Chandra Reddi, J.
1. The defendant in O. S. No. 31 of 1944 on the file of the District Munsif, Dindigul, has preferred this second appeal against the decree and judgment of the Sub-Judge of Dindigul.
2. A suit was brought by the defendant's husband for cancellation of a document styled as deed of maintenance 'executed on 9-6-1919' settling some properties upon her for life and for recovery of possession thereof. This document was 'executed on 9-6-1919' by the plaintiff in favour of the defendant in the following circumstances. The plaintiff and defendantwere married in or about the year 1916. A few days prior to their marriage the plaintiff executed an agreement in favour of the defendant's father whereunder he agreed to execute a document conveying some properties mentioned therein for her life as a provision for her maintenance within a week of the marriage. But effect was not given to this agreement within a week of the marriage. Subsequently misunderstandings arose between the wife and the husband which led to the plaintiff taking a second wife. Consequent upon this, the defendant prevailed upon the plaintiff to execute Ex. D-2, under which some properties were gifted to her for life for her maintenance. Ever since she was living separately and enjoying the suit lands.
3. In or about the beginning of 1941 the present defendant instituted O. S. No. 114 of 1941 in the Court of the District Munsif of Dindigul for an injunction restraining her husband, the present plaintiff from interfering with her enjoyment of the land gifted to her under D-2 and for recovery of the price of the paddy carried away by her husband, damages for the removal of crops from the land. The suit was contested by the then defendant 'inter alia' on the ground that his wife was not entitled to continue in possession of the property for the reason that she was leading an unchaste life and that in any event as a result of her having been divorced by him by pronouncing talak, the relationship of wife and husband ceased to exist and there was no obligation on his part to maintain her. Negativing these contentions, the trial Court decreed the suit.
4. The matters did not stop there On 2-9-1943, the present plaintiff who was anxious to recover the properties from his wife, pronounced again talak and thereby brought about dissolution of marriage between them. Following upon this he filed the present suit for cancellation of the document of 9-6-1919 and for recovering possession of the suit property. In answer to this, the appellant raised several pleas, the chief of them being that the decision in O. S. No. 114 of 1941 operated as 'res judicata' and that in any event she was entitled to enjoy the properties for her life under the terms of the document, D-2. The trial Court dismissed the suit accepting both the contentions raised on behalf of the defendant. On appeal the lower appellate Court came to a contrary conclusion on both the aspects and decreed the suit. Hence this second appeal.
5. In this second appeal two points arise for determination, namely, whether the present suit is barred by reason of the judgment in O. S No. 114 of 1941 and secondly whether as a result of the divorce, the plaintiff is entitled to recover possession of the property from the defendant. As regards the first point though the reasoning of the learned Judge in coming to the conclusion that the decision in O. S. No. 114 of 1941 did not operate as 'res judicata' is not acceptable, I agree with him that that decision cannot have the effect contended for by the appellant. The cause of action for the earlier suit is altogether different from the one for the present suit and, therefore, the rule of 'res judicata' has no application to the case. I, therefore, hold that the contention based on the plea of 'res judicata' cannot be accepted.
6. But as regards the other point I have to differ from the lower appellate Court and hold that the plaintiff cannot dispossess the deft.for the following reasons. For an appreciation of the issues involved in this appeal it is necessary to refer to the relevant terms of the document, D-2.
'Since I have married another wife without your consent and since you have asked me several times to make provision for your maintenance and since I have left for your maintenance the undermentioned properties worth Rs. 800 in pursuance of a panchayat by persons of our caste and others, and put you in possession of the same this day, you shall enjoy the said properties during your life time by residing in the house and taking the produce of the land, without alienating or encumbering the said properties by way of a mortgage, othi, sale etc, I and my heirs shall take the said properties after your lifetime :'
6. The question for consideration in this second appeal is whether the wife can continue to enjoy the property vested in her under this document in spite of the divorce brought about by the husband by pronouncing talak. Mr. Seshadri, learned counsel for the respondent contends that though the document recites that the wife is given a life interest in the property, it had come to an end the moment the relationship of wife and husband ceased to exist consequent upon the pronouncement of talak. According to him under the Mahommadan law the effect of divorce is to put an end to any right which the wife has for maintenance, there being no longer liability on the part of the erstwhile husband to maintain the woman who was his wife prior to the divorce. He sought to support the judgment of the lower appellate Court by citing to me several decisions which lay down the proposition that the rate of maintenance agreed to be paid to a Hindu wife can be varied in altered circumstances, and also some rulings which held that a wife who had forfeited her right to maintenance on account of her immorality could not claim maintenance in spite of written agreement to pay her maintenance.
