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Kiran Bala Saha Vs. Bankim Chandra Saha - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberSuit No. 1881 of 1954
Judge
Reported inAIR1967Cal603
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 3, 18(2), 23, 25 and 27
AppellantKiran Bala Saha
RespondentBankim Chandra Saha
Appellant AdvocateD.K. Chatterjee, Adv.
Respondent AdvocateS.K. Dass, Adv.
Cases ReferredSurinder Kumar v. Gian Chand.
Excerpt:
- bijayesh mukherji, j.1. this is a suit by kiran bala saha againsl her husband bankim chandra saha a professor in the department of economics and civics. st. paul's college, calcutta, for maintenance at rs. 200 a month, for arrears thereof amounting to rs. 4,000 from october 20, 1962 to june 20, 1954, and for recovery of gold ornaments, weighing 48 tolas, as set out in schedule a to the plaint, in the alternative, for a decree of rs. 4,000 being the value of the ornaments aforesaid.2. the plaint of a suit as this was presented and admitted on june 23. 1954.3. both kiran bala and bankim chandra are hindus governed by the davabhaga school of hindu law. and they were lawfully married in or about baisakh 1332 b. s. corresponding to april-may 1926. some 9 or 10 years later, however, thai is to.....
Judgment:

Bijayesh Mukherji, J.

1. This is a suit by Kiran Bala Saha againsl her husband Bankim Chandra Saha a professor in the department of Economics and Civics. St. Paul's College, Calcutta, for maintenance at Rs. 200 a month, for arrears thereof amounting to Rs. 4,000 from October 20, 1962 to June 20, 1954, and for recovery of gold ornaments, weighing 48 tolas, as set out in schedule A to the plaint, in the alternative, for a decree of Rs. 4,000 being the value of the ornaments aforesaid.

2. The plaint of a suit as this was presented and admitted on June 23. 1954.

3. Both Kiran Bala and Bankim Chandra are Hindus governed by the Davabhaga School of Hindu law. And they were lawfully married in or about Baisakh 1332 B. S. corresponding to April-May 1926. Some 9 or 10 years later, however, thai is to say, in 1341 B. S. corresponding to 1934-86, Bankim Chandra married for the second time. Such are the averments in paragraphs 2 and 1 of the plaint--averments which. Bankim Chandra savs in paragraph 1 of his written statement, 'are substantially correct' This being the admitted position. Section 18 of the Hindu Adoptions and Maintenance Act, 78 of 1956, is attracted Sub-section (2) thereof, by its Clause (d) provides-

'A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance, if he has any other wife living'

Kiran Bala is such a Hindu wife. Her husband Bankim Chandra has admittedly another wife living. Maintenance is. therefore, hers, as a matter of course and as of right. There is no dispute about it. as are the joint submissions of Mr Chatterjee for the plaintiff and Mr. Das for the defendant. The dispute is about the quantum of maintenance. The dispute is about the gold ornaments.

4. In the circumstances, the facts, set out in the plaint and containing, amongst others, allegations of ill-treatment, cruelty and the like, need not be referred to further than as follows:

Deserted by her husband after his second marriage in 1341 B. S. (1934-36), Kiran Bala was living separately except for a short period of a few months 'subsequent to the birth of a male child to her in 1342 B. S.'. (1935-36). The child however died 'when about 10 months old,' And she was deserted once more. She instituted a suit, being suit No. 1280 of 1951, in this court for maintenance. But before the writ of summons could be served, her husband prevailed upon her to return to the matrimonial home which she did. The suit was, therefore, suffered to be struck off. On her return, she lived with her husband from March 20, 1951, to October 19. 1952. Next day that is on October 20, 1952. she left the matrimonial home again, as she was compelled to.

Bankim Chandra it is said, has an income of Rs. 800 a month and owns several moveables and immoveables in and outside Calcutta. This coupling with the mode of living Kiran Bala has been used to fosters the claim of maintenance at Rs. 200 a month [See paragraphs 8 and 9 of the plaint.

