MATHURA PROSAD Vs. RUKMINI KOER

JUDGEMENT

(1.) This appeal is directed against the decree in a suit by a Hindu lady to enforce her right of maintenance under an ekrarnamah executed in her favour by her brother-in-law on the 27th May 1865. It appears that one Sobhan Lal left three sons, Kishen Bullabh, Gopi Bullabh and Joi Bullabh, Joi Bullah left a widow Rukmini Koer and a daughter Prasan Bibi. Gopi Ballabh died childless. Kishen Ballabh left a son Brij Bhukan. After the death of Joi Bullabh disputes broke out between his widow and his brother Kishan Bullabh, and on the 27th May 1865, Kishen Bullabh executed an ekrarnamah, on the strength of which Rukmini Koer now seeks to enforce her right of maintenance. Kishen Bullabh died many years ago and the suit has been brought against the grandsons of Brij Bhukhan by his daughter Mabarani Bibi. The Court below has held that the plaintiff is entitled to receive maintenance at the rate of Rs. 650 per year for the whole period in suit, that is, from the be ginning of Joit 1308 to the end of Choit 1314. That decree has been assailed on behalf of the defendant in the present appeal on four grounds, namely, first that upon a true construction of the ekramamah, it ought to have been held that upon the death of Parson Bibi the right to receive maintenance completely lapsed, secondly that in any event, the plaintiff is not entitled to claim maintenance at a rate higher than half the sum named in the ekramamah; thirdly, that the plaintiff is not entitled to obtain a decree for the maintenance which accrued due before the death of Parsan Bibi, that is, maintenance for the period between the 4th May 1901 and the 24th February 1902; and, fourthly, that as the ekramamah does not provide for the payment of the interest on arrears of maintenance, no interest ought to have been allowed in the decree.

(2.) In support of the first contention the learned Vakil for the appellant has invited our attention to the terms of the ekranamah. The Clause which is material for the purpose of the disposal of the present question is in these terms: "The said Musammat" (that is Rukmini Koer) "made a proposal to me" (that is the grantor Kissen Bullabh) "that a sum of Rs. 650 be settled on her as her maintenance allowance during her life-time and that of her daughter Prasan Bibi, that ill case any male child be born of the womb of Musamrnat Parsan, the said son shall after the death of the said Musammats get half of the said amount, i.e., Rs. 325 a year. Whereas it is incumbent on me to grant maintenance allowance to the said Musammats and to have regard for the son of Musammat Parson Bibi, and whereas I should in consideration of the claim, as a relation of the said Musammat on me, to make concession and should have kind and compassionate regard for them, I, the decelerate, accepted the proposal mentioned above and I do declare that I will without objection pay the said annual allowance to the said Musammats during their lile-time as per instalments given below, and that in the event of Musamrnat Parsan Bibi giving birth to a male issue I will pay to him after the death of the said Musammats half the annual allowance, i.e., Rs. 325." The learned Vakil for the appellant has invited us to construe this Clause as indicating that the grant was in favour of the two ladies and that the intention of the grantor was, that upon the death of either of them, the maintenance should completely lapse. In our opinion there is no foundation for this contention. It is the duty of the Court, in cases of this description, to ascertain the true intention of the grantor as expressed by the language used by him. The object of the grantor in the case before us, undoubtedly, was to provide for the maintenance of both the ladies. He could not have intended that upon the death of one, the other should be left without any provision for maintenance. It has not been seriously suggested that the death of either could render unnecessary the support of the other. It may also be added that if the contention of the appellant were to prevail, the result would be that upon the death of one of the ladies, the maintenance would be discontinued or remain in suspense till the death of the survivor, when it would be revived in favour of the son of Parsan Bibi to the extent of Rs. 325. This would be an obviously unreasonable intention to impute the grantor. The first contention, therefore, is overruled as wholly untenable.

(3.) In support of the second contention the learned Vakil for the appellant has argued that the object of the grantor was to provide for the maintenance of both the ladies, and that he intended that upon the death of either the maintenance payable to the other should be one- half of the original amount. No doubt, when a grant is made for maintenance in favour of two persons, prima facie it may be contended that upon the death of either the other would be entitled to only a proportionate amount. Jogeswar Narain v. Ram Chundra 23 C. 670 : 23 I.A. 37. But in the case before us there are ample indications of an intention to the contrary. The grantor provided that the two ladies were to receive Rs. 650, and that after the death of both, one-half of that amount was to be continued as maintenance to the son of Parsan Bibi, should she have a son born of her womb. According to the contention of the learned Vakil for the appellant, the intention of the grantor was substantially to make a separate grant in favour of each for the sum of Rs. 325, But no words pre used in the document from which such an inference may legitimately be drawn. Upon a construction of the whole document, therefore, we are of opinion that the grant was to the two ladies as if they constituted one grantee with right of survivorship inter se. In this view, so long as the two ladies lived, they would be jointly entitled to Rs. 650, and upon the death of either, the other as survivor would be entitled to the whole sum of Rs. 650, and upon the death of both the maintenance allowance would be reduced, namely, Rs. 325 would be continued in favour of the son of Parsan Bibi, if any. The second ground taken for the appellant cannot, therefore, be supported.