PADMANAVA SINGH DEO Vs. RAJKISHORI DEVI

JUDGEMENT

(1.) THE following genealogy would show the relationship of the parties ( Brajakishore, the last holder of the impartible estate of Dharabote died on 3-10-1938. Plaintiff and Defendant No. 3 are his sons through defendant-2. Defendant-1 is the step-mother of plaintiff and defcndant-3 . Defendants 4 and 5 are the daughters of the plaintiff and were born in 1947 and 1948 respectively. Till then the Court of "Wards was in charge of the management of the estates. THE Court of "Wards fixed the maintenance of defendant-1 at Rs. 200/- by an order dated 1-12-1939. This rate was enhanced Rs. 3007- on 21-3-1941 and to Rs. 350/- on 4-1-1945. Plaintiff continued to pay at the rate of Rs. 350/- per month till June 1948. THEreafter he reduced the rate to Rs. 125/-per month and sent a notice to defendant-1 to that effect. Despite the reduction, he continued to pay her at the rate of Rs. 225/- per month till December 1950 out of grace. Defenaant-1 did not accept the reduction but received the amount as part payment towards her claim. She filed money suit No. 134 of 1950 in the Court of the Subordinate Judge, for recovery of arrears of maintenance of Rupees 8746/12 at the rate of Rs. 350/- per month after deducting the part payments. Plaintiff, as the sole defendant, contested the suit that she was not entitled to more than Rs. 42/- per month towards her maintenance. THE Subordinate Judge decreed the suit with an observation that it was open to the defendant in that suit to bring a separate suit for reduction of the rate of maintenance. THE plaintiff filed F. A. 72/1953 which was dismissed on 28-4-1959 with the following observations "THE order of the Court of Wards dated 4-1-4.5 Is undoubtedly an instrument in writing and the appellant by his own conduct in continuing to pay maintenance at the rate of Rs. 350/-, even after he succeeded to the estate on 8-10-46, has in substance entered into an implied contract. If subsequently he wanted the amount of maintenance to be varied on account of any special reasons mentioned in Section 14 of that Act, he should have either filed a separate suit for that purpose or in the alternative he should have raised specific issue in the present litigation and asked for addition, of necessary parties for the decision, of that issue'. During the pendency of the previous first appeal, the impartible estate of Dharakote vested in the State of Orissa on 1-6-1953 under the Orissa Estates Abolition Act, No. 1 of 1952 (hereinafter to be referred to as Orissa Act). Defendant-1 preferred a claim before the Claims Officer u/s 18(1)(h) of the Orissa Act for recovery of the past and future maintenance and the case is pending In the Court of the Addl. District Judge, Berhampur. Plaintiff's case is that the income of the estate substantially diminished from October, 1946 and definitely from June 1948 on account of the introduction of (i) Tenants Protection Act, 1948, (it) impending settlement of cash rent under the Madras Estates Land (Orissa Amendment) Act, 1947; (iii) Agricultural Income-tax Act, and (iv) THE Orissa Forests Reservation Act, 1948, THEre was also an agreement between the zamindars and raiyats in Ganjam district for fixation of rent at a reduced rate on the average income of ten years prior to 1939. Besides the reduction in the net income of the estate, defendants 4 and 5 were born in 1947 and 1948 respectively and were also entitled to maintenance out of the income of the estate. From 1949-50 onwards there was a deficit. THE present suit has been filed for reduction of the rate of maintenance from Rs. 350/- per month to about Rs. 42/. per month or to such other rate as the Court would deem proper under the altered circumstances, under Section 14(2) of the Impartible Estates Act (Madras Act II of 1904).

(2.) DEFENDANTS 2 and 3 did not contest. DEFENDANTS 4 and 5 filed written statement alleging that they are entitled to maintenance and marriage expenses out of the compensation money payable to-the plaintiff. Defendant No. 1 is the sole contestant assailing the plaintiff's claim for reduction of the rate of maintenance. Her main defence is that there was no reduction in the net income of the-estate and the plaintiff has failed to make out a case for reduction of the rate of maintenance. The Civil Court has no jurisdiction to entertain the suit which, is barred also by limitation and res judicata. Other objections on Questions of law would be examined in detail later on.

(3.) THE only other point for consideration is whether the plaintiff's claim for reduction of the rate of maintenance from 1-6-1948 to 20-12-1950 is barred by res judicata. In First Appeal No. 17 of 1952 the High Court granted a decree for maintenance at the rate of Rs. 350/- per month from 1-6-1948 to 20-12-50, in this suit there is no prayer to reduce the quantum of maintenance granted. In that decree. In that first appeal there is an observation that it was open to the plaintiff to file a suit for reduction of the rate of maintenance, in view of the decree the plaintiff should have asked for a relief in this suit to reduce the rate of maintenance already decreed on payment of ad valorem court-fees. In the suit would have been properly constituted on payment of proper court-fees, there would have been no res judicata in view of the observation in that first appeal. But as the proper relief has not been sought on payment of necessary court-fees, the decree in the previous suit constitutes res judicata in respect of the relief for reduction of rate of maintenance from 1-6-1948 to 20-12-1950.