1.The plaintiff was the permanent mistress of Muthu Doraiswami Thevar, who was in receipt of Rs. 700 per mensem as a rent charge on, the estate of the Rajah of Ramnad. This sum of Rs. 700 has been erroneously described in various places as an annuity, perhaps for the reason that the liability to pay it accrues annually, but it is not strictly an annuity as it is not for the duration of any one life, but is a charge on the revenues of the estate of the Rajah of Ramnad in perpetuity. The right to the rent charge was established as against the Rajah of Ramnad in a suit brought by Ramamani Ammal, the mother of Muthu Doraiswami Thevar, which went up to the Privy Council. [Vide Rajah of Ramnad v. Sundara Pandiyasqmi Thevar ILR (1918) M 581. The right has been mortgaged to a Chetty who is not a party to the present suit. The plain-tiff claimed in this suit maintenance against the 1st defendant who was the assignee from a reversioner of Muthu Doraiswami Thevar's estate, and, the 1st defendant having died during suit, the claim was continued against his son, the 3rd defendant. After Muthu Doraiswami Thevar's death, the plaintiff was responsible for other litigation before the present suit. There was a suit under the Specific Relief Act for possession of the bungalow in which she lives, and another suit for a declaration that she was a landlord in respect of certain villages which were in the possession of the deceased Muthu Doraiswami Thevar. In the first suit: she succeeded but she lost the second suit based on the footing that she was the wife and heir of Muthu Doraiswami Thevar.
2.Two questions have been argued in this appeal. Firstly, whether a concubine is entitled to maintenance against the estate of the man who kept her, and secondly, whether the rate of maintenance of Rs. 100 per mensem (with 12 years' past maintenance) is a fair rate and one to which the plaintiff is entitled.
3. On the point of law as to the right of a permanent concubine for maintenance from the family property of her de-ceased paramour the leading decision in this Court is Panchapagesa Odayar v. Kanaka Ammal : (1917)33MLJ455 . But there are a number of decisions in the Bombay High Court, viz., Khemkor v. Umiashankar (1873) 10 Bom HCR 381; Vrandavandas Ramdas v. Yamunabai (1875) 12 Bom HCR 229; Yashavantrav v. Kashibai ILR (1887) B 26; and Bai Monghibai v. Bai Nagubai ILR (1922) B 401.
4.After hearing arguments on both sides, I see no reason why we should not follow the decision in Panchapagesa Odayar v. Kanaka Ammal : (1917)33MLJ455 . The basis of the right of a concubine to be maintained is the text of Mitakshara, Chapter II, Section I, placita 27 and, 28. In these placita Vignaneswara refers to the texts of Katyayana and Narada and he states the word 'Stree' includes a concubine. It is true that the purpose with which the definition was made in this passage was in order to show that a wife was entitled to succeed to her husband's property but it is nevertheless established that the word 'woman' includes concubines in the ancient texts. The Courts have placed from time to time several limitations, conditions on the right of concubines to be maintained. In Bai Monghibai v. Bai Nagubai ILR (1922) B 401 it was made clear that the rule was not applicable to every kept woman but only to those who are continuously and exclusively kept in a man's family and are, in other words, what is known as 'Avaruddha Stree' in Sanskrit. Another condition that has been put on the right of a concubine to be maintained is, that she should be the mother of illegiti-mate children [see Khemkor v. Umiashankar (1873) 10 Bom HCR 381 and Strange's Hindu Law, Chap. VIII, p. 174]. Another is that she should be chaste and keep undefiled the bed of her lord and master. [See Yashavantrav v. Kashibmi ILR (1887) B 26 and Anandilal Bhagchand v. Chandra Bai ILR (1923) B 203. In these two latter respects, it cannot be suggested that the plaintiff has lost her right to maintenance. She gave birth to a daughter when she was being kept by the deceased Muthu Doraiswami Thevar, and it is not now suggested that she has had anything to do with other men. It has been argued by Mr. Venkatachariar that the rule in favour of the maintenance of concubines only applies to cases where there are no other heirs and, the property would otherwise escheat to the Sovereign as those are the circum-stances spoken of in the text of Katyayana. The argument that the rule is only applicable to cases of escheat was advanced before Mr. Justice Abdur Rahim and Mr. Justice Srinivasa Aiyangar, and in Panchapagesa Odayar v. Kanaka Animal : (1917)33MLJ455 . they rejected any attempt to put such a restrictive interpretation on the texts. It has also been brought to our notice that in the Saraswathi Vilasa there is no restriction of the rule to cases of escheat only. In Ramanarasu v. Buchamma ILR (1899) M 382it was held that a discarded concubine was not entitled to claim maintenance. This only amounts to saying that a man is not bound by law to keep a concubine when he does not want her, and so long as he is alive, he can put an end to the relationship between himself and a kept woman. If he dies without put-ting an end to the relationship, the presumption is that he intended the concubinage to be permanent, and as the learned Judges observed, there is a moral obligation on the part of the man's heirs to see that his concubine should not be left destitute after his death, and it has been imposed as a conditional liability upon those who succeed to his property. The question is not really so much one of the legal relationship between a man and a woman as of equity that a woman who has been kept for a number of years and given a position almost equal to that of a wife should not be left to starve after the death of the man who kept her. Thus it is a matter not of a contract during the lifetime of the parties but of obligations arising out of the personal law of Hindus as defined by their religious texts. For these reasons I am of opinion that the Lower Court's judgment allowing maintenance to the plaintiff can be maintained.
