NANIBAI MUKUNDRAO @ DADA TIDKE v. MUKUNDRAO @ DADA KASHIRAOTIDKE
1981-03-07
M.S.JAMDAR, R.S.PADHYE
body1981
DigiLaw.ai
JUDGMENT JAMDAR J.-The appellants, who are respectively wife and daughter of the respondent Mukundrao Kashirao Tidke, have preferred this appeal, being aggrieved by the decree passed by the Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 15 of 1967 for maintenance. Respondent Mukundrao married appellant No.1 Nanibai in the year 1937, about five years after his first wife Subhadra deserted him. Nanibai resided with Mukundrao till 1952, the year in which Mukundrao's father Kashirao, who was an influential man died. Appellant No.2 Sunanda was born about the same time. Nanibai and Sunanda are admittedly residing with Nanibai's brother at Patansawangi, a village in Saoner taluka of the Nagpur district since 1952. According to Nanibai her husband is an addict of ganja and used to treat her with great cruelty and that when she returned to her husband after her confinement, he sent her back to Patansawangi and thus deserted her and her daughter. It is also Nanibai's case that even though her husband was bound to maintain her and her daughter and to provide for the education and marriage of the latter, her husband failed and neglected to do so though called upon to do so several times. She also asserted that she is entitled to get maintenance also on the ground that her husband has another wife living. She estimated the net income of her husband at Rs. 10000 and claimed maintenance at the rate of Rs. 250 per month for herself as well as her daughter Sunanda. She also claimed past maintenance at the same rate for 6 years prior to the suit, which was filed on 1-9-1965. 2. The respondent Mukundrao, original defendant denied that he was addicted to ganja and that he treated his wife with cruelty. He also denied that he deserted his wife. He admitted that his first wife is living but asserted that she had separated from him since about 5 years before his marriage with appellant No.1. He further asserted that he never denied his liability under the law to maintain his child and his wife and that he was always ready to do so provided they resided with him.
He admitted that his first wife is living but asserted that she had separated from him since about 5 years before his marriage with appellant No.1. He further asserted that he never denied his liability under the law to maintain his child and his wife and that he was always ready to do so provided they resided with him. He further contended that appellant No.1 Nanibai was aware of the first marriage, that she had given her consent to live with the co-wife, that she never made any grievance about his first marriage and has thus acquiesced in the matter and waived her right to claim maintenance. According to him, Nanibai went to her brother's house to be present at the obsequial ceremony in respect of her father and did not return to him thereafter. He asserted that there was never any cause for Nanibai to live separate from him and contended that even though many times he tried to bring her back, she refused to come. As regards his income the respondent stated that he was in possession of only 70 acres of land and that his annual net income does not exceed Rs. 1500, out of which he has to pay Rs. 325 per annuam to his step-mother for her maintenance. 3. The learned trial Judge rejected Nanibai's contention that her husband is addicted to ganja and that he treated her with cruelty. He also rejected Nanibai's contention that her husband had deserted her. He further held that as respondent's first wife is not residing with him, Nanibai is not entitled to separate residence and maintenance under section 18 (2) (d) of the Hindu Adoptions and Maintenance Act, 1956. He, however, held that the respondent refused to maintain the appellants and hence the appellants are entitled to get maintenance from the respondent. The learned Trial Judge assessed the net income of the respondent at about Rs. 4000 and on that basis quantified the maintenance payable to appellant No.1, at Rs. 40 per month, and to appellant No.2 at Rs 60 p.m. He, however, rejected the claim for past maintenance on the ground that appellant No.1 initially left the protection of her husband along with appellant No.2 during the latter's minority and that the appellants never demanded any arrears of maintenance from the respondent by notice or otherwise.
