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Babu Kailash Chandra JaIn Vs. Mt. Jhamola Kunwar - Court Judgment

LegalCrystal Citation
Subject Family;Property
CourtAllahabad
Decided On
Reported inAIR1945All431
AppellantBabu Kailash Chandra Jain
RespondentMt. Jhamola Kunwar
Excerpt:
- - in my judgment this distinction is a good one and justifies the finding that the allowance in the present case cannot be varied. my conclusion is that the appeals must fail and i would dismiss them both with costs......of 1941 arising out of a suit instituted by mt. jhamola kunwar to recover a sum of rs. 22,000 from kailash chand on account of arrears of maintenance for the period from 1st january 19,33 to 3lst july 1937 at the rate of rs. 400 per mensem and the other no. 342 of 1941 arising out of a suit instituted by kailash chand against mt. jhamola kunwar in order to obtain a decree that the latter's allowance should be reduced from rs. 400 per mensem to rs. 200 per mensem. mt. jhamola kunwar obtained her decree from the learned civil judge of allahabad and kailash chand's suit was dismissed. kailash chand is the appellant in both appeals and mt. jhamola kunwar is the respondent. the parties are jains.2. mt. jhamola kunwar when she was a widow entered into an agreement on 14th february 1917 with.....
Judgment:

Allsop, J.

1. We have two appeals before us, one No. 343 of 1941 arising out of a suit instituted by Mt. Jhamola Kunwar to recover a sum of Rs. 22,000 from Kailash Chand on account of arrears of maintenance for the period from 1st January 19,33 to 3lst July 1937 at the rate of Rs. 400 per mensem and the other No. 342 of 1941 arising out of a suit instituted by Kailash Chand against Mt. Jhamola Kunwar in order to obtain a decree that the latter's allowance should be reduced from Rs. 400 per mensem to Rs. 200 per mensem. Mt. Jhamola Kunwar obtained her decree from the learned Civil Judge of Allahabad and Kailash Chand's suit was dismissed. Kailash Chand is the appellant in both appeals and Mt. Jhamola Kunwar is the respondent. The parties are Jains.

2. Mt. Jhamola Kunwar when she was a widow entered into an agreement on 14th February 1917 with Kedar Nath, the natural father of Kailash Chand, that she would adopt the latter as her son on certain conditions, namely, (1) that the deeds of gift executed by her on 20th January 1916, 25th January 1916 and 25th February 1916 in favour respectively of her elder daughters, Malti Sunder Bibi and Radhika Sunder Bibi, and in favour of the Burner Chand Digambar Jain Boarding House, Allahabad, should be binding upon her adopted son, (2) that she would be entitled to make a future gift of certain specified property to her third daughter, Manorama Sunder Bibi, gifts of cash to her three daughters and a gift by way of trust of property not exceeding one lakh of rupees for any charit, able purposes, (3) that she should receive a maintenance allowance of Rs. 500 a month from her adopted son and (4) that she should be the guardian of her son so long as he remained a minor and should continue to look after the entire management of the property including a business house, shop, money-lending, etc. On the next day, that is, on 15th February 1917 she executed a deed of adoption in approximately the same terms.

3. In 1919 Mt. Jhamola Kunwar was appointed to be the guardian of Kailash Chand under the provisions of the Guardians and Wards Act. In 1924 Kailash Chand came of age and he thereupon demanded from Mt. Jhamola Kunwar an account of her conduct of his affairs and questioned her right to make certain transfers. It may be mentioned that she had made gifts in or about the year 1922 to her three daughters, to the Jain Boarding House and to a dispensary in addition to a gift made in 1918 to her youngest daughter of the properties mentioned in the deed of adoption. On 11th January 1925, Kailash Chand, Mt. Jhamola Kunwar and Mt. Jhamola Kunwar's three daughters came to terms and executed a deed of compromise. The terms were that Kailash Chand would not question the gifts made in 1916 and 1918 and the gifts made by way of charity but that the daughters would reconvey certain villages transferred to them in 1922 on payment by Kailash Chand of a sum of as. 50,000 to each of them and that the maintenance allowance payable to Mt. Jhamola Kunwar should be reduced from Rs. 500 a month to Rs. 400 a month. There were other subsidiary arrangements which it is unnecessary to set forth. Before this deed of compromise could be registered one of the daughters, Mt. Radhika Sunder Bibi, died in August 1925. We are told that there was a further compromise between her husband, Banwari Lal, and Kailash Chand in November 1925, but the disputes seem to have been revived because Kailash Chand instituted two suits in 1927 against the two daughters and against the dispensary. The result was a further compromise evidenced by a deed executed on 26th April 1927. The parties to this were Kailash Chand, Mt. Jhamola Kunwar, the two surviving daughters and the sons of the two daughters. This was in very much the same terms as the previous settlement of 1925. The daughters gave up certain property in consideration of cash payments. There were arrangements about certain cash transactions and in so far as Mt. Jhamola Kunwar was concerned Kailash Chand promised to pay her Rs. 400 a month on account of maintenance allowance and to place a house in Allahabad at her disposal. On the same date Kailash Chand executed a separate agreement to pay a monthly sum of Rs. 400 to Mt. Jhamola Kunwar during her lifetime. This allowance was made a charge upon the pro. perty in his possession. The agreements of 26th April 1927 are the basis of Mt. Jhamola Kunwar's suit and the occasion of Kailash Chand's. The main dispute between the parties was whether the rate of the allowance could be varied. The learned Civil Judge held that it could not. Learned Counsel for the appellant has quoted a number of rulings and has argued that an allowance in lieu of maintenance to be paid to a Hindu woman is always liable to be varied, but I am of opinion that the decision of the learned Judge of the Court below is right.

