1. First Appeal No. 95 of 1936 is an appeal against a decree of the First Class Subordinate Judge, Ahmedabad, awarding the plaintiff Rs. 5,044 in respect of arrears of maintenance. The facts leading to the litigation were shortly these. The plaintiff's husband Ambalal, who was a wealthy and pious Hindu, died on July 27, 1929, leaving properties immoveable and moveable which have been described in a schedule annexed to the plaint. They consisted of lot No. 1 a large residential house in Jamalpur, Ahmedabad, containing several buildings in one com lot No. 2 a shop forming a portion of the above, lot No. 3 a building, and lot No. 4 a dehla also situated in Jamalpur, lot No. 5 a building known as the Apangashram or Cripples' Home which was constructed by Ambalal in his lifetime on land belonging to the temple of Shri Jagannathji, and lot No. 6 a building on the Richey Road, Ahmedabad, in which Ambalal in his lifetime had started a dispensary. The moveable properties consisted of twelve shares in the National Mills, ten shares of the Saraswati Oil Mills Company which is now in liquidation, a certain amount of outstandings of the deceased Ambalal, and two deposit receipts for Rs. 10,000 each, one in the name of the plaintiff and the other in the name of Ambalal's sister Kashi now deceased. At the time of Ambalal's death there was a sum of Rs. 20,000 and over lying on deposit in the National Mills and this was divided into two separate deposits of Rs. 10,000 each.
2. Ambalal disposed of his property by four wills and a trust deed: dated September 29, 1925, and two subsequent wills dated May 5, 1928. All these documents were registered. Without going into detail it may be stated that of the four wills executed on September 29, 1925, one, exhibit 35, gives the income of the Saraswati Oil Mills Company shares and deposit for the maintenance of the Apangashram. Another, exhibit 36, gives the shares of the National Mills and some other moneys and outstandings for the maintenance of the same institution. The third will, exhibit 145, gives all Ambalal's immoveable properties in the event of his having no son to provide Rajbhog (i.e. food for the deity and Sadhus) in Shri Jagannathji's temple of which defendant No. 1 is the mahant. This is subject to provision being made for the residence of Ambalal's wife, the plaintiff, and his sister Kashibai. The fourth will, exhibit 146, provides for the maintenance of Kashibai, who was to have Rs. 600 a year, and also a sum of Rs. 5,000 for charity, etc. Rupees 10,000 deposited in the National Mills were to be set apart for her maintenance. A similar provision was made for the maintenance of the plaintiff, and it was provided that after her death Rs. 5,000 were to be spent on her obsequies. The trust deed, which is exhibit 160, provided for the dispensary. The house on Richey Road, which Ambalal had purchased for Rs. 60,000, was given for housing the institution, and it was to be maintained by letting part of it on rent.
3. Three years later two further wills were executed. Exhibit 47 provides for the maintenance of Ambalal's sister and wife in much the same way as before but with slight modifications. By this will it is provided that the wife as well as the sister was to be allowed to spend Rs. 5,000 on punyadan or pilgrimage instead of the money being spent only after her death. Exhibit 48, the last will, contains further dispositions for the Apangashram which had in the meantime been built. Ambalal's shares in the National Mills were assigned for this purpose.
4. Apart from these wills and the trust deed, the plaintiff would have been her husband's heir. No action was taken by her till 1931. In April of that year she sent notices through a pleader to the defendants, who are executors under the wills or trustees under the trust deed or both, contesting the validity of these deeds and1 claiming maintenance suitable to her requirements and status in life. The plaint in the suit in which this appeal arises was presented on September 28, 1931. It is a long and prolix document the gist of which is, that the wills should be declared null and void as having been obtained by the undue influence of defendant No. 1, the mahant of the temple, and defendant No. 2, who was Ambalal's doctor, and that, alternatively, if this could not be done, plaintiff should be awarded the maintenance to which she claims to be entitled under Hindu law, and that the defendants should be called upon to account for the losses alleged to have been sustained owing to their mismanagement and should be removed, and that new trustees should be appointed. The reliefs asked for were (a) a declaration that the six wills were executed by Ambalal owing to the undue influence of defendants Nos. 1 and 2, and that plaintiff is the legal heir and owner of all the property of her deceased husband. This relief was valued at Rs. 5,250. Plaintiff reserved the right to bring a separate suit for similar relief in respect of the trust deed. (b) A permanent injunction restraining all the defendants from taking possession of any of the suit properties, from collecting rents, making vahivat and so on, and from obstructing the plaintiff or interfering with her enjoyment of the properties. This relief was valued at Rs. 200. (c) The Court was asked to take accounts from the defendants of their management and to settle their liability to the estate of the deceased for any loss that the estate might have suffered owing to their negligence and mismanagement. This relief was valued at Rs. 200. (d) The Court was asked to determine the amount which defendant No. 1 should pay in, respect of the superstructure of the Apangashram which had been erected by Ambalal on the premises of the temple. This relief was valued at Rs. 2,000, but the plaintiff expressed her willingness to pay the deficit stamp if any.