40 per month, and to appellant No.2 at Rs 60 p.m. He, however, rejected the claim for past maintenance on the ground that appellant No.1 initially left the protection of her husband along with appellant No.2 during the latter's minority and that the appellants never demanded any arrears of maintenance from the respondent by notice or otherwise. On the basis of this finding, he decreed appellants' suit only to the extent of future maintenance and directed the respondent to pay Rs. 40 p.m. to appellant No.1 and Rs. 60 p.m. to appellant No.2 from 1st September 1965 i.e. from the date of the institution of the suit. He further directed that maintenance was payable to appellant No.2 till she was able to maintain herself out of her own earnings or property. The learned Trial Judge rejected the claim for arrears of maintenance and even though he observed in the judgment that it was desirable that the property of the respondent should be subjected to charge for the maintenance allowance, he forgot to incorporate this specific direction in the operative part of the final order. 4. By this appeal, the appellants (original plffs.) seek to get maintenance at the rate of Rs. 250 per month from 1-9-1959 and want that the charge of the maintenance amount should be kept on the immovable property belonging to the respondent. The respondent has not preferred any appeal or cross objections in respect of the claim awarded against him. It appears that during the pendency of this appeal, appellant No.2 Sunanda attained majority and her marriage took place on 22nd February 1973. Appellant No.2, therefore, would not be entitled to get any maintenance after that date. However, as there is nothing on record to show that appellant No.2 was able to maintain herself out of her own earnings or other property, she would be entitled to get maintenance till she was married. 5. Mr. Belekar for the respondent tried to challenge the finding given by the learned Trial Judge that the respondent refused or neglected to maintain the appellants.
5. Mr. Belekar for the respondent tried to challenge the finding given by the learned Trial Judge that the respondent refused or neglected to maintain the appellants. He also contended that there is no basis on record to come to this conclusion and hence not only the appellants would not be entitled to ask for any decree for past maintenance but even the decree in respect of future maintenance is liable to be set aside even though the respondent has not filed any cross objections against that decree. According to Mr. Belekar this Court is empowered to set aside the decree in view of the provisions of Order 41, Rule 22 read with Order 41, Rule 33. We are unable to accept this submission, firstly because the reasons given by the learned Trial Judge for coming to the above mentioned conclusion are quite cogent and are supported by evidence and secondly as the respondent has not filed any cross objections, he would not be entitled to get the decree against him set aside even if he can successfully challenge the finding on which the decree is based. Even though it is open to the respondent, who bas not filed cross objections with respect to the portion of the decree which has gone against him, to urge in opposition to the appeal of the plaintiffs, a contention which if accepted by Trial Court would have necessitated the total dismissal of the suit, the decree so far as it is against him, cannot be disturbed. This position has been stated by the Full Bench of the Madras High Court in the case Gaddem Chinna Venkata Rao and others v. Koralla Satyanarayonamurthy and another1. This view has been confirmed as sound by the Supreme Court in the case Sri Chandra Prabhuji Jain Temple and others v. Harikrishna and another2. The relevant observations, which appear in para 19-A of the judgment read as follows:- "It is no doubt true that the respondents cannot be allowed to impugn the decree passed by the High Court in favour of the appellants as they did not file any appeal from that decree.
The relevant observations, which appear in para 19-A of the judgment read as follows:- "It is no doubt true that the respondents cannot be allowed to impugn the decree passed by the High Court in favour of the appellants as they did not file any appeal from that decree. But we think that there is no reason why they should not be allowed to urge the plea that the orders of sanction were invalid when the appellants want not only to maintain the decree passed by the High Court but also to get a decree charging the entire properties. In other words, the bar against urging the plea of the invalidity of the orders of sanction would apply only if the respondents seek to impugn the decree already obtained by the appellants but not when the appellants seek to obtain further reliefs in the appeal on the basis of the orders. In such a case we are not aware of any rule of law which would preclude the respondents from urging the plea. " It is thus clear that even though it would be open to the respondent to challenge the finding of the Trial Judge that the respondent refused or neglected to maintain his wife and his daughter, he would not be entitled to challenge, in the absence of any appeal or cross-objections, the decree passed against him by the Trial Court. Even though Rule 33 of Order 41 confers power on the appellate Court to pass any decree or to make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and that this power can be exercised by the Court notwithstanding that the appeal is as to part only of that decree, the said power cannot be exercised in favour of a respondent, who has neither filed an appeal nor cross-objections against the decree. Rule 33 does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from. The scope of the power conferred on the appellate Court by Order 41, Rule 33 was considered by the Supreme Court in the case Nirmala Bala Ghose and another v. Balai Chand Ghose and others3.