7. But those decisions do not furnish any assistance for this case. Here the question is not whether she is entitled to get maintenance after the marriage is dissolved but whether the plaintiff is entitled to divest the property which had already vested in her under D. 2 by the reason of the divorce. There is a well marked distinction between a case where a wife seeks to recover maintenance from her husband after forfeiting that right for some reason or other and a case where the husband seeks to get back possession of the property given to her for her life on the ground that she is not entitled to any maintenance. That distinction is well brought out in the following passage of the judgment of the Privy Council in 'Lakshmichand v. Anandi', 57 All 672, 'What the widow has been given in the present case is not maintenance but the income of an estate specially created for her by the two brothers. The nature of that estate has already been determined by this Board in the previous case between the parties.' It is clear that the right to receive maintenance is very different from vested interest in the property. If this distinction is remembered there will be absolutely no difficulty in answering the question arising in this case.
8. In this context I might also refer to the decision of Abdur Rahman J. in 'SubbayyanChettiar v. Ponnuchami Chettiar', : AIR1941Mad727 , where certain properties settled upon the wife for being enjoyed for her maintenance were sought to be recovered on the ground of her subsequent unchastity. The learned Judge observed that when once the property had vested in her it could not be divested on account of her subsequent unchastity. Referring to the cases quoted before him which laid down the general proposition that a wife who was leading an unchaste life was not entitled to maintenance, he observed that those decisions had no. bearing on a case where some properties were settled upon the wife for maintenance, the only question to be determined in such case being whether she should be divested of the properties on account of her subsequent unchastity. With great respect I agree with this proposition of law. On this reasoning I must hold that the view of the lower appellate Court is wrong.
9. In this view of the matter it is not necessary to consider whether D. 2 was executed in pursuance of the terms of D. 1 and should therefore be treated as an anti-nuptial agreement executed by the husband in favour of his father-in-law and comes within the ruling in 'Md. Muinuddin. v. Jamal Fatima, 43 All 650' which laid down that such an agreement is not void as it is not opposed to public policy.
10. Next Mr. Seshadri urged that though on the face of it Ex. D. 2 is a document conferring a life estate on the defendant in the suit properties I should read into the terms of the document a condition namely that the defendant could enjoy the properties only so long as she was the wife of the plaintiff and the period of enjoyment should come to an end the moment that relationship ceased to exist. I do not think there is any warrant for reading such condition into a document which is opposed to the plain reading thereof. According to Mr. Seshadri in considering whether the document created a life estate in the property or whether she was entitled to income from that land by way of maintenance during the time she happened to be wife of the plaintiff, the intention of the donor at the time of the execution of Ex. D. 2 has to be taken into consideration. The intention can be gleaned only from the document and it looks to me there is absolutely no indication in any of the terms thereof that it was intended by the donor that the donee should enjoy the property only so long as she remained his wife and surrender the possession thereof as soon as the marriage was dissolved. Further at the time of the execution of the document divorce could not have been in contemplation of the parties. It would be, therefore, very unreasonable to read such a condition into it especially when the fulfilment of such condition is to depend upon the whims and fancies of the husband. In these circumstances I hold that the property was given to the defendant by the plaintiff for her life without any condition attaching thereto. It follows that the plaintiff cannot recover possession of the property from his wife during her life time.
11. For these reason I allow the secondappeal. In the circumstances of this case eachparty will bear his or her own costs throughout.