Sir Shadi Lal:
On the 5th June 1915, two brothers, Baldeo Sahai and Seth Lakshmi Chand, who constituted a joint Hindu family governed by the Mitakshara school of Hindu law, executed a document providing for the disposal of their estate. It was presented for registration, on the 8th June, at the office of the sub-registrar, and was duly registered on the 9th June. This document, which has been variously described as an agreement or a joint will of the two brothers, stated, inter alia, that, in the event of one broner dying without leaving a male issue, his widow's name should be substituted for that of the deceased husband in the public records relating to the estate. Her interest in the estate was defined in the eighth paragraph of the instrument, and, as there is a controversy between the parties about the interpretation to be placed upon it, it is necessary to set it out in extenso:
(8) We, both the parties, have, up to this time been jointly managing all the estate affairs and shall continue to manage it in the same way, provided no partition takes place. After the death of one party all managements relating to the estate shall be made by the surviving party. The wife of a deceased party shall have no right to get the property partitioned in the life of the other party, but shall continue to get her share of the profit from the other party after deducting the expenses relating to the estate. If the other party evades the payment of the profits, she shall be entitled to seek remedy in Court only for recovery of profit.
Before discussing the question raised on this appeal, it is desirable to state the circumstances which have led to the present litigation. It is common ground that Baldeo Sahai died on 10th June 1915, without leaving male issue; and that the name of his widow, Mt. Anandi, was entered, instead of the name of the deceased, in the relevant revenue records. Lakshmi Chand did not however give her the profits to which she was entitled under the paragraph quoted above, and brought, in 1918, an action for a declaration that the transaction embodied in the document amounted to a testamentary disposition of the co-parcenary estate and could not take effect, as on the death of Baldeo Sahai, his brother became the sole owner of the entire joint estate by the rule of survivorship. This claim was rejected, not only by the trial Court, but also by the High Court. The plaintiff then preferred an appeal to His Majesty in Council, but that appeal too was dismissed on 15th March 1926. The judgment of the Privy Council dismissing the appeal is reported in 53 IA 123 (1)at pages 126-133 and will be
referred to presently. In the meanwhile, Mt. Anandi, who had not received any profits from her brother-in-law, had commenced, in 1920, a suit to .recover her share of the profits for the period of five years, from 11th June 1915, to 10th June 1920. The progress of the suit was considerably delayed, and it was not until March 1928, that the trial Court granted her a decree for Rs. 81,423-12-0, The appeal brought by Lakshmi Chand against this decree was dismissed by the High Court in February 1929.
Though defeated in his suit to impeach the validity of the deed of 5th June 1915, Lakshmi Chand made no payment of the profits even after the judgment pronounced by the Privy Council, with the result that Mt. Anandi had to bring, in August 1926, another suit for profits for the period from 15th June 1920 to 30th July 1926. In this suit she obtained a decree for a sum exceeding one lakh of rupees. The above narrative does not however exhaust the list of the cases between Lakshmi Chand and his sister-in-law. In May 1929, he instituted the present suit to defeat her right to recover profits, and the ground of attack put forward this time was that she had forfeited her right by reason of her re-marriage and unchastity with one Tara Chand. The trial Court and the High Court have concurred in holding that there was no re-marriage, and that point cannot be, and has not been, re-agitated before their Lordships.
On the question of unchastity, the Subordinate Judge found in favour of the plaintiff, but the High Court after a survey of all the relevant circumstances, felt no hesitation in deciding that the charge of unchastity was false. The learned Judges rightly held that the onus of proving unchastity rested upon the plaintiff, and they observed that the trial Judge in dealing with this issue has not always kept this fact in view that the onus in the matter lay upon Lakshmi Chand and not upon Mt. Anandi.
The High Court also decided that Mt. Anandi could not, by reason of unchastity, be divested of the estate which was conferred upon her by the document executed by both the brothers. On this appeal against the judgment and the decree pronounced by the High Court, the plaintiff again repeats the charge of unchastity and maintains that her misconduct has deprived her of the right to recover the profits. Their Lordships do not think that it is necessary to discuss the evidence on the issue of unchastity, as they are clear that the appeal must fail on the ground that the charge of unchastity, even if it were established, would not cause a forfeiture of the estate she had got under the document. It is true that the right of a Hindu widow to maintenance is conditional upon her leading a life of chastity, and that she loses that right if she becomes unchaste. The argument advanced for the appellant, proceeding as it does upon this rule of the Hindu law, is however irrelevant to the question before their Lordships. 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, and it is sufficient to say that it was then decided finally that the instrument in question contained an agreement between the two brothers that :
Mt. Anandi should, on the death of Baldeo Singh, have and enjoy for her life an interest in a moiety of the joint property equivalent to the interest which the widow of a sonless and separated Hindu would have in her deceased husband's estate, and that the interest which she obtained by the mutual agreement of Baldeo Sahai and Lakhsmi Chand should continue for her benefit for her life, notwithstanding the birth, if it should happen, of, 'male issue' to Lakhmi Chand.
This is the estate she took under the instrument, and it is clear that the right to receive maintenance is very different from a vested estate in property. Under the Hindu law a widow having inherited a widow's estate is not liable to forfeit it by reason of her subsequent unchastity, and there is no provision in the document making chastity a condition of the enjoyment by her of the estate bestowed upon her. The learned counsel for the appellant urges another ground for terminating Mt. Anandi's estate, which was not mentioned in the Courts below. He maintains that, while the deed required her to live in a dwelling house in Khatauli, she gave up her residence there and migrated to a place called Paswara in order to prosecute her intrigue with her paramour; and that this circumstance should operate as a forfeiture of her estate. The deed no doubt allowed her to live "in any house she might choose" situated in a specified enclosure at Khatauli, and enjoined Lakshmi Chand not "to turn her out of it." But this was a right given to her, not an obligation imposed upon her. She was not bound always to live in the house in question. She however lived in it continuously for more than eleven years after the death of her husband, and left it only when she apprehended violence from the appellant. Moreover, there is no provision in the document which would warrant a forfeiture of her estate on that ground. The appellant has failed to show any reason for avoiding his liability to pay the income of a moiety of the entire estate to the respondent. They will therefore humbly advise His Majesty that the appeal be dismissed with costs.