4. Primarily, a Hindu woman is entitled to be maintained by the family of which she is a member, that is, she has a right to claim that she shall be supplied with accommodation, food and clothing and the other necessities and amenities of life in accordance with the status and circumstances of the family. The question of paying her a sum of money periodically arises only when it becomes necessary or convenient for her to live apart from the family. Payments of this nature are properly described as an allowance in lieu of maintenance and the amounts paid must be sufficient to enable the woman to supply herself with the necessities and amenities of life which she would have been entitled to claim if she had lived with the family. It has always been held that such an allowance may be varied if the condition of the family changes. Speaking for myself I do not think that this is so much a rule of Hindu law as a rule based on the necessary implications of an agreement to pay maintenance or of a decree that maintenance shall be paid. If the agreement between the parties or the decree of the Court is that the woman is entitled to be maintained and that a certain allowance is equivalent to the expenditure which should be incurred on her maintenance according to the circumstances of the family, it is necessarily implied that the sum fixed is dependent on the condition of the family at the time when the agreement is made or the decree is passed and if the condition changes it follows that the amount of allowance must be varied. This is the rule where the only question at issue is the amount which should be paid to the woman to enable herself to maintain herself. It is a different matter when there is a dispute and where the male member or members of a family promise to pay an annuity to a woman in consideration of the settlement of disputes about other matters. The learned Judge in his judgment has made a distinction between a status grant and a consideration grant. He means, I have no doubt, by a status grant the grant of an allowance which corresponds with the expenditure which the family would be bound to incur to maintain the woman in consonance with their position in society and by a consideration grant the grant of an allowance in consideration for extraneous acts or promises made by the woman. In my judgment this distinction is a good one and justifies the finding that the allowance in the present case cannot be varied.

5. It is obvious that Mt. Jhamola Kunwar always intended to adopt Kailash Chand on the understanding that he would pay her a certain fixed allowance. Originally she claimed an allowance of Rs. 500 a month. We cannot. expect in deeds, in this country, the use of very accurate expressions and the use of a. term which may be translated by the English word maintenance does not make the allowance an allowance in lieu of maintenance in the proper sense. It is obvious that the intention was that Kailash Chand should live with Mt. Jhamola Kunwar. She mentioned in the deed of adoption that he had already lived with her for a year and a half and there is nothing to suggest that he did not continue to do so. She was appointed his guardian, as I have already said, in the year 1919. She and he were not to live apart and there was no real question of the payment of any sum to her in lieu of maintenance. It was intended that she should continue to live in the family house and to manage the affairs-of the family and there is no reason to suppose that she was not entitled to supply herself with food and clothing and other necessities and amenities out of the family income but was to expend her own allowance of Rs. 500 in order to maintain herself. At a later stage there was a dispute between her and her adopted son and her daughters and the fact that she agreed to accept an allowance of Rs. 400 a month only does not mean that she was agreeing that this sum of Rs. 400 a month represented the amount that would have been spent on maintaining her. Even in the last agreement of 1927 the appellant agreed to give her a house, besides paying her the allowance. In consideration for the agreement about the payment of allowance various other disputes were settled between the parties. In my judgment Kailash Chand's agreement was one to pay an annuity and not merely to pay certain sums from time to time to enable Mt. Jhamola Kunwar to supply herself with the necessities and amenities which he would have had to supply if she had lived with him. Learned Counsel has quoted the following cases : Rajender Nath Roy v. S. M. Ranee Putto Soondery Dassee ('80) 5 C.L.R. 18, Sheo Mangal Singh v. Bodhi Kuar ('36) 23 A.I.R. 1936 Oudh 60; Ruka Bai v. Ganda Bai ('75-77) 1 All. 594; Maheshwari Prasad v. Mt. Sahdei Kunwar , Gopikabai v. Dattatraya (1900) 24 Bom. 386; Venkatappa Nayanim Bahadur v. Thimma Nayanim Bahadur ('15) 2 A.I.R. 1915 Mad. 639 and Mt. Mukundi v. Jagannath : AIR1937All42 . In so far as they are relevant these decisions merely lay down the rule that an agreement to pay an allowance in lieu of maintenance in the proper sense is variable and that is undoubtedly the law. I think that the result of each case must turn on the terms of the agreement or the circumstances in which a decree is passed. As I have said, if the only question at the time is what sum of money represents the expenditure which should be paid on the maintenance of a woman in accordance with the condition of the family at the time, the agreement or decision may be varied, but where the woman is to be paid a future annuity in consideration of acts or agreements on her part then the annuity cannot be varied. In 5 C. L. 181 there was undoubtedly a claim by the widow to the whole estate, but the learned Judge must have held in view of the circumstances that the agreement by the widow was merely to accept an allowance in lieu of maintenance in the true sense, that is an agreement that she would give up the estate if the opposite party agreed to maintain her and to pay her an allowance which at that time was sufficient to enable herself to maintain herself.

6. Kailash Chand took the plea that he could claim the protection of the Agriculturists' Relief Act and the Debt Redemption Act if he was called upon to pay maintenance to Mt. Jhamola kunwar. It seems that there is no basis for this plea. The liability to pay maintenance cannot be described as a liability! based upon a loan because it is obvious that Mt. Jhamola Kunwar never advanced any money to Kailash Chand. My conclusion is that the appeals must fail and I would dismiss them both with costs.

Malik J.

7. I agree.

8. Both appeals are dismissed with costs.


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