1. This appeal has arisen out of a suit by a wife against her husband in which the main relief claimed was a decree for maintenance. The Court below has decreed the suit in part, and the defendant has appealed. The plaintiff has submitted to the decree.
2. The plaintiff-respondent, Rani Jagat Pra. tap Kunwar, was a German girl, Mellita Franck by name, and a Roman Catholic Christian by religion, before her marriage with the defendant. She came out to India in December 1935 and was employed at a hotel, called Hakman's Hotel, at Mussoorie. There is nothing in the pleadings or in the evidence to show what her occupation was. The learned Judge below, however, states in his judgment that she was an 'artist.' It is possible that this observation of the learned Judge is based on some statement made by the counsel for the parties before him in the course of the trial. But it is not at all clear what sort of an 'artist' she was. She was getting a salary of Rs. 1000 per month and was allowed free board and lodging. Out of the salary of Rs. 1000 she gave to her cousin RS. 300, in other words, the net amount which came to the plaintiff as her monthly salary during the time that she was in the service of the hotel was Rs. 700. The defendant met her at Mussoorie and on 22nd August 1936, the plaintiff was converted to Sikhism--in all likelihood that is the religion to which the defendant belongs--was apparently at that time given the name of Jagat Pratap Kunwar and was married to the defendant according to Sikh rites on that date at a small hill station, situated, between Mussoorie and Dehradun, called Rajpur. The plaintiff and the defendant thereafter lived together as husband and wife at Rajpur until November 1937 when the plaintiff went to Germany. According to the statement made by the plaintiff in the witness box, of which there is no contradiction, the defendant sent for plaintiff's mother from Germany and requested her to stay in India, but, as plaintiff's mother was not willing to do so as long as plaintiff's father was living in Germany, the defendant sent the plaintiff as well as her mother to Germany and asked them to bring plaintiff's father with them when they returned to India. The plaintiff further stated in the witness box that the defendant bought return tickets for her and her mother and gave them 3000 registered marks, which according to her statement, was the equivalent of 250, and 100 in travellers' cheques. She also stated that the defendant wrote to the British Consul at Cologne requesting him to secure permission for the plaintiff's father to leave Germany and to come to India. The plaintiff further stated that the defendant asked her and her mother to bring the furniture which they had in Germany and that such furniture was brought out by them. These statements also have remained uncontradicted. The result was that the plaintiff as well as her father and mother came to India in March 1938 and brought with them whatever furniture they had in Germany.
3. The plaintiff's case was that on her return to India in March 1938 she noticed a change in the attitude of her husband, the defendant, towards her, that she was lodged, not in the house at Rajpur in which she had been living with her husband before she left for Germany, but in another house, belonging to her husband, at Dehradun and that the defendant not only ceased to live and cohabit with her but also ceased to maintain her. There was also an allegation in the plaint of cruelty and physical violence. The plaintiff claimed on these allegations that she was entitled to maintain a suit for maintenance against the defendant. The amount that she claimed was Rs. 1500 per month. It was further alleged that when the plaintiff left India for Germany in November 1937 she left the major portion of her jewellery with the defendant and that it had not been restored to her. She claimed a sum of Rs. 5000 on this account. She further asked for a decree for Rs. 6000 on account of past maintenance 'from April 1938 to September 1938.' We understand this to mean that she claimed the arrears at the rate of Rs. 1000 per month, for she alleged that the desertion took place and her cause of action arose in March 1938 and she commenced this action in October 1938. There were also a prayer that 'the plaintiff be granted any other relief which the Court thinks fit and proper.'
4. The suit was brought in forma pauperis, the permission to sue as a pauper having been obtained in accordance with the provisions of Order 33, Civil P.C., on 27th October 1938. It is stated in the judgment of the Court below that the application was not opposed either by the defendant or on behalf of the Crown and that, after full enquiry, the plaintiff was allowed to sue as a pauper.