The gold ornaments weighing 43 tolas, the detail whereof is set out in schedule A to the plaint, are her stridhan properties all. Kept in deposit with her husband, she has been deprived thereof, because of 'wrongful possession' by Bankim Chandra who failed and neglected to return them to her 'in spite of demands' The value of such ornaments is assessed at Rupees 4,000. [See paragraph 10 of the plaint.

5. Hence the suit for maintenance, arrears thereof, return of the gold ornaments or their money value (Rs 4.000): just the reliefs this judgment opens with

6. Bankim Chandra, the husband, the defendant, resists the suit, He admits Klran Bala to be his first wife, but adds: he was 16 and Kiran Bala 8 at the time of their marriage. On the two controversial points--the quantum of maintenance and the ornaments--his pleas are:

One, Rs. 200 a month claimed as maintenance is 'excessive and disproportionately high' It is so because of the following considerations-

(a) his income of about Rs. 273 a month,

(b) liability for the house rent at Rs. 57 a month, and

(c) liability to maintain a family of ten--himself, his second wife, five children one childless widowed aunt, a nephew and a niece. [See paragraphs 7 and 6 of the written statement filed on August 11, 1954.]

Two, Kiran Bala is disentitled to either the gold ornaments or their money value, because she had not such ornaments ever. She had all in all gold ornaments weighing 12 tolas and valued at Rs. 900 or thereabouts-ornaments which she deposited with him never, but kept with herself and her parents. [See paragraphs 8 and 9 of the written statement.]

7. The issue struck at the trial are:

1. What sum, if any, is the plaintiff entitled to on account of her maintenance?

2 Is the defendant in wrongful possession of the various ornaments and jewellery belonging to the plaintiff as set out in paragraph 10 of the plaint?

3 What reliefs, if any is the plaintiff entitled to?

8. To the first issue first. That Kiran Bala is entitled to maintenance is not in the realm of controversy. [See paragraph 3 ante. What is in controversy is the quantum of maintenance. Kiran Bala claims Rs. 200 a month. On behalf of her husband, it is said that she should get no more than Rs. 30 a month; just the amount granted her as an interim maintenance during the carriage of the suit, or, at Its highest. Rs. 50 a month.

9. But what is maintenance? Section 8, Clause (b), of the Hindu Adoptions and Maintenance Act. 78 of 1656. in so far as it is material here, bears:

3 Definitions --In this Act, unless the context otherwise requires.

*** *** ****** *** ***(b) 'maintenance' includes-

(i) In all cases, provision for food, clothing, residence, education and medical attendance and treatment:*** *** ****** *** ***

That then is the standard to go by Bankim Chandra must maintain Kiran Bala, none else than his wife Kiran Bala, now 50 or thereabouts, and looking older still, presumably because of her poor health and her married life 'having come to ship-wreck, is past the age of education. Still Bankim Chandra must provide for her food, clothing, residence as also medical attendance and treatment Nothing short of that will do in terms of Section 3. Clause (b) Sub-clause (1) of the Act. In sum what the statute prescribes is real maintenance, not a bare or 'starving' maintenance, so that Kiran Bala, the person maintained, is forced not to lead the life of a dog. Law apart, that is plain common sense; that is the minimal in a civilized society Short commons day in day out will fall short of maintenance law provides for and common sense dictates Again, just an adequate fare, with nothing for clothing residence, as also medical attendance and treatment will equally fall short of such maintenance The concept of maintenance is there-fore, this

