1. The suit from which this appeal arises was brought by the respondent Parwatewwa to recover maintenance past and future and ornaments valued at Rs. 4,318. Maintenance was claimed at the rate of Rs. 2,500.
2. The plaintiff's husband Shivappa died in June, 1926. He left two widows, one Gangawwa and the plaintiff Parwatewwa. In December, 1926, Shivappa's father Mallappa made a settlement deed by which he transferred considerable properties to Gangawwa for her lifetime. Thereafter Mallappa adopted a son, the defendant, and the plaintiff's suit for maintenance was brought against him after Mallappa's death. The adoption of the defendant was expressly made subject to the settlement in favour of Gangawwa.
3. The trial Court awarded the plaintiff Rs. 1,000 as arrears of maintenance for four years and future maintenance at the rate of Rs. 600 a year. The claim for the ornaments was dismissed on the ground that they were in the plaintiff's possession.
4. In this appeal by the defendant three points have been taken : (1) that the value of the plaintiff's ornaments should be taken into consideration in awarding maintenance; (2) that the rate at which future maintenance has been allowed is excessive and that the trial Court was wrong in taking the income of the whole estate including that part of it which went to Gangawwa under the settlement deed as the basis of calculation; (3) that the plaintiff is not entitled to arrears in view of her conduct.
5. There are cross-objections that the rate of maintenance should be Rs. 650 and not Rs. 600 a year and that the arrears should have been awarded at the same rate, or at any rate at the rate of Rs. 400 a year, i.e., Rs. 1,600 in all, in respect of which Court-fees have been paid.
6. The case involves some rather interesting questions of Hindu law. The first is whether the trial Judge is right in holding that a widow's stridharan ornaments cannot be taken into consideration while determining the quantum of maintenance on the ground that they are unproductive property. Apparently there is no clear authority for such a proposition in the texts. Strange in his Hindu Law published in 1830 treated it as an open question whether in estimating maintenance a woman's stridhan including clothes, ornaments and the like should be taken into account, or only such articles of her property as are productive of income to her or conducive to her subsistence. But he thought the latter view the more reasonable : Strange's Hindu Law, Vol. I, p. 171. In Shib Dayee v. Doorga Pershad (1872) 4 N. W. P. H. C. R. 63 the High Court of the North Western Province held that this is the law (p. 73) :
Nor will the fact, that a widow has in her possession jewels and other property unproductive of income, deprive her of or diminish her right to maintenance if they constitute her stridhan, or although forming part of her husband's estate, they are suitable to the position of the family in society. If, on the other hand, she has property in her possession productive of income, the amount should be taken into consideration in determining the measure of her allowance for maintenance.
It appears from Chandrabhagabai v. Kashinath Vithal (1866) 2 B. H. C. R. 323, decided in 1866, that at that time there was a course of authority in Bombay to the effect that a woman's ' peculiar property ', i.e., stridhan should not be taken into account in considering a claim to maintenance if she were in need of support. In the monumental discussion of the law of maintenance in Westropp C. J.'s Judgment in Savitribai v. Luximibai I.L.R. (1878) 2 Bom. 573, the particular question whether stridhan should be taken into) account or not was left open as it did not arise in that case. In neither of these Bombay cases was any distinction suggested between productive and unproductive stridhan. In a fairly recent Madras case, Shyatna Bhai v. Purushothamdoss A. I. R  Mad. 645 Mr. Justice Kumaraswami Sastry held that the fact that a widow has got jewels of her own does not affect the quantum of maintenance, which would otherwise be fixed having regard to the extent of her husband's property. In that case the widow belonged to a community in which widows are permitted to wear ornaments, but that was not the basis of the decision. The learned Judge did not refer to Shib Dayee v. Doorga Pershad and no case has been cited before us in which judicial approval has been given to the rule laid down in that case. But the commentators on Hindu law have accepted the rule as settled law : Mayne, 9th edn., p. 659; Mulla's Principles of Hindu Law, 8th edn., p. 595; Sarkar's Hindu Law, p. 702; Gour's Hindu Code, 3rd edn., Section 92. I think it must be taken to be good law that as an ordinary rule stridhan ornaments are not to be taken into account in assessing maintenance. It need not be laid down as an invariable rule. If the widow were in possession of ornaments of great value which she would not ordinarily wear or use, and which she would be likely to dispose of, that might be a different matter. In the present case I see no reason to differ from the view taken by the trial Judge.