5. It appears from an order of the District Judge, Mr. B.E. James, dated 16th January 1939, that the Civil Judge, in whose Court the suit was instituted, ordered the defendant to pay to the plaintiff a sum of Rs. 300 per month during the pendency of the suit for the plaintiff's maintenance. The order was duly communicated to the defendant's counsel, but the defendant did not comply with it. The plaintiff then sent a notice by registered post to the defendant asking him to pay to her the provisional maintenance allowance which he had been ordered to pay. Even then the defendant did not pay anything to her. The plaintiff then applied to the District Judge--as the Court of the Civil Judge was for some reason or other not functioning at that time--and the District Judge thereupon ordered that the plaintiff be authorised to realise the rents of three houses belonging to the defendant, amounting to a total sum of Rs. 240 per month, and that with regard to the balance the plaintiff should approach the Court of the Civil Judge when it began to function.
6. The only substantial plea that was raised in the written statement, which was filed on 22nd December 1938, was that the amount of maintenance claimed by the plaintiff was excessive. It was pleaded that a sum of Rs. 200 per month and a house for her residence at Dehradun 'would be more than enough.' It was alleged in para. 6 of the written statement, when it was filed, that the income of the defendant was about Rs. 27,000. When the suit came up for hearing, an application was presented on behalf of the defendant on 18th March 1939, stating that the figure of Rs. 27,000. given in para. 6 of the written statement was wrong and had been entered by mistake and praying that para. 6 of the written statement be amended by substituting the figure of Rs. 18,000 for Rs. 27,000. This application was granted by an order of the same date. It was also pleaded that under the terms of the sanad by which the estate had been granted to the defendant he was not entitled to alienate the property and that therefore no charge could be created over it. The unit came on for trial on 17th March 1939, and the defendant's counsel then made the following statement before the Court:
The plaintiff's claim is admitted in this way that the allegations mentioned in para. 8 of the plaint are not admitted, but the defendant does not challenge the plaintiff's right of maintenance allowance and her right to bring the suit. The defendant is ready to give to the plaintiff her maintenance allowance. Only the amount of maintenance allowance is in question.
Thereafter the plaintiff examined herself and her evidence was concluded on 18th March 1939. No other witness was examined on behalf of the plaintiff. The defendant produced two witnesses, his karinda Nand Kishore and his manager Ram Swarup. Nand Kishore was examined on 18th March 1989, and Ram Swamp was examined on 5th April 1939. Arguments were heard on 15th April and 17th April 1939, and judgment was pronounced on 6th May 1939. The learned Civil Judge held that, having regard to all the facts and circumstances, the plaintiff should be granted a decree for maintenance at the rate of Rs. 650 per month and for a sum of Rs. 4000 for the purchase of a car. Past and pendente lite maintenance was allowed at the rate of Rs. 500 per month. The learned Judge further directed by his decree that, in ease the plaintiff was ejected by the defendant from the house in which she was living, the plaintiff would be entitled to recover a sum of Rs. 20,000 from the defendant for the acquisition of a house for her residence. It was further decreed that a charge be created upon the defendant's property for the plaintiff's maintenance. It may be mentioned here that before instituting the suit the plaintiff had, on 2nd September 1938, sent to the defendant a notice through a lawyer calling upon the defendant to pay her maintenance at the rate of Rs. 1500 per month and also demanding Rs. 9000 on account of arrears of maintenance for the period April to September 1938. The defendant replied to this notice through a lawyer and expressed his willingness to allow to the plaintiff Rs. 400 per month and to give her a house for her residence. It was further stated in this document that the plaintiff would 'be given a car (Graham-Paige) for driving only.' One of the matters which the learned civil Judge took into consideration in coming to the conclusion that the decree should include a sum of money for the purchase of a car and a direction that the plaintiff should be entitled to a certain sum of money for the purchase of a house if she was ejected by the defendant from the house which she was occupying, was this reply of the defendant to the plaintiff's notice. As has already been stated, the plaintiff has submitted to the decree. The defendant's appeal was filed in this Court on 9th August 1939. Although the relief prayed for in the appeal was that the decree the Court below be modified, it appears, having regard to the valuation put upon the memorandum of appeal and the court-fee paid thereon--which was in accordance with the amendment which had by that time been made in the Court-fees Act in respect of claims for maintenance--that the entire decree was attacked by the appeal. The points raised in the memorandum of appeal were that the amount of maintenance fixed by the Court below was excessive, that no decree for past and pendente lite maintenance should have been passed, that the Court was wrong in granting to the plaintiff a decree for a sum of money for the purchase of a car and in respect of a house for residence and that no charge should have been created.
