1. In this case the suit was brought by the plaintiff asking for several reliefs, mainly for a declaration that she was entitled to a certain house and for possession and for arrears of rent.
2. The defendant No. 1 is the tenant of the house; defendant No. 2 is a person who purchased the house on the 22nd of March 1911 from the defendants Nos. 3 and 4, the daughter and grandson of one Har Lal Bhagat.
3. The first Court gave the plaintiff a decree for arrears of rent only. That Court would have awarded a decree for possession of the property to the plaintiff but for the fact that the requisite notice had not been served.
4. The first Appellate Court reversed that decision on the ground that the plaintiff had obtained whatever right she had to the house in question by way of maintenance, and that she being a Hindu widow and having married again had forfeited that right, and, consequently, it gave a decree in favour of the defendants.
5. Mr. Justice Mullick, sitting alone to hear the second appeal, reversed the decision of the first Appellate Court and confirmed the decree of the learned Munsif, and he came to the conclusion that the interest which the plaintiff had in the house was that of an absolute proprietor, but that as the plaintiff had not appealed from the Munsif's judgment her title must be taken to be for life only, that she had not obtained her interest in that house by way of maintenance and that her re-marriage did not consequently result in forfeiture. As there was no cross appeal he could do no more than confirm the decree of the first Court. Consequently, the plaintiff obtained merely a decree for arrears of rent.
6. Now, the question which is before us in this case depends upon the construction of an agreement in writing which was entered into on the 19th of August 1907 by three individuals the plaintiff, the lady called Musammat Bifo, and the defendant Musammat Jago. For the purpose of construing this document it is necessary to consider the position of the parties at the time when that agreement was made. That position was this. One Har Lal Bhagat bad died on the 16th of April 1906. He had had two sons, and one daughter Musammat Jago. Both his sons Thakur Ram and Kishen Earn died during his lifetime, and he left surviving him his daughter Musammat Jago.
7. There were also living the widow of Thakur Ram, Mnsammat Bifo, and the widow of the second son, Musammat Man Koer, the present plaintiff. Apparently, these three women after Har Lal's death were living together and had been carrying on a shop which had been the joint property of the Hindu family. That was the position at the time when this agreement was entered into.
8. Now, on the one hand, it is alleged on behalf of the defendant that the interest of the plaintiff in the house in question was merely given to her under a family arrangement, in order that she might maintain herself out of the profits of that house, and that consequently when she married again, as undoubtedly she did between the dates, the 19th of August 1907 and the 22nd of March 1911, the exact date is not ascertained, she lost her right to maintenance and, therefore, lost all interest in this house. On the other hand, stated shortly, the plaintiff's casa is that she did not obtain her interest in the house by way of maintenance but that under a family arrangement she got an absolute right in it, and that her interest in the family house at all events would subsist as long as she, the plaintiff, lived and as long as the defendant Musammat Jago lived.
9. Now, the agreement came into existence in this way: Apparently there was a dispute between the parties. The exact nature of the dispute is not specified, but it is stated in the agreement that 'Various kinds of differences have arisen between us the declarants, and there is likelihood of quarrels occurring.' Then the agreement recited that 'this gave rise to the reflection as to what was the extent of the property on which there were liabilities amounting by accounts to Rs. 1,852-8-0, and in case of disputes-occurring there would be further loss in costs of litigation, and eventually there would be no other result besides loss and waste of the properties belonging to the estate of the late Hara Lal Bhagat alias Hassani Bhagat,' Consequently, the parties apparently agreed to refer their differences to certain arbitrators whose names are stated in the agreement, and to abide by the result of their award. The arbitrators made their award and this agreement was entered by the three declarants, whose names I have mentioned, for the purpose of carrying out the effect of the award. Apparently, there were three houses of the value of Rs. 3,100 and the stock of the shop was of the approximate value of Rs. 1,100. The agreement recites that Har Lal Bhagat died on the date I have mentioned, leaving him surviving the three declarants, his heirs, so that from the date of his death the declarants became and continued to be joint possessors of the entire property and shop and moveable and immoveable property and were carrying on the business of the shop. The plaintiff relies upon that part of the agreement as well as other parts of it for the purpose of showing that this interest which the plaintiff undoubtedly obtained, whatever the extent of it was, was not by way of maintenance of the plaintiff, and she points to the word heirs' in the clause which I have just read. I shall have to say more about it later on. Then it recites that 'in consideration of the above reflection it was thought advisable for a settlement to refer the matter to a panch of fellow-castemen and those who are respectable and trustworthy, and whatever settlement they make in respect of the estate, shop and