1. This is an appeal by the plaintiff Thakurani Jamna Kurrwar. She brought a suit in the Court below against Thakur Arjun Singh for the recovery of 'a sum of Rs. 29,000 with costs and pendente lite and future interest to be declared a charge on the property detailed at the foot of the plaint.' The allegations in the plaint were that the plaintiff's husband, Thakur Laiq Singh was a very big zamindar and taluqa, dar and the income from his zamindari property alone was Rs. 41,000 per annum. Apart from this zamindari property he was alleged to have an orchard yielding an income of Rs. 2000 per annum and money lending business on an extensive scale together with deposits in the bank of about Rs. 50,000 and ornaments of gold and silver. Thakur Laiq Singh died in November 1931 and it was said that the defendant entered into possession of the entire estate of Thakur Laiq Singh and the plaintiff, as the widow of the said Thakur, was entitled to maintenance and the Court could declare a charge on the property in the possession of the defendant. The sum of Rs. 29,000 was made up as follows:
(1) Maintenance allowance from December1931 to January 1933 at Rs. 300per mensem Rs. 4200-0-0(2)Maintenance allowance from February1933 to May 1937 at Rs. 400per mensem Rs. 20,800-0-0(3)Interest at the retrogressive rate at8 annas per cent, per mensem Rs. 4000-0-0---------------Total Rs. 29,000-0-0
2. The Court below dismissed the plaintiff's' suit and hence the present appeal before us. The pleas contained in the written statement might be mentioned in some detail. It was alleged that the plaintiff had no cause of action for the suit, that the defendant's adoptive father, the late Thakur Laiq Singh, by his will dated 29th March 1928, authorised the defendant to pay Rs. 100 per mensem to the plaintiff on the condition that she did not leave the residential place and that the same would be permissible only if the defendant refused to keep or maintain the plaintiff. The defendant alleged that he never refused to keep or maintain the plaintiff and as the plaintiff had now left the residential house and lived separately she was not entitled to any separate maintenance under the terms of the will. It was further said that the plaintiff was not entitled to file any suit for maintenance or arrears of maintenance of declaration without admitting the defendant's right and title as the adopted son of the deceased. No plea was taken to the effect that under the United Provinces Estates Act (Local Act 7 of 1920) the plaintiff was in no event entitled to maintenance at a rate exceeding Rs. 50 a month.
3. The plaintiff went into the witness-box and several witnesses were examined on her behalf. The defendant entered the witness-box on 13th December 1937 when in answer to a question by his counsel in examination-in-chief he stated that his estate, so far as he remembered, was under the Agra Estates Act. On 14th December 1937 a notification in the United Provinces Government Gazette dated 23rd liay 1930 was filed which showed that Thakur Laiq Singh of Labhua had applied to the Government under Section 3, United Provinces Estates Act 7 of 1920, for a declaration that the provisions of Part I of the said Act should apply to him, and the Governor in Council after enquiry had decided to grant the application and therefore it was being notified that the declaration was made under Section 6 of the said Act and that the provisions of Part I of the Act had been made applicable to the applicant in respect of the immovable property in which he had a separate, permanent, heritable and transferable right at the date of the notification as entered in the schedule printed below. Then a list of the zamindari property belonging to Thakur Laiq Singh was given and the revenue thereof was put down as Rs. 26,619-10-9 and the profits were put down as Rs. 41,603-8-0. This document was admitted in evidence by the learned civil Judge on 17th December 1937. No issue had been struck with reference to the United Provinces Estates Act, and indeed none could have been struck because, when the written statement was filed, no such plea had been taken. Even after the filing of the notification in the Government Gazette the defendant did not insist on any new issue being struck. It, however, appears that some argument was advanced in the Court below, but the learned Judge was of the opinion that
the amount of Rs. 50 per month would be too low and inadequate and can, by DO means, suffice to meet the expenses of the plaintiff.
4. The learned Judge also in the beginning of his judgment says:
This is an admitted fact that the deceased Thakur Laiq Singh was a big zamindar and was the owner of Labhua estate, and that his entire estate was governed by the provisions of the Agra Estates Act, 7 of 1920.
5. The admission amounts only to this that the Labhua estate was governed by the provisions of the Agra Estates Act, 7 of 1920, and not that every item of the property detailed at the foot of the plaint was governed by the Agra Estates Act. We have taken some pains to state at length the circumstances under which the notification in the Government Gazette was filed in the Court below and to mention the admissions (such as they were) made at the time of argument and the arguments (such as they were) advanced before the Court below in connexion with the provisions of the Agra Estates Act.