5. In the alternative the plaintiff prayed for two reliefs. In the plaint as originally framed the first prayer was for maintenance at the rate of Rs. 400 or Rs. 350 in addition to the Rs. 50 provided by the wills. She claimed this for the future and; also claimed arrears at the same rate for twenty-six months from the date of Ambalal's death, and she prayed that the estate should be administered to enable these payments to be made. The relief was valued at Rs. 8,000. By an amendment, which was allowed on December 13, 1934, the claim was limited to past maintenance only at the rate of Rs. 350 or Rs. 300 in addition to the Rs. 50 given by the wills. This was done to avoid the payment of the additional Court-fees on the sum of Rs. 42,000 which the plaintiff had been ordered to pay. The second alternative relief prayed for is that true and proper accounts should be taken of the defendants' management and of the loss sustained by the estate of the deceased owing to their mismanagement and negligence, that the Court would decide the liability of the defendants to the estate and would remove them from their trusteeship and appoint new trustees and make proper administration of the estate. This relief was valued at Rs. 200.
6. In their written statements the defendants denied the allegation that the wills were obtained by undue influence, and contended that the plaintiff is not entitled to any higher rate of maintenance than that provided by the wills. Defendant No. 1 claimed credit for certain expenditure on the plaintiff's behalf. Some technical defences were also raised, viz. that the Court-fees paid were insufficient, that the suit is governed by Section 92 of the Civil Procedure Code, and is, therefore, bad for want of the sanction of the Collector, and that it is not maintainable as an administration suit.
7. There were certain interlocutory proceedings to which I may just refer. In February, 1932, an application was made by plaintiff for appointing a receiver and for interim maintenance. The Subordinate Judge refused to appoint a receiver, and as to interim maintenance ordered that the plaintiff should continue to recover the rent of lots Nos. 2 and 3 as she was doing. There were cross-appeals against these orders but they were dismissed. Plaintiff also applied to be examined on commission and this was granted by the trial Court, but the order was set aside in revision by the High Court.
8. The issue as to Court-fees was tried as a preliminary issue. Defendants Nos. 2 and 4 in their written statement contended (1) that the Court-fees should be paid on the value of the property as the relief sought was really possession, (2) that the Court-fees on the future maintenance should be paid on Rs. 42,000, i.e. ten times the annual sum claimed. The Subordinate Judge who tried this issue thought that the suit should be treated as in essence one for increased maintenance and nothing else, and he ordered the plaintiff to pay Court-fees on Rs. 42,000. That was on October 10, 1934, and a fortnight's time was given for payment. This time was extended by a month on October 25, and by another week on November 22. In the meantime on November 20 plaintiff made an application for amending the plaint by1 dropping the prayer for future maintenance, and this was allowed, as I have said, on December 13, 1934. The case was then disposed of on the merits. The dispositions by the six wills were held to be valid, but the plaintiff was held to be entitled to maintenance at the rate of Rs. 275 a month less Rs. 50 a month already paid under the wills and less Rs. 806 which she had recovered as rent for twenty-six months. A decree was accordingly passed for the sum of Rs. 5,044 from the estate of Ambalal in the hands of the executors. Defendants Nos. 1, 2 and 4 have appealed, and there are cross-objections by the plaintiff.
