DANDAMUDI RAMARAYUDU Vs. DANDAMUDI SITALAKSHMAMMA

JUDGEMENT

(1.) This appeal arises out of a suit for maintenance. The plaintiff is the widowed daughter-in- law of defendant 1. Her husband, who was the only son of defendant 1, died in 1920, a few months after his marriage, leaving the plaintiff a minor then aged 11 or 12. Though the written statement alleges that even after her husband's death the plaintiff used to be living with defendant 1, only occasionally visiting her parent's house, no serious attempt has been made to prove it and the case has proceeded on the footing that, but for other objections, the plaintiff would be entitled to separate maintenance including arrears. As regards the claim for arrears, some objection on the score of limitation was raised but there is no substance in it and it was rightly not pressed before us. Nor is there much force in the objection that there was no demand. It is well settled law that even the absence of a demand will not deprive a widow of her right to arrears, though that circumstance may have to be taken into account in determining the extent of the liability to be imposed upon the defendant for arrears due for a long period. The evidence adduced on the plaintiff's side attempted to establish demand on a number of occasions. Even if the whole of that evidence be not accepted, there can be little doubt in the circumstances that there must have been some demands before the formal notice was given prior to the institution of the suit.

(2.) The real question for determination is us to the rate of maintenance, past and future. There is also a question as to the extent of properties to be charged for the maintenance that may be decree d in plaintiff's favour. The lower Court held that 500 bags of paddy may fairly be taken to be the net income derived by defendant 1 from the family lands. It left the outstandings out of account on the ground that debts approximately to the same extent were due by the family. An objection was raised before us on behalf of the plaintiff to the lower Court's conclusion under this head and our attention was drawn to portions of the evidence indicating that defendant 1 had attempted improperly to secrete some of the outstandings for his own benefit by assigning them in the names of other persons. Whatever force there may be in this objection, we find that the lower Court had before it the account books of defendant 1 for a period of nearly ten years. In a case of this kind, it is possible to estimate the income of the family only in a rough way and we do not find sufficient ground to differ from the lower Court's general estimate of the income, with reference to which the maintenance payable to the plaintiff should be fixed. For the same reason we overrule the appellant's objection to that finding. Seeing that there were no other members in the family, except defendant 1, to be provided for, the lower Court fixed 150 bags of paddy per annum as a reasonable provision for the plaintiff's maintenance, inclusive of claims for residence and other sundry items. The defendant complains that this is too high, while the plaintiff complains that this is too low. Here again, we do not feel we will be justified in interfering with the award given by the lower Court unless we are satisfied that its discretion has been improperly exercised. Even assuming that the allowance is a bit too liberal, we do not feel called upon to interfere with it in the circumstances of the case.

(3.) The objection raised by the appellant against that portion of the decree which relates to arrears of maintenance seems to us more substantial, as also the objection to the form of the decree declaring the charge. But before dealing with them it is necessary to deal with a preliminary objection raised on behalf of the respondent to the maintainability of this appeal. During the pendency of the suit in the Court below defendant 1 was adjudicated insolvent on the application of a creditor. The plaintiff alleged that the insolvency proceedings were collusive; but, for the purposes of the present preliminary objection we have to proceed on the footing that an adjudication order has been made and remains in force. On the adjudication, the Official Receiver was added as defendant 2. A question seems to have been raised before the lower Court as to whether, after the addition of the Official Receiver as a party, it was open to defendant 1 to continue the defence. After hearing arguments, the lower Court ruled on 14 September 1933 that it was open to defendant 1 to continue the defence of the suit. It does not appear that the Official Receiver, though he continued to be a party on the record, took any further part in the conduct of the defence. When the decree was passed by the lower Court, it was accordingly defendant 1 who filed this appeal impleading the Official Receiver as a party respondent. On these facts, Mr. Lakshmayya (for the plaintiff-respondent) contends that after the vesting of the estate in the Official Receiver the insolvent has no locus standi to appeal against the decree. We are unable to accede to this contention.