, Krishnaswami on which the lower court relied must be considered to have been over-ruled by these two decisions of the Supreme Court. Section 3 (b) of the Estates Abolition Act provides, save as expressly .provided otherwise, for the vesting of the entire estate in the Government, free of all encumbrances, with effect on and from the notified date. An, express provision otherwise is found in Sec. 3 (d) itself. The proviso to Sec. 3 (d) of the Act prohibits the Government from dispossessing any person of any land in the estate in respect of which they consider he is prima facie entitled to a ryotwari patta. If such person is a landholder he cannot be dispossessed pending the decision of Settlement Officer and the Tribunal on appeal as to whether he is actually entitled to such patta. If such a person is a ryot he cannot be dispossessed pending the decision . of the Settlement Officer as to whether he is entitled to a patta. Sec. 11 entitles every ryot in an estate to a ryotwari patta in respect of the lands specified in the section. Sections 12,13 and 14 entitle the landholder to a ryotwari patta in respect of the lands specified in the section. Those provisions, Sections 3 (b), 3 (d) and 10 read together indicate that the right of possession of a ryot or a landlord in respect of which he is entitled to a ryetwari patta is excluded from the estate which becomes vested in the Government on the notified date. Sections 24 to 37 deal with the determination of the compensation payable to a landholder and it is worthy of notice that the income from the lands in respect of which a landholder is entitled to a patta under sections 12 to 14 is not taken into account in determining the compensation. This again appears to indicate that the right of a landholder to the possession of lands in respect of which he is entitled to a ryotwari patta is not included in what is vested in the Government in respect of which compensation is paid to the landholder. S.-ction 42 requires all persons claiming the whole or a portion of the compensation, including persons claiming by way of maintenance and creditors to apply to the Tribunal within six months from the date on which the amount of compensation is deposited with the Tribunal. The subsequent provisions deal with the procedure to be followed by Tribunal in dealing wish the claims made to it and in apportioning the compansation. Section 59 provides that no claim or liability enforceable immediately before the notified date against the landholder shall, on and after the date, be enforceable against the interest he had in the estate. It further provides that such claims and liabilities shall be enforceable againt the inteiim payments and compensation paid or payable under the Act and against his other property, if any, to the same extent to which such claims and liabilities were enforceable against such property immediately before the notified date. Thus the debts and liabilities of a landholder are not extinguished by the provisions of the Estates Abolition Act. Where before the notified date a person having, a claim against the landholder could have proceeded against the estate, he is, after the notified date entitle to proceed against the payments and the compensation. In other respects his right remains unimpaired. That is to say, he can proceed against the other property of the erstwhile landholder in the same manner as he could have done before the notified date. The private, lands of a landholder are such 'other property' and the right of a creditor to proceed against privrate lands of a landholder is unabridged by the provisions of the Estate Abolition Act. This view is supported by the decision of Rajamanna C. I. and Veeraswamy, J in Seetha Lakshmi v. Krishna Swami Rajamanoar C. J observed: "We do not find any difficulty in deciding the case. Admittedly, there was a charge on the pannai or private lands of the landholder for the unpaid purchase price. The argument of Mr. Rangachariis thatthe effect of the notification is to completely destroy the right inter-se between the charge holder and the persons who created the charge. This of course is not quite right because there is a provision entitlin a mortgagee of an estate to obtain relief by the payment of the amount due to him from and out of the compensation deposited by the Government. This is an indication that it was not the intention of the Act to completely abrogate the rights of mortgagees or charge holders. Indeed Mr. Rangachari concedes that the charge-holder in this case also will be entitled to obtain relief so far as the amount of compensation is concerned. But his agrument, if we understood him right, is that the pannai lands as such have ceased to exist, and though in respect of the same lands ryotwari pattas have been issued to the land holder, they cannot be deemed to be subject to the charge created in this case. We cannot accept this contention, Under section 12 of the Act in the case of a zamindari estate, the landholder shall be entitled to a ryotwari patta in respect, among other lands, of what can be established to be private lands within the meaning of section 3, clause 10 (a) of the Estates Land Act, If in this case ryotwari patta has been issued, it is only because they have been established to be private lands If instead of issuing ryotwari patta the Government had taken the interest in these private lands and awarded compensation for them, surely it cannot be contended that the charge-holder will not be entitled to have the amount of compensation. If that be so, we fail to see why the charge-holder should be deprived of his security over the same lands which though they have ceased to be private lands continue to be the property of the landholder'. Only before the notification these lands were subject to the payment of peshkush along with other lands in the estate, but after issue of pattas they would be subject to the lyotwari assessment. This court took this view in an early case, vide. C.M..Ps. Nos.8017 of 1950 etc , and 1032 of 1951. We pointed out that the ownership of private lands must be deemed to cotinue with the zamindar and there has only been a change of the nature of the burden on such lands. It follows that the charge- could continue to subsist in respect of the private lands for which under section 12 a ryotwari patta has been issued to the landholder.";

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