9. The first point taken by the learned Advocate General, who appears for the appellants, is that the suit is in effect one for possession of the properties enumerated in the schedule to the plaint and fees should have been paid on the value of these properties. The point has not been discussed by the trial Judge, and apparently was not seriously argued before him. The argument of the learned Counsel for the respondent is, that this is not to be regarded as a suit for possession. The plaintiff does not need to sue for possession. She is now in possession admittedly of lots Nos. 1 and 4 : lot No. 1 she occupies as her residence and lot No. 4 she has been using as a stable. She is also in possession of lots Nos. 2 and 3 through tenants. She does not seek possession of lot No. 5, which is the Apangashram, but claims only the amounts spent on building it, and in the present suit she does not seek any relief at all in respect of lot No. 6 which is the dispensary. As for the shares they are in the name of Ambalal, and if she gets the injunction asked for, that would be sufficient to protect her rights. We think that this reasoning is sound, and that the Judge was right in holding that the reliefs, apart from the claim for maintenance, were correctly valued in the plaint.
10. The second point is, that, as the additional Court-fees which plaintiff was ordered to pay were not paid, the plaint should have been rejected under Order VII, Rule 11, of the Civil Procedure Code, and that an amendment of the plaint was not permissible. The rule says:
The plaint shall be rejected in the following cases:-(a) where it does not disclose a cause of action : (6) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so : (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so.
No doubt the rule uses the words 'shall reject' which are mandatory words. But prima facie the rule would seem to be mandatory only rebus sic stantibus, that is to say, when the Court has to deal simply with the position referred to in the rule, and would not preclude an amendment of the plaint which under Order VI, Rule 17, may be made at any stage of the proceedings. It might obviously lead to great hardship if a plaintiff were unable to pay the enhanced fees ordered, and if there were no alternative but the rejection of the plaint. The learned Advocate General suggested that in that case he might apply to continue the suit in, forma pauperis. But if the rule is to be construed as strictly as the learned Counsel contends that would not be a compliance with it. It would be as much an avoidance of payment of the fees as an amendment of the plaint.
11. We were referred to Midnapore Zemindary Co., Ld. v. Secretary of State for India I.L.R. (1916) Cal. 352 which does no doubt support the argument which has been put forward. With all deference, however, to the learned Judges who decided that case, we think that it takes too technical a view of the rule. There is no authority of this Court which is really in point. In Valli v. Mahmad : AIR1914Bom117 the trial Court had dismissed a suit for non-payment of Court-fees, under Section 10 of the Court-fees Act, and in appeal the District Judge held that the proper procedure was to reject the plaint under this rule. But he allowed the plaintiff an option to abandon part of his claim and so avoid the payment of further fees. This Court held that this procedure was unjustified. The learned Judges said (p. 766):.we are not aware of any provision of law or any authority which shows that a plaintiff who has not properly valued his claim or paid a sufficient Court-fee is entitled at the last moment to an option such as was allowed to him by the District Judge.
The Court did not hold or intend to hold, we think, that once an order under the rule has been made no amendment of the plaint may ever be permitted. It may be mentioned that the plaintiff had intimated her willingness to abandon the claim for future maintenance even before the Court passed orders on the question of Court-fees (see the purshis dated October 8, 1934, at p. 461 of the paper book). We think that Order VII, Rule 11, and Order VI, Rule 17, ought to be read together, and are not prepared to say that the amendment was not properly allowed in this case.
12. It seems worthy of note that Clauses (b) and (c) of Rule 11 are differently worded. The Judge in this case did not call on the plaintiff to correct the valuation although the case clearly comes under Clauses (b) and not under Clauses (c). He corrected the valuation himself and called on the plaintiff to pay the fees. The fact that the party is to be called on to correct the valuation, which must mean apparently to remove the inconsistency between the relief claimed and the valuation, instead of being merely told to pay the deficit, rather seems to suggest that it is open to him to remove the inconsistency by abandoning part of his claim. On that view the plaintiff has in fact corrected the valuation which is all that is necessary under Clause (b) of the rule and the plaint after the amendment was no longer undervalued. This reasoning may perhaps be rather technical but then so is the objection.
