KISANJI MOHANLAL SETH Vs. LAKSHMI

JUDGEMENT

(1.) The defendants-appellants Nos. 1 and 2 are the father-in-law and the brother-in-law of the plaintiff-respondent Bai Laxmi, widow of Chhaganlal, the deceased son of the defendant- appellant No. 1 Kisanji. On March 18, 1922, the respondent on the one hand passed a release in favour of the appellants in respect of "all sorts of rights, viz., food, clothing etc.," during her life for a sum of Rs. 500, Rs. 200 payable immediately, and Rs. 800 in annual installments on various dates, the last being April 19, 1924. Defendant No. 2 passed a promissory note in her favour for Rs. 300. In 19:23 the respondent filed a suit No. 14S of 192 i for one installment. The appellants objected on the allegation that she was unchaste but offered a special oath, which the respondent took. The respondent filed the present suit on December 9, 1927, in respect of the last installment of Rs. 100. The appellants raised two objections, the first of limitation and the second of unchastity. The trial Court framed no issue on the first point and on the second, held on issue 3, taken up as a preliminary issue, that the alleged bad conduct of the plaintiff did not debar her from recovering the amount under the agreement. After deciding this preliminary issue, it raised two other preliminary issues as to whether the appellants contentions were not res judicata by reason of the decision in the previous suit No. 148 of 1923, and whether they were not estopped from raising the contentions by reason of the said decision, answered both these in favour of the respondent and decreed the claim. The defendants appeal to the District Court failed on the ground that the compromise for the payment of Rs. 500 contained no condition in regard to continued chastity. The defendants appeal.

(2.) A preliminary objection is taken for she respondent that this suit is a suit of a small cause nature below Rs. 500 and therefore no appeal lies under Section 102 of the Code of Civil Procedure, Under Clause 38 of the second schedule to the Provincial Small Causes Courts Act "a suit relating to maintenance" is excepted. The Presidency Small Cause Courts Act contains no such exception and there fore such a suit might be cognizable in the presidency towns by a Court of Small Causes: Erachshaw V/s. Dinbai (1920) I.L.R. 45 Bom. 318, s.c 22 Bom. L.R. 1293. It has, however, been held in Saminatha Ayyan V/s. Mangalathammal (1896) I.L.R. 20 Mad. 29, Munirud-din V/s. Samir-un-nissa Bibi (1917) I.L.R. 40 All. 52, and Bhagvantrao v. Ganpatrao (1891) I.L.R. 16 Bom. 267, that a suit for arrears of maintenance due under a bond or agreement is not cognizable by a Provincial Court of Small Causes under Clause 38 of Schedule II of Act IX of 1887. Following these decisions the preliminary objection must be disallowed, the words "relating to maintenance" being wider than "a suit for maintenance".

(3.) On the merits, it is to be regretted, that all the necessary issues were not framed in the first instance and all the preliminary issues were not tried together rather than in the slip-shod manner in which the trial in the Subordinate Judge's Court has actually been conducted. On the question of estoppel and res judicata, it is difficult to see, how any allegation of unchastity in "1923 withdrawn on special oath and therefore decided in favour of the plaintiff can estop or act as res judicata against a contention that she was unchaste after that date when the present installment fell due. The view of the trial Court that the defendants-appellants are estopped or that the finding and the judgment in the former suit No. 148 of 1923 are res judicata is wrong.