7. One of the contentions raised before us on behalf of the defendant-appellant has been that the respondent is an 'alien enemy.' Objection was raised on behalf of the respondent that this point could not be raised at this stage. It is necessary to state certain facts in order that the merits of this controversy might be appreciated. The appeal was filed by Mr. Mukhtar Ahmad. It came up for hearing on 10th November 1943, and was argued by Mr. Mukhtar Ahmad for an hour and a half. No such contention was raised on that day. The Court was closed on 11th November 1943, on account of Kartik Purnima and the appeal accordingly came up on 12th November 1943, as a part heard case. Dr. S.N. Sen then appeared before us and stated that the appellant's brief had been offered to him and asked for an adjournment in order that the appellant might be able to instruct him properly. This was a somewhat unusual request, but, as Dr. Sen rarely makes any request for adjournment and as the assistance which the Court gets from him is always valuable, we granted the adjournment prayed for. The case then came up for hearing on 24th November 1943. It then transpired that the appellant had failed to instruct Dr. Sen and he sought permission to withdraw hia name from the case. Mr. Mukhtar Ahmad thereupon resumed his arguments and it was then that he not only raised the contention mentioned above but put it in the forefront of his arguments. It is, of course, obvious that no such contention could have been put forward in the Court below or in the memorandum of appeal for war was not declared until sometime after the appeal had been filed in this Court. Learned Counsel for the respondent, however, complains that the point was not raised by a proper application during the four years and more that have elapsed since the war commenced, as could and should have been done. The point that is taken by the respondent's counsel is that, if that course had been followed by the appellant, the respondent would have had proper notice of the appellant's intention to raise such a contention. It is further complained that no such argument was even hinted at when the ease was argued on 10th November last. It is also pointed out that this is not a pure question of law but a mixed question of fact and law. These objections of the respondent's counsel are not without force. We have, however, allowed the point to be raised and argued.
8. The definitions of 'alien' and of 'alien enemy' are given in vol. I of Halsbury's Laws of England (Hailsham Edition). An alien is a person who is not a British subject (para. 750). A British subject is a person who is a natural, born British subject, or to whom a certificate of naturalisation has been granted, or who has become a subject of His Majesty by reason of any annexation of territory, or who is the wife of a British subject while he remains a British subject (para. 751). An alien enemy is one whose sovereign or state is at war with the Sovereign of England, or one who is voluntarily resident or who carries on business in an enemy's country even though a natural-born British subject or a naturalised British subject (para. 754).
9. At the very threshold of his argument, Mr. Mukhtar Ahmad was faced with the difficulty that there were no materials on which he could rely in proof of facts which alone could form the basis for the argument that the respondent was an alien enemy. On the contrary he had to concede that it was settled law that a woman upon her marriage acquired the domicile of her husband. He had recourse, however, to two arguments in order to solve the difficulty. The first argument was that the moment the husband deserted his wife--and it is the plaintiff's own case here that she was deserted by the defendant--the original domicile of the wife automatically revived and the domicile acquired by her upon her marriage came to an end. It was contended that the plaintiff-respondent must therefore be treated now as a person having a German domicile. In support of this startling proposition, reliance was placed on footnote (m) to para. 293 in Vol. VI of Halsbury's Laws of England, Edn. 1, p. 192. The portion of the footnote on which reliance is placed runs as follows:
'The doctrine that the domicil is necessarily that of the husband...is founded on the duty of the wife to live with her husband, but also on the presumption that he will be faithful to his marriage vow' Le Sueur v. Le Sueur (1876) 1 P.D. 139 at p. 141). Applying this e reasoning, Sir B.J. Phillimore expressed the opinion that after the husband's desertion the wife may acquire an independent domicil; and see Dolphin v. Robins (1859) 7 H.L.C. 390, per Lord Cranworth, at pp. 416-419.
