THAKURANI JAMUNA KUNWAR Vs. THAKUR ARJUN SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiff Thakurani Jamna Kurrwar. She brought a suit in the Court below against Thakur Arjun Singh for the recovery of "a sum of Rs. 29,000 with costs and pendente lite and future interest to be declared a charge on the property detailed at the foot of the plaint." The allegations in the plaint were that the plaintiff's husband, Thakur Laiq Singh was a very big zamindar and taluqa, dar and the income from his zamindari property alone was Rs. 41,000 per annum. Apart from this zamindari property he was alleged to have an orchard yielding an income of Rs. 2000 per annum and money lending business on an extensive scale together with deposits in the bank of about Rs. 50,000 and ornaments of gold and silver. Thakur Laiq Singh died in November 1931 and it was said that the defendant entered into possession of the entire estate of Thakur Laiq Singh and the plaintiff, as the widow of the said Thakur, was entitled to maintenance and the Court could declare a charge on the property in the possession of the defendant. The sum of Rs. 29,000 was made up as follows:

(2.) The Court below dismissed the plaintiff's suit and hence the present appeal before us. The pleas contained in the written statement might be mentioned in some detail. It was alleged that the plaintiff had no cause of action for the suit, that the defendant's adoptive father, the late Thakur Laiq Singh, by his will dated 29 March 1928, authorised the defendant to pay Rs. 100 per mensem to the plaintiff on the condition that she did not leave the residential place and that the same would be permissible only if the defendant refused to keep or maintain the plaintiff. The defendant alleged that he never refused to keep or maintain the plaintiff and as the plaintiff had now left the residential house and lived separately she was not entitled to any separate maintenance under the terms of the will. It was further said that the plaintiff was not entitled to file any suit for maintenance or arrears of maintenance of declaration without admitting the defendant's right and title as the adopted son of the deceased. No plea was taken to the effect that under the United Provinces Estates Act (Local Act 7 of 1920) the plaintiff was in no event entitled to maintenance at a rate exceeding Rs. 50 a month.

(3.) The plaintiff went into the witness-box and several witnesses were examined on her behalf. The defendant entered the witness-box on 13 December 1937 when in answer to a question by his counsel in examination-in-chief he stated that his estate, so far as he remembered, was under the Agra Estates Act. On 14th December 1937 a notification in the United Provinces Government Gazette dated 23 liay 1930 was filed which showed that Thakur Laiq Singh of Labhua had applied to the Government under Section 3, United Provinces Estates Act 7 of 1920, for a declaration that the provisions of Part I of the said Act should apply to him, and the Governor in Council after enquiry had decided to grant the application and therefore it was being notified that the declaration was made under Section 6 of the said Act and that the provisions of Part I of the Act had been made applicable to the applicant in respect of the immovable property in which he had a separate, permanent, heritable and transferable right at the date of the notification as entered in the schedule printed below. Then a list of the zamindari property belonging to Thakur Laiq Singh was given and the revenue thereof was put down as Rs. 26,619-10-9 and the profits were put down as Rs. 41,603-8-0. This document was admitted in evidence by the learned civil Judge on 17 December 1937. No issue had been struck with reference to the United Provinces Estates Act, and indeed none could have been struck because, when the written statement was filed, no such plea had been taken. Even after the filing of the notification in the Government Gazette the defendant did not insist on any new issue being struck. It, however, appears that some argument was advanced in the Court below, but the learned Judge was of the opinion that the amount of Rs. 50 per month would be too low and inadequate and can, by DO means, suffice to meet the expenses of the plaintiff.