ROHINI KUMAR PAL Vs. KUSUM KAMINI PAL

JUDGEMENT

(1.) This appeal is by the defendant No. 1 against, a portion, of the decree of the Subordinate Judge and arises out of a suit for maintenance brought by the plaintiff, a Hindu widow, out of the estate left by her deceased husband. Defendant No. 1 was the son of her husband by another wife. There were other defendants in the suit who were joint in mess with her husband, but they have no concern with this appeal as the suit was dismissed against them. The plaintiff sued as a pauper, and her claim was for future maintenance at the rate of Rs. 30 per month for herself and at the rate of Rs. 15 per month for the minor daughter she had by her husband. There was also a claim for arrears of maintenance for six years and three months which was valued at Rs. 4,444 odd, The future maintenance was valued at Rs. 5,400. All the defendants contested the suit. The plaintiff brought another suit for some ornaments alleged to have been kept with the defendants. We are not concerned with that suit in the present appeal, which was dismissed by the lower Court. The suit with which we are concerned was defended on various grounds and a large number of issues were framed on the defence set up by the defendants. It is not necessary to mention all of them. But it may be stated that the defence was that the plaintiff's claim for maintenance was barred on the grounds of estoppel, acquiescence and waiver, and as regards the past maintenance it was barred by limitation. Then it was urged that the plaintiff was not entitled to separate maintenance apparently on the ground that her husband at the time of his death made some injunction to that effect. It was also stated in defence that the arrears of maintenance could not be charged against the property and so forth. The learned Subordinate Judge decided all the issues against the defence and held that the plaintiff was compelled to leave the dwelling house of her deceased husband on account of quarrels and oppressions on her by another lady, her husband's elder brother's wife, and that the defendant No. 1 who was at the time a student, connived at the oppressions exercised by that lady upon the plaintiff. The result was that the plaintiff had to leave her house and to take shelter under her brother. Under these circumstances, she asked for maintenance from out of the estate left by her husband. The next question which the learned Subordinate Judge took up for decision was what should be the rate of the maintenance. He considered no doubt upon the evidence given by one of the plaintiff's witnesses that costs for plaintiffs board per month might be Rs. 8 or Rs. 9; and he took into consideration the fact that Re. 1 only would be the cost per month for her clothing and Re. 1 per month for her bratas and the other religious rites. Taking all these into consideration, he fixed the maintenance at the rate of Rs. 10 per month and also the maintenance on account of her infant daughter at Rs. 6 per month. The annual income of the property left by her husband has been found to be approximately Rs. 900 per year. The maintenance, therefore, allowed to the widow and to her infant daughter, amounts to Rs. 192 per year,--only a small fraction of the total income. The Subordinate Judge, however, in considering the question of the arrears reduced this amount at the rate of Rs. 10 per month and gave only a decree for six years to the extent of Rs. 720. But in making the order for costs, the Subordinate Judge directed that the plaintiff would recover proportionate costs for the suit from defendant No. 1 only and Government would recover Court-fee from defendant No. 1 which the plaintiff would have paid, if she were not permitted to sue as a pauper. The appeal of defendant No. 1 is directed against that part of the decree which makes him liable to pay the Court-fees with, regard to the suit. The matter then stands thus. The total Court-fee payable on the claim as made by the plaintiff in her suit was Rs. 817-8. The amount decreed for arrears is Rs. 720 only and the valuation of the future maintenance allowed by the Subordinate Judge would amount to Rs. 1,920 only. The Court-fees payable with regard to this amount would be Rs. 268-8. What the defendant No. 1 complains against is that the difference between the Court-fees payable on the plaint, that is Rs. 817-8 and the amount of Court-fees on the sum decreed to the plaintiff, which is Rs. 268 8 should not be imposed on him. This amount is Rs. 549. In support of this contention, the learned Vakil for the defendant No. 1 relies upon two cases, the earliest of which is the case of Chandrareka V/s. Secretary of State for India 14 M. 163 : 5 Ind. Dec. (N.S.) 116. In that case the plaintiff was the brother of the defendant and sued her for partition of the properties which were alleged to be worth Rs. 34,000 odd. He brought the suit as a pauper. The defence was that the ancestral property was worth very little and that all the property that the plaintiff claimed was acquired by the defendant herself who was a prostitute by profession. It was found by the trial Court that the ancestral property was only worth Rs. 200 and upon that finding he made a decree in favour of the plaintiff to the extent of Rs. 100. But in making the order as to the payment of the Court fees, he observed: "Both plaintiff and the first defendant have lived disreputable lives-- the first defendant being a prostitute, while the plaintiff was the hanger-on of a prostitute. Yet himself is a pauper, and the firat defendant has acquired comparatively great wealth; in the undefined state of the law, this induced the plaintiff to attempt to gets share, he has failed, and she has succeeded in resisting his claim by setting up a disreputable defence. There is a large sum due to Government for stamp duty. In these circumstances, I think it right to direct that the first defendant, considering the nature of her defence, be ordered to pay her own costs and the stamp duty to Government." Under these circumstances the learned Judges held that the order of he trial Court was erroneous. As Mr. Justice Muttusami Ayyar puts it, "Notwithstanding her profession, she (appellant) has rights of property, and is entitled to the protection of law, and no penalty can lawfully be imposed upon her for pleading what is found to be substantially true to entitle