LAXMIBAI GANPATRAO MAHAJAN Vs. RADHABAI KRISHNAJI MAHAJAN

JUDGEMENT

(1.) THE plaintiff-appellant brought this suit for a declaration that the decree obtained by defendant-respondent No.1 in Special Suit No.581 of 1923 was not executable against the properties in suit and for a permanent injunction restraining defendant No.1 from proceeding with the execution of an award decree obtained by her against the said properties.

(2.) THE parties to the suit were related in the following manner : Nageshrao | __________________________________________ | |Ganpatrao (died in 1916) Krishnaji (died in 1920)= Laxmibai (plaintiff) = Radhabai (defendant No.1)| |Narayan (defendant No.3). Gopal (defendant No.2),(adopted). Krishnaji died in 1920. In the same year defendant No.3 filed Suit No.453 of 1920 against defendant No.1. and others for accounts. In 1923 defendant No.1 adopted her natural brother, defendant No.2, and in the same year defendant No.2 filed Suit No.581 of 1923 for partition. THE matters in dispute in both these suits were referred to arbitration, and on October 31, 1927, an award decree was made by which the adoption of defendant No.2 by defendant 1 was declared invalid, and defendant No.1 was given a decree for maintenance at the rate of Rs. 500 per year in respect of which a charge was created on the properties in suit. It was also found, on accounts being taken, that Rs. 5,000 were due from defendant No.1's father to defendant No.3. THEreafter defendant No.2 was again adopted by defendant No.1 in the year 1933 after which defendant No.2 filed Suit No.102 of 1933 for partition against defendants Nos. 1 and 3 and others. This suit was decided on April 24, 1937; defendant No.2's adoption was held valid, but the suit was dis-' missed because the Court found that defendant No.2 was in possession of property of more value than his half share in the family property. THE plaintiff filed Suit No.205 of 1933 against defendant No.3, her son, for maintenance and obtained an award decree in respect of which a charge was created on the properties in suit. THEreafter in execution she obtained possession of the said properties. After this in 1937 defendant No.1 filed a darkhast for the execution of the award decree in Suit No.581 of 1923, and it was on account of that darkhast that the present suit was filed, the plaintiff's contention being that defendant No.1 was not entitled to enforce the charge created in her favour on the suit properties in the said decree. Defendant No.1 contended that as the family was still joint and as her charge was prior to that obtained by the plaintiff in the maintenance suit of 1933, she was perfectly entitled to proceed against the properties in suit in execution of her decree.

(3.) THE lower Court and the respondents have relied on Dodda Basappa v. Mallamma [1940] A.I.R. Mad. 458, for the proposition that where the widow has secured her right byfixing her claim against the whole joint family and getting a charge on a reasonable portion of the property, the right or charge cannot be taken away from her by any subsequent partition between the members of the family. THE facts in that case were that defendant No.1's husband had died leaving him surviving defendant No.1, defendant No.2 his son by the first wife and the plaintiff his brother. On the date of his death defendant No.1's husband was a member of an undivided family consisting of himself, the plaintiff and defendant No.2. THEreafter defendant No.1 filed a suit for maintenance and residence against the plaintiff and defendant No.2 and obtained a decree by which the maintenance decreed was made a charge on certain properties of the joint family, and in pursuance of which she was put in possession of the house in suit and she went on realising the said maintenance. About seven years after the date of the decree the plaintiff and defendant No.2 effected a partition between themselves. THE plaint alleged that by reason of the said partition the plaintiff was no longer bound by the said decree. On behalf of the plaintiff it was contended that it was open to the plaintiff to institute a suit by reason of the events that had happened subsequent to the date of the maintenance decree, that there had been a change of circumstances which would necessitate the modification of the said decree and that it was competent to the Court to modify the same in view of the said change of circumstances. A reference was made to the full bench decision in Lakshmidevamma v. Veera Reddi [1939] Mad. 877, F.B, where their Lordships had said (p. 883): THEre is here a clear statement (referring to Smritichandrika) that the duty of maintaining the widow devolves on the persons who take the property pf the deceased undivided member of the family and it is emphasized that the duty is dependent on the taking of the property. It was, however, held that the following observations made in the same case applied to the case (p. 883) : While the family remains undivided the position is different. THE property is held jointly and of necessity the amount required for a widow's maintenance has to be paid out of the estate regarded as a whole, but in no circumstances can she claim an allowance greater than the income of her husband's share in the estate;" and the following principles were deduced therefrom : When a member of an undivided family dies leaving him surviving his widow and his sons and brothers, her right to maintenance is against the entire joint family composed of the sons and brothers of the husband. It may be that if she waits until a partition takes place she may have a lesser right, i.e. instead of a right over the entire family, a right over those persons who take her husband's share. But if before a partition is effected, she gets her right declared, defined and reduced to a certainty by a decree of Court, her rights cannot be taken away by any subsequent partition effected among the members of the family.