6. Before us, however, it was strenuously contended on behalf of the defendant that whatever our decision might be on other points, the plaintiff under no circumstances was entitled to maintenance at a rate higher than Rs. 50 a month as provided in Schedule II, Estates Act. The Government revenue of the property that came under the Estates Act was stated in the notification to be Rs. 26,000 odd and therefore the plaintiff, as the senior widow of the deceased estate holder, was not entitled to more that Rs. 600 a year. Learned Counsel for the plaintiff-appellant has contended that we should not allow this plea to be taken at this late stage because it would seriously prejudice the plaintiff. It is said that if this plea had been taken in the Court below, then the plaintiff might well have said that, so far as the estate, which is governed by the U.P. Estates Act is concerned, the plaintiff is not entitled to more than Rs. 50 a month, but so far as that property which is not governed by the Estates Act is concerned the plaintiff is entitled to something more, which might be Rs. 100 a month or Rs. 150 a month, or even more. In this connexion our attention is drawn to the list given in the Government notification and to the list given at the foot of the plaint. Items Nos. 32, 33 and 34 of the plaint do not find a place in the list given in the Government Notification and these three items are not insignificant items because they yield an income of Rs. 2000 per annum according to the plaintiff. Apart from that the plaintiff, when she entered the witness box, said that Thakur Laiq Singh had a money-lending business on which an income-tax of Rs. 800 was levied and further Thakur Laiq Singh had Rupees 50,000 in the bank and there were ornaments worth about Rs. 6000. The orchard, therefore, was income-yielding property, but money-lending business was also income-yielding property and there were those deposits in the bank. It is true that the defendant in his statement does not admit the existence of money-lending business and deposits in the bank, but better evidence could have been advanced by both parties and we would have been in a better position to find out as to how much income was derived by Thakur Laiq Singh and Thakur Arjun Singh from these several items of property. There can, therefore, be no doubt that the plaintiff would be seriously prejudiced if we were to allow this plea to be taken at this late stage; even the defendant was not quite sure if his estate was under the Agra Estates Act because the utmost to which he would commit himself on that point was that the estate 'so far as he remembered' was under the Agra Estates Act.
7. We have, therefore, come to the conclusion that the defendant is not entitled to rely on the Agra Estates Act and to say that the plaintiff was not entitled to maintenance at a rate higher than Rs. 50 a month. It was then said that the will contained the following provision regarding the maintenance of the widows of Laiq Singh.
If Arjun Singh neglects the maintenance of or obedience to any of my three wives aforesaid which might be a source of displeasure and trouble to her, the three wives or the wife affected shall have power to have a sum of Rs. 100 per mensem allotted to herself by Kunwar Arjun Singh who shall have no objection. But the condition shall be that none of my wives shall have power to give up her residential house and settle at another place in which case she shall not be entitled to the maintenance allowance aforesaid.
8. The evidence in the present case does not show that Arjun Singh was in any way neglectful of the claims of the plaintiff or that he did anything to displease or trouble her and therefore the claim to maintenance did not arise at all and, if it did arise, it was forfeited because the plaintiff was now admittedly living at a different house and had given up her former residential home.
9. It may be noted that the plaintiff did not base her claim to maintenance on the will, but on the general right of a Hindu widow to be maintained by the person in possession of her husband's estate. The plaint does not contain any reference to the will nor is there any clear admission by the plaintiff that the defendant is the adopted son of Thakur Laiq Singh, but the case was argued before us by the plaintiff on the assumption that the defendant was the adopted son of Thakur Laiq Singh and reference was made to the will by learned Counsel for both parties. On the evidence that has been produced in this case, namely, the adoption deed dated 21st April. 1924, the will dated 29th March 1928 and the fact that the property was mutated in the name of the defendant there can be no doubt that the defendant was the adopted son of Thakur Laiq Singh, and that being so the only question which we have got to decide is whether the plaintiff is entitled to maintenance and, if so, at what rate.