7. That brings me to the second point, as to the rate at which maintenance must be allowed. The learned trial Judge has estimated the income of the estate chargeable with maintenance as from Rs. 6,000 to Rs. 7,000. He arrives at the figure in this way. In a suit filed by Mallappa and Shivappa in 1928 a statement was put in by the pleader for the plaintiff to the effect that the estate was worth Rs. 1,00,000. Now the value of the immoveable property, land and shops, could not, according to the learned trial Judge, be valued at more than a maximum of Rs. 50,000. Therefore, he inferred, the value of the other main source of income, the money-lending business, must be taken to be Rs. 50,000, and the income of that business might reasonably be estimated at Rs. 5,000 a year. To that he added Rs. 1,500 as the total income of all the lands including the lands assigned to Gangawwa for 'her maintenance. This figure Rs. 1,500 was arrived at by taking five times the assessment as the net income. Then in addition a net income of Rs. 500 was estimated as the income from the shops including one shop given to Gangawwa.
8. The learned advocate for the appellant contends, I think rightly, that as the adoption of the defendant was made subject to the settlement deed, the property given to Gangawwa cannot be taken into consideration in estimating the amount of maintenance payable by defendant to the plaintiff. The learned advocate for the respondent in support of the learned trial Judge's view that the income of the whole estate must be taken as the basis relies on a passage in Sir Dinshah Mulla's Principles of Hindu Law, 8th edn., p. 600. The proposition there stated is :
A Hindu cannot dispose of his entire property by gift or by will, so as to defeat the right of his widow to maintenance. If he does so, the donee or devisee must hold the property subject to the widow's right of maintenance, and the widow may enforce her right against it.
I do not desire to throw any doubt on the correctness of that proposition, which indeed is supported by the authorities to which the learned commentator refers. But it affords no support to the trial Judge's view that the defendant, who has inherited an estate diminished by the properties granted to Gangawwa under the settlement, is liable to pay maintenance to the plaintiff on the footing that the estate is undiminished. It may well be that the plaintiff might enforce her right as against Gangawwa, 'and when on Gangawwa's death the lands granted to her revert to the estate, they will then become liable to contribute to the plaintiff's maintenance. As things are at present, however, the obligation on the defendant to provide for the maintenance of the plaintiff must be limited to the estate which he actually enjoys. It is quite true, as held in Ramzan v. Ram Daiya I.L.R. (1917) All. 96, that when a right of maintenance comes into existence in favour of the widow of a man who was a member of a joint Hindu family, she takes that right in the property as it stands at the time of her husband's death. What was decided in that case was that she cannot set up her right of maintenance as against alienations effected during the lifetime of her husband. In the present case the alienation by the deed of settlement was after her husband's death. Possibly, therefore, the plaintiff may be in a position to challenge the alienation. But that is the same point over again. Whether she has the right to challenge the alienation or not, she has no right to compel the defendant to pay her maintenance on the basis of the income of the whole estate. The learned trial Judge, therefore, was wrong in basing the award of maintenance on the income of the whole estate including the properties transferred by the settlement deed. As it happens, however, we do not consider that that makes any material difference.
9. There are two other points in which the reasoning of the learned trial Judge can hardly be sustained to its full extent. There is obviously no substantial basis for the estimate of Rs. 5,000 as income from the money-lending business. Nor would it be correct to take the provision made by Mallappa for the maintenance of Gangawwa as necessarily a fair criterion for the plaintiff's maintenance. Gangawwa was Mallappa's grand-daughter. As recited in the settlement deed, he had special affection for her, and she was looking after him, and because he made a grant to her of properties bringing in an income of Rs. 800, it does not follow that the plaintiff is entitled to an equal amount or to an amount estimated with reference to that.
10. On the other hand, the learned Judge is obviously right when he says that a presumption should be drawn against the defendant in view of his failure to produce satisfactory accounts. . The defendant himself has no personal knowledge, and the fact that he did not go into the witness-box therefore need not be commented on. But the evidence of the clerk Virbhadrappa, exhibit 23, is most unsatisfactory. He is paid Rs. 400 a year to look after the estate and he says that he has no accounts. 'It is almost incredible that that should be so, and the witness admits that certain tippans were kept, and even those have not been produced. Virbhadrappa evidently made a very bad impression on the Judge in the witness-box, and I think that the statements produced by him purporting to show the income of the family must be received with very great caution. Incidentally this witness has admitted that there were two large sums of cash, a deposit amount of Rs. 15,900 and a sum of Rs. 5,000, the insurance on Shivappa's life. The statements produced do not contain these sums at all and the witness alleges that the money was not invested. Seeing that there has been for years past a family money-lending business, this statement is practically incredible.