13. Then it was argued that the suit relates to a public charitable trust, the Apangashram. It seeks some of the reliefs enumerated in Section 92(1) of the Code, and therefore under Clause (2) of the section : it could only be instituted according to the provisions of the section with the sanction of the Collector. As the sanction of the Collector has not been obtained, it is argued that the whole suit ought to be dismissed. In paragraph 19 of the plaint it is stated:
It seems that defendant No. 1 has not put at all into practice the said scheme which was made for the Apangashram under the two wills mentioned in paragraph 16 above. On the contrary, the Sadhus of defendant No. l's Akhada stay in the buildings erected in the name of Apangashram, And they have been using it for the keeping of carriages, chariot and storing of grass belonging to defendant No. 1. That is, really speaking defendant No. 1 enjoys the said property in the name of the Apangashram.
14. The Court was asked to take accounts from the defendants and settle their liability for any loss caused by their negligence and mismanagement, and has also been asked to remove them from their trusteeship and to appoint new trustees. In support of his argument the learned Advocate General relies on Narsidas v. Ravishankar : (1930)32BOMLR1435 and Annappa v. Krishna : AIR1936Bom412 . But in these cases and in the Privy Council case of Abdur Rahim v. Mahomed Barkat Ali which is referred to and discussed therein, suits had been brought by beneficiaries under a public trust to enforce the trust. In so far as the plaintiff here seeks to set aside the wills as having been brought about by undue influence she is quite obviously not suing to enforce the trust and the learned Advocate General concedes that so far the suit is not obnoxious to Section 92.
15. There is we must admit considerable difficulty as regards the alternative reliefs which are certainly claimed on the footing that the wills are 'legal and fit to be confirmed' as stated in the plaint. But even here it may be argued, not unreasonably we think, that the plaintiff is not seeking to enforce the trust. She is claiming what she considers reasonable maintenance not on the basis of the trust but in spite of the trust, relying on principles of Hindu law to which the trust, though valid in other respects, must conform. She is not asking the Court to administer the trust but administer her husband's estate in accordance with these principles simply for the purpose of giving her proper maintenance. This is the gist of the argument of learned Counsel for the plaintiff, and we think on the whole it is sound. The plaint is very awkwardly drafted, but it has frequently been held that mofussil pleadings should not be construed too strictly, if to do so would work injustice, and reading the plaint as a whole we think it permissible to take this view of it. On this view we consider that it is not governed by Section 92 and not liable to be dismissed because it has not been filed as a representative suit with the sanction of the Collector.
16. On the merits of the case, that is to say the propriety of the award of Rs. 5,044 for arrears of maintenance, Mr. Setalvad has argued, first, that whatever rate of maintenance be held suitable, the plaintiff must give credit for what she has received. The trial Judge has deducted from the gross amount found due to her at the rate of Rs. 275 a month, Rs. 50 a month provided in the wills and Rs. 806 the rent recovered for part of lot No. 1 at Rs. 31 per month. But she has also; recovered, it is said, an equal amount as rent of lots Nos. 2 and 3 and has used lot No. 4 as a stable for which Rs. 10 a month should reasonably be charged as rent. Besides that witness Natvarlal, a protege of Ambalal, says that he paid to her a sum of Rs. 108 which was owing from him to Ambalal. If these sums are deducted the amount to be awarded, whatever it is, would be further reduced by Rs. 806 plus Rs. 260 plus Rs. 108=Rs. 1,174. But the amount actually recovered as rent for lots Nos. 2 and 3 seems to have been Rs. 380 only (see pp. 212 and 214 of the paper book). As for lot No. 4 which plaintiff used as a stable we do not think she can be charged rent for this if she was entitled to maintain the carriage, and in our opinion she was. The proper deductions to be made in our opinion are Rs. 1,300 paid under the wills, Rs. 806 for rent of part of lot No. 1, Rs. 380 for rent of lots Nos. 2 and 3 and Rs. 108, i.e., in all Rs. 2,594.