The scope of the power conferred on the appellate Court by Order 41, Rule 33 was considered by the Supreme Court in the case Nirmala Bala Ghose and another v. Balai Chand Ghose and others3. Their Lordships observed as follows: "It is true that Order 41, Rule 33, is expressed in terms which are wide, but it has to be applied with discretion and to cases where interference in favour of the appellant necessitates-interference also with a decree which has by acceptance or acquiescence become final, so as to enable the Court to adjust the rights of the parties. If the appellate Court reaches a conclusion which is inconsistent with that of the Court appealed from and in adjusting the right claimed by the appellant it is found necessary to grant relief to a person who has not appealed, the power under Order 41, Rule 33 may properly be invoked. No unrestricted right, however, is conferred by the Rule to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from." 6. In para 17 of his judgment, the learned Trial Judge has discussed the conduct of the respondent at great length and has shown by cogent reasoning how respondent's conduct justified an inference that the respondent neglected to maintain his wife and his daughter. We would like to quote the said observations with which we are in full agreement. "Admittedly, the defendant has not provided the plaintiffs with any maintenance from 1952 onwards until now. Although the defendant says that he was ready and willing to maintain his wife and daughter yet the evidence led by him on that point shows that at the most he made an attempt to bring his wife in the year 1955 and since then he too did not make any attempt to bring her. He too has not given any notice to his wife or daughter to come to him for living with him. He also did not care for his wife and daughter at least since the year 1955 onward. The evidence of plaintiff No. 1 exhibit 18 and her brother Chatrapal exhibit 22 shows that as the plaintiff No.1 suffered from cataract she had to undergo an eye operation about 3 or 4 years back.
He also did not care for his wife and daughter at least since the year 1955 onward. The evidence of plaintiff No. 1 exhibit 18 and her brother Chatrapal exhibit 22 shows that as the plaintiff No.1 suffered from cataract she had to undergo an eye operation about 3 or 4 years back. At that time money was demanded from the defendant but he did not care to give any money. Not only that but he even did not make any enquiry about the condition of his wife. It appears from the evidence of Nanibai that there was no correspondence also between husband and wife from the year 1952 till the institution of the suit. Defendant admits that there was a demand for money. According to him, his wife met him in a marriage ceremony of a relation of his wife at Sausar about 2 or 2~ years back. But he does not say that he then asked her to come with him. Further he says at the time of operation he sent Rs. 1,200 through his brother to his wife. But he himself admits that he does not know whether his brother gave money to her or not. But according to him, his brother told him that his brother handed over the money to plaintiff No. l's brother Baba Saheb, i. e. Chatrapal Exhibit 22. But I do not believe defendant on this point. If he had paid Rs. 1200 to his wife he would have mentioned this fact in his written-statement. Even in his Examination-in-Chief he does not say that he paid Rs. 1200. It is only in cross-examination he says that he paid Rs. 1200. So the very fact that the defendant did not care for his wife when she was to have an eye operation and did not provide her with money necessary for the operation, clearly shows that the defendant has neglected his wife. As admitted by him and as stated by plaintiff No. 1, plaintiff No. 1 ultimately lost her eye-sight even though she was operated upon and now she is a blind woman. The evidence of defendant also shows that he met his daughter once at Nagpur and he had also once brought her to his house through his brother.
