(BAHURIA) SARASWATI KUER Vs. (BAHURIA) SHEORATAN KUER

JUDGEMENT

(1.) This is an appeal by the defendant in an action by the plaintiff for maintenance. The only substantial question which we have to determine is the amount to which the plaintiff is entitled. The plaintiff is the first wife (now a widow) of one Ganesh Prasad Narain Sahi; the defendant is the second wife, who in circumstances which I shall mention, is in possession of the estate of her late husband. In July of 1914 Ganesh Prasad executed a tamliknama dedicating a large number of properties, more specifically stated in the deed, for religious purposes and made a gift of the remainder to the defendant, the second wife, subject to payment of certain allowances to various persons including himself and the plaintiff. To himself there was an allowance to be paid of Rs. 1,800 per annum and the same to the plaintiff. In 1916 the estate apparently being in debt, it was taken over by the Court of Wards.

(2.) In 1920 Ganesh Prasad died having in the meantime married a third wife and having had a son by her. In those circumstances the plaintiff claimed in this action the sum of Rs. 150 per mensem from 20 March 1916 to 28 March 1928. The learned Judge in the Court below has granted the plaintiff a decree up to the year 1926 at the amount claimed, but having decided that the value of the estate had diminished by one-third from 1926 owing to the sale of certain portions of the estate to pay off debts to which I shall presently refer, reduced the amount to which, in his judgment, the plaintiff was entitled from that date to Rs. 100 a month which is of course two-thirds of the amount claimed. He has given a decree for those sums plus interest.

(3.) Now at the very outset of the case it comes to be determined as to whether the plaintiff was suing under the tamliknama of July 1914, or whether, as the Judge in the Court below states, she was suing under the Hindu law; in other words, suing as a Hindu widow entitled to maintenance by the general Hindu law. Before us Mr. Khurshed Husnain, who appears on behalf of the plaintiff- respondent, incidentally has a cross-appeal on the question of reduction of the allowance after 1926. He states that his client was suing under the General Hindu law and also under the tamliknama. It becomes necessary in the circumstances and by reason of certain points which arise in the appeal to determine this matter. It seems to me, if I may say so with great respect to Mr. Khurshed Husnain's argument, that the answer which is given is plainly insufficient. Either the plaintiff was suing under the tamliknama or she was not.