17. It was argued that the amount should be still further reduced by a sum of Rs. 2,500 which plaintiff is said to have realised by the sale of ornaments not proved to be her stridhan ornaments. The amount recovered was perhaps only Rs. 2,100 as plaintiff says. But the point to be noted is that the second and final will which dealt with plaintiff's maintenance, exhibit 47, provided that the ornaments are to be sold on plaintiff's death and the proceeds spent within one month in connection with her obsequies. That being so, we do not think the ornaments can be regarded as forming part of Ambalal's estate or that they have to be taken into consideration in the calculation of the plaintiff's maintenance. As the ornaments have been sold the amount to be spent on the obsequies may have to be diminished pro tanto. But we can see no justification for deducting the amount from the sum to be allowed for arrears of maintenance.
18. The Municipal taxes on the buildings occupied by the plaintiff are fairly heavy and in providing for the future this may have to be taken into consideration. But the accounts at p. 220 of the paper book and the bills and receipts exhibits 36 to 44 show that defendant No. 1 paid the tax for the year 1930-31 and there is no evidence that plaintiff paid any taxes at all during the period with which we are concerned.
19. As regards the rate of maintenance allowed by the trial Court, which is made up of Rs. 200 for household and other expenses and Rs. 75 for a carriage, Mr. Setalvad's contentions are that plaintiff has produced no evidence as to her actual expenditure and the trial Judge has not based his figures on actuals but on what he considers the plaintiff might reasonably have spent, that whereas the present income of the estate is only about Rs. 4,000 a year-and that was the income for the last four years of Ambalal's life-the Judge allowed himself to be influenced by the fact that the income used to be much more and the average for ten years was about Rs. 10,000 a year, that it is unreasonable to allow the plaintiff Rs. 3,300 a year for her maintenance when for the last four years of his life Ambalal and his sister and plaintiff together had little more than this to live upon, that there is no necessity for plaintiff to have a carriage and her husband gave express directions to defendant No. 2 on several occasions that the horse and carriage were to be sold, and, lastly, that the estimate of Ambalal's household expenses on which the Judge has based plaintiff's allowance is exaggerated1 and includes a great deal of expenditure which there is no need for plaintiff to incur.
20. We do not think that the absence of reliable evidence as to what plaintiff has actually spent is very important. She may have spent more or less than she was entitled to charge the estate with for her maintenance. The principles on which maintenance is to be calculated are expounded in Ekradeskwari Bakuasin v. Homeshwar Singh to which the trial Judge has referred, and generally speaking the same principles apply to arrears as to future maintenance, although, as pointed out in Gurushiddappa v. Parwatewwa : AIR1937Bom135 , the Court is not bound to award arrears of maintenance at the same rate as might be considered reasonable for the future. We agree with the learned Advocate General that the maintenance ought to be calculated with reference to the income of the estate as it is now and not as it was before Ambalal began to spend so much money on charity. Hindu law and opinion regard these charitable gifts and bequests with favour, and if a Hindu husband of his own free will chooses to diminish his estate by giving away part of it to charity (assuming of course that he is not doing it with the object of defeating his widow's reasonable claims), the widow is not entitled to say that she should be given maintenance in proportion to what the income was before the charitable gifts or bequests were made. Such a claim would be quite absurd in the present case because it appears that Ambalal's ordinary expenditure remained pretty much the same throughout, and he spent no more on himself and his family for ordinary living expenses when his income was Rs. 20,000 a year than he did when it was Rs. 4,000, But, although there is one passage in the judgment which rather suggests that the trial Judge thought the gift of the Richey Road bungalow in trust for the dispensary might be disregarded in the calculation of maintenance, I doubt if this really has affected his conclusions. At any rate he professes to base his award not on Ambalal's income but on his normal expenditure on his household.
21. As regards the allowance for a conveyance, Ambalal had kept a carriage for fifteen or sixteen years with one short interval of six months. Sometimes he kept two conveyances. We think it may be regarded as a reasonable luxury within the meaning of the rule laid down in Ekradeshwari Bahuasin v. Homeshwar Singh and we are not prepared to say that the allowance of Rs. 75 a month for this purpose is unwarranted. We may say that when the time comes for making provision for the future this allowance might fairly be taken to include stabling.
