AKKI DODDA BASAPPA Vs. AKKI MALLAMMA

JUDGEMENT

(1.) This is an appeal from the decree of the learned District Judge of Bellary dismissing the plaintiff's suit for a declaration that the decree passed in O.S. No. 3 of 1928 on the file of the Sub-Court of Bellary against himself and the second defendant in favour of the first defendant is not (sic) on him. The facts are few and (sic) in dispute. The first defendant's husband died in or about 1918 leaving him surviving the first defendant, the second defendant his son by the first wife and the plaintiff his brother. On the date of his death the first defendant's husband was a member of an undivided family consisting of himself, the plaintiff and the second defendant. In 1928 the first defendant filed a suit for maintenance and residence against the plaintiff and the second defendant and obtained a decree on 23 January, 1929, by which the plaintiff and the second defendant were directed to pay maintenance at the rate of Rs. 40 per month and arrears of maintenance and the maintenance decreed was made a charge on the property described in Schedules A and B to the decree. The decree also directed the plaintiff and the second defendant to put the first defendant in possession of the house, item 2 in Schedule C to the decree and the first defendant was to enjoy the same for her lifetime after which it must revert to the plaintiff and the second defendant. In pursuance of the said decree the first defendant was put in possession of the said house and she had been realising the maintenance in accordance with the terms of the said decree. It is alleged in the plaint that on 18 December, 1935, the plaintiff and the second defendant effected a partition between themselves and that by reason of the said partition the plaintiff was no longer bound by the said decree. The allegation in regard thereto is made in paragraph 5 of the plaint thus: Under Hindu Law the first defendant is entitled to be maintained out of her husband's property and there is no such obligation against the plaintiff after the division of the joint family properties. The decree in O.S. No. 3 of 1928 became inoperative after the division between plaintiff and second defendant. The decree in O.S. No. 3 of 1928 is against the joint family properties and there are no such properties now, There is no personal obligation on the plaintiff to maintain the first defendant.

(2.) It is alleged in the plaint that the first defendant agreed to I the terms of the division by which the plaintiff was not to be f liable under the decree. The main defence of the first defendant was that she was not a consenting party to the division at all and that the decree in question was obtained by her against the plaintiff and the second defendant personally as well as against the joint family properties of the family, that no partition made subsequently by the plaintiff and the second defendant without her assert would be of any avail or could hart operate to extinguish the decree obtained by her. The decree of the second defendant was that in the partition effected between himself and the plaintiff he got very little property, that the major portion of the property, was retained by the plaintiff that it would be unjust to shift the burden of the entire decree on him and in any event the decree in O.S. No. 3 of 1928 continued to be binding on all the parties and could not be declared to be not binding on the plaintiff. The learned District Judge dismissed the suit on the ground that the suit was incompetent by reason of Section 47, Civil Procedure Code.

(3.) In appeal it is contended by Mr. Narasimhachar, Counsel for the plaintiff-appellant, that by reason of the subsequent partition the plaintiff is no longer bound to maintain the first defendant and the said decree obtained against him must therefore be declared inoperative. He contends that as the decree is a maintenance decree, it is open to the plaintiff to institute a suit by reason of the events that happened subsequent to the date of the decree, that there was a change of circumstances which would necessitate the modification of the said decree and that it is competent to the Court to modify the same in view of the said change of circumstances. He has also urged that the partition is such a subsequent event and under the Hindu Law the obligation to maintain a widow is only from out of hex husband's share and as the husband's share has now fallen the second defendant the proper person to maintain her is the second defendant, the plaintiff's obligation having ceased with the disruption of the family. Mr. Narasimhachar has not been able to cite any authority in support of any of the contentions put forward and he frankly confesses that there is no direct authority on the point. He however contends that the recent decision of the Full Bench in Lakshmidevamma V/s. Veera Reddi , though not a direct decision on the point would cover the present case. The exact point for decision before the Full Bench was whether the decision in Subbarayulu Chetti V/s. Kamalavalli Thayaramma or the decision in Narasimham V/s. Venkatasubbamma (1931) 62 M.L.J. 433 : I.L.R. 55 Mad. 752 was correct. Their Lordships were of the opinion that Subbarayulu Chetti V/s. Kamalavalli Thayaramma was wrongly decided and that Narasimham v. Venkatasubbamma (1931) 62 M.L.J. 433 : I.L.R. 55 Mad. 752 should be followed. Narasimham V/s. Venkatasubbamma (1931) 62 M.L.J. 433 : I.L.R. 55 Mad. 752 decided that: Where the widow of a coparcener sues for maintenance after there has been a partition, she cannot enforce her right against any of the surviving coparceners except those who have taken her husband's share.