11. The defendant's own estimate as placed before us by his learned advocate was as follows :-Income from money-lending Rs. 996, income from shops Rs. 510, income from lands Rs. 550, dividends Rs. 182, total Rs. 2,238. This is excluding the properties granted to Gangawwa. That exclusion, as I say, may properly be made. But the figures are based on the statements produced by the clerk Virbhadrappa, which are clearly unreliable. It is admitted that the family has been paying income-tax and papers have been produced showing that income-tax was paid as on an income of about Rs. 2,000. That would be income exclusive of agricultural income. Now the income from money-lending may well have been more but can hardly have been less than that on which tax was paid. If, therefore, we were to take Rs. 2,000 as the income from money-lending, that would probably be a very conservative estimate. According to the trial Judge's method of calculation, five times the assessment, the income from the lands would be Rs. 875. Adding Rs. 500 for income from the shops we get Rs. 3,375 as the lowest reasonable estimate of the income of the estate actually in the defendant's hands. It may well have been more than that, though I think it is doubtful whether it amounted to the sum found by the learned trial Judge. Even taking the income at this figure of Rs. 3,375, however, the value of the share of plaintiffs husband would be about Rs. 1,600. That is the maximum limit of maintenance which could be awarded. As the sum of Rs. 600 allowed by the trial Judge is obviously well within the maximum and as the sum of Rs. 50 a month seems to be a reasonable figure, having regard to the circumstances and status of the family, I think there is no reason to alter the award which has been made.
12. Then as to the arrears, the argument on behalf of the appellant seems to be that the plaintiff had disentitled herself from claiming arrears of maintenance because shortly after her husband's death she adopted a son and for four years she was engaged in litigation with her father-in-law and the defendant who brought a suit to have the adoption set aside. The suggestion that the plaintiff thereby waived or abandoned her right to maintenance is opposed to the principles laid down by the Privy Council in Ekradeshwari Bahuasin v. Homeshwar Singh (1929) L.R. 56 I. A. 182 : 31 Bom. L.R. 816. On all these grounds, therefore, the appeal fails.
13. Then as to the cross-objections. No satisfactory reasons have been shown for increasing the amount of maintenance from Rs. 600 to Rs. 650 a year. As regards the arrears, Mr. Murdeshwar in support of his contention that the rate at which arrears are allowed should be the same as the rate of future maintenance has relied on the Privy Council case to which I have just referred, Ekradeshwari Bahuasin v. Homeshwar Singh, and Siobhanadramma v. Narasimhaswami I.L.R. (1933) 57 Mad. 1003. Both these cases were concerned mainly with the question from what period arrears of maintenance should be allowed. The Privy Council held that a Hindu widow who left the residence of her deceased husband, not for unchaste purposes, and resides with her father, is entitled to maintenance and to arrears of maintenance from the date of her leaving her husband's residence, although she does not prove that she has incurred debts in maintaining herself and gives no reasons for the change of residence. In Sobhmadtamma v. Narasimaswami it was held, following the Privy Council case, that the Court has no discretion, irrespective of proof of circumstances which might prove abandonment, waiver or estoppel, to limit the period for which arrears of maintenance could be awarded. In both cases there is a discussion of the considerations that should guide the Courts in fixing the rate of the maintenance to be awarded, but in neither is it laid down that as an invariable rule the rate of maintenance must be the same throughout.
14. In Karbasappa v. Kallava I.L.R. (1918) 43 Bom. 66 : 20 Bom. L.R. 823 it was held that in dealing with claims for arrears of maintenance the Courts have a large discretion to grant or withhold those arrears with special reference to the urgent need and necessities of the widow. A similar view of the law has been taken by the Allahabad High Court in Raghubans Kunwar v. Bhagwant Kunwar I.L.R. (1899) All. 183. It appears from Mr. Justice Beaman's judgment in Karbasappa v. Kallava that the Court then took the view that there is a discretion both as to the period from which arrears should be allowed and as to the rate at which it should be allowed. In the former respect it may be that this judgment is inconsistent with the recent judgment of the Privy Council. In the latter respect I am not satisfied that it is. As their Lordships observed at p. 186 of the judgment in Ekradeshwari Bahuasin v. Homeshwar Singh-. maintenance depends upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties arid the families, a survey of the condition and necessities and rights of the members, on a reasonable view of change of circumstances possibly required in the future, regard being, of course, had to the scale and mode of living, and to the age, habits, wants, and class of life of the parties.
