SAMBANDA NAICKER Vs. RANGANAYAKI AMMAL

JUDGEMENT

(1.) THIS civil revision Petition arises out of an order made by the learned District munsif, Sirkali, granting permission to withdraw the suit filed by the plaintiff as a pauper with liberty to file a fresh suit. The order is purported to have been made under Order 23, Rule 1, Civil P. O.

(2.) THE plaintiff is a widow and there was an earlier suit brought by her for maintenance against the estate of the joint family, she is the widow of the deceased brother of the first defendant. Her husband had predeceased her fatherin-law. The suit was O. S. No. 231 of 1945 and there was a compromise decree in that suit. Maintenance was agreed to be paid at the rate of 24 kalams of paddy and cash of Rs. 60 per year, as the father-in-law was hound to maintain her under a moral obligation,

(3.) THE present suit is for maintenance against the defendants filed after the death of her father-in-law for 60 kalams of 'paddy and cash of Rs. 60 per annum. The suit also comprised a claim for past maintenance from April 1952 to the date of the plaint. After the suit was instituted and the written statement was filed and issues were framed, the plaintiff put in the present application, out of which this revision has arisen, to withdraw the suit with liberty to file a fresh suit under Order 23, Rule 1. The learned District Munsif in an elaborate order, after considering all the authorities that were placed before him, came to the conclusion that it was a fit case where permission should be granted to the plaintiff to withdraw the suit and institute a fresh suit on the same cause of action, if she so chose. One of the reasons shown tor withdrawing the suit was that after the death of the father-inlaw, the plaintiff had become entitled to file a suit for partition of the share to which her husband was entitled to in the joint family estate and, obviously at the time she actually filed the suit, after the expiry of her father-in-law, she was not aware that instead of or in addition to the suit for maintenance she could also claim partition of the estate so far as her husband's interest was concerned. She claimed this right under the law which extended the right of the widow to her husband's share in the immoveable property of the estate of the joint family including agricultural lands. The amendment to Hindu Women's Right to Property act extending the right to agricultural tends was made in 1947.