liabilities be and do remain binding on us the three declarants.' Then it recites that the pannh has come to the conclusion that the value of the estate of the deceased person was ascertained to amount to Rs. 4,200 and the liabilities of the shop were proved to amount to Rs. 1,852-8-0. It then proceeds to apportion the shares, and I may state it quite generally. The principle upon which the property was to be divided, if I may use that as a neutral word for the present, was that each was to get a third. The surviving daughter was to have possession of the more valuable house and was to take over the business and the liabilities attached thereto and she would have power to sell some of the property apportioned to her, in order to meet the liabilities. The agreement goes on to state that 'property of the value of Rs. 782-8-0 be given to each of the two declarants Musammat Bifo and Musammut Man Koer,' these are the two daughters-in-law, 'so that they may maintain themselves from the profits of their respective properties and one may not have any concern with the other, whereby quarrels and animosities may be averted, and the ancestral estate of Har Lal Bhagat may not be ruined.' That is a portion of the agreement upon which the defendant very strongly relies, because he says it shows what the real intention of the parties was. He says, this was an ancestral property, and the object of the agreement was that the ancestral property should not be ruined in useless litigation and that the shares which the two danghters in law were to obtain were for the purpose of maintaining themselves without having recourse to the daughter, so that friction in future might be avoided.
10. Then the agreement recites that 'the ancestor had three houses, one the dwelling-house with shop valued at Rs. 1,800, the second house valued at Rs. 1,200 and the third house valued at Rs. 100 and the stock existing in the shop valued at Rs. 1,100, of which we the declarants have all been from the date of the death of the said ancestor, and are, joint in possession up to the present time, and similarly Rs. 1,815-8-0 the liabilities are justly chargeable to and payable by us three declarants.' That is a clause upon which the plaintiff's Vakil strongly relies. He says it shows that the three declarants had been jointly interested in the property, that they had been jointly carrying on the business, that they had been treated as in equality and consequently they were being treated in equality in this distribution of the assets, and that that being so the clause was not consistent with the interest of the plaintiff in the house being merely for the purpose of maintenance. On the other hand it is urged by the defendant that that is a clause which does not hurt the defendant's case, because the parties had obviously been carrying on the business together and this is not a declaration of their strict liability to debts according to law, but having regard to justice and equity, inasmuch as they had been carrying on the business together since the death of the ancestor, it would be right to say that the liabilities were justly chargeable to each of the three declarants.
11. Then comes the operative part of the agreement. First of all, it begins by saying--'Now of our own free-will and accord while sound of mind and understanding without coercion, instigation or unlawful pressure by anybody, we the declarants have partitioned between us the properties above mentioned and hereunder described according to our respective shares in accordance with the direction and decision of the panches, and we the declarants have become separate possessors thereof. From this date one of us the declarants has not any sort of concern with another of us the declarants nor shall we have any in the future. If contrary to this, any of the parties take any action or make any claim against any of the parties, that shall be altogether invalid and void. We the declarants have acquired full right and authority in respect of the property apportioned to us respectively, so that each may take whatever she thinks fit and proper with respect thereto without consulting and without reference to another.' I draw attention to those words because they are important for the purpose of ascertaining the real intention of the parties. Then the last clause to which I need refer in this agreement is the 10th clause, which sets out the method by which the award of the arbitrators is to be carried out, and it says, 'Of the estate of the said ancestor there are three houses of different values, consequently we have got a house and by refund of the excess', that is an inartistic way of expressing the intention of the parties; I understand the meaning of that is, that as each of the three ladies was to get a house, and the houses being of different values, as one of them must get a house more valuable than the other, she would have to make up the difference in value by payment of money to the other or others, so that the shares might be equalized. 'Thus the first house with shop, the value of which is approximately Rs. 1,803, and the, stock existing in the shop, the value of which is Rs. 1,100, the aggregate value of the house with shop amounting to Rs. 2,900 has been taken by me, Musammat Jago Kuar, for my ratable share and for payment of debts to creditors, so Rs. 265 the amount which is in excess of my Mwsammat Jago Kuar's share has been made good by me in cash to Musammat Bifo Kuar, the declarant. Now we the declarants Nos. 2 and 3 have not and shall not have any sort of claim and lien in respect of the house and the properties existing in the shop against me Musammat Jago Kuar or my heirs and successors.' That deals with the share of the daughter.
