1. The defendants-appellants Nos. 1 and 2 are the father-in-law and the brother-in-law of the plaintiff-respondent Bai Laxmi, widow of Chhaganlal, the deceased son of the defendant-appellant No. 1 Kisanji. On March 18, 1922, the respondent on the one hand passed a release in favour of the appellants in respect of 'all sorts of rights, viz., food, clothing etc.,' during her life for a sum of Rs. 500, Rs. 200 payable immediately, and Rs. 800 in annual installments on various dates, the last being April 19, 1924. Defendant No. 2 passed a promissory note in her favour for Rs. 300. In 19:23 the respondent filed a suit No. 14S of 192 i for one installment. The appellants objected on the allegation that she was unchaste but offered a special oath, which the respondent took. The respondent filed the present suit on December 9, 1927, in respect of the last installment of Rs. 100. The appellants raised two objections, the first of limitation and the second of unchastity. The trial Court framed no issue on the first point and on the second, held on issue 3, taken up as a preliminary issue, that the alleged bad conduct of the plaintiff did not debar her from recovering the amount under the agreement. After deciding this preliminary issue, it raised two other preliminary issues as to whether the appellants' contentions were not res judicata by reason of the decision in the previous suit No. 148 of 1923, and whether they were not estopped from raising the contentions by reason of the said decision, answered both these in favour of the respondent and decreed the claim. The defendants' appeal to the District Court failed on the ground that the compromise for the payment of Rs. 500 contained no condition in regard to continued chastity. The defendants appeal.
2. A preliminary objection is taken for she respondent that this suit is a suit of a small cause nature below Rs. 500 and therefore no appeal lies under Section 102 of the Code of Civil Procedure, Under Clause 38 of the second schedule to the Provincial Small Causes Courts Act 'a suit relating to maintenance' is excepted. The Presidency Small Cause Courts Act contains no such exception and there fore such a suit might be cognizable in the presidency towns by a Court of Small Causes: Erachshaw v. Dinbai ILR (1920) 45 Bom. 318, 22 Bom. L.R. 1293. It has, however, been held in Saminatha Ayyan v. Mangalathammal ILR (1896) Mad. 29, Munirud-din v. Samir-un-nissa Bibi ILR (1917) All. 52, and Bhagvantrao v. Ganpatrao ILR (1891) 16 Bom. 267, that a suit for arrears of maintenance due under a bond or agreement is not cognizable by a Provincial Court of Small Causes under Clause 38 of Schedule II of Act IX of 1887. Following these decisions the preliminary objection must be disallowed, the words 'relating to maintenance' being wider than 'a suit for maintenance'.
3. On the merits, it is to be regretted, that all the necessary issues were not framed in the first instance and all the preliminary issues were not tried together rather than in the slip-shod manner in which the trial in the Subordinate Judge's Court has actually been conducted. On the question of estoppel and res judicata, it is difficult to see, how any allegation of unchastity in '1923 withdrawn on special oath and therefore decided in favour of the plaintiff can estop or act as res judicata against a contention that she was unchaste after that date when the present installment fell due. The view of the trial Court that the defendants-appellants are estopped or that the finding and the judgment in the former suit No. 148 of 1923 are res judicata is wrong.
4. On the third issue below, it is argued for the appellants, that both the lower Courts were wrong in assuming that unchastity could not have debarred maintenance. It is contended for the respondent that this is not a suit for maintenance but a suit on a promissory note and the deed of release, Exhibit 36, for an amount which was promised and not for maintenance alone but also for other rights as in Bhup Singh v. Lachman Kunwar ILR (1901) All. 321. These other rights, apart from the vague recital 'all sorts of rights, viz., food and raiment etc., are not recited in the release Exhibit 36, and except residence and maintenance, the respondent daughter-in-law did not appear to have had any rights at the date of the document. In Bhup Singh v. Lachman, Kunwar it has been expressly pointed out at page 325:--
It was not merely an agreement whereby maintenance was provided for her, but was something more. It was the consideration for the compromise of a claim, whether rightly or wrongly, preferred by her....The rule of Hindu law under which a widow's claim to maintenance becomes forfeited upon un chastity has no application to this case.
