HUSAINI BEGAM Vs. KHWAJA MUHAMMAD KHAN

JUDGEMENT

(1.) This is an appeal by the plaintiff Nawab Husaini Begam, wife of Nawab Rustam Ali Khan, against the decree of the Subordinate Judge of Agra, dated the 16 of August 1904, dismissing her suit. On the occasion of the marriage of the plaintiff with her husband, Nawab Khwaja Muhammad Khan, the father of Rustam Ali Khan, agreed with the plaintiff's father that in consideration of the marriage he would pay to the plaintiff Rs. 500 a month as pin money, described in the document which was subsequently drawn up as "pandan." It appears that this annuity was paid for a considerable time, but, owing to the fact that the plaintiff refused to live with her husband, or ceased to live with him, her father-in-law thought it fit to stop the payment of the annuity. The amount claimed is for arrears due up to the e October, 1903.

(2.) A number of defences were set up in the Court below, the most important being that the plaintiff had ceased to live with her husband on account of quarrels and therefore was not entitled to the annuity, and that she had become unchaste and therefore hud forfeited her rights in respect of it. It was also said that the agreement was illegal and opposed to public policy and was without consideration. Issues upon these defences were knit in the Court below, but all of them were determined in favour of the plaintiff, with the exception of the issue whether the plaintiff had ceased to live with her husband and so forfeited the annuity. The learned Subordinate Judge found that she had ceased to live with him, and on this ground that she had forfeited her right to the annuity. His words are: "I hold that if the plaintiff prove unchaste or refuse to live with her husband, there is no obligation on her father-in-law to pay her any allowance;" and further on: "In this present case unchastity has not been legally proved, but her refusal to live with her husband is most satisfactorily proved, and I therefore hold that she is not entitled to her allowance." How the agreement to pay the annuity was embodied in a document which has been adduced in evidence. It is dated the 25 of October 1877 and is very simple in its provisions. In it the defendant, Khwaja Muhammad Khan, after reciting that the marriage of his son Rustam Ali Khan, with the plaintiff had been fixed to take place on the 2 November, 1877, declares that he will continue to pay Rs. 500 per month in perpetuity to the plaintiff for pin money (pandan) from the date of the marriage, that is, from the date of the plaintiff's arrival at her husband's house, out of the income of certain property in the Agra district and a jagir in the Dholpur State which is specified in the document. Then follows a provision, that neither the executant nor his heirs or representatives shall have power to object to the monthly payment and that the whole property shall be liable for the amount of it; and further that the plaintiff shall have power to recover the annuity from all the property in the Agra district and the property in Dholpur in whatever way she pleased. This is the substance of the document. Details of the property the subject of the charge are then given, and the signature of the executant is appended with that of several witnesses. The execution of the document is admitted and it is also admitted that arrears of the annuity are due in case there be any liability on foot of the agreement. It is to be observed that there is no condition whatever attached to the payment of the annuity. There is nothing said as to the chastity or unchastity of the plaintiff, nor is there any provision under which the executant can claim freedom from liability in case the plaintiff cease to live with her husband or by reason of any other act done by the plaintiff. We therefore fail to understand how the learned Subordinate Judge arrived at the conclusion that the fact that the plaintiff was not living with her husband relieved the defendant, Nawab Khwaja Muhammad Khan, from his obligation to satisfy his undertakings. He is in our opinion clearly wrong as to this.

(3.) We may point out that the reason assigned by the plaintiff for her refusal to live with her husband is that he has been in the habit of entertaining a prostitute in his house and otherwise misconducting himself, and that it was owing to his misconduct that she left his house. Our attention was not called by either the learned Counsel or the Advocate for the respective parties to the evidence upon the record, nor was it indeed necessary to do so in view of the fact that the execution of the agreement for the payment of the annuity is admitted and payment is not alleged.