10. But this is only one consideration; this is only one side of the shield. Surely in directing Bankim Chandra the husband, to maintain Kiran Bala his wife, the court shall not be blind to the liabilities of Bankim Chandra and thereby award Kiran Bala a maintenance which will make Bankim Chandra a pauper, himself needing a maintenance. Nor will Kiran Bala get what she claims for the mere asking. Her claim must be allowed to suffer the scrutiny, of the court, though with sympathy. That is the other consideration; that is the other side of the shield. This has now received statutory recognition in Section 23 of the Hindu Adoptions and Maintenance Act. 78 of 1956, which leaves the amount of maintenance, not to caprice, but to the exercise of sound discretion of the court. In determining the amount of maintenance. If any to be awarded to a wife, the court shall have due regard to (a) the position and status of the parties (here Kiran Bala and Bankim Chandra), (b) the reasonable wants of the claimant as Kiran Bala is, (c) if the claimant is living separately, whether or not she is justified in doing so. (d) the value of the claimant's property and any income therefrom or from any other source, and (e) the number of dependants entitled to maintenance; Section 23. Sub-sections (1) and (2) ibid. Shall have due regard to the considerations is an expression which means no more and no less than this the court shall take so many tests into its consideration. A Division of this court construed so the words 'shall have regard to' in the Explanation to proviso (h) Sub-section (1). Section 12 of the '1950 Rent Control Act': Sharing Elertric Engineering Works v. Radha Devi, decided on April 24, 1956, and come into the reports in 1957: : AIR1957Cal227

11. Such then is the law on maintenance. It is now for me to translate this law to the facts before me. So to do I proceed, ingredient by ingredient, in Sub-section (2), Section 23 of the Act

12. (a) The position and status of the parties.

Bankim Chandra, the husband, the defendant, is a professor of St. Paul's College, Calcutta In 1954, when this suit was instituted, his pay was Rs. 250 a month or thereabouts. He used to get a dearness allowance too subject to periodic variation at that point of time. Such is the evidence in cross-examination of an important witness for the plaintiff: Professor Gourdas Mukherjee, Head of the Physics Department of St Paul's College, and what ii more, the bursar too, whose duty is to check the accounts, present them to the Principal for his final sanction, and to frame the budget of the college with a view to presenting it to the Governing Body independently in consultation with the Finance Department and the Principal as well [See qq. 22 and 24 in cross-examination along with qq. 3 and 4 in chief A knowledgeable gentleman without doubt competent, by virtue of his very office to speak what he is speaking about So the defendant Bankim Chandra's averment in paragraph of his written statement filed on August 11 1954, stating that his monthly income was about Rs. 273 (presumably Rs. 23 in excess of the pay of Rs. 250 a month representing the dear-ness allowance) receives striking corroboration from the evidence of this respectable disinterested and dependable witness, Professor Gourdas Mukherjee. Appearances are therefore in favour of the defendant Bankim Chandra having a monthly income of Rs. 273 in 1954. I find so as a fact.

13. But this is 1967. What is his monthly income now? Here again the excellent evidence of Professor Gourdas Mukherjee is rendered still more excellent by She admission of Bankim Chandra in his evidence that the statement of the bursar is absolutely correct: q. 3 Says the professor, the bursar.

In December 1966, the total basic pay his Colleague Bankim Chandra received was Rupees 525--Rs. 350 in the college grade plus Rupees 175 as 'the University Grants Commission benefit' Add to this Rs. 42.50 paise a month as dearness allowance The total then comes to Rs. 567.50 paise a month. Deduct 8. 1/3 per cent of the college basic pay as contribution to the provident fund That is Rs. 29.16 paise Deduct too Rs. 23 43 paise on account of income-tax The total of such deductions becomes Rs. 52.59 paise (Rs. 29.16 plus Rs. 23.43). Bankim Chandra, therefore, gets Rs. 514.91 paise a month (Rs. 567.50 minus Rs. 52.59). At any rate, such were his net emoluments in December 1966. [See qq. 5-13. 25 and 26 to Professor Gourdas Mukherjee.]