22. On the other hand, we think, there is a good deal of force in the argument that the figures of household expenditure in Ambalal's diaries, which are accepted as correct by both sides, do not justify an allowance of Rs. 200 a month for the expenses of plaintiff alone. The trial Judge says that Ambalal's household expenses were on the average Rs. 4,500 per annum. This figure appears to be taken from the statement compiled from the diaries and put in on plaintiff's behalf. In this statement household expenses and miscellaneous expenses of Ambalal, Dharmada, etc., have been lumped together. A jumbled total of this kind is meaningless. There is no reason why plaintiff's miscellaneous and charitable expenditure should be on a scale comparable to her husband's. The statement put in by the defendants shows that the household expenses proper were never more than about Rs. 1,600 a year and often much less. In the years when the income was at its highest, in 1921 and 1922, the figures were Rs. 976 and Rs. 1,297. The average for the last three years of Ambalal's life was Rs. 1,400, or less than Rs. 120 a month for three people and their servants. The plaintiff's dress costs roughly Rs. 180 a year or Rs. 15 a month.
23. A very considerable item in plaintiff's statement is under the heading of personal and medical expenses. The annual totals for the years Samvat 1980 to 1984 (omitting the year Samvat 1981 for which the diary is not forthcoming) were Rs. 362, Rs. 1,302 made up of two items of Rs. 677 and Rs. 625, Rs. 874 and Rs. 451. In the defendants' statement there is no separate heading for plaintiff's personal expenses. The corresponding figures for her medical expenses are Rs. 13, Rs. 334, Rs. 386 and Rs. 11. In 1925 when the plaintiff's last child was born and died soon after delivery she had a difficult confinement and heavy medical expenses had to be incurred. But that is a long time ago. It is vaguely stated that she is still weak and infirm, but there is no reliable evidence, the evidence of any medical man or nurse for instance, to show that she is a confirmed invalid or in need of constant or expensive medical treatment. An allowance1 of Rs. 50 a month for medicine and miscellaneous expenses including charity ought, in our opinion, to be quite sufficient. Rupees 75 for a conveyance, Rs. 60 for medicine and cook, Rs. 15 for dress, and Rs. 50 for other expenses, comes to Rs. 200 a month, and we see no reason why that allowance should be exceeded. The amount due for twenty-six months is, therefore, Rs. 5,200, from which, as I have said, Rs. 2,594 are to be deducted as having been already recovered, leaving a balance of Rs. 2,606 as the amount to be decreed.
24. In the cross-objections Mr. Thakor for the plaintiff has repeated the contention that the wills are void for undue influence. He relies on Section 16 of the Indian Contract Act, Section 89 of the Indian Trusts Act, and on the equitable rule which has been referred to in Shivgmgawa v. Basangouda (1937) 40 Bom. L.R.132 that when a person obtains any benefit from another, whether under a contract or as a gift, by exerting his influence, which, in the opinion of the Court, prevents the grantor from exercising an independent judgment in the matter, the latter can set aside the contract or recover the gift. It is argued that it is for defendants Nos. 1 and 2 to prove that these wills were not induced by undue influence. This argument, however, presupposes that these defendants were in a position to dominate the will of Ambalal, and we agree with the trial Judge that there is no good reason to suppose that they were in that position. Ambalal was a religious man and might perhaps be described as a religious fanatic. But we can see no reason, to suppose that he was under the domination of defendant No. 1. He was a devotee of the temple of which defendant No. 1 is the mahant and claims to be the proprietor. He regarded defendant No. 1 with reverence and treated him accordingly. But we think that the plaintiff and her witnesses are exaggerating when they say that Ambalal regarded defendant No. 1 as a God or imposed a blind confidence in him. The evidence shows that he used to visit other temples as well, and was in the habit of making charitable gifts for the benefit of Sadhus and cripples and cows. The dispositions of his property, which have been impugned, seem to have been quite in keeping with his character.