5. As for the rate of maintenance, the Lower Court fixed it at Rs. 100 a month, although the claim was for Rs. 150. The plaintiff was also given a right to reside in the bungalow where Muthu Doraiswami Thevar was living. It appears that there are two bungalows and that she has been given a right of residence in the larger bungalow. It is suggested that the maintenance of Rs. 100 might be reduced on. the ground that the plaintiff was letting out a portion of this bungalow which was more than sufficient for her use, and deriving a rent therefrom of Rs. 15 a month. That was only for a time when the bungalow was in good repair. As she is living as a single woman and has got her daughter married, the accommodation of the smaller bungalow would probably be sufficient for her, but, as a matter of sentiment, she has been allowed to occupy the larger bungalow. I am of opinion that if she would give up her present residence to the appellant and occupy the smaller bungalow in which he now lives, there would be no reason to decrease her allowance of Rs. 100 per mensem, but if she persists in living in the larger bungalow and occupying the whole of it, the allowance of Rs. 100 per mensem when she has a free right of residence besides is rather excessive and the rate of maintenance should be reduced to Rs. 85 per mensem, provided that the 3rd defendant keeps the bungalow in proper repair, and it is stated to be in bad repair now. The plaintiff is willing to repair the big bungalow at her own cost if she is allowed to remain in it and to continue-to receive Rs. 100 per mensem. The 3rd defendant will be given three months time from now to put it in complete repair and if he does so, the rate of maintenance will be reduced to Rs. 85 per mensem.
6. Muthu Doraiswami Thevar died in 1905. The Lower Court has allowed 12 years past maintenance at the same rate of Rs. 100 till 1912. From July, 1907, the plaintiff was in possession of four villages mentioned in the plaint and she has not accounted for her profits by showing how much was spent on the chattram. Periaswami Thevar, whose son married the plaintiff's daughter and managed the four chattrams villages, admits in Ex. Q that the chattram was never in his management and he did not pay any quitrent to the Rajah. The plaintiff has not accounted for the income of those villages during those five years. Under these circumstances, I am of opinion that she is not entitled to more than seven years' past maintenance and the decree will be modified accordingly, maintaining the rate of Rs. 100. In the plaint the plaintiff asked that she should be given a charge for her maintenance either on the allowance payable by the Rajah of Ramnad to the 3rd defendant or on the four chattram villages. The Subordinate Judge directed that the amounts awarded by him should be a charge on the plaint-mentioned villages and on the annuity (sic) payable by the second defendant. On Issue 7 he found that the plaintiff was entitled to this charge as the defendants had not placed before the Court any mate-rials for determining what income was required for the charity. There is no finding whether these villages were burdened with the trust or whether the whole income has been dedicated to charity. Prima facie the villages themselves cannot be made the subject of this charge, as they are trust properties or burdened with a trust. Unless and until it is found in a regular suit instituted by some one interested in the trust that the whole income is devoted to charity, the decree in the present suit must provide that the maintenance should be a charge on the surplus funds, if any, derived from these villages, and the Lower Court's decree must be amended in so far as it created a charge on the villages themselves.
7. The Lower Court has further granted a personal decree against the 3rd defendant to pay maintenance. It is not con-tended that he is personally liable. The decree must, there-fore, be, amended by directing him to pay out of the assets of, Muthu Doraiswami Thevar in his hands and by charging the amounts payable as above stated, viz., Rs. 50 on the annual rent charge as agreed to in the compromise in Sigappa Achi's suit, O.S. No. 5 of 1921, and the remainder on the surplus, if any, of the income from the villages after performing the charities.
8.The Lower Court's decree, subject to these modifications, is confirmed. The plaintiff will get proportionate costs throughout and she will be liable for the Court-fees due to Government.
9. I agree. The expression 'Avaruddha Stree' was used by Vignaneswara not only in Mitakshara, Chapter II, S. I, placitum 28 and in Chapter I, Section 8, placi-tum 22, but also explained in the commentary on verse 290 of Vyayahara Adhyaya of Yagnavalkya. So long as a woman satisfies this interpretation of the term 'Ayaruddha Stree' vide Bai Monghibai v. Bai Nagubai ILR (1922) B 401 and satisfies the condition that she remains chaste Anandilal Bhagchand v. Chandra Bai ILR (1923) B 203. I do not see any reason why she should be deprived of her maintenance.
10. I agree with the order proposed by my learned brother.