14. In safety, can it, therefore, be found as a fact that the defendant Bankim Chandra's net monthly income now is Rs. 514.91 paise from St. Paul's College. But I notice a slight Infirmity, if that. Professor Gourdas Mukherjee says in answer to question No. 8 put by me that Bankim Chandra got in December 1966 from the College Rs. 350 as basic pay plus Rs. 50 as dearness allowance That makes a total of Rs. 400. But, speaking of the grant by the University Grants Commission, he puts the total basic pay at Rs. 525 (Rs 350 plus Rupees 175) and adds to it the dearness allowance of Rs. 42.50: q. 13. Where goes then the college dearness allowance of Rs. 50 a month? T regret. I did not get it cleared up, as it was my duty to do. But no ordinary witness is Professor Gourdas Mukherjee Given an opportunity to explain this discrepancy about Rs. 50, he would have perhaps given a good explana tion. Be that as it may, upon his evidence, as it stands. I reiterate my finding of fact that Bankim Chandra's net monthly income now is Rs. 514,91 paise And a difference of Rs. 50 a month this way or that way does not seem to matter much

15. But this is an income from St. Paul's College only. Has he any other source of income? He has Another witness for plaintiff Kiran Bala is Ajit Kumar Das, an assistant in the Accounts Department of the University of Calcutta. Such a one says on the foot of records of undoubted authenticity, that Bankim Chandra, the defendant earned Rs. 1,235.36 as an examiner in 1965 Such a one says that the total dues of Bankim Chandra as an examiner in 1966 come to Rs. 1,39832 paise only [See qq. 3.8] Bankim Chandra docs not deny it. But he emphasizes that appointment as examiner is casual and temporary; just as the evidence of the University Assistant Das is, though in a different language,--such appointment is made on an annual basis (q. 10). Bankim Chandra will have me believe to that in 1964 all he got as examiner was Rs. 200; q. 18. But the best evidence would have been the University's records of authenticity, which he has not taken the trouble to call for taking, therefore, the average of two years, 1965 and 1966, the defendant Bankim Chandra's income as examiner comes to a little more than Rupees 1,300 a year Say, it is Rs. 100 a month. Added to his net salary of Rs. 514.91 a month, his monthly income may safely he taken as Rs. 600 odd

16. There is more vet Take the evidence of Mohit Kumar Mitra of South Dum-Dum Municipality, still another witness of the plaintiff He testifies to the defendant Bankim Chandra owning some 5 cottahs of vacant land within the jurisdiction of the municipality, the land being holding No. 511 of Lake Town The rate may be low enough: Re 1.93 a cottah And the annual valuation may be recorded in the books of the municipality as no more than Rs. 50 But no court can blink the price such land so close to Calcutta, will fetch these days And there is the admission of Bankim Chandra that he purchased for Rs. 8.000 this 5-cottah plot upon which be proposes to have a building at an estimated cost of more than Rupees 20,000 For that, he has applied for the requisite sanction of the municipality. For that, he has applied for loan to from Government. [See qq. 102-105 to Bankim Chandra in cross-examination].

17. More, on his own admission again, Bankim Chandra, the defendant, has had an insurance presumably on his life, to the extent of Rs. 6,000,.roughly Rs. 2,000 to his credit in the bank, and Rs. in a Post Office account: qq 47. 48. 54. 55. 70. 71. 78. 79. etc.

18. The evidence I hear about private tuition as a further source of Bankim Chandra's income is not such that a firm finding can be come to Bankim Chandra says that having been the head of the Department of Economics at St. Paul's College, and the recipient to boot of the benefit of the University. Grants Commission, he cannot do any tuition; not even the limited tuition of a single student for 3 hours a week q. 35 very strictly does he observe such restrictions, q. 36. True it is as has been argued on behalf of the plaintiff Kiran Bala, that tuition is a fact especially within Bankim Chandra's knowledge. So what? It does not mean that what he says ahout it has to be disbelieved.