12. Now, I come to the important part which deals with the share of the plaintiff: 'The house of which the approximate value is Rs. 1,200 is apportioned to the share of me Musammat Man Kuar' (i.e., the present plaintiff) and as the share of Musammat Man Kuar amounts to Rs. 782 8-0 and the value of the said house is Rs. 1200, so by this calculation I have made good Rs. 417-80 in cash to Musammat Jago' Kuar (i.e., the daughter), now we the declarants Nos. 1 and 2 have not any claim in respect of the said house against Musammat Man Kuar or her heirs and successors.' That, as I have said, is the plaintiff's share. Then comes Bifo's share: 'The share of me Musammat Bifo Kuar amounts to Rs. 782-8-0. Consequently I have received Rs. 265 in cash from Musammat Jago Kuar as per details.... And I have received Rs. 417-8-0 from Musammat Man Kuar.' That must be the particular sum which the plaintiff has alleged to have paid to the defendant daughter, and which obviously, by this arrangement passed from the defendant daughter to Musammat Bifo, so in this way the three shares of these ladies were equalized. Then it concludes By saying: 'None of us have any concern with any other. If anything be done contrary to this, it shall be altogether invalid and void.'
13. That is the agreement.
14. Now we have to ascertain what was the real intention of the parties. There is no doubt that for the purpose of construing the document we have to look at the whole of the document and consider all its terms one with the other: and for the purpose of ascertaining the intention of the parties we are also entitled to look at the position of affairs at the time when the document was entered into and also at the position of the parties who executed the document and, having regard to such a document as this, I cannot do better than quote a passage, which was referred to this morning, in the case of Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick 6 M.I.A. 526 at p. 550 : 4 W.R. (P.C.) 114 : 1 Ind. Jur. (N.S.) 87 : 1 Suth. P.C.J. 291 : 1 Sar. P.C.J. 583 : 1 Boulr Rep. 228 : 19 E.R. 198 that no doubt refers to a testamentary document but, in my opinion, it is equally applicable to the construction of an agreement such as we have now before us. The passage is as follows: 'The Hindu Law, no less than the English Law, points to the intention as the element by which we are to be guided in determining the effect of a testamentary disposition; nor, so far as we are aware, is there any difference between the one law and the other as to the materials from which the intention is to be collected.' And in construing the terms of a document, it has been pointed out in the case of Hunoomanpersaud Panday v. Musammat Babooee Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81 note. : Sevestre 253n : Suth. P.C.J. 29 : 1 Sar. P.C.J. 652 : 19 E.R. 147 that 'deeds and contracts of the people of India ought to be liberally construed. The form of expression, the literal sense, is not to be so much regarded as the real meaning of the parties which the transaction discloses.' If any further authority were needed, I might refer to the case of Sreemutty Rabutty Dossee v. Sibchunder Mullick 6 M.I.A. 1 : 1 sar. P.C.J. 484 : 19 E.R. 1. (which again is reported in the same Volume at page 1, the passage being at page 23), where it is said by the Judicial Committee of the Privy Council: 'You must look at the words of the deed with reference to the parties who use them, and the grant must be consistent with that; consistent with the interests of those who make the grant.' That being so, I have first of all to consider the position of the parties: the plaintiff was the widow of a man who had been a member of a joint Hindu family governed by the Mitakshara Law. Her husband, therefore, had an interest in his father's property since he was born and when he died, that property of the plaintiff's husband passed to his father subject to his widow's right of maintenance and when the husband's father died, as he died in this case, leaving the defendant daughter surviving him, the property passed to the defendant daughter again subject; to the right of the widow to maintenance.
