BIDHU MUKHI DASI Vs. SATISH CHANDRA BOSE

JUDGEMENT

(1.) THIS is an appeal on behalf of the plaintiff in a suit for recovery of maintenance, commenced by her, against her brother-in-law. The husband of the plaintiff pre-deceased her father-in-law and after the death of the latter his widow in the exercise of the authority conferred upon her took the defendant in adoption. The plaintiff claims to recover separate maintenance from the defendant. Her rights in this respect are regulated by the 4th paragraph of the Will of her father-in-law. That paragraph provides as follows: "My daughter-in-law, Sreemutty Bidhu Mukhi Dasi, shall, as long as she lives, live as a member of the family, attend my two wives and obtain her maintenance and probable expenses for brata, etc., when necessary. If after the death of my first wife disagreement takes place between her (Bidhu Mukhi) and my begotted son or adopted son, and she lives in my own house as separate in mess, then she will get Rs. 100 in cash and 1/4th share of the fruits produced in my garden; but if she lives in her father s house pitralaya she will get nothing". Now the contingency which has happened is that the first widow of the testator has died and the plaintiff, by reason of disagreement between herself and her brother-in-law, now resides in the family of her brother. Her father is admittedly dead. In our opinion, the case is covered completely by the second clause of the 4th paragraph of the Will. It has been argued that as the plaintiff is not living in her father s house, her father being dead, the second contingency has not happened and that, therefore, the contingency which has happened is not provided for by the Will. We are unable to accept this narrow interpretation of the provisions of the Will, The testator clearly contemplated two contingencies, first that his daughter-in-law might reside in his own family house, and secondly that she might not live in her pitralaya. THIS expression is, in our opinion, comprehensive enough to include the house of her brother, her father being dead. Consequently, under the terms of the Will, she is not entitled to claim any separate maintenance from her brother-in-law. It was faintly suggested that it was not competent to the testator to make such a disposition of his property as to interfere with the right of maintenance of his daughter-in-law. In our opinion, the testator was perfectly competent to impose suitable restrictions upon the enjoyment of the maintenance which he provided for his daughter-in-law and the restriction which was imposed was not unreasonable.

(2.) THE result, therefore, is that the decree made by the Court below must be affirmed, though, not on the grounds stated by the learned District Judge; and this appeal dismissed with costs.