We consider it sufficient to say that the footnote does not support the argument and that neither Sir Robert Phillimore nor Lord Cranworth have said anything upon which an argument, that as soon as the husband chooses to desert his wife the domicile which the wife has acquired as a result of her marriage ceases to exist and her pre-marriage domicile automatically comes into existence, can be rested. As has been stated in the footnote itself, all that has happened is that an opinion has been expressed that after the husband's desertion the wife is at liberty to acquire an independent domicile, and not that she goes back to her own domicile by operation of law. It is further to be noted that, even if that opinion is looked upon as settled law, the independent domicile which the wife may acquire need not necessarily be the domicile which she had before her marriage. We have examined both the cases mentioned in the footnote relied upon and we are unable to see that there is anything in those cases which can support the argument advanced before us. Reference may in this connexion be made to the elaborate and instructive judgment of their Lordships of the Privy Council in Attorney-General for Alberta v. Reata E. Cook (1926) 1926 A.C. 444. The second argument of Mr. Mukhtar Ahmad was that the plaintiff-respondent has been interned by the Government of India and must therefore be now treated as an alien enemy. The first answer to this argument is that there is nothing on the record to substantiate the allegation that the plaintiff-respondent has been interned. In the second place, we are not able to see what justification there is for the contention that the mere fact--if there be such a fact--that a person has been interned converts that person into an alien enemy. Learned Counsel has sought to derive support for his proposition from a sentence in the judgment of Walsh J., in Angelina Reiffsteck v. Joseph George Reiffsteck (17) 4 A.I.R. 1917 All. 374. That was a case in which the wife had petitioned this Court for judicial separation on the grounds of cruelty and desertion. In the course of the proceedings the wife applied for an order directing the summons, together with a copy of the petition which had been filed for judicial separation, to be sent to the Divorce and Admiralty Division of the High Court of Judicature in England for transmission to the foreign office for service upon the respondent who was a German. The learned Judge stated in his order that the wife was of course a German by reason of her marriage and that he had some doubt as to whether he ought to make an order in her favour, she being the subject of a state at war with Great Britain. The learned Judge then referred to the decisions in England and to Section 83, Civil P.C., and proceeded:
The petitioner is carrying on business on her own account in Lucknow in the name of her husband, and I think I am entitled to take judicial notice of the fact that she has not been interned and is therefore residing in Lucknow with the permission of the Government of India.
It is the latter half of this sentence on which reliance is placed, the argument Being that the present is a converse case and that as the plaintiff-respondent has been interned she must be treated as an alien enemy. We are not able to see how the observation of Walsh J. quoted above can support the argument presented to us. Learned Counsel was also not able to make it clear to us what, according to him, should be done even if it is taken for granted that the plaintiff-respondent is an alien enemy. He had to concede that all that Section 83, Civil P.C., lays down, so far as this point is concerned, is that alien enemies residing in British India without the permission of the Governor-General, or residing in a foreign country, shall not sue in the Courts of British India, and that it is settled law that an alien enemy is entitled to defend if any proceedings are instituted against him. Even if the respondent is an alien enemy, it is Mr. Mukhtar Ahmad's client who has instituted an appeal against her. Mr. Mukhtar Ahmad admits that the respondent is entitled to defend the appeal. He argues, however, that even though the respondent must be allowed the right to defend the appeal, the decree of the Court below must be set aside and the appeal of the defendant must be allowed and the suit dismissed on the sole ground that the respondent is an alien enemy. This is a position which we have not been able to appreciate. An alternative argument was put forward to the effect that, in any event, the operation of whatever decree is passed in favour of the respondent should be postponed until after the termination of the war. No authority has been cited in support of this contention and, in our opinion, it has no force.