As admitted by him and as stated by plaintiff No. 1, plaintiff No. 1 ultimately lost her eye-sight even though she was operated upon and now she is a blind woman. The evidence of defendant also shows that he met his daughter once at Nagpur and he had also once brought her to his house through his brother. But apart from this although he knows that his daughter is taking education, he has not supplied her with any fund even for her education purposes. After all his daughter is an innocent person. She has not done any wrong to him. It also does not appear that he had taken any step to bring his daughter back to his house and to make provision for her education by himself. On the contrary it appears that he toyed with the idea that plaintiffs were residing with the brother of plaintiff No. 1, who is also a well-to do man and he need not bother or worry about them for their maintenance. The version of defendant shows that he had fallen out his wife because according to him his wife used to go away always to her parental home. So it appears that he has developed an indifferent attitude towards his wife and daughter and his contention that he was ever ready and willing to keep plaintiffs with him on the condition of their living with him is advanced solely with a view to avoid his responsibility of paying any separate maintenance to them and the offer of the defendant does not appear to be genuine. His silence from the year 1955 till 1965 in respect of his wife and daughter also does not do him any credit. And it shows that he has no emotional attachment to any of them and he does not care about their welfare. Consequently, I will have to hold that the defendant has neglected to maintain plaintiffs and he was not ready and willing to keep plaintiffs on the condition of their living with him." 7. As mentioned above, appellant No. 1 claimed maintenance also on the ground that respondent's first wife is living. It is an admitted position that before the respondent married appellant No. 1 Nanibai he was already married to one Subhadra who left him in 1932. It is also an admitted position that the said marriage is still subsisting.
As mentioned above, appellant No. 1 claimed maintenance also on the ground that respondent's first wife is living. It is an admitted position that before the respondent married appellant No. 1 Nanibai he was already married to one Subhadra who left him in 1932. It is also an admitted position that the said marriage is still subsisting. Being a second wife of the respondent, Nanibai had no right under the provisions of Hindu Women's Right to Separate Residence and Maintenance Act, 1946 to reside separately without forfeiting her right to maintenance. Under that Act this right was conferred only on the first or prior wife but not on the wife by second or subsequent marriage. The right of separate residence on the second or on the wife of subsequent marriage has been conferred for the first time by the provisions of the Hindu Adoptions and Maintenance Act, 1956, which came into force on 21st December 1956, Section 18 (2) (d) of this enactment inter alia lays down that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he has any other wife living. This provision confers the right of separate residence on other wife or wives of a person who has one or more wives living and even if married before this Act came into force. 8. The learned trial Judge, relying on the decision of the Madras High Court in the case A. Annamalai Mudaliar v. Perumayee Ammal4 has interpreted the clause 'any other wife living', to mean, "any other wife living with the husband" and held that as admittedly respondent's first wife is not living with him since 1932, appellant No. 1 would not be entitled to get maintenance on the ground stated in section 18 (2) (d) of the Hindu Adoptions and Maintenance Act of 1956. 9. Dealing with the scope of the right conferred on the wife under section 18 (2) (d), the learned Judges of the Madras High Court made the following observations in para 9 of the Judgment. "Although that provision entitles the wife to claim to live separately from her husband where he has another wife living with him and be maintained, it will be plain that such separate living is not the same thing as judicial separation under section 10 (1) of the Hindu Marriage Act, 1955.
