1. The plaintiff in this case is the widow of a deceased brother of the defendant. It appears that the plaintiff's husband died during the lifetime of his father. The first paragraph of the plaint alleges that, under the Will of their deceased father, the defendant and his brothers took certain property subject to a charge of Rs. 36 a year in favour of the plaintiff. The second paragraph of the plaint states that, in virtue of an agreement therein referred to, the defendant was bound to pay to the plaintiff Rs. 12 a year out of the Rs. 36 a year already referred to An examination of this agreement shows that the defendant and his brother, in distributing this share of Rs. 36 per annum amongst themselves, expressly referred to it as an allowance for the maintenance of the plaintiff. It is quite clear that the money in respect of which the suit is brought is claimed as part of an annuity due to the plaintiff. The only point about which there can be any controversy is whether this annuity is of such a nature as to make a suit for the recovery of the portion of it a suit relating to maintenance within the meaning of Article 38 of Schedule II to the Provincial Small Causes Courts Act IX of 1887.
2. The suit was filed in a Court of Small Causes, and no objection to the jurisdiction of that Court was taken by the defendant The application now before me assails the jurisdiction of the Court below to entertain this suit. The point ought certainly to have been taken in that Court but at the same time, I am not prepared to hold that jurisdiction can be conferred by consent of parties. I think that, if the plea had been taken as it ought to have been, it is exceedingly probable that the Court below would have regarded the question as at least so far open to doubt as to warrant an order under Section 23 of Act IX of 1887. I think the defendant, who is the applicant before this Court, is entirely to blame for the necessity he has been under of bringing this question of jurisdiction before this Court, and that notice should be taken of this fact in the Court's order as to costs. I am of opinion, however, that the suit is one the cognizance of which by a Court of Small Causes was barred by Article 38 aforesaid. I do not see that this conclusion can be assailed by any line of reasoning which would not involve raising in the alternative, the question whether the jurisdiction of the Small Cause Court was not barred by Article 11 or Article 28 of the same Schedule, On behalf of the plaintiff I have been referred to two cases of this Court, Mahadeo Rai v. Deo Narain Rai 2 A. L. J. 697: A. W. N. (1905) 137. and Masum Ali v. Mohsin Ali A. W. N. (1890) 201. Both cases are dearly distinguishable. In the former the claim was for arrears of an allowance originally granted in favour of one person, by a plaintiff who claimed to be entitled to continue in receipt of that allowance as the heir of the person in whose favour the allowance had originally been granted. Either, therefore, the plaintiff was not entitled to this money at all, or he could not be said to be entitled to it as maintenance; for a maintenance allowance necessarily comes to an end with the death of the person in whose favour it was granted. In the other case the learned Judge of this Court who decided it laid great stress upon the fact that the circumstances of this suit were such that neither the right of maintenance nor the amount of maintenance were matters in issue requiring determination in that case. In the present case the question of the plaintiff's right to receive this annuity required determination and has been determined by the Court below. If, therefore, this annuity was of the nature of a maintenance allowance, the cognizance of the Court of Small Causes was barred: In my opinion it was so barred. I set aside the decree of the Court below and in lieu thereof direct an order to be passed returning the plaint for presentation to a regular Civil Court having jurisdiction to entertain the same. The defendant will in any event bear all costs hitherto incurred in the Court of First Instance and his own costs of this application. The plaintiff's costs of this application in this Court will abide the result of the suit.