15. The matters to be taken into consideration are thus classified by Sir Dinshah Mulla in his Principles of Hindu Law, 8th edn., p. 595, with reference to Indian authorities on the subject : (1) the value of the estate, (2) the position and status of the deceased husband and of the widow, (3) the reasonable wants of the widow including not only the ordinary expenses of living but what she might reasonably expend for religious and other duties incident to her station in life.
16. The fact that the plaintiff for the four years before she brought the suit was living with her own relations and not in need of the full amount of maintenance is one of the factors which may be taken into consideration. As explained in the earlier part of this judgment, if she has property of her own, which produces an income, that also is to be taken into consideration, and the amount of maintenance to be awarded out of her husband's estate is to be reduced pro tanto. There is nothing illegal or unreasonable in the award of Rs. 1,000 only for arrears. For these reasons the cross-objections must also be dismissed.
17. The appeal and the cross-objections are both dismissed with costs.
18. It has been conceded before us that the plaintiff Parwatewwa is entitled to be maintained out of the estate of her husband in the hands of the appellant-defendant who was adopted by her husband's father Mallappa after her husband's death. The main controversy in this appeal is centered round the questions whether the stridhan in the possession of the plaintiff should be taken into account in fixing the rate of her maintenctnce, whether she is entitled to the arrears of maintenance, and if so, whether those arrears should be awarded at the same rate as future maintenance.
19. Before dealing with the above questions I shall deal with the evidence of the actual income of the property in the hands of the defendant which is primarily liable for the plaintiff's maintenance. I agree with my learned brother that that income is under-estimated by the defendant's clerk. It has been maintained that upon the income-tax return the total annual net income of the defendant could not exceed Rs. 3,000 inclusive of the income from agricultural sources. The plaintiff has, however, contended for an income double that figure or nearly so. The clerk, who was put forward to support the defendant's case, has demonstrably suppressed at least one large source of income from pledges of ornaments. It was natural to expect in the circumstances that the defendant who was in possession of the property should put before the Court all the material available to arrive at a just and fair conclusion as regards his approximate income. This he has failed to do, and consequently it cannot be said that the calculation made by the, lower Court upon the probabilities of the case is unreasonable. Even upon the estimate of the defendant the amount awarded to the plaintiff is well within the maximum. In fixing the rate of maintenance at Rs. 600 per year the lower Court was not traversing on dubious ground. The plaintiff's father-in-law Mallappa in providing for the wants of the plaintiff's co-widow Gangawwa, who also happened to be his grand-daughter, has given her property sufficient to yield, according to the very reasonable estimate of the lower Court, not less than Rs. 800.
20. It was pointed out that the lower Court erred in taking into account the income of the property of Gangawwa when estimating the total yield of the family income liable for the plaintiff's maintenance. If it were necessary to decide whether Gangawwa's income should be excluded from calculation I should think it inequitable to add that income to the income of the defendant for the basis of calculation. It is essential to remember that the right claimed by the plaintiff was against the property in the hands of the defendant. Gangawwa was not a party to the suit and no claim was made against her. Undoubtedly a Hindu widow whilst debarred from impeaching alienations of the joint family property made in her husband's lifetime, takes the right in the property as it stands at the time of her husband's death. But in all suits to enforce that right the question arises as to the extent to which it could be enforced against the defendant. The Court would naturally look to the nature and extent of the family property which the defendant possesses and would fix the rate by reference to it and not other property which the defendant had no hand in alienating subsequent to the husband's death. The right to proceed against that property may still survive and might be enforced under circumstances to which it is unnecessary to refer : see Ramzan v. Ram Daiya I.L.R. (1918) 40 All. 96. It was, therefore, unreasonable to take the income of Gangawwa's property into account as the lower Court has done in fixing the rate. But even if that income were excluded, I still agree in holding that the income of the other property is large enough to bear the reasonable liability imposed by the lower Court upon it for the plaintiff's maintenance.
21. Turning then to the main question of law urged in this appeal, it is necessary to state that the case-law cited on the point has not yielded any definite principle. There is authority in the text books for the statement that in calculating the amount of maintenance the widow's stridhan must be taken into account unless it is of an unproductive character, such as clothes and jewels. Those examples have led to controversy. The statement is made in Mayne's treatise on Hindu Law and Usage, 9th edn., at p. 659. Among the authorities quoted is Strange's Hindu Law, Vol. I, p. 171, and Vol. II, p. 307. In the former no definite opinion seems to have been expressed as to whether the productivity of a widow's stridhan should be the condition precedent to its being taken into account in fixing her maintenance. The learned author in the latter volume in regard to certain prevailing practice expresses his opinion as follows :-. I do not understand either the authority or the reason for restricting the maintenance to the amount of half a share, in case of the existence of Stridhana. The division (as it appears to me) should be made without reference to any property she may hold under this title, unless it may have been accepted by her, with consent of the parties concerned, in lieu of other claims; and in this case it is evident she is entitled to no further share in the event of division.
