CHINNI PADMAVATHAMMA ALIAS VARALAKSHMAMMA Vs. CHENNURU NARAYANA REDDI

JUDGEMENT

(1.) The appellant is the decree-holder in O.S. No. 330 of 1954 on the file of the District Munsif, Nellore. He filed that suit against the two respondents, husband and wife and obtained a decree against the husband only who was the first defendant in that suit. The husband filed later a suit O.S. No. 2 of 1958 in the Sub Court, Nellore, against the son, wife and others for partition of family properties and for recovery of half a share alleging, that he got his properties in the name of his wife as he was heavily indebted, and .that these properties were joint family properties of himself and his minor son. "That suit ended in a compromise decree. The material terms of the said compromise decree, Exhibit A-1 are as follows : The plaintiff and second defendant (the wife) agree:

(2.) Mr. Sitaramaiah appearing on behalf of Mr. Venkatarama Sastry, for the appellant has raised two contentions: (1) The amount of Rs. 500 payable every year under the compromise is not maintenance but only an annuity and therefore, the provision under section 60 (1) (n), Civil Procedure Code, against the attachment of a right to future maintenance does not apply; and (2) Even if the amount payable is maintenance, the right was created for the first time under the compromise decree and is not in lieu of a pre-existing right to maintenance. According to him, any right created for the first time without any pre-existing right, under the personal law of the party does not come within the expression " right to future maintenance " under section 60 (1)(n), Civil Procedure Code.

(3.) As far as the first contention is concerned I am of the opinion on a careful reading of the terms of the compromise decree that what the plaintiff therein obtained was a right to maintenance and the amount payable to him was not a mere annuity or allowance unrelated to maintenance. The compromise decree itself describes it as a maintenance-allowance. It was pointed out by Mr. Sitaramaiah that it was recited in the compromise decree that there was liability to pay maintenance to the plaintiff as per the Hindu Maintenance and Adoption Act, 1957 and this was obviously wrong as there is no provision in the said Act dealing with the right of a husband to maintenance by the wife. Even assuming that the parties Were under a wrong impression that there was liability to maintenance under the provisions of a particular Act, that does not make the provision any the less a provision for maintenance. The parties intended that the husband should receive a particular sum as maintenance-allowance and therefore, the allowance determined to be paid in such circumstances would be nothing but a maintenance-allowance. It is also to be noticed that the husband had given up all his claims to the suit properties and the title of the wife to the suit properties was acknowledged and she was put in possession of the properties. The husband had, therefore, to be provided with some amount for his food and clothing and other necessaries of life. The amount of Rs. 500 per year was, therefore, provided expressly as maintenance allowance and cannot be ascribed any other character except maintenance.