KAMAKSHI AMMAL Vs. KRISHNAMMAL

JUDGEMENT

(1.) Mr. Sitarama Rao has raised two contentions in this second appeal : (1) the plaintiff- respondent is not entitled to claim any maintenance from and out of the estate of her deceased husband, and (2) the rate awarded both for arrears of and future maintenance is excessive. It may be necessary to state a few facts for dealing with the first contention. The plaintiff is the widow of one Ramayya Aiyar who is the adopted son of one N. Venkateswara Aiyar. The said Ramayya Aiyar died on the 12 April, 1923, leaving him surviving his widow the plaintiff, his adoptive mother, Ramalakshmi Ammal, who is no other than the mother of the plaintiff's natural mother, and a last will and testament dated 8 April, 1923. In and by the said will he bequeathed all the property which he then owned and possessed to both his mother and his wife the plaintiff. To his mother he gave property worth about Rs. 7,000, namely, a certain land and a house; to his wife he gave certain lands worth about Rs. 1,600. He directed his mother to discharge the debts left by him which were ascertained after his death to be about a sum of Rs. 1,192. This suit was filed by the plaintiff for a declaration that the will was not true or at any rate was not made by the testator in a sound and disposing state of mind, and even assuming it to be genuine, her right to maintenance cannot be taken away by the said will. Both the Courts have concurrently found that the will was genuine and was made by the testator in a sound and disposing state of mind, and I see no reason to differ from the said finding. The learned District Munsiff, in addition to the property bequeathed by the testator to the plaintiff, allowed her a sum of Rs. 150 as and for future maintenance from the date of plaint. He also awarded arrears at that rate and mesne profits from the lands bequeathed to her which were in the possession of the defendants 1 to 3, the first defendant being Ramalakshmi Ammal, and defendants 2 and 3 being her daughters, who were on the date of suit in possession of the properties left by the testator under a settlement deed executed by the first defendant.

(2.) It is contended on behalf of the defendants-appellants that as the testator made a specific gift of certain lands in favour of the plaintiff and she had elected to retain the said property, it is not open to her to claim any maintenance. I am not inclined to agree with the contention. The right to maintenance possessed by a Hindu widow cannot be taken away by any disposition made by her husband and a donee under a will is bound to provide for her maintenance. This rule of Hindu law cannot be disputed. But what is contended is that the gift of property made by the testator in this case must be deemed to be in lieu of maintenance and so long as the will stands, she cannot have the lands and at the same time claim maintenance. But there is no indication in the will that the gift was made in lieu of maintenance. The only question would be, the husband having made a provision to the widow, was that provision sufficient or should the donee other than the widow be compelled also to contribute to her maintenance. The entire property including that taken by the plaintiff is liable for maintenance and so the property taken by her will have to be taken into consideration in arriving at the rate of maintenance to be fixed for her. There is therefore nothing to preclude the plaintiff from retaining the property and claiming also maintenance. What the lower Courts have found is that the income that she would derive from the property bequeathed to her under the will would not be sufficient to maintain her and therefore she would be entitled to have additional amount provided for her maintenance.

(3.) Mr. Sitarama Rao contends that the learned Subordinate Judge in awarding the rate of maintenance has not taken into consideration that the mother the first defendant was directed to discharge the debts left by the testator and the kist payable on the lands. Having heard learned Counsel on the question of rate, in view of the fact that the mother was directed to discharge the debts left by the testator and having also regard to the fact that the property given to the plaintiff was given to her with absolute rights, I think the award of a sum of Rs. 150 both for past and future maintenance is a little too high. Having regard to the circumstances of this case, I would modify the decree of the lower appellate Court thus : In regard to the maintenance payable in future, the defendants do deliver 20 kalams of paddy and pay Rs. 25 in cash every year on or before 1 April of every year. In regard to the past arrears up to date, I would substitute for Rs. 150 a sum of Rs. 120 per annum. The decree for mesne profits as made by the lower Courts will stand. The plaintiff will also be entitled to the land bequeathed to her under her husband's will and she will enjoy the same with absolute rights. I direct each party to bear his or her own costs of this second appeal. The memorandum of objections is dismissed but without costs.