10. It may be mentioned that by the time the respondent's arguments were finished Dr. Sen was instructed by the appellant and he addressed us in reply to the respondent's arguments. He merely endorsed Mr. Mukhtar Ahmad's arguments on the question whether the plaintiff-respondent should be treated as an alien enemy and did not throw any fresh light on the point.
11. As has already been stated, the whole argument really fails on the preliminary ground that there is absolutely no foundation for the allegation that the respondent is an alien enemy. Learned Counsel for the plaintiff, respondent has referred to the illuminating judgment of Lord Reading in the leading case in Porter v. Freudenberg (1915) 1 K.B. 857. In view of the fact, however, that there is nothing to show that the plaintiff-respondent is an alien enemy, we do not consider it necessary to say anything further on the point.
12. The next contention raised is with regard to the amount of the maintenance decreed by the Court below and with regard to the propriety of that portion of the decree which deals with the purchase of a motor car and with the house. It has been sought to be made out that the yearly income of the defendant is Rs. 18,000 only and it has been argued that a decree for the payment of Rs. 7800 per annum as maintenance to the plaintiff is an unreasonable decree. Reliance has been placed by learned Counsel for the appellant on the case in Mahesh Partap Singh v. Dirgpal Singh ('99) 21 All. 232. He has also referred to Rajanikanta Pal v. Sajanisundaree Dassaya .
13. The principles upon which the amount of maintenance should be determined by the Courts are not in doubt. To quote from the earliest ruling to which we have been referred, a question of this nature
involves equitable considerations that must of necessity be affected by the peculiar circumstances of each individual case : Narhar Singh v. Dirgnath Kuar ('78-80) 2 All. 407 at p. 409.
In Baisni v. Rup Singh ('90) 12 All. 558, it was held that
in estimating the amount of maintenance which should be allowed to a Hindu widow out of her husband's estate, regard should be had to the value of the estate as gauged by the annual income derivable therefrom, to the position and status of the deceased, and to the position and status of the widow, and the expenses involved by the religious and other duties which she has to discharge.
In Ekradeshwari Bahuasin v. Homeshwar Singh ('29) 16 A.I.R. 1929 P.C. 128, their Lordships of the Privy Council, dealing with the argument that it was difficult to find any legal principle upon which the maintenance allowance had been fixed, observed as follows:
Upon this last their Lordships observe that it may be so, for the simple reason that 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 and 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. In short, it is out of a great category of circumstances, small in themselves, that a safe and reasonable induction is to be made by a Court of law in arriving at a fixed sum.
The discretion exercised in making this induction when agreed to by two Indian Courts, or even by one, should not be lightly interfered with.
Lower down in that judgment their Lordships referred to the fact that the Courts in India had fixed the maintenance allowance of the widow at Rs. 4200 per annum and that the Subordinate Judge in doing so had said this:
This sum, I think, would enable the lady to live, as far as may be, consistently with the position of a widow, in something like the same degree of comfort and with the same reasonable luxury of life as she had in her husband's lifetime.
After quoting this sentence from the judgment of the Subordinate Judge their Lordships observed as follows:
That is as near to principle as can be got in such cases, and, with the addition to be presently noted, their Lordships entirely approve of that view. The addition is this : that there may be circumstances in which the past mode of life of the widow has been demonstrably on a penurious and miserly scale, or on the other hand, on a quite extravagant scale, having regard to the total income of the husband. But if, as may be readily assumed, in such a case as the present the scale was suited to his own position in life that is a sound point from which to start the estimate.
These views were reiterated by their Lordships in their judgment in Rajanikanta Pal v. Sajanisundaree Dassaya mentioned above. We may also refer to the case in Dalel Kuawar v. Ambika Partap Singh ('03) 25 All. 266. In that case the total rental of the property was about Rs. 6000 a year and this Court fixed the amount of maintenance with which the widow was to be credited in the accounts at Rs. 150 per mensem or Kupees 1800 per annum.