19. At the same time, mere arithmetic makess it plain that Bankim Chandra seems to have other income too. He admits spending Rs. 350 a month for the education of his sons and daughters q. 56. The possibility is that be spends more. For two of his boys in the Engineering College--one at Sibpore and another at Jalpaiguri that he was to expend Rs. 250, a month Rs. 126 for each qq. 5-7 and 10. For his daughter in R. G. Kar Medical College, hit expenses come to Rs. 60 a month: q. 9. For three other daughters of his, another sum of Rs. 75, Rs. 25 a month for each, is 'eaten up': q. 11. That makes a total of Rupees 885 a month. I do not take into account the sum of Rs. 126 a month as the educational expenses of his daughter, a student of class XI of Victoria Institution. I do not, because I cannot feel sure whether or no the evidence has gone down aright. For a day-scholar the charge cannot be as high as that; for a boarder the charge may very well he so. I give the defendant benefit of doubt. Even then, add Rupees 120 a month Bankim Chandra has to pay as house rent (q. 13), to the total of Rs. 385 I have reached. You get Rs. 505. His net monthly income has been found to be Rs. 600 odd: paragraph 15 ante. Does he then carry on with Rs. 95 or thereabouts, say, even Rupees 110 a month, for all other expenses of a family of 10 heads, as noticed in paragraph 6 ante? No prudent man can bring himself to believe that without forsaking his prudence. His monthly income must, therefore, be more than Rupees 800 odd 8 month. Rs. 800 a month, as Kiran Bala estimates it in the plaint, looks so probable in the very nature of things that go before.

20. Enough, perhaps more than enough, has been said with a view to getting a fair idea about the status and position of the defendant Bankim Chandra: a professor of a first-grade college, indeed the Head of the Department of Economics there, getting at least Rs. 600 odd a month net from his college and the University combined, probably getting more through other source, with a bank balance of Rs. 2,200 or thereabouts, owning 5 cottahs of valuable land in the outskirts of Calcutta, land which he says he purchased for Rs. 8,000 which will now fetch much more, and upon which he proposes to build a house at an estimated cost of more than Rs. 20,000 on the foot of a loan about which (or about any other loan) the Court is not taken into confidence by production of necessary papers, giving his children the best possible education not an inconsideable expense, even on his own showing, though expenses are likely to be greater, etc. All this reflects well enough on the position and status of the defendant Bankim Chandra.

21. No less does all this reflect well on the position and status of the plaintiff Kiran Bala. No career woman is she. Nor does she represent the ultra-modern Eve of today. As I see her and hear her, she reminds me of that type of a Hindu wife whose status is the status of her husband and whoso position is the position of her husband too. Indeed, in her husband's glory lies her glory; in her husband's shame lies her shame Thus, in having found the position and status of the defendant Bankim Chandra. I find too the status and position of his wife, the plaintiff Kiran Bala.

22. It may be asked: why do I find the status and position of the defendant as they obtain now or in 1965-66? Has not the suit been instituted in 1954? So, why travel beyond that?' The trend of cross-examination on be-half of the defendant is just that too. To Professor Gourdas Mukherjee is asked how much the defendant got in 1954: q. 22. The answer is Rs. 250 or so with a dearness allowance in addition. See paragraph 12 ante Again, to the University's assistant, Ajit Kumar Das, is asked if the defendant was paid anything as examiner since 1954: q. 13. Such asking elicits the reply that without looking up the records (which have not been called for q. 12) he cannot say one way or the other. The obvious answer to an approach as this appears to be that it is the duty of the Court, which still retains control of the judgment, to take notice of subsequent events, post-suit events as they are called, and to mould its decree so as to shorten litigation, preserve the rights of parties, and thus best subserve the ends of justice. What to say of the primary court, as mine is even a court of appeal is to take notice of facts which may have arisen subsequently, provided that such action causes no prejudice to either party. Here I see no prejudice, no possibility of prejudice even, to the defendant, because the facts I take notice of are all in the realm of admissions. The proposition I go by is supported by a crowd of decisions. To mention but a few, here are they: (1) Ram Ratan Sahu v. Mohant Sahu, (1907) 6 Cal LJ 74, (2) Ramyad Sahu v. Bin-deshwari Kumar Upadhay, (1907) 6 Cal LJ 102, (3) Rai Charan Mondal v. Biswanath Mondal. 20 Cal LJ 107 = (AIR 1915 Cal 103). (4) Annapurna Dasi v Sarat Chandra Bhatta-charjee : AIR1942Cal394 , (5) Raja Kamala Ranjan Roy v. Baijnath Bajoria, (1949) 53 Cal WN 329, (6) Surinder Kumar v. Gian Chand. : [1958]1SCR548 . On the contrary, if I do not take notice of such subsequent facts--and admitted facts at that--the result will be multiplicity of proceedings either in the shape of a fresh suit or a petition under Section 25 of the Hindu Adoptions and Maintenance Act 78 of 1956 for increase of the maintenance I grant. That augurs no good for either of the spouses.

