Decided on August 16,1972



- (1.) The defendants in O. S. No. 2/68 on the file of the Court of the District Judge, Eluru are the appellants in this appeal. The plaintiffs husband and the father of defendants 1 to 3 were brothers were brothers. Their mother was the 4th defendant and the mother of defendants 1 to 3 was the 5th defendant in the lower court. The husband of the plaintiff died on 24-7-1946 as member of the joint family. The joint family possessed the plaint A and B schedule properties and a share in Yadavalli Mokhasa Village. After her husbands death provision for maintenance of the plaintiff was made at the rate of Rs. 540.00 per year. A settlement deed was executed on 2-9-1949 creating a change on items 7, 8 , 10 and 14 of the A scheduled 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. 60,000.00 per year. She claimed that she should be awarded maintenance at the rate of Rs. 5,400.00 per year. The defendants contested the suit. They raised various defences . The learned Subordinate Judge overruled the several defences , held that the net income of the defendants from the properties was about Rs. 30,000.00 to Rupees 40,000/- per year and awarded the plaitiff maintenance at the rate of Rs. 2,000.00 per year. The defendants have preferred this appeal , and the plaitiff has filed a memorandum of cross-objections.
(2.) The first submission of Sri Jagannadha Rao 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 Rupees 30,000/- to Rs. 40,000.00 per year. The learned Subordinate Judge did refer to the evidence though he did not say how he 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 was 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. 2,500.00 per year and the yield from tobacco was about 15 putties per year. The price of one putti of tobacco was given by him as Rs. 500.00 . The learned counsel stated that the price of each bag of paddy may be taken as about Rs. 40.00 . According to the first defendant he had to spend 300 bags of paddy per year towards wages of farm servants and that it cost him Rs. 1,000.00 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. 18,500.00. Making due allowance for under-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. 25,000.00 per year.
(3.) The second submission of Sri Jagannnadha Rao , 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 submitted that after the passing of the Act the separate income of the claimant had to be taken into account under Section 23 (2) and Section 23 (3) of the Act. It had been held by this Court in Ramamoorthy v. Seetharamamma, AIR 1961 Andh Pra 131 (FB) that Sections 21 and 22 apply only to estates of Hindu who died after the commencement of the Act. Sri Jagannadha Rao contended that though Sections 21 and 22 did not apply to the estates of Hindus who died before the commencement 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 matters 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 S. 25 of the Act which provides that the amount of maintenance whether fixed by a decree of Court or by agreement , either before or after the commencement of the Act may be altered subsequently if there is a material change in the circumstances justifying such alteration. According to Sri Jagannadha Rao whenever the change is sought after the commencement of the Act, the amount of maintenance must be determined with reference to the provisions of the Act, that is to say with reference to Section 23 . I do not agree with the submission of the learned counsel . Section 25 merely enables 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 Section 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 and despite an agreement not to claim enhanced maintenance a widow may so claim under the new Act. That is all. Section 25 does not enable person who had a claim for maintenance even before the commencement of the Act to claim maintenance on the basis of the provisions of Section 23 ; nor does it enable the persons liable to pay maintenance to have the rate of maintenance reduced on that basis. Section 25 does not touch Section 23.;

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