"Although that provision entitles the wife to claim to live separately from her husband where he has another wife living with him and be maintained, it will be plain that such separate living is not the same thing as judicial separation under section 10 (1) of the Hindu Marriage Act, 1955. A judicial separation permits the parties to the marriage to live apart and under the terms of section 10 (2), if a decree for such a separation has been passed "it shall no longer be obligatory for either party to cohabit with the other". The right to live separately from the husband given to the wife under section 18 (2) (d) of the Act, 78 of 1956 is not and cannot be of the same character, e. g. if he abandons the other wife, he would certainly be entitled to call upon his previously separated wife to live with him. To respond to such request will be a duty which she owes to him as her husband. To hold 'otherwise will lead to inconvenient, if not unintended, results. For example, the section says that a Hindu wife shall be entitled to live separately from her husband if he has any other wife living. If the word 'living' is to be given its ordinary interpretation, then all the wives that a man had married at a time when such marriages were lawful, can live without him and yet claim maintenance. Therefore, the term 'any other wife living' mentioned in the section must be given a restricted meaning like 'any other wife living with him' ". With respect, we are unable to agree with this interpretation put on clause (d) of sub-section (2) of section 18 of the Hindu Adoptions and Maintenance Act, 1956. It appears that in giving this interpretation the learned Judges are influenced by the predicament in which a Hindu husband would be placed in if all his wives decided to reside separate from him and claim maintenance under section 18 (2) (d) solely on the ground that he has other wife or wives living. But if the clause, as it stand, is capable of only one interpretation, a sense of possible injustice or that the interpretation would lead to an absurdity cannot be a ground for doing violence to well-settled rules of construction.
But if the clause, as it stand, is capable of only one interpretation, a sense of possible injustice or that the interpretation would lead to an absurdity cannot be a ground for doing violence to well-settled rules of construction. As observed by Maxwell on page 208 of the Twelfth Edition of his Treatise 'Interpretation of Statutes', "a sense of the possible injustice of an interpretation ought not to induce judges to do violence to well settled rules of construction, but it may properly lead to the selection of one rather than the other of two reasonable interpretations." It is true that construction most agreeable to justice and reason is to be accepted and unreasonable and inconvenient results are to be avoided. But this is expected to be done in cases of doubtful significance and if some other construction is available. In this connection, the following observations appearing on page 199 made by Maxwell deserve to be mentioned :- "In determining either the general object of the Legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. "An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available'. Where to apply words literally would 'defeat the obvious intention of the legislation and produce a wholly unreasonable result' we must 'do some violence to the words' and so achieve that obvious intention and produce a rational construction." As observed above, clause (d) of section 18 (2), as it stands, is capable of only one interpretation. It only contemplates that the other wife is living. The interpretation that the clause contemplates that the other wife must be living with the husband, cannot be done unless the words "with the husband" are added to the clause making it to read as "any other wife living with the husband." There is no justification for adding these words unless there are adequate grounds to justify the inference that the Legislature intended something which it omitted to express.
Here again the observations appearing on page 33 of the above mentioned Treatise can be quoted with advantage: “It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the Legislature intended something which it omitted to express. Lord Mersey said' It is a wrong thing to read into an Act of Parliament words which are not there and in the absence of clear necessity it is a wrong thing to do'. 'We are not entitled', said Lord Loreburn L. Co' to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional." 10. Wide language should be given a wide construction and where the language is plain and admits of one meaning, the task of interpretation can hardly be said to arise. Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. 11. In the absence of anything to the contrary in the Act itself, we find no justification in putting a restrictive construction on clause (d) of section 18 (2). It may be that in an exceptional case where all the wives of much married man desert him and claim maintenance, it may cause some hardship to the husband. He would be required to pay maintenance to all his wives without anyone of them living with him. But that is no ground for adding some words to clause (d) and to restrict the meaning thereof to cases in which at least one of the wives is residing with the husband. Moreover it must be remembered that the said provision is enacted for the benefit of the wife or wives of a man, who is married more than once and all of whose wives are living.