22. In his Principles of Hindu Law, 7th edn., at p. 588, Sir Dinshah Mulla was perhaps referring to the remarks made by Mayne that unproductive stridhan should be excluded from computation. At the same time he has remarked that there is a conflict of opinion whether a widow is entitled to maintenance out of the property of the joint family to which her husband belonged when the income from her stridhan is sufficient for her maintenance. No qualification is introduced in regard to that stridhan. As far as the current of authority goes, it is in favour of the view that a difference should be made between productive stridhan and unproductive stridhan in calculating the amount of the widow's maintenance : see Shib Dayee v. Doorga Pershad (1872) 4 N. W. P. H. C. R. 68, Chandrabhagabai v. Kashinath Vithal (1866) 2 B. H. C. R. 341, and Shyama Bhai v. Purushothamdoss A.I.R  Mad. 645 We were also referred to the cases of Savitribai v. Luximibai I.L.R. (1878) 2 Bom. 573 and Gokibai V. Laxmidas Khimji I.L.R. (1890) 14 Bom. 190. The last two cases do not expressly say whether in all conditions and circumstances unproductive stridhan should be excluded and no distinction was drawn between jewels and ornaments placing the former alone in the category of unproductive stridhan. It seems to me difficult upon principle to say that the clothes and jewels or ornaments of the widow, whatever their value, should invariably be excluded in the calculation of her maintenance out of her husband's property. Her right to claim maintenance out of the husband's estate is indeed absolute and rests upon the possession of her husband's property by the person from whom the maintenance is claimed. As I have stated that right is subject to her private means whether actual or potential. Speaking entirely for myself, it seems illogical that in the consideration of the circumstances of her position as well as the estimated income of the property sought to be made liable for her maintenance, the potentiality of the widow's income from stridhan ornaments upon conversion should not be taken into account in fixing the amount of her maintenance. In the present case, however, as compared with the income of the property available, the value of the ornaments of the widow is not very considerable, and it is not clear upon the record having regard to the custom of the community to which the widow belongs, that the ornaments in her possession would not all be required to maintain the status of her family. Therefore in the present case the value of those ornaments was rightly excluded in fixing the amount.
23. With regard to the claim to arrears of maintenance, it is well settled that the question of granting arrears is a matter of discretion. Upon the authorities referred to by my learned brother, arrears of maintenance must be refused if there was evidence of waiver or abandonment or any other justifying cause such as unchastity and the like. But the contention that arrears of maintenance could be awarded upon the same basis as future maintenance cannot be supported either upon authority or principle. In that connection I would refer to Karbasappa v. Kallava I.L.R. (1918) 43 Bom. 66 : 20 Bom. L.R. 823, which might be regarded as an authority in this Presidency for the proposition that arrears of maintenance need not be awarded at the same rate as future maintenance. There is nothing] in the observations of their Lordships of the Judicial Committee in Ekradeshwari Bahuasin V. Homeshwar Singh to show that there must always be uniformity in the rate of future maintenance and arrears of maintenance. The fact that the amount of maintenance, whether it is fixed by a decree or by agreement, is liable to be increased or diminished whenever there is a change of circumstances must reduce the force of the argument advanced by the learned advocate for the respondent in support of his cross-objections that the Court has for all purposes no discretion in reducing the rate at which maintenance is fixed. It seems to me that the learned trial Judge has exercised a wise judicial discretion in fixing the amount of arrears of maintenance as well as the rate of future maintenance. I am satisfied that no case has been made out either for increasing or reducing the same. I, therefore, agree with my learned brother that the decree should be maintained and the appeal and the cross-objections dismissed with costs.
24. Per Curiam. For the reasons given in Maharana Shri Ranmalsangji v. Bai Shri Kundankunwar I.L.R. (1902) 26 Bom. 707 : 4 Bom. L.R. 531, the decree is modified by inserting a provision giving liberty to either party, plaintiff or defendant, to apply in execution proceedings for increase or reduction of the amount of maintenance in case of change of circumstances.