Amberson Marten, Kt., C.J.
1. This is a bitter litigation which has already gone to the Privy Council twice. Today we are only concerned with the quantum of maintenance that has to be paid to the plaintiff as the permanent concubine of the deceased testator. There are other points raised in the present memorandum of appeal, but they have been abandoned.
2. As regards the question of quantum, a sum of Rs. 300 per month was awarded by the Commissioner, and his finding has been affirmed by Mr. Justice Crump in a judgment dealing fully with the case. Now I must go back one step in the history, and read the exact order of reference that was originally made by Mr. Justice Kanga, as he then was, on November 25, 1921. That order directed the suit to be referred to the Commissioner for taking accounts for ascertaining the value and income of the ancestral as well as the self-acquired estate of the said deceased Vasanji Madhavji Thakar and for reporting what in the opinion of the said Commissioner would be suitable maintenance for the plaintiff out of the said estate having regard to its value and income and the plaintiff's status and manner of life, I draw particular attention to the form of that inquiry.
3. Mr. Justice Kanga's order was appealed from. In the appellate Court a new point was taken that the lady was not entitled to maintenance because although she was a concubine of the deceased testator, yet she did not live with him in his house, which under the ancient Hindu text law was an essential condition. Accordingly, the appeal was allowed and Mr. Justice Kanga's order was discharged.
4. The lady in her turn appealed to the Privy Council, and their Lordships of the Privy Council reversed the decision of the appellate Court and restored the order of Mr. Justice Kanga. In the course of the judgment they pointed out that those Hindu texts as to the alleged necessity for the concubine to be a resident of the man's house dated from days when the concubine was a slave. Obviously, therefore, the text could not in its entirety be applied in modern days in this country when slavery is not permitted. The effect of the Privy Council judgment is really stated in Bai Nagubai v. Bai Monghibai (1926) L.R. 53 IndAp 153 where their Lordships say (p. 162):-
Their Lordships agree with the trial judge in this view of the matter. And no the real question would appear to be whether to be of the family the concubine, otherwise entitled to maintenance, must reside in the same house with the deceased, together with his wife and the regular members of his family. Their Lordships are of opinion that such common residence is now unnecessary, whatever may have been the case when the concubine was a slave of the household.
5. Now, that brings me to the first point that has been taken by counsel for the appellants, which is that under the ancient Hindu law just as a concubine had to be a resident of the household, so on the death of her lord, she was only entitled to food and raiment. Accordingly, it was contended in the lower Court and in the memorandum of appeal that the lady was at the most entitled to food and raiment, and on that basis a sum of Rs. 50 per month was put forward as an appropriate amount for the Court to allow.
6. That argument is based, so far as the Hindu text is concerned, on the Mitakshara passage from Stokes' Hindu Law, page 485, paragraph 27, part of which runs :-
Heirless property,' or wealth which is without an heir to succeed to it, goes to the king,' becomes the property of the sovereign; 'deducting however a subsistence for the females as well as the funeral charges': that is, excluding or setting apart a sufficiency for the food and raiment of the women, and as much as may be requisite for the funeral repasts and other obsequies in honour of the late owner, the residue goes to the king. Such is the construction of the text.
7. Then the next clause says :-
This relates to women kept in concubinage : for the term employed is 'females' (yoshid,). The text of Narada likewise relates to concubines; since the word there used is 'woman' (stri.).
8. Now stopping there it will be observed that the main word used is 'subsistence.' Subsistence, I take it, would include not merely food and raiment, but also what would be necessary in order for the woman to subsist. She must for instance have a roof over her head and other necessary requirements. Consequently, the explanation of the word 'subsistence' there given, namely, 'that is, excluding or setting apart a sufficiency for the food and raiment of the women,' must be construed according to the then state of affairs, for in those days as slaves they would already be the members of the household, and they would remain members of the household. Speaking therefore for myself, I am entirely unable to agree with the contention put forward to us that the relief in this suit is to be confined to food and raiment. And if one turns to the text of Narada which is given at page 429, it is stated:-
Among brothers, if any one die without issue, or enter a religious order, let the rest of the brethren divide his wealth, except the wife's separate property. Let them allow a maintenance to his women for life, provided these preserve unsullied the bed of their lord.
