BAI JAYA Vs. GANPATRAM KALIDAS DAVE

JUDGEMENT

(1.) THE parties to this dispute are a Hindu widow and her husband's brother. THE appeal arises in a suit filed by the plaintiff, who is the husband's brother, against the widow for a declaration that the defendant is not entitled to get Rs. 65 per annum for her maintenance as settled in a consent decree in a previous suit in 1928, and for a permanent injunction restraining the defendant from executing the decree. In the alternative he prayed for a reduction of the said amount of maintenance in view of the changed circumstances of the parties.

(2.) THE facts which led to the litigation are shortly these:--In 1928 the widow filed a suit against the present plaintiff for getting her maintenance from the joint family property. That suit ended in a compromise under which the plaintiff was to give Rs. 65 per year as maintenance to her. That amount had been paid by him since then, but in 1935 the plaintiff brought the present suit on the ground that the income of the ancestral property had decreased,. that since about a year before the suit the widow had been earning Rs. 45 per month as a nurse in a private institution at Ahmedabad, and that the changed circumstances justified the cessation of the payment, or in any case, a reduction of the amount. THE widow contended that her service was only temporary and insecure, that she had got no property fetching any income, and that the fact that she was earning by private service at that time did not entitle the plaintiff to stop or reduce the payment for her maintenance which had already been fixed under the consent decree.

(3.) IT is against this order that the present appeal has been filed by the widow, and it is contended on her behalf that the fact that she has at present got some income on account of her personal exertions cannot be regarded as a sufficient change in the circumstances which might justify the Court in reducing the amount already fixed under the decree. For this proposition the appellant relies upon several decisions of the Indian High Courts. The latest, decision is in Jai Ram v. Mst. Shiv Devi (1937) I.L.R. 19 Lah. 352. There the suit was brought by a person, who was bound to pay Rs. 10 per mensem as maintenance allowance to a widow of the family, for its reduction on the ground that she was employed as a mistress in a Municipal girls' school and was earning more than Rs. 50 per month. IT was found that it was not a stable income of the widow and that after her appointment she had consented to work on a reduced salary. IT was held that the fact that the widow was having some separate income of her own by her personal exertions was no reason to vary the decree obtained by her because such income cannot be treated as permanent and described as her means. IT was observed in the judgment that the income was liable to be stopped at any time when her employers chose to do so, and it was obvious that she could not be forced to work for her own living if she did not wish to do so. In the present case also the evidence shows that the widow is working as a nurse in a private hospital since nearly a year before the suit was filed, and that it was not a permanent job with gradation of salary or security of tenure. The principle of the Lahore case is, therefore, applicable to the facts of the present case.