10. There is no suggestion that the plaintiff has lost her right to maintenance by reason of unchastity or immorality, but the argument is that the will of Thakur Laiq Singh ought to be given effect to and the condition about the widow's stay in the residential house was imperative and could not be ignored with impunity. But the wife is entitled to be maintained by her husband and a widow is entitled to be maintained by persons who may have inherited the estate of her husband. It is not open to a husband to dispose of his property in such a manner as to jeopardise the rights of his wife. If a provision is made by a Hindu husband in his will as regards the maintenance to be granted to his widow after his death, this can only be taken as a suggestion made by the husband as to what would be a reasonable provision for her maintenance and cannot deprive the Court of its power to fix a reasonable maintenance. It cannot possibly be argued that even if the husband bequeathed his property ignoring the wife's claim to maintenance absolutely, the bequest will affect the widow's claim to maintenance and will defeat her claim. The plaintiff, as we said before, did not rely on the will; it is only the defendant who relies on the will as a bar to the plaintiff's claim. We have said enough to show that we are not bound by any directions contained in the will on the point beyond the fact that the suggestions contained therein might be taken into consideration when we propose to determine the amount which, in our judgment,, appears to be adequate and reasonable.
11. It was then said that the plaintiff lost her right of maintenance out of the estate of her husband because she had left the residential house. As a pure proposition of law the contention is not tenable. It is not enjoined in the Hindu Shastras that a widow should remain in the residential house of her late hushand under all circumstances and beset by all kinds of difficulties. In Mulji Bhaishankar v. Bai Ujam ('89) 13 Bom. 218, the learned Judges referred to Vyavastha No. 226 quoted at p. 261 of Vol. I of Shama Charan Sarkar's 'Vyavastha Chandrika' where it was stated that a widow was
not entitled to maintenance by residing elsewhere, without a just cause if she was directed by her husband to be maintained in the family house.
12. The Vyavastha, therefore, is that even if there is a direction by the husband that the wife should be maintained in the family house, the direction can be ignored if there was a just cause for the wife to leave the house. There is the direction in the will that the widow should remain in the residential house and therefore we have got to see whether there was any just cause for the plaintiff to leave the residential house. This brings us to the consideration of a prior litigation between the parties. On 8th April 1933 the plaintiff brought a suit against the defendant and others repudiating the adoption of the defendant and claiming the entire estate of Thakur Laiq Singh. The suit was brought in forma pauperis, but the Court was of the opinion that the plaintiff had sufficient means to pay the necessary court-fees and ultimately the suit was dismissed because the plaintiff did not pay the requisite court-fees. We have no doubt - and this is the view of the Court below - that the plaintiff was induced to file the suit at the instance of some interested persons and the result was that feelings between the plaintiff and the defendant became strained. On 8th July 1933 Jamuna Kunwar actually filed an application in Court, when an enquiry was being made regarding her pauperism, that the defendant Arjun Singh was threatening her to give a statement as desired by him and therefore the statement of the petitioner should be recorded by a commissioner and the defendant Arjun Singh should be asked to allow the applicant to go to her mukhtar-i-am's place so as to enable her to give an independent statement. The plaintiff soon after 8th July 1933 left the residential house and has not come back to live with the defendant ever since then.
13. The question which we have got to decide is whether the plaintiff under the peculiar circumstances of the case was justified in leaving the residential house. It is pointed out that in her statement in the former suit the plaintiff admitted that she had no trouble at Thakur Arjun Singh's place and that he was providing her with all her necessities and therefore the plaintiff was herself to blame in leaving the residential house. The defendant in his statement in the present case admits that after the institution of the pauper suit relations between the plaintiff and himself were strained, that he has no personal enmity with the plaintiff because he knows that she is a very good woman, but she has been under the influence of persons who want to oust him from the estate and has been under the influence of such persons since about 1932. The plaintiff in the present case said that the defendant threatened to get her murdered, but this statement is undoubtedly an exaggeration and has been denied by the defendant. As admitted by the defendant, the house of the plaintiff, where she now resides is about two or two and a half furlongs away from the former residential house and is in the same village. We feel inclined to accept the statement of the defendant that the plaintiff has fallen into the hands of some persons not well disposed towards the defendant and they induced the plaintiff to file the former suit. The plaintiff cannot be blamed for this, but the fact remains that there was a prior litigation by which the plaintiff wanted to oust the defendant from the entire estate and the relations between the parties have become very much strained. That being so, the plaintiff felt, and rightly felt, that the former house where Arjun Singh reigned supreme was not the proper place for her to live and the plaintiff for a just cause had left the house. In Ekradeshwari Bahusin v. Homeshwar Singh ('29) 16 A.I.R. 1929 P.C. 128 their Lordships of the Privy Council held that
a Hindu widow who has left the residence of her deceased husband, not for unchaste purposes, and resides with her father, is entitled to maintenance, also 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 reason for the change of residence.
14. It is true that this case was not complicated by any direction in any will executed by the husband, but what we think to be the correct law on a matter like this is that ordinarily a widow is not bound to remain at the residence of her deceased husband in order to claim maintenance provided she does not leave it for unchaste purposes and when there is a direction in the will that she must reside at the family house the direction can be ignored for just cause, and we have held in the present case that there were sufficient grounds for the widow to leave the residential house.
