1. As regards the Civil Miscellaneous appeal, a preliminary objection is taken that the appeal does not lie. The learned Counsel for the appellant relies upon Order 43, Rule 1(a), and says that the order now appealed against falls within that rule. That rule relates to an order under Rule 10, Order 7, returning a plaint to be presented to the proper Court. The order under appeal is concerned not with the return of a plaint but with the return of a petition for permission to sue in forma pauperis to which as usual the plaint is appended. I am of the opinion that the preliminary objection is well founded and the appeal is accordingly dismissed. Costs to abide the event. A revision petition is also filed doubtless because of a doubt in the appellant's mind as to the maintainability of the appeal. No preliminary objection is raised to the Civil Revision Petition. The question is whether the learned District Judge was right in refusing to permit the plaintiff to file a plaint in forma pauperis in that Court on the ground that that Court had no jurisdiction to entertain the suit. The claim was for maintenance, to which claim was added a further claim for a declaration that the past and future maintenance due to the plaintiff and costs of the suit are a charge on the immovable property mentioned in the schedule filed therewith. The schedule filed therewith, I am informed, contains a detailed list of properties which it is said comprises all the family properties. The schedule however specifies in detail the items over which it is sought to have a charge. The reason why it is said that the learned Judge was wrong in rejecting the petition on the ground of lack of jurisdiction is that the Court to which the petition was made was the proper Court to entertain the suit bearing in mind the provision of Section 16(d). Civil P.C. Section 16(d) provides as follows:
Subject to the pecuniary or other limitations prescribed by any law, suits for the determination of any other right to or interest in immovable property shall be instituted in the Court within the local limits of whose jurisdiction the property is situate.
2. It was my impression at first, and I still entertain a doubt that that sub-clause in Section 16 is concerned with disputes as to title or interest in property existing at the date of the suit and does not apply to interests that spring out of ancillary reliefs claimed in the suit and arising as a consequence of the decree made in the suit. I have had however placed before me three decisions two of which are exactly on the point and are against the view that I at first formed and one of which, Sundara Bai Sahiba v. Tirumal Rao Sahib (1909) 33 Mad. 131, though raising a somewhat different point, tends in the same direction. The two decisions directly in point are Jai Dev Singh v. Jai Singh 1926 Lah. 660 which follows Sitabai v. Laxmibai 1916 Bom. 272. Though I entertained and still entertain some doubt, out of respect for the learned Judges that have decided those cases, I intend to follow them, my doubt not being sufficiently great to make it my duty not to follow them but to refer the matter to a Bench. The learned Judge has arrived at the conclusion on the ground that the claim of a wife to maintenance at the hands of her husband is personal and is different from that of a widow which is a claim upon property. With respect, I think that the learned Judge was wrong in so deciding. A Bench of this High Court in Gopal Pattar v. Parvati Ammal 1929 Mad. 47 has decided that a wife and a widow stand on a parity on this point except that of course a wife has what a widow has not a personal claim against the husband, the widow's personal claim obviously having disappeared with the death of her husband; and this is the extent of the distinction that, I apprehend, is made by Mulla in his book on the Principles of Hindu Law. It seems to me therefore that the Civil Revision Petition succeeds with costs. Costs to abide the event. The petition will be remanded for disposal accordingly. If the plaintiff eventually succeeds, the above orders as to costs will be read so that if the plaintiff succeeds she will only receive costs in the Civil Revision Petition, not in the Civil Miscellaneous Appeal. If the defendant succeeds, he (defendant) will be entitled to costs both in the Civil Miscellaneous Appeal and in the Civil Revision Petition.