So there at any rate the word used is 'maintenance', which would not be confined to food and raiment.
9. I think then that to meet this case, we must take a common sense view of the matter, and as slavery is not now permitted, we must adapt the old text to modern circumstances. Accordingly I think it fair to take, and I propose to take 'subsistence' under the ancient Hindu text as the appropriate test for what this lady should be allowed. But this subsistence or maintenance must in my judgment include residence in the present case, and should not be confined to food and raiment. That disposes of the point of law that has been raised.
10. Next on the question of quantum, the Commissioner and the learned Judge agree that Rs. 300 per month is the appropriate amount. Personally then I am opposed to altering this sum unless a clear case for interference is made out. It is urged that the lady in her evidence stated that her expenses came to Rs. 325 to Rs. 350 a month which included the cost of maintaining a child by the first marriage and also her child by the deceased, but that those items could not be allowed, and therefore Rs. 300 was excessive. But one answer to this is that the lady was speaking of a time when practically all supplies had been cut off by the people in charge of the deceased's estate and so she was living on bare necessities, and we are even told that she was compelled by necessity to borrow money.
11. Further, her actual charges at that time hardly seem to me to be a fair test having regard to the frame of the inquiry directed by Mr. Justice Kanga, The reference there to the value of the testator's estate and what would be suitable maintenance out of that estate having regard to its value and income and the plaintiffs status and manner of life really to my mind points to this that the lady must be maintained in a fair and decent manner having regard to the way in which she had been maintained in the life-time of the testator. The evidence is that he was a rich man worth some 7 lacs. It is clear that he was constantly with her for a large number of years and that she got many of the material benefits which go with a rich man. The evidence, for instance, shows that there was a motor car given in her charge, and she had a governess. And even if the actual allowance that was given by the testator himself in his life-time was only Rs. 400 per month, that would not cover all the pecuniary benefits she obtained by her connection with this rich man. But this sum of Rs. 400 would, I think, afford some indication of what the testator thought a fair amount to allow having regard to the mode of life to which she was then accustomed.
12. The Commissioner has given Rs. 100 lees, and the learned Judge agrees. Under all the circumstances of this case, I am not prepared to alter that amount. As regards the amount of Rs. 50 put forward in the memorandum of appeal, that to my mind is an absurd sum to put forward.
13. I would accordingly dismiss this appeal with costs.
14. I agree. The question in this case is as to the amount of maintenance to be awarded to the plaintiff. The plaintiff is seeking to recover maintenance from the estate of her deceased paramour. Mr. Justice Kanga in the original suit ordered the maintenance to be determined by the Commissioner having regard to the value and income of the estate and the plaintiff's status and manner of life. Their Lordships of the Privy Council in Bai Nagubai v. Bai Monghibai (1926) L.R. 53 IndAp 153 have restored the decree of Mr. Justice Kanga, and the argument on behalf of the appellants that the plaintiff should be allowed bare maintenance cannot be accepted having regard to the decision of the Privy Council which has resulted in the restoration of the decree of Mr. Justice Kanga.
15. The amount of maintenance to be awarded to the concubine in this case would, in my opinion, cover the expenses for the establishment and the expenses for the food and clothing of the plaintiff. Having regard to the extent of the property, which in this case yields an income of Rs. 3,550 per month, I do not think that the amount of Rs. 300 is excessive. The value of the property is not the sole criterion, but having regard to the manner of the plaintiff's life, the way in which she was treated by the deceased, and the opinion of the Commissioner which has been acquiesced in by the learned Judge, I do not think that it would be proper to interfere with the conclusion arrived at by the Commissioner and the learned Judge.
16. On these grounds I agree with the judgment just pronounced.