1. In Appeal No. 82 of 1906.
2. The plaintiff, a widow, sues the defendants, her sons, for maintenance. She prays that her maintenance may be charged on certain immovable property situated within the local limits of the original jurisdiction of the High Court.
3. Her suit is dismissed on the ground that the High Court has no jurisdiction to entertain the suit.
4. The question is whether the suit is for land within Clause 12 of the Letters Patent. It is contended that suits for the recovery of possession alone fall within the clause.
5. The High Court of Calcutta has held that suits to establish title to land, suits for foreclosure, sale, redemption and suits for specific performance of contract for sale for land, are suits for land, and in a judgment in which the question was fully considered, Mitra, J. held that a suit for sale is a suit for land, following certain Calcutta decisions. See Nalam Lakshimikan tham v. Krishnaswami Mudaliar 27 M. k157 and the Calcutta cases referred to therein; also, The Dehli and London Bank v. Wordie 25 W.R. 272 Sreenath Roy v. Gaily Dass Ghose 5 C.n 82; Land Mortgage Bank v. Sudurudeen Ahmed 19 C.p 358 note.
6. In Bombay in the cases reported in Venkaba Balshet Kasav v. Rambhaji valad Arjun 9 B.H.C.R. 12; His Highness Shrimant Maharaj Yashvantrav Kalkar v. Dadhqbhai Cursetji Arshburnev 14 B.k 353 the Judges took the contrary View but in Sorabji Cursetji Sell v. Rattonji Dassahhoy 22 B.k 701 Strachey, J. expressed his opinion that in the absence of authority upon the point he should have had great difficulty in holding that a suit for foreclosure is not a suit for land. The authority of these decisions is considerably shaken if they are not overruled by the later decisions in Vaghaji Kuverji v. Camaji Bomanji 29 B.k 249.
7. The decisions of the Calcutta High Court are based on the ground that any suit in which a decree is asked for operating directly on the land is a suit for land. This is in accordance with the principle, that all questions relating to land should ordinarily be decided by the Court, within the limits of whose jurisdiction it lies. We are, therefore, inclined to hold that a suit which prays for any relief with reference to any specific property is a suit for land.
8. The plaintiffs' right of maintenance is not meraly a personal obligation. It is a real right but it is not a charge or any other proprietary right until it is referred to specific property by contract or decree.
9. Where, therefore, in a suit for maintenance the plaintiff only prays for a decree charging her maintenance on ancestral property without specifying any particular portion of that property, the suit may not be a suit for land as she does not claim any relief against any specified property. But where she claims to have her maintenance made a charge on specified immovable property, we are of opinion that she prays for a decree to operate directly on the land. The decree to be passed if she succeeds is a decree against that property. If the defendant fails to pay her decree debt, it may be sold, if the decree is so framed, for the purpose of discharging the same. We are, therefore, of opinion that the suit is 'for land.'
10. The only question that remains for consideration is the rate of maintenance. There is evidence that during her husband's lifetime the plaintiff was living apart and under Exhibit (C) she was to get for her maintenance a sum of Rs. 50 (fifty) a month. Since then she has become a widow. The sum of Rs. 250 (rupees two hundred and fifty) which the father jagirdar paid to the family has been reduced to Rs. 160 (rupees one hundred and sixty) and there has been litigation in which the members of the family were involved. Taking these circumstances and the state of the family in to consideration, we think that maintenance may be awarded at the rate of Rs. 40 (rupees forty) a month. The plaintiff is also entitled to arrears of maintenance for three years prior to date of suit at that rate.
11. The maintenance accruing due from this date will be payable on or before the 10th. of every month.
12. We, therefore, pass a decree for maintenance at the above rate and direct that such maintenance as well as arrears be made a charge as prayed for on the property specified in the plaint.
13. The arrears decreed will be paid in three equal instalments, the first instalment to be paid on or before the 15th November next and the other instalments at intervals of four months from that date. We further direct that on default the said property may be sold in execution to discharge the amount due. Both parties will pay and receive proportionate costs throughout.
14. In Appeal No. 85 of 1906.
15. At this stage, it is unnecessary to make the purchaser who is bound by the decree in the suit or appeal a party. The appeal is, therefore, dismissed.