15. Now, that being the position of the parties, I have to consider what was the intention of the parties when this agreement was entered into. Having given due consideration to the arguments which were advanced on the one side and on the other, I have come to the conclusion that the intention was first of all to get rid of what was apparently a constant source of friction among the three women living together and trying to carry on a joint business in the same premises. That was the first intention. The second intention was that the two daughters-in-law or rather the daughter-in-law, the plaintiff, I need not say two daughters-in-law, because I am only concerned with one, the plaintiff, should have certain property, in order that she might maintain herself out of the profits of that property; and this agreement was entered into upon the basis of the plaintiff's right to maintenance which existed in her according to the Hindu Law. I think the word 'heirs' in this agreement, having regard to the other provisions of it, was not used in the strict legal sense, but rather as a word implying person interested in the estate.
16. That being the true construction of the document, the question then arises did the plaintiff by her re marriage forfeit her interest in the house The position of the plaintiff in this respect was this: she belonged to a caste which by custom allowed the re-marriage of a widow. But that in itself would not prevent her from forfeiting her right to maintenance out of her deceased husband's property, and the case of Rasul Jehan Begum v. Bam Surun Singh 22 C. 589 : 11 Ind. Dec. (N.S.) 392 was referred to, where the head-note is to the following effect: 'A Hindu widow, on re-marriage, forfeits the estate inherited from her former husband, although according to custom prevailing in her caste, a re-marriage is permissible.' That case, it is to be noted, deals with the estate which is inherited by a widow from her former husband. This is not a case of inheritance: and as I have already pointed out, in my opinion, this is an agreement which is based upon the widow's right to maintenance which is a charge upon the property of her deceased husband. It is not disputed that but for this agreement she would forfeit that right on her re-marriage.
17. In my judgment, inasmuch as I have come to the conclusion that this agreement was based upon the plaintiff's right to maintenance out of her deceased husband's property, and that the provisions contained in it were intended to secure the efficient carrying out of that right, I am of opinion that the plaintiff when she was married again forfeited her interest in the house in question.
18. There is another argument which has been brought forward, and I must deal with that. It is said that the property, in which the plaintiff by reason of this agreement obtained an interest, was not that of her deceased husband, and that is one of the grounds on which the learned Judge who decided the case in favour of the plaintiff relied. The answer to it is that which 1 have already given, and that is this: The deceased husband having had an interest in the an-central property out of which she would be maintained during her life, the obligation to maintain her out of that property continued after his death, when the property passed by survivorship, and as I have already mentioned, the property passed to the defendant No. 3 subject to the plaintiff's right of maintenance, and part of that property was the subject-matter of the agreement.
19. It has been argued that Section 2 of Act XV of 1855 does not apply to this case, because of the facts which I have already mentioned. I do not think that it much matters whether this Act applies or not, because it has been admitted during the coarse of the argument that this Section is practically a statement of the Hindu Law as it existed apart from the Act, so far as it related to the forfeiture of a widow's interest on her re-marriage under the circumstances mentioned.
20. I ought to say before concluding my judgment in deference to the learned Judge that he had not the translation of the agreement before him when he gave his judgment, and, therefore, he had not the advantage which we have had in this Court, and, as far as he knew, the agreement did not make any specific reference to maintenance: Whereas it turns out, when we look at the translation of the agreement, that, as I have already explained in the beginning of my judgment, the object specifically mentioned in this arrangement was that the plaintiff and the other daughter-in-law might maintain themselves from the profits of their respective properties.
21. For these reasons I think that the learned Judge's judgment cannot stand. But inasmuch as the plaintiff has paid the sum of Rs. 417-8-0 in respect of this property for the purpose of equalizing the shares as they are called in the agreement, it will be wholly inequitable to allow the defendants to deprive the plaintiff of the house in question, unless the defendants or some of them refund the sum of Rs. 417-8-0 to the plaintiff.
N.R. Chatterjea, J.
22. The main contention in this case turns upon the construction of the ekrarnama. It states that in accordance with the decision of the panch, each of the three parties was to get a specific property: Musammat Jago Kuar, the daughter, was to get the dwelling-house and the shop together with the stock of the shop, and she was to pay the debts due from the shop. It was provided that she would be competent to part with some of the property allotted to her and thus pay the debts to creditors, or she could pay the same with her own funds. Then dealing with the two daughters-in-law it stated that each would get property of the value of Rs. 782-8-0, so that 'they may maintain themselves from the profits of their respective properties, one not having any concern with the other, whereby quarrels and animosities may be averted and the ancestral estate of Har Lal Bhagat alias Hassani Bhagat may not be ruined.'
23. The object of the arrangement, therefore, was to provide maintenance for the parties and that the ancestral estate of Har Lal might be preserved.
