JETTI VARAHALAMMA Vs. JETTI AMMATHALLI NAIDU DIED

JUDGEMENT

(1.) The appellant herein is the widow of one Yeruku Naidu. She filed a suit in form a pauperis against her husbands undivided father and brothers for separate maintenance at the rate of Rs. 75.00P. M. and for separate residence. She also claimed past maintenance at the same rate. A claim of Rs. 200.00 was also made for utensils etc. The defendants resisted the suit contending mainly that the plaintiffs right was only to sue for partition and separate possession of her husbands 1/4 share in the joint family property under the provisions of the Hindu Womens Right to Property Act, Act XVIII of 1937, and that the claim for maintenance, therefore, was unsustainable. They further pleaded that they proposed to the plaintiff that she should take awav her 1/4 share but her father stated that it would be difficult for her to go and settle down in the village for supervising cultivation and under the circumstances it was desirable that her maintenance claim was settled and that, therefore, in accordance with the desire of the father of the plaintiff some of the elders of the place were called in and the claim for maintenance was settled at Rs. 300.00 and mid to the plaintiff. Alternatively it was contended that in any event the plaintiff was not entitled to maintenance at anything more than Rs. 2/- P. M. having regard to the income realised from the property.

(2.) The trial Court framed the necessary issues arising from the pleadings. The first issue raised was whether the suit was not maintainable by reason of the plaintiff having a right to claim 1/4 share in the joint family property under the Madras Act XXVI of 1947 passed after the Act No. XVIII of 1937. The trial Court while giving its findings on the other issues, dismissed the suit holding the preliminary issue against the plaintiff. This judgment was confirmed by the learned District Judge. The plaintiff has now come up in appeal.

(3.) The sole question for determination in this appeal is whether by reason of the right of the plaintiff to a share conferred on her under the Hindu Womens Right to Property Act (hereinafter referred to as the Act), a Hindu widow would not be entitled to claim maintenance. The learned District Judge relying upon the observations in the case of Sarojini Devi v. Sri Krishna, AIR 1944 Mad 401 to the following effect