14. The principles governing the determination of the amount of maintenance being as stated above, it only remains to point out that the present is not the case of a Hindu widow, that the defendant deliberately married a girl whose mode of life was very different from that of the average Hindu girl, and that there is evidence to show what the standard maintained by the defendant was when the plaintiff was living with him, and to find out from such evidence as we consider to be credible what the income of the defendant really is. Learned Counsel for the appellant has criticised the method adopted by the Court below in estimating the income of the defendant. We do not consider it necessary to deal with these criticisms, for, in our opinion, a decision can be arrived at upon the evidence led by the defendant himself. The Manager, Ram Swarup, has stated that 'the entire income of the defendant's estate is Rs. 46,000 a year.' Ram Swarup then proceeds to detail the heads under which, according to him, deductions should be made from that sum of Rs. 46,000 in order to arrive at the net profits. It is hardly necessary to point out that Ram Swarup's natural inclination is likely to have been to exaggerate the amounts under these heads. We shall, however, take his own figures. They are as follows:
Government Revenue ... Rs. 15,550Income-tax ... Rs. 835Notified area and Municipal taxesat Dehradun and Hathras ... Rs. 900Collection charges ... Rs. 6000Expenses of two temples ... Rs. 1140Allowance to defendant's sister ... Rs. 6000Expenses of litigation ... Rs. 3000___________Total Rs. 33,425
That some of these figures are grossly exaggerated (e.g., collection charges, expenses of the temples and the expenses of litigation) admits of no doubt. But, deducting the total amount which this witness wants to be deducted from the annual income, we arrive at the result that the net profit of the defendant is Rs. 12,575 per annum. We may repeat that this is the result after every conceivable deduction has been made. We may also point out that it is not suggested that the defendant has got any obligations other than the obligation to support the unmarried sister and that the allowance given to that sister has already been deducted. That being so, we are unable to hold that the sum of Rs. 7800 per annum decreed by the Court below is excessive. As the learned Civil Judge has pointed out, ac cording to the evidence given by the defendant's own witness Ram Swarup, the plaintiff even after the defendant had ceased to live with her, was allowed a bungalow at Dehradun for her residence, eight servants, a motor driver and a supervisor of the household as well as a Dodge motor car. The salaries paid to the servants mentioned above total Rs. 150 per month. Our conclusion is that, in view of all the circumstances of this case, the amount of maintenance fixed by the learned Civil Judge is by no means excessive. We may note in passing that the fact that the defendant pays a sum of Rs. 500 per month as pocket money to his unmarried sister is of considerable significance. Any one who is able to do that is certainly able to pay Rs. 650 per month to his wife whom he has deserted. We may repeat that this is not a case in which a Hindu widow is suing the relations of her deceased husband in possession of his property for maintenance. It may also be pointed out that when a man with his eyes open marries a girl accustomed to a certain style of living, he undertakes the obligation of maintaining her in that style. There is also the fact that what, in many cases, might have been ample in the eighties and the nineties of the last century, or even during the early part of the present century, will not now enable even a Hindu widow to keep body and soul together. For the reasons given above, we are unable to accept the argument that the amount of maintenance fixed by the Court below should be reduced.
15. The next matter that has to be considered is the propriety of the decree in respect of the ear and the house. The argument of the appellant is that the Court below has, in respect of these matters, granted to the plaintiff a decree in excess of what the plaintiff herself claimed. On behalf of the plaintiff-respondent it is urged that a house and a car must be treated as forming part of maintenance and that the Court below was justified in passing the decree that it did. It is further argued that, in any event, these portions of the decree come within the general relief claimed in Clause (e) of para. 18 of the plaint, and it is pointed out that, as a matter of fact, a Court is entitled to pass a decree in respect of such matters even if a relief of the nature claimed in Clause (e), mentioned above, is not specifically prayed for, and reference is made to Order 7, Rule 7 of the Code. It is contended that it is quite possible that, if the Court below had not incorporated these matters in its decree, it would have fixed the amount of monthly maintenance at a higher figure than Rs. 650. It appears to us that there is force in these arguments. It cannot be denied, and has not been denied, that the plaintiff has to be provided with a house for her residence. Even in the written statement, it was admitted that the plaintiff should get a house at Dehradun for her residence. In our judgment the provision of a house for the residence of the person found entitled to maintenance must be treated as a part of the maintenance which has to be provided to that person. As to the car, it stands, in its essence, in all the circumstances of this case, on the same footing as any other article of furniture which is necessary to enable the lady to live in something like the same degree of comfort and with the same reasonable luxury of life as she had when she was living with her husband. It appeers to us that there is every probability that the Court below, if the point had been raised before it and if it had decided not to incorporate these matters in the decree, would have fixed the amount of monthly maintenance at a figure higher than Rs. 650. In our judgment the appellant's argument that the Court below has passed a decree in respect of matters about which it was not entitled to pass any decree fails on both the grounds contended for by the respondent's counsel. The position then being that the Court below has not passed a decree which was beyond its competence, there remains only the question of the propriety of the manner in which it has exercised the discretion that it undoubtedly had under the law. In all the circumstances of this case, we see no reason whatsoever to interfere with that discretion.