23. It is time now to pass on to another Ingredient of Section 23 Ibid.:

(d) the value of the claimant's properly and income therefrom or from any other cource.

Nil. Al all events, the evidence does not disclose any save absence of an Income.

24. That Kiran Bala has been living separately is patent. But it cannot go against her. It cannot, because admittedly Bankim Chandra has another wife--the second one--living. Kiran Bala is therefore, entitled to live separately from her husband without forfeiting her claim to maintenance, just as Clause (d), Sub-section (2), Section 18 ibid prescribes This is how I find ingredient.

(e) if the claimant is living separately, whether the claimant is justified in doing so. In Section 23, Sub-section (2). It is all very nice for the defendant to say from the witness-box, asIndeed he does, that he is willing to take back Kiran Bala 'immediately from the Court room, if possible'. q. 17. But Section 18, Sub-section (2), Clause (d), gives her the right to live separately from her husband, without paying the forfeit of her maintenance. And such generosity, if that, goes to waste.

25. (e) The number of persons entitled to maintenance.

The defendant Bankim Chandra puts the number as 10 in his written statement filed on August 11, 1954. See paragraph 6 ante. Who are those 10? He himself, his second wife, five children, a widow aunt, a nephew and a niece. There has since been an addition: six children instead of five: q. 4 et seq. to Bankim Chandra. 1954 to 1967 is 13 years. So, there is nothing unusual in it. That makes his family eight strong including himself and his second wife. Add to this a dependent widow aunt: q. 12. The attempt to bring out in cross-examination that this aunt was possessed of sufficient means--Rs. 10,000 and 30 tolas of gold ornaments--has failed. See qq. 92-96 to Bankim Chandra. Even so, the number Bankim Chandra maintains, including himself, will come to 9. I hear no more of a nephew and a niece pleaded in the written statement Out of these 9 again the aunt eliminates herself. What Section 23, Sub-section (2) Clause (e). I am on now, emphasizes is the number of persons entitled to maintenance under this Act, that is to say, the Hindu Adoptions and Maintenance Act 78 of 1956 That takes me to Section 21 which defines the dependants An aunt is not one of them. She is therefore not a person entitled to maintenance from the defendant under the Act. Bankim Chandra eliminates himself to. Surely, he cannot come within the category of persons entitled to maintenance from himself. Hence, the finding I come to, under this ingredient, is that seven persons, excluding the aunt and Bankim Chandra himself, are entitled to maintenance from him under this Act. I shall remember this--as indeed it is worth remembering--when I assess the reasonable wants of Kiran Bala in terms of money, in all circumstances here, as I proceed to do now.

26. (b) The reasonable wants of the claimant, Rs. 200 a month, Kiran Bala claims, strikes me as erring on the side of excess, even in view of all I see upon the pleadings I therefore ask her: 'what will you do with Rs. 200?' She answers: 'I require Rs. 200, for my treatment because I am ill. I require Rs. 200, because I shall have to pay rent for my accommodation I require Rs. 200, because I shall have to spend money for my food.' q 24. That she needs money for the wants she lists is obvious, even though she gives nothing to her mother or brother now out of Rs. 30 a month this Court has granted her as an interim maintenance What is not so obvious, however is the reasonableness of the claim of Rs. 200 a month. Having taken into consideration all I see before me upon evidence, I assess, in the context of today the reasonable wants of Kiran Bala at Rg. 75 a month.

27. But the context of today cannot be the context of yesterday. Throwing my mind back to October 20, 1952, from when the maintenance is claimed, to 1954 when the suit was Instituted and when the defendant was getting Rs. 250, and a little more, a month, from St. Paul's College, as spoken to by Professor Gourdas Mukherjee (qq. 22 and 24), and also to the subsequent period up to 1964, for which I miss firm evidence, though it is clear that the defendant's emoluments did not remain stationary all these years and taking into my consideration the position and status of parties and all I have to. I assess Kiran Bala's reasonable wants at Rs. 50 a month--a figure which is suggested even on behalf of the defendant, though at a flat rate throughput--from October 20. 1952 to 1964's end.

28. Kiran Bala claims maintenance from October 20. 1952, since when she has been living separately. Bankim Chandra puts the date of such separate living as November 20. 1952: q. 110 T prefer his evidence to Kiran Bala's. Kiran Bala is, therefore, entitled to maintenance, (i) at the rate of Rs. 50 a month from November 20. 1952, to June 22. 1954, just a day ahead of the date of institution of this suit, (ii) at the rate of Rs. 50 a month from June 23. 1954, the date when the suit was Instituted, to 1964's end, and (iii) at the rate of Rs. 75 a month from January 1, 1965, onwards, but minus the amount she has already got by way of interim maintenance. I find the first issue so.

29. It is said that Bankim Chandra retires on July 1, 1968 when he will be 60, and that he should not therefore, be saddled with future maintenance beyond that date. To this, the answer is twofold. One, in spite of one having reached the age of superannuation, one may expect extension up to 65 years. He has only to apply so. Such is the evidence of Professor Gourdas Mukherjee qq. 18-20. Two, should Bankim Chandra retire in fact on July 1, 1968. with a material change in the circumstances, upon which I am founding my decree, all he has to do is to move this Court under Section 25 of the Hindu Adoptions and Maintenance Act 78 of 1956 for alteration of the amount of maintenance fixed by my decree.

30. On the second issue, which I now take up, all I see is oath versus oath. I do not feel called upon to enter into the detail of the evidence. Suffice it to say that Kiran Bala, whom I have heard and seen, does not impress me as one of whom I can say: there is Section 134 of the Evidence Act 1 of 1872, and I can safely go by her uncorroborated testimony.' No; she is not of that type. On this consideration alone she is disentitled to the relief which forms the subfect-matter of this Issue.

31. There are other considerations as well. Lack of further and better evidence (which is so essential before I can mulct Bankim Chandra in a decree for Rs. 4,000 the purported value of the ornaments), denial by Bankim Chandra as early as February 13, 1951, when he wrots to Kiranbala's attorney Mandalal Saha, now dead, (as deposed to by Solicitor Sham Sundar Bose, a witness for the defendant,) characterising this version of 40 to 60 tolas of Hold as 'another piece of false story', vide Exhibit 2, the post-card dated May 98, 1951, by Kiran Bala's father to her, exhibit 1, recording the deposit of her ornaments at (he residence of 'Shriman Atindra', none else than Kiran Bala's brother, the improbability of Kiran Bala having stripped herself of all her ornaments, discrepancies between her evidence and her case in the plaint, Bankim Chandra's evidence on ornaments having a ring of truth in it etc.--all this has produced disbelief in my mind of Kiran Bala's version that her husband has been detaining her ornaments.

32. I, therefore, find the second issue in favour of the defendant Bankim Chandra.

33. On the third issue--the general one on reliefs--I am asked, on behalf of Kiran Bala, to create a charge, of the maintenance grant, on the estate of Bankim Chandra. Sec-tion 27 no doubt provides so. But no such relief Kiran Bala has prayed the Court for. It will, therefore, be not right on my part to travel beyond the plaint, where the property to be charged so has not even been mentioned, thereby taking the defendant completely by surprise.

34. In view of the findings that go before, the only relief the plaintiff Kiran Bala sets is maintenance as indicated in paragraph 28 ante plus costs.

35. I enter judgment for the plaintiff accordingly.


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