15. This brings us to the question as to what would be the proper amount of maintenance, regard being had to the status of her husband and regard being had to the circumstances under which she was living when her husband was alive. It might be borne in mind that for several years during the husband's lifetime the plaintiff was not the favoured wife, and whereas Laiq Singh and his fourth wife were living together in one house the plaintiff was living in another house. She was however provided with all the necessities of life and now she is about 65, and although we do not think that the archaic injunctions of the ancient Hindu law-givers regarding the abstemious austerity of a Hindu widow's life can be or ought to be enforced in these days, we cannot lose sight of the fact that the plaintiff is an old woman who has lived all her life in a village, nor can we completely ignore the directions contained in the husband's will. He thought that Rs. 100 a month was an adequate allowance for the widow and this was the allowance which he fixed not only for the plaintiff but for his other wives as well. After having considered the case from every view point we think the plaintiff is entitled to maintenance at the rate of Rs. 100 a month.
16. We have now got to consider if the plaintiff is entitled to any arrears of maintenance. There can be ho doubt that the plaintiff, as long as she lived with Thakur Arjun Singh, was maintained by him. This was admitted in her statement in the earlier suit and this is quite clear from the allegations in the plaint where she seems to allege that she is entitled to maintenance at the rate of Rs. 400 per mensem but she could claim only Rs. 300 per month from December 1931 to January 1933 which suggests that up till that time she was getting like Rs. 100 a month from the defendant. It may be that after January 1933, when the former litigation was contemplated, the defendant began to ignore the plaintiff's right to maintenance, but we know that she did not leave the house up till 7th July 1933, and we therefore would not be justified in giving arrears for a period prior to 8th July 1933. The defendant, even after he had heard of the contemplated litigation, might well have tried to placate the plaintiff in every possible manner in order to prevent the suit, but it is quite clear that after the plaintiff left the house the defendant has not been paying any maintenance to the plaintiff. It is so stated by the plaintiff and there is no clear denial on the point by the defendant. We think the plaintiff is entitled to arrears of maintenance from 15th July 1933 at the rate of Rs. 100 a month.
17. The plaintiff claimed interest at a retrogressive rate of 8 annas per cent, per mensem from the time that the arrears fell due. Interest on such arrears could be claimed only under the Interest Act or under Section 73, Contract Act, or on equitable grounds. The plaintiff did not claim under any written instrument. As a matter of fact, she ignored the direction in the will where Rs. 100 per month was fixed as her allowance and claimed as much as Rs. 400 a month. Nor have we fixed her maintenance at Rs. 100 a month because of the will. It is clear therefore that if the plaintiff can get interest it must be because interest 'is payable by law' which may include equitable grounds. There is no law which has been pointed out to us. No demand for payment seems to have been made in writing. The only provision to which reference has been made is Section 73, Contract Act, but that can afford no justification for awarding interest merely because money has been detained. No damages have been proved to have accrued to the plaintiff because maintenance was withheld. The equitable jurisdiction of the Court is not attracted in the present case in favour of the plaintiff inasmuch as she or her supposed well-wishers have brought this trouble on herself. It appears that she was living in perfect amity with the defendant before the institution of the former suit and the suit was of her own seeking and was forced on the defendant. We think that the plaintiff is not entitled to any interest on arrears of the maintenance amount. Under Section 34, Civil P.C., we are however entitled to give interest pendente lite and future, and we think that the plaintiff is entitled to interest at the rate of 6 per cent, per annum from the date of the suit up till the date of realization.
18. It was contended that the plaintiff was entitled to her entire costs irrespective of the fact that the plaintiff had lost to a great extent at least so far as the amount of maintenance was concerned. It is true that the defendant denied the plaintiff's right to any maintenance whatsoever, but we cannot consider the defendant's attitude in this respect as amounting to contumacy sufficient to disentitle him to such costs to which he may be entitled by reason of his success. We think the ordinary rule of proportionate costs ought to apply in the present case also. The plaintiff and the defendant will pay and receive costs in the Court below as well as in this Court according to failure and success. To the extent indicated above we allow this appeal and declare that the sum decreed, which will be at the rate of Rs. 100 a month from 15th July 1933 up to the end of May 1937 with interest pendente lite and future at the rate of 6 per cent, per annum from the date of suit up till the date of realization, will be a charge on the property specified at the foot of the plaint.