CHIMALAKONDA AMBAYAMMA DIED Vs. CHIMALAKONDA GANAPATHI

JUDGEMENT

(1.) This second appeal has been referred to this bench by our learned brother Basi Reddy J., as raising an important question under S. 25 of the Hindu Adoptions and Maintenance Act in respect of which it is said there is a conflict authority. There are two decisions of this Court: one of a Bench consisting of Subba Rao, C. J. and Mohd. Ahmad Ansari, J. (as they then were) in Kameswarmma v. Subrahmanyam, (1959) 1 Andh WR 12 = (AIR 1959 Andh Pra 269) and the second of a Full Bench consisting of Chandra Reddy, C. J., Srinivasachari and one of us (the present Chief Justice) in Ramamurthy v. Sitaramma, (1960) 2 Andh WR 352 = (AIR 1961 Andh Pra 131) (FB), which bear upon the question. Before we examine these cases, it is necessary to state briefly the facts which give rise to the question before us, viz., whether the death of the deceased whose widow is claiming enhanced maintenance should have been after commencement of the Act in order to get the benefit of Section 25 ofsaid Act ? There were two brothers Venkateswarlu and Padmanabham. Venkateswarlu died in 1906 or 1907 leaving a widow, the plaintiff-appellant, and a will Ext. B-3 dated 22-9-1906. Padmanabham had two sons, Sambamurthy and Ganapati. Under the terms of the will Venkateswarlu left all his properties to Sambamurthy burdened with a liability to maintain his widow at the rate of Rs. 20 per year. In 1927, the widow filed O. S. No. 542 of 1927 for enhancement of maintenance. In that suit there was a compromise and a decree was passed on 14-9-1928 enhancing the maintenance from Rs. 20 to Rs. 35 year. The decree further any increase in the maintenance. It may also be stated that there is a charge created on the property of the deceased in respect of this enhanced maintenance under the compromise decree. On 10-7-1933 Sambamurthy executed a settlement in favour of his brother, Ganapati by a registered document Ext. A-3. Thereafter he died though it is not relevant for the purpose of this second appeal as to the date purpose of this second appeal as to the date when he died, and the property was in his possession and enjoyment both under the settlement deed as also as the heir of Sambamurthy. In 1990 the widow filed a suit against Ganapati for enhancement of maintenance from Rs. 35 to Rs. 600 per year on the ground that the income of the property had increased and the cost of living also had gone up. The trial Court awarded her ten bags per year which at the prevailing rate amounted to Rs. 240 and decreed the suit. The District Judge, while agreeing with the finding by the trial Court is reasonable, nonetheless held having regard to Ramamoorthy v. Sitaramma, (1960) 2 Andh WR 352 = (AIR 1961 Andh Pra 131) (FB) that an alienee was under no personal obligation to pay the maintenance. In this view he allowed the appeal and dismissed the suit.

(2.) The question which arises for consideration is whether the widow is entitled under Section 25 to claim increased maintenance having regard to the change in circumstances, notwithstanding the fact that under a prior decree she had been awarded maintenance and that she had agreed under the terms not to ask for increased maintenance.

(3.) Prior to the Hindu Adoptions and Maintenance Act, 1956, under the Hindu Law it has been held by the Madras High Court in Mouleswar Rao v. Durgamba, ILR 47 Mad 308 = (AIR 1924 Mad 687) and Kameswaramma v. Thammanna, (1939) 2 Mad LJ 460 = (AIR 1939 Mad 798), that a contract by a Hindu widow with her husbands coparceners to receive a fixed maintenance per annum and not to claim increase in future, even in case of changed circumstances, is a valid agreement. Section 25 of the Act, however, altered this position. It reads: