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Mathura Prosad Vs. Rukmini Koer - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.148
AppellantMathura Prosad
RespondentRukmini Koer
Cases ReferredMansab Ali v. Gulab Chand
Excerpt:
maintenance grant - grant to two ladies and half the amount to son of one after death of both ladies--construction--survivorship--succession certificate act (vii of 1889), section 4--grant silent as to interest--interest whether may he decreed. - .....is not entitled to obtain a decree for the maintenance which accrued due before the death of parsan bibi, that is, maintenance for the period between the 4th may 1901 and the 24th february 1902; and, fourthly, that as the ekramamah does not provide for the payment of the interest on arrears of maintenance, no interest ought to have been allowed in the decree.2. in support of the first contention the learned vakil for the appellant has invited our attention to the terms of the ekranamah. the clause which is material for the purpose of the disposal of the present question is in these terms: 'the said musammat' (that is rukmini koer) 'made a proposal to me' (that is the grantor kissen bullabh) 'that a sum of rs. 650 be settled on her as her maintenance allowance during her life-time.....
Judgment:

1. This appeal is directed against the decree in a suit by a Hindu lady to enforce her right of maintenance under an ekrarnamah executed in her favour by her brother-in-law on the 27th May 1865. It appears that one Sobhan Lal left three sons, Kishen Bullabh, Gopi Bullabh and Joi Bullabh, Joi Bullah left a widow Rukmini Koer and a daughter Prasan Bibi. Gopi Ballabh died childless. Kishen Ballabh left a son Brij Bhukan. After the death of Joi Bullabh disputes broke out between his widow and his brother Kishan Bullabh, and on the 27th May 1865, Kishen Bullabh executed an ekrarnamah, on the strength of which Rukmini Koer now seeks to enforce her right of maintenance. Kishen Bullabh died many years ago and the suit has been brought against the grandsons of Brij Bhukhan by his daughter Mabarani Bibi. The Court below has held that the plaintiff is entitled to receive maintenance at the rate of Rs. 650 per year for the whole period in suit, that is, from the be ginning of Joit 1308 to the end of Choit 1314. That decree has been assailed on behalf of the defendant in the present appeal on four grounds, namely, first that upon a true construction of the ekramamah, it ought to have been held that upon the death of Parson Bibi the right to receive maintenance completely lapsed, secondly that in any event, the plaintiff is not entitled to claim maintenance at a rate higher than half the sum named in the ekramamah; thirdly, that the plaintiff is not entitled to obtain a decree for the maintenance which accrued due before the death of Parsan Bibi, that is, maintenance for the period between the 4th May 1901 and the 24th February 1902; and, fourthly, that as the ekramamah does not provide for the payment of the interest on arrears of maintenance, no interest ought to have been allowed in the decree.

2. In support of the first contention the learned Vakil for the appellant has invited our attention to the terms of the ekranamah. The Clause which is material for the purpose of the disposal of the present question is in these terms: 'The said Musammat' (that is Rukmini Koer) 'made a proposal to me' (that is the grantor Kissen Bullabh) 'that a sum of Rs. 650 be settled on her as her maintenance allowance during her life-time and that of her daughter Prasan Bibi, that ill case any male child be born of the womb of Musamrnat Parsan, the said son shall after the death of the said Musammats get half of the said amount, i.e., Rs. 325 a year. Whereas it is incumbent on me to grant maintenance allowance to the said Musammats and to have regard for the son of Musammat Parson Bibi, and whereas I should in consideration of the claim, as a relation of the said Musammat on me, to make concession and should have kind and compassionate regard for them, I, the decelerate, accepted the proposal mentioned above and I do declare that I will without objection pay the said annual allowance to the said Musammats during their lile-time as per instalments given below, and that in the event of Musamrnat Parsan Bibi giving birth to a male issue I will pay to him after the death of the said Musammats half the annual allowance, i.e., Rs. 325.' The learned Vakil for the appellant has invited us to construe this Clause as indicating that the grant was in favour of the two ladies and that the intention of the grantor was, that upon the death of either of them, the maintenance should completely lapse. In our opinion there is no foundation for this contention. It is the duty of the Court, in cases of this description, to ascertain the true intention of the grantor as expressed by the language used by him. The object of the grantor in the case before us, undoubtedly, was to provide for the maintenance of both the ladies. He could not have intended that upon the death of one, the other should be left without any provision for maintenance. It has not been seriously suggested that the death of either could render unnecessary the support of the other. It may also be added that if the contention of the appellant were to prevail, the result would be that upon the death of one of the ladies, the maintenance would be discontinued or remain in suspense till the death of the survivor, when it would be revived in favour of the son of Parsan Bibi to the extent of Rs. 325. This would be an obviously unreasonable intention to impute the grantor. The first contention, therefore, is overruled as wholly untenable.