Moreover it must be remembered that the said provision is enacted for the benefit of the wife or wives of a man, who is married more than once and all of whose wives are living. If the clause is interpreted to mean that unless at least one is residing with the husband, the other or others would not be entitled to claim maintenance under section 18 (2) (d), then that would amount to hardship to the wives. To deny maintenance under section 18(2)(d) to one wife on the ground that the other is not living with the husband, would be certainly unjust to the wife claiming maintenance because it is not her fault that the other wife is not living with the husband. In our view, therefore, clause (d) of section 18 (2) must be literally interpretated and given the contemplated wide connotation to the effect that a wife would be entitled to separate residence and maintenance if any other lawfully wedded wife of the husband is living. The above mentioned view of ours finds support in the decisions reported in Mutyala Jaggamma v. Mutyala Satyanarayanamurthi5, Vegesina Narayanamma v. Vegesina Narasaraji and others6, Mst. Kalawati v. B. Ratanchand7 and K. Siddegowada v. Paryathamma8. The finding of the learned trial Judge, therefore, that as the wife of the respondent is not residing with him, appellant No.1 would not be entitled to maintenance under section 18 (2) (d) of the Hindu Adoptions and Maintenance Act, 1956, cannot be sustained. In our view, appellant No.1 would be entitled to get maintenance on that ground also. 12. As rightly urged by Mr. Vyawahare, the learned counsel for the appellants, there was no valid justification for the trial Judge to refuse to pass a decree for arrears of maintenance. As observed above, the learned trial Judge did hold that the respondent refused and neglected to maintain the appellants. He, however, rejected the claim for arrears on the ground that appellant No.1 initially left the protection of her husband. But it cannot be said that she did so without any justification. The respondent could not give any reason as to why his wife should stay away from him after residing with him for 15 long years from 1937 to 1952.
But it cannot be said that she did so without any justification. The respondent could not give any reason as to why his wife should stay away from him after residing with him for 15 long years from 1937 to 1952. It is not the case of the respondent that appellant No. 1 is unchaste and that her wayward behaviour was the cause of disruption of their married life. It is significant to note in this connection that the separation of the spouses practically coincided with the death of respondent's father. There is, therefore, substance in the contention of appellant No.1 that the respondent, who was addicted to ganja became free of any restraint after the death of his father who was a very influential man. It is significant to note in this context that respondent did not make 'any efforts, worth the name, to bring back the appellants. The learned trial Judge, therefore, was not justified in refusing the claim for arrears of maintenance on the ground that appellant No.1 initially left the protection of her husband. The ground that the appellants never demanded any arrears of maintenance and did not serve the respondent with any notice for making such a claim, cannot be a ground for rejecting the claim for 'arrears of maintenance. The decree, so far as it relates to rejection of the claim for arrears of maintenance is concerned cannot be sustained. 13. The appellants have claimed maintenance for the period of 6 years before the suit. They have claimed maintenance for the period from 1-9-1959 to 1-9-1905. Under Article 128 of the Limitation Act of 1908, the period of limitation prescribed for a suit by Hindu for arrears of maintenance was 12 years from the date when the arrears became payable. Therefore, under the old Act, the suit for arrears for maintenance claimed could have been filed any time before 1st September 1971. The suit, however, was filed after the Limitation Act, 1963, came into the force. The Act came into force on 1st January 1964 and the suit was filed on 1st September 1965. Under the new Act, a suit by Hindu for arrears of maintenance is governed by Article 105, which prescribes a period of 3 years for a such suit.
The suit, however, was filed after the Limitation Act, 1963, came into the force. The Act came into force on 1st January 1964 and the suit was filed on 1st September 1965. Under the new Act, a suit by Hindu for arrears of maintenance is governed by Article 105, which prescribes a period of 3 years for a such suit. By virtue of this provision, a suit for arrears of maintenance beyond three years before the suit would have been barred by limitation. But in view of the provisions contained in section 30 of the Limitation Act, 1963, such a result would not follow in this suit. Section 30 of the Limitation Act inter alia provides that notwithstanding anything contained in this Act any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of seven years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier. The entire arrears claimed in the suit are, therefore, within time. 14. As regards the quantum of maintenance, the learned trial Judge has fixed the maintenance for appellant No.1 at Rs.40 per month and for appellant No.2 at Rs. 60 per month. He has fixed these amounts after holding that the yearly income of the respondent would be about Rs. 4000. He based this conclusion mainly on the evidence of Wasudeo Sitaram Gotmare, who was the Patwari within whose jurisdiction village Sawali, where the respondent owned some lands, is situated. The learned trial Judge, however, ignored the fact that Wasudeo spoke only about the income derived by the respondent from the lands situated at Sawali. Wasudeo did not say anything about the income derived by the respondent from his lands situated at Kharduka. It will be seen from Schedule 'A' appended to the plaint that the respondent owned three lands at Kharduka. These lands admeasure 9.42 acres and are assessed at Rs. 32.50. The evidence about income from these lands is given by appellants' witness Panjabrao Bajirao Dhote. Panjabrao estimated the gross income from these lands at Rs. 4000 to Rs. 5000 and the expenses of cultivation at Rs. 1500 to Rs. 2000. There is plausible explanation for rejecting the evidence of Panjabrao Dhote.
