SAVITRIBAI Vs. RADHAKISHAN

JUDGEMENT

(1.) THIS appeal is against an order of Sinha C.J. (as he then was) passed on 20th December 1951.

(2.) THE matter arises out of the execution of a decree which one Kundanbai obtained in a suit for arrears of maintenance in the year 1938 (Civil Suit No. 5 -A of 1937 decided on 28 -4 -1938).

(3.) THE following genealogy shows the relationship of the parties: - - Kundanbai was the widow of Ramesh war who died in a state of jointness with his elder brother Shaligram. In the year 1894 Kundanbai brought a suit for maintenance against Shaligram and obtained a decree for maintenance at Rs. 250 per month. When she started executing it, it was held that the decree was not executable because a charge had been created upon the property and the charge had to be enforced by a separate suit. Later, she brought a suit and obtained another decree and recovered all maintenance upto 5th March 1930. Subsequently, by a compromise the amount of maintenance was reduced from Rs. 250 per month to Rs. 200 per month. It is stated that some villages were offered to her in lieu of maintenance but that she declined to take them. In the year 1936 (24 -9 -1936) Kundanbai executed a will in favour of her brother Sheocharan and Radhakishan son of Sheocharan, bequeathing to them the arrears of maintenance for 79 months ending 24 -9 -1936, amounting to Rs. 15,800. These arrears were upto the date of the will. The will, which is Exhibit A -1, is attested by two witnesses Gattani and Dalchand, of whom Gattani alone has been examined. It may be pointed out that the scribe of the will was also examined. Sheocharan predeceased Kundanbai and died on 29th December 1941. Kundanbai died on 22nd July 1944. Prior to her death Kundanbai executed another will on 9th February 1944 (Exhibit A -2), by which she bequeathed the arrears of maintenance from 24 -9 -1936 to 24 -1 -1944 amounting to Rs. 17,600 in favour of Poonabai alias Mst. Shantabai. Prior to her death, however, Kundanbai brought a suit and obtained a decree, out of which the present execution matter arose. That suit was for arrears of maintenance from 5 -3 -1930 to 5 -4 -1937. She obtained a decree for Rs. 20,855 with interest at 6 per cent per annum (Civil Suit No. 5 -A of 1937 decided on 28th April 1938.)