RANGAPPAYA AITHALA Vs. SHIVA AITHALA

JUDGEMENT

(1.) The question in the case is whether the heirs of a Hindu widow in whose favour the head of her husband's family has executed an agreement charging specific family property to pay her maintenance at a certain rate on a particular date in each year for the previous year, can if she dies on an intermediate date recover the proportionate amount due after the last payment till the date of her death.

(2.) The facts are not in dispute. The Plaintiffs and Defendants 2 and 3 represent one brother and the 1 Defendant another brother, and the father-in-law of Mahalakshmi Hengasa was the third (eldest) brother in a joint Hindu family. On 2nd June, 1870, after the death of Mahalakshmi's husband and father-in-law, the father of Plaintiffs as the elder surviving brother and head of the family executed in her favour a registered agreement Ex. B charging some of the family properties agreeing to pay her for each year from 1 Chaitra Sudha (about 25 March) of 1870 maintenance at Rs. 68 and 21 muras of rice per year, the payments to begin on 1 Chaitra Sudha (about 25 March) 1871 and on default of punctual payment to pay interest at 12 per cent on the money and customary interest in kind on the rice. In 1875 the Plaintiffs and 1 Defendant's branches partitioned the family property including the properties charged for Mahalakshmi's maintenance and the deed stipulated that the 1 Defendant's branch would pay their half share of the maintenance to the Plaintiffs father who was to pay the whole maintenance over to Mahalakshmi. Mahalakshmi died on 2nd March, 1917, the due date as per the agreement for payment of that year's maintenance being 23 March, 1917. Her heirs on her death were the Plaintiffs and the father of Defendants 2 and 3 who are nearer by one degree to her husband than the 1st Defendant. The suit was brought by Plaintiffs as her heirs for recovery for themselves and Defendants 2 and 3 from the properties charged in the possession of 1 Defendant one-half of the proportionate amount of maintenance due for the year ending 23 March, 1917, less the 21 days before Mahalakshmi's death. The Lower Courts have held that the whole year's maintenance fell due after Mahalakshmi's death, that the claim is not apportionable from day to day and that the Plaintiffs have no cause of action. The suit was accordingly dismissed. Hence this appeal by the plaintiffs.

(3.) No Indian authority applicable either way has been referred to in the judgment of the Courts below or in the arguments before me. Apparently the lower Courts rely as the Respondents learned Advocate wants me to rely on the old Common Law doctrine that except in the case of interest on money lent an entire contract is not apportionable either as to time or partial performance (Story on Equity, Secs.470 to 475, 3 English Edition). In England this doctrine was all but entirely abolished by the Apportionment Act, 1870, 33 & 34 Vic. c. 35 (Chitty's Statutes, 6 Edition, Vol. I, p. 393). In India the statutory provision contained in Section 36 of the Transfer of Property Act is applicable only as between transferor and transferee of the benefit of the payment and not as between the person liable for and the person entitled to the payment. Section 340(2) of the Succession Act applies to wills only. There is no statutory provision in India applicable to the case and the question is whether the old Common Law rule is to be applied to maintenance due under the Hindu Law and even if generally not to be so applied whether there being an express contract Ex. B making the maintenance payable on a certain date in the year the rule should be applied to this case.