16. There was an argument advanced on behalf of the appellant that past maintenance should always be decreed at a rate lower than the one at which future maintenance is allowed. Even if it be admitted for the sake of argument that this is so, it is apparent that the decree passed by the Court below in respect of past maintenance is at a lower rate than the rate at which future maintenance has been allowed. There is no ground whatsoever for interference with the decree of the Court below under this head.
17. The only other question which remains for decision is the question whether the Court below was justified in declaring that the defendant's property shall be charged with the plaintiff's maintenance. Learned Counsel for the appellant has contended that the property in the possession of the appellant is not alienable. It may be stated here that the defendant is the son of one Mahendra Pratap Singh who was found to have treasonably allied himself with and assisted His Majesty's enemies in the Great War of 1914-18. He was a fugitive from justice and by Act No. 24 of 1928 the entire estate of Mahendra Pratap Singh was forfeited unto His Majesty. By the same Act, Section 3, the Governor. General in Council was required to grant, as soon as may be, the property to Prem Pratap Singh, the defendant-appellant before us, and the Governor-General in Council was authorised to impose such provisions, restrictions, conditions and limitations over upon the grant as he might think fit. In pursuance of this enactment, the estate was granted to the defendant-appellant by a Sanad dated 7th September 1924. Reliance is placed on behalf of the appellant on condition No. 4 laid down in the Sanad. It is as follows:
That neither he nor his heirs shall, during the lifetime of Mahendra Pratap Singh, alienate any of the said properties, that is to say, either the estate, right, title, interest, claim and demand hereby granted to him and his heirs, or any property that may have accrued to him and his heirs as a member of a joint Hindu family without the sanction in writing of the Government of the United Provinces of Agra and Oudh.
The contention is that the charge created by the decree of the Court below comes within the prohibition contained in this condition. In our judgment this argument is without force. There is no evidence on this record as to whether Mahendra Pratap Singh is still alive. Appellant's learned Counsel has contended that under Section 107, Evidence Act, the burden of proving that Mahendra Pratap Singh was dead would lie on the plaintiff, if it was her case that he was no longer alive. That is so. In these circumstances we must proceed on the footing that Mahendra Pratap Singh is still alive. It appears to us, however, that the argument that the Court below could not declare a charge for the plaintiff's maintenance on the defendant's property because of this condition in the Sanad is not well-founded. What is prohibited is alienation by Prem Pratap Singh and not the creation of a d, charge by the decree of a Court. Arguments were also addressed to us on the question whether a charge is a transfer within the meaning of the Transfer of Property Act. In view, however, of the decision at which we have arrived, namely, that the creation of the charge by the decree of the Court does not amount to an alienation by the defendant-appellant, it is not necessary to discuss that question. As to whether the Court below was right in holding that it was necessary to create the charge, it is sufficient to say that the whole conduct of the appellant, as disclosed by the entire evidence in this case, and particularly by the facts mentioned in the District Judge's order dated 16th January 1939, to which we have referred above, amply justifies the creation of the charge. The result is that the decree passed by the Court below is correct and must be affirmed. The appeal is accordingly dismissed with costs.