32.50. The evidence about income from these lands is given by appellants' witness Panjabrao Bajirao Dhote. Panjabrao estimated the gross income from these lands at Rs. 4000 to Rs. 5000 and the expenses of cultivation at Rs. 1500 to Rs. 2000. There is plausible explanation for rejecting the evidence of Panjabrao Dhote. The evidence of the respondent on this point is extremely vague and is unacceptable. The learned trial Judge, therefore, committed a mistake in not taking into consideration the income derived by the respondent from his lands at Kharduka. If this income is taken into consideration, the net income of the respondent from all his lands would, even in those days have amounted to Rs. 6000 per year. Hence even though the claim of the appellants that appellant No.1 should be paid Rs. 150 per month and appellant No.2 should be paid Rs. 100 per month by way of maintenance cannot be accepted, there is justification for increasing the amount payable to appellant No.1. Considering the income of the respondent, the amount of Rs. 40 awarded to appellant No.1 is too small taking into consideration the status of the parties and the physical handicap with which appellant No.1 is suffering. It is in evidence that appellant No.1 Nanibai has become blind. It is also pertinent to note that from 22nd February 1973 the respondent would not be obliged to pay any maintenance, to appellant No.2, who was married on that date and hence the respondent, who would be free from that liability, would be in a position to pay a larger amount to appellant No.1 towards her maintenance after the marriage of appellant No.2. Taking all the relevant circumstances into consideration, we hold that appellant· No. I would be entitled to get maintenance at the rate of Rs. 60 per month till 22nd February 1973 and at the rate of Rs. 100 thereafter. As observed above, there is no justification for increasing the amount of the maintenance payable to appellant No.2 who would not be entitled to get any maintenance after 22nd February 1973. A charge of this amount will have to be kept on the immovable properties belonging to the respondent. The learned trial Judge accepted the desirability of keeping such a charge but forgot to incorporate such a direction in operative part of the judgment.
A charge of this amount will have to be kept on the immovable properties belonging to the respondent. The learned trial Judge accepted the desirability of keeping such a charge but forgot to incorporate such a direction in operative part of the judgment. We, therefore, partly allow the appeal and modify the decree passed by the trial Judge as follows:- (1) The respondent shall pay Rs. 8640 to appellant's Nos. 1 and 2 towards arrears of maintenance from 1-9-1959 to 1-9-1965; (2) The respondent shall pay maintenance to appellant No.1 at the rate of Rs. 60 per month from the date of the suit till 1st March 1973 and at the rate of Rs. 60 per month to appellant No.2 till the said date; (3) The respondent shall pay maintenance at the rate of Rs. 100 per month to appellant No.1 from 1st March 1973 onwards. No maintenance is payable to appellant No.2 after that date; (4) Charge of the arrears of maintenance and the future maintenance payable to the appellants is kept on the immovable properties mentioned in Schedule ‘A’ except those lands which are already disposed of by the respondent and which have been acquired under the Land Acquisition Act; (5) The respondent shall pay to the appellants' proportionate costs of this appeal and bear his own. Appeal partly allowed.