25. Defendant No. 2 was his medical attendant and, as he was somewhat frequently ailing, he may have seen a good deal of him. But defendant No. 2 was not his only doctor, and we can find no reliable evidence that he dominated the will of his patient in any way. The plaintiff has admitted in her evidence that Ambalal used to consult defendant No. 2 about medicine but not about business. The suggestion that Ambalal was depressed by the loss of his infant son in 1925 and that the defendants took advantage of his state of depression seems to us to be far-fetched. It was in 1925 that the child died. He lived for four years after that during which he took active steps to start the Apangashram and the dispensary.
26. We can find no proof at all that the defendants exerted any pressure on him in connection with the wills. The writer of the wills and the trust deed, who is a retired Sub-Registrar and apparently a respectable witness, has deposed that Ambalal himself gave him all the instructions for the documents and approved of the drafts and that neither defendant No. 1 nor defendant No. 2 had anything to do with the wills or made any suggestions in connection with them. Practically all that has been elicited in the cross-examination of this witness is that defendant No. 2 paid him his writing charges on Ambalal's behalf. The writer had asked for a sum of Rs. 250 and Ambalal, apparently at the suggestion of defendant No. 2, decided to pay Rs. 110 only. That is one point, and the other is that the witness says that Ambalal told him not to talk about the wills. Then it is to be noted that according to the evidence Ambalal was not by any means a weak minded sort of man. On the contrary he seems to have been a shrewd business man who dealt in shares, quite profitably as it appears, and was a director in several companies.
27. Then again the dispositions made by these wills cannot be regarded as in any way unconscionable. It is true that the provision made in them for Ambalal's wife is below the standard which the law considers reasonable, but it is not so patently unreasonable as to rouse any suspicion that Ambalal was not acting on his own volition. The house which has been assigned for plaintiff's residence is apparently a very good one. Ambalal had expended a lot of money on re-building it shortly before his death. He very probably anticipated that she would be able to let part of it and he may well have thought that an additional allowance of Rs. 50 a month would suffice.
28. Plaintiff has alleged that she was kept in ignorance of these wills. It seems to me that that is a little doubtful. It is an admitted' fact that Ambalal constructed the Apangashram and started the dispensary in his lifetime. So that plaintiff must have known all about them and indeed she admits that she did. She has also admitted that her husband; once told her 'You are an illiterate woman. So I have asked defendant No. 2 and Popatlal (defendant No. 4) to look after all this work.' In any case a man does not necessarily consult his wife about his testamentary dispositions.
29. It has been suggested that Ambalal's letters to defendant No. 2 show a spirit of subservience to him. These letters are at pp. 437 and 438 of the paper book. They show no doubt extreme devotion on Ambalal's part to the God of the Shri Jagannathji temple. But we cannot find in them any indication that he was under the influence of defendant No. 2. On the contrary the letters rather suggest that the dispositions made in the wills were Ambalal's own and that he was instructing defendant No. 2 to carry them out.
30. The learned trial Judge has expressed the opinion that two of the defendants' witnesses, the pujari of the temple and a retired talati, have given false evidence about one of the wills, the one which related to the Apangashram, having been deposited in the temple by Ambalal in the presence of the plaintiff. This conclusion seems to be mainly based on discrepancies as to time which are not necessarily at all suspicious after the lapse of ten years. But any how, as the learned Judge says, this has little or no bearing on the question of undue influence.
31. We cannot find any real similarity in the circumstances present here to such a case as Sital Prasad v. Parbhu Lal I.L.R. (1888) Ail. 535 on which learned Counsel for the plaintiff relied. In that case the plaintiff was obviously under the thumb of the defendant who had housed and financed him and helped him to recover his property, which he then induced him to transfer half to his brother and half to a temple of which he was the proprietor but in which the plaintiff was not interested at all. The evidence in this case has been examined by the trial Judge with meticulous care, and the opinion of an experienced Hindu Judge on a point of this kind must be given great weight. We hold that there is no substance in the cross-objections.
32. The result is that the decree of the trial Court is modified by substituting the figure Rs. 2,606 for Rs. 5,044. The order as to costs in the trial Court will stand, and as each party here has partly succeeded and partly failed, we propose to make the same order in the appeal, viz. that each party should bear his own costs. The cross-objections will be dismissed with costs', and First Appeal No. 255 of 1936, which relates to the rent of lot No. 4 and which is not pressed, is dismissed with costs.