24. There was, no doubt, the word 'heirs' used with reference to all the three parties; but I think the word was used in the sense of 'persons interested' in the estate left by the deceased. The daughters in law were entitled only to maintenance but they were living as members of the family and carrying on the shop. The panch, it is true, directed that the property should be divided into three equal shares, the two daughters in law and the daughter each getting a share.
25. That by itself does not show that the property allotted to plaintiff was given to her otherwise than by way of maintenance, because specific properties are sometimes given to persons entitled to maintenance to be enjoyed by them in lieu of cash payments. The parties had, no doubt, become separate possessors but that was the arrangement made in order to avoid disputes. The ekrar then says, 'We the declarants have acquired full right and authority in respect of the property apportioned to us respectively, so that each may take whatever she thinks fit and proper with respect thereto, without consulting and without reference to another, wherewith any other of the parties or her heirs shall not have any sort of concern or have any lien.' This clause should, I think, be read in connection with the passage which I have already set out, and which appears to me to be the object of the ekrar, namely, that the parties might maintain themselves from the profits of the property, and that the ancestral property might not be ruined. I think the clause must be limited to the purpose of the arrangement, which was that each party should have separate possession and enjoyment of the property allotted to her for maintenance. The word 'heirs' was used, but it seem to me That the word was here used in the sense of 'successors.' Musammat Jago, the heiress of Har Lal, herself had no absolute right, and it is not disputed and cannot be disputed that she could not confer an absolute right. In construing the document we should bear in mind the position of the party making the grant and of the person taking it. If the expressions used in the deed, relied upon on behalf of the respondent, are capable of both constructions, that construction should be adopted which is consistent with the law to which the parties are subject. As I have said, a daughter herself has no absolute right, and a daughter-in-law has a right to maintenance only: and I do not think that we ought to construe the words in the document so as to hold that the daughter intended to give an absolute right to the daughters-in-law. In any cage the plaintiff cannot be said to have obtained the property independent of her right to maintenance, and an absolute right in the sense of- a right accruing to her not as widow of Kishen Ram; and not by way of maintenance, but independently of her position as such widow could not have been intended to be conferred on her.
26. It was contended before us on behalf of the plaintiff that the plaintiff's husband having predeceased his father, his interest in the estate passed by survivorship to the father and, therefore, was no longer the property of her husband which was liable for her maintenance: and that being so, she had no interest in her husband's estate which she would forfeit by her re-marriage. This contention is clearly erroneous. Her husband had an interest in the property (which was ancestral property), out of which she was entitled to be maintained during his life, and the obligation to maintain her out of that property continued after his death, whether it passed by inheritance or by survivorship. This being so, there is no doubt that the property that the plaintiff obtained under the document was by way of maintenance out of the property of her deceased husband in the bands of Musammat Jago.
27. The plaintiff, no doubt, paid Rs. 417-8-0 for equalizing the share in respect of the house which had been allotted to her, the value of which was Rs. 1,200. The parties agreed that each would get property valued at Rs. 782. To that extent the property must be taken to be the property given by way of maintenance, but the remaining portion of the property representing Rs. 471-8-0 which had been paid by the plaintiff did not constitute such property.
28. The question whether Section 2 of Act XV of 1856 is inapplicable to this case, because, the plaintiff, according to the custom of the caste to which she belongs, could have re-married independently of the Act, is of no practical importance, as on the general principles of Hindu Law, a widow, whose re-marriage may be legal according to the custom of the caste to which she belongs, would forfeit any interest which she had in her husband's estate, on her re-marriage. I think, therefore, that the plaintiff forfeited her interest in the property to the extent to which she obtained it by way of maintenance.
29. (Case adjourned till the 4th of April for final order.)
30. It appearing that the defendant No. 2 purchased one-third only of the, entire house and that the suit is with reference to the said one-third only, upon the plaintiff and defendants Nos. 1 and 2 consenting and upon the defendant No. 2 depositing within three months from to-day one-third of Rs. 417-8-0, namely, Rs. 139-2-8 in the Court of first instance for payment to the plaintiff, the suit will be dismissed. If the said sum is not paid within the said three months, the appeal will be dismissed. No order as to costs in all Courts.
N.R. Chatterjea, J.
31. I agree in the order proposed by the learned Chief Justice today.