3. In support of the second contention the learned Vakil for the appellant has argued that the object of the grantor was to provide for the maintenance of both the ladies, and that he intended that upon the death of either the maintenance payable to the other should be one-half of the original amount. No doubt, when a grant is made for maintenance in favour of two persons, prima facie it may be contended that upon the death of either the other would be entitled to only a proportionate amount. Jogeswar Narain v. Ram Chundra 23 C. 670 : 23 I.A. 37. But in the case before us there are ample indications of an intention to the contrary. The grantor provided that the two ladies were to receive Rs. 650, and that after the death of both, one-half of that amount was to be continued as maintenance to the son of Parsan Bibi, should she have a son born of her womb. According to the contention of the learned Vakil for the appellant, the intention of the grantor was substantially to make a separate grant in favour of each for the sum of Rs. 325, But no words pre used in the document from which such an inference may legitimately be drawn. Upon a construction of the whole document, therefore, we are of opinion that the grant was to the two ladies as if they constituted one grantee with right of survivorship inter se. In this view, so long as the two ladies lived, they would be jointly entitled to Rs. 650, and upon the death of either, the other as survivor would be entitled to the whole sum of Rs. 650, and upon the death of both the maintenance allowance would be reduced, namely, Rs. 325 would be continued in favour of the son of Parsan Bibi, if any. The second ground taken for the appellant cannot, therefore, be supported.

4. In so far as the third ground is concerned, it may be conceded that it seems at first sight plausible. The learned Vakil for the appellant has argued that the amount of maintenance which accrued due up to the time of the death of Parsan Bibi constitutes a debt due to her from the representatives of the grantor and that, consequently, under Section 4 of the Succession Certificate Act, it is obligatory upon the plaintiff to obtain a succession certificate before a decree can be made in her favour. We are of opinion that this contention is not well-founded. As we have already explained, the nature of the right to maintenance was such that each of the grantees was entitled to take by survivorship to the other and the nature of the right would the impressed upon the arrears of maintenance, if any; consequently, the sum which had accrued due before the death of Parsan Bibi would rightly be treated as property in respect whereof the survivor would be entitled to succeed by survivorship and not by inheritance. We may add that if the contention of the appellant were accepted the result would be that the amount of the debt would have to be specified in the application under Section 6 of the Succession Certificate Act and the process amount would also have to be set out in the certificate under Section 8. But what was the precise amount of the maintenance which had accrued due in favour of Parsan Bibi at the time of her death. It cannot be suggested for a moment that it was the whole sum at the rate of Rs. 650, nor can it be maintained that it was half of that sum, for that involves the erroneous assumption already negatived that the grant was to the two ladies to the extent of one-half share in favour of each. It is clear, therefore, that this is not a debt within the meaning of Section 4 of the Succession Certificate Act. Reference may, in this connection, be usefully made to the analogy furnished by the class of cases where it has been held that a succession certificate is not needed where one member of a joint Mitakshara family succeeds by survivorship to a debt payable to another member. Beejraj v. Bhyropersaud 23 C. 912. The third contention of the appellant consequently fails.

5. In so far as the fourth contention is concerned, there is plainly no substance in it. It is true that the ekrarnamah does not provide for payment of interest upon default made by the grantor or his representatives. But it is open to the Court to award interest in the shape of damages for unlawful detention of many Chaimal Das v. Brij Bhukan 17 A. 511 : 22 I.A. 199; Gudri Kore v. Bhubneswari 19 C. 19; Moti v. Bamohari 24 C. 699 : 1 C.W.N. 437; Jageshari v. Ghanasham Dass 5 C.W.N. 356; Mansab Ali v. Gulab Chand 10 A. 85 and we are of opinion that, in view of the conduct of the defendant, which is hardly calculated to create any sympathy in his favour the decree for interest has been justly made.

6. The result is, that the decree made by the Subordinate Judge is affirmed and this appeal dismissed with costs. We assess the hearing fee at Rs. 25.


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