LAWS(PVC)-1941-2-87

DEBI RADHA RANI Vs. RAM DASS

Decided On February 13, 1941
DEBI RADHA RANI Appellant
V/S
RAM DASS Respondents

JUDGEMENT

(1.) This is an appeal of the plaintiff, who is the wife of the defendant. The suit was for realization of arrears payable under an ekrarnama, which was executed on 8 August 1931. From that ekrarnama it appears that the husband agreed to pay the plaintiff a sum of Rs. 15 a month and a lump sum of Rs. 800 at the time of the daughter's marriage. The parties were married about 26 years before the date of the suit. There were two issues to the marriage, one son and one daughter and after the son died in the year 1928, misunderstandings arose between the parties and there are allegations of cruelty towards the plaintiff by her husband, as a result of which she went and stayed with her father. The defendant took a second wife. The defence was that the ekrarnama was executed by the defendant as a result of undue influence and coercion, inasmuch as there was at the time pending a criminal case under Secs.323 and 504, I.P.C., between the defendant and the defendant's father-in-law, that is to say, the father of the present plaintiff. From the plaint it appears that the cause of action arose on 10 August 1931, the date of the execution o? the ekrarnama and on the 30 of each month, from May 1932 to May 1938, at Mitbapur, thana Kotwali, within the jurisdiction of the Court. The actual amount to be paid was a sum of Rs. 1095 plus damages to the extent of Rs. 65-12-0 for the years in suit.

(2.) The lower appellate Court has come to the conclusion that it cannot be held that the registered agreement (viz., the ekrarnama) was executed under any coercion or undue influence. The next point that the lower appellate Court formulated for determination was whether the agreement was valid under the Contract Act as well as under the Hindu law, and the rest of its judgment is devoted to a consideration of the circumstances under which a Hindu wife is entitled to claim maintenance. The point of view from which the learned subordinate Judge approached the case indicates that he has fallen into an error. As already mentioned in the earlier part of the judgment, the cause of action arose not on the non payment of maintenance to the plaintiff as a Hindu wife but on the non-observance of the terms of the ekrarnama which came into existence on 10th August 1931. It is argued before us that there was no consideration for this agreement. I shall refer to the terms of the ekrarnama to show how far this point succeeds in favour of the defendant, the husband of the plaintiff.

(3.) Reliance has been placed upon the decision in Sm. Rajlukhy Debee v. Bhootnath Mookerjee 4 C.W.N. 488 in which the wife sued her husband to recover the arrears of allowance which the husband agreed to pay. Their Lordships of the Calcutta High Court decided that case on the ground that the recitals contained in the agreement in question did not show any consideration moving from the wife for the agreement by the husband. It appears from the judgment in that case that there was no promise on the part of the wife to do, or abstain from doing anything; she gave up no right. It was held in that case that there was no consideration and therefore the agreement was not binding. Now, let us see if there was a consideration in this case or not. A translation of the ekrarnama has been handed over to us by the learned advocate for the appellant and its correctness has not been questioned. There, after narrating that the wife had become displeased with the husband on account of difference and discord and had as a result gone away to her father's place the executant states as follows: Consequently the said my wife is about to sue me in the civil Court for her maintenance allowance. I therefore think that the institution of a suit will put me to loss and disgrace and that it would be better if I made some provision for the maintenance of my aforesaid wife so as to enable her to lead a contented and happy life and so that she may not have any grievance, I, the executant, therefore made her agree to the proposal that I would give her a monthly allowance of Rs. 15 every month for life whether she lived with her father at her father's place or with me....To this proposal of mine my aforesaid wife agreed and I, the executant, thought it meet and proper to execute in her favour a deed of maintenance so that she may be satisfied and may not be put to any trouble and inconvenience whatever.