her to such protection." To my mind, there cannot be any analogy to the case before us with reference to the case in the Madras High Court. In my judgment, the District Judge in that case quite wrongly made the order in the exercise of his discretion, simply because the defendant acquired the property by her disreputable mode of life. This case, therefore, can be of no assistance to us in deciding the present question which has been raised by the learned, Vakil for the appellant. But that cannot be said with regard to the other case--Ganga Dahal Rai V/s. Gaura 35 Ind. Cas. 46 : 38 A. 469 : 14 A.L.J. 657--on which the learned Vakil relies. In its facts the Allahabad case bears a great resemblance the case before us. There the plaintiff to bring a suit for maintenance claiming Rs. 40 per month. The Court allowed only Rs. 5 per month, but directed the defendant to bear the costs, actually incurred by the plaintiff and further directed the Collector to realise from the defendant the whole amount of Court-fees payable on the claim. The learned Judges held that the principle laid down in the case, Chandrareka V/s. Secretary of State for India 14 M. 163 : 5 Ind. Dec. (N.S.) 116, was applicable to the case before them; and they further held that in that case it was decided that "it was illegal to lay upon the defendant in such a suit a larger proportion of the Court-fee leviable from the plaintiff than would have been payable by the plaintiff if the claim had been limited originally to that portion which was successful." With great respect, it seems to me that no such general rule was laid down by the learned Judges of the Madras High X3ourt. They decided the case upon its facts and they were of opinion that the reason for which the District Judge in that case made the defendant liable for the Court-fees could not be supported on the ground on which she was made so liable. The learned Judges of the Allahabad High Court observe (at page 473 Page of 38 A.-[Ed.]): "The question of the discretion of the Court in dealing with a matter of this sort, i.e., with a case in which a pauper plaintiff has partially succeeded and partially failed, is perhaps one which deserves to be dealt with by a special rule." I must again observe with very great respect that the discretion given to the Court under Rule 10, Order XXXIII, Civil Procedure Code, is quite sufficient for the purpose, and the Court may, in the exercise of its discretion having regard to the circumstances of the case, mould its decree according to what the justice of the case requires with reference to the Court-fees payable. The words in the last portion of the rule run thus: "...such amount shall be recoverable by the Government from any party ordered by the decree to pay the same." This, to my mind, leaves the discretion entirely with the Court to direct which of the parties should pay the Court-fees due to the Government. Dealing with the equities of the case the learned Judges of the Allahabad High Court make this observation "In an ordinary litigation the defendant has some protection against any extravagant exaggeration of his claim on the part of the plaintiff who knows that he has a good case for some relief, in the fact that the plaintiff is bound to payout of his own pocket in the first instance the whole of the Court fee leviable on the plaint as drafted. It is otherwise in the case of a suit brought by a pauper plaintiff, and it would not be equitable to permit such a plaintiff to penalise the defendant by exaggerating his claim." I have nothing to add with reference to this observation to what I have already stated that the Court has been given ample discretion in the matter by the rule I have already cited and the equities of a particular case must be considered by the Court in making the order. No hard and fast rule can be laid down with regard to the equities of such a case as this. Take for an example, the case of a person in the position of the plaintiff. The widow of a member of the joint family has no means whatsoever of knowing what is the annual income of her husband's share in the property. When all the people were living together, she was probably in affluent circumstances. During the lifetime of her husband, all her wants had been met; but when she had to leave the family house, she has been held to be bound to maintain herself on the paltry sum of Rs. 10 per month. How is she to know that the claim which she made of Rs. 30 was unduly exaggerated? The income of the husband's estate being Rs. 900 per year and he having left only an adult son besides herself and her infant daughter she could reasonably have thought that the. maintenance for the widow and the daughter might have been much more than what has been allowed by the Court, and in such a case as this, to my mind, it is iniquitous to saddle her with the costs of the Court-fees. The defendant resisted her entire claim and pleaded that she was not entitled to a single rupee for maintenance. It is unnecessary for me to dilate further on this point and I can only repeat that, in my judgment, the matter is entirely left to the discretion of the Court which must make the appropriate order having regard to the facts of each particular case. With great respect I am, therefore, unable to agree in the decision of the learned Judges of the Allahabad High Court in the case referred to above. It is next urged by the learned Vakil for the appellants that in this case the Subordinate Judge has not given any reasons for the exercise of his discretion and his order is, therefore, liable to be set aside on appeal. It is true that the discretion of the Court must be exercised with reference to the facts of each particular case, as I have already stated, but no materials have been given to us in this case in order to enable us to decide that the discretion has been wrongly exercised. The evidence with regard to the case has not been printed; and we are, therefore, unable to say that the Subordinate Judge has not exercised his proper discretion in making defendant No. 1 liable for the Court- fees. The appeal must, therefore, be dismissed with costs.

(2.) We have been referred to the cross-objection preferred by the plaintiff-respondent. Although in the course of his argument the learned Vakil for the respondent stated that the amount of the maintenance for the plaintiff and her daughter