5. The present case is, however, different. Her right now in question is a right to maintenance and possibly residence which she has commuted. The release is passed in favour of both the appellants, The promissory note, it is to be observed, is signed by appellant No. 2 alone. It has been held by this Court in Valu v. Ganga ILR (1882) 7 Bom. 84 and Vishnu Shambhog v. Manjammaa ILR (1884) 9 Bom. 108 that the unchastity of a widow deprives her wholly of her right to maintenance, and following these decisions the Madras High Court held in Nagamma v. Virabhadru ILR (1894) Mad. 392 that 'the fact that there has been an agreement makes no difference'. In Daulta Kuari v. Meghu Tiwari ILR (1893) All. 382 it has been held, approving Vishnu v. Manjamma and Roma Nath alias Ramanand Dhur Poddar v. Rajonimoni Dasi ILR (1890) Cal. 674, that 'A decree obtained by a Hindu widow declaring her right to maintenance is liable to be set aside or suspended in its operation on proof of subsequent unchastity given by the husband's relatives, either in a suit brought by them expressly for the purpose of setting aside the decree, or in answer to the widow's suit to enforce her right, Upon proof of such subsequent unchastity the widow is entitled to no maintenance whatever.' In Kandasami Pillai v. Murugammal ILR (1895) Mad. 6 a decree of maintenance was set aside on the ground of the wife's adultery. The decision of Chandavarkar J. in Parami v. Mahadevi ILR (1909) 31 Bom. 278, 12 Bom. L.R. 196 is of no assistance to the respondent, as it only decided that a bequest by the will of her husband could not be set aside on the ground of unchastity. The subsequent observations of the learned Judge in regard to the right to maintenance of an unchaste wife were obiter dicta not necessary for the decision of that case. They have no application to the case of a widow such as the respondent, and it is not necessary for me, therefore, to signify acceptance or dissent from their generality. I am unable to accept the contention for the respondent that this case is on a par with Sathyabhama v. Keshavacharya ilr (1915) Mad. 658. In that case it was held that where, in a suit by a Hindu widow against her deceased husband's brother for maintenance at the rate fixed by agreement, it was found that the plaintiff had since lived an immoral life but reformed her ways at the time of the suit, she lost her right to the rate fixed in the deed but was entitled to a starving allowance. The respondent does not admit unchastity or set up subsequent reformation. That question, therefore, does not arise. On the authorities as they stand, therefore, the view of the lower Courts that the unchastity of the respondent, even if proved, would not debar her from recovering is not, in my opinion, correct. It is argued on her behalf that this view, however applicable to periodical payments for maintenance, penalises the widow who has commuted her right for a lump sum. If I may say so with all respect to the observations of Chandavarkar J., the value placed by Hindu legislators upon the chastity of a widow, at least in the eases where a re-marriage is not permitted (and a fortiori of a wife), is so high that a Court, administering Hindu law, should not, in my opinion, be deterred by such considerations or such nice distinctions from depriving her of the amount, if unchastity is really proved.
6. In the result, therefore, I am of opinion, that the finding on the third issue of the lower Court is wrong.
7. As the suit has been decided on preliminary issues, the appeal must be allowed, the decree of the lower Courts set aside, and the suit remanded for trial on the merits, after the framing of the proper issues and recording evidence. These issues will include the issue of limitation, and the Court will also consider the fact that the promissory note is not signed by defendant-appellant No. 1, though on the merits on this point as on others, I desire to express no opinion.
8. The appellants having succeeded on issue No. 3 in the trial Court will get their costs in this Court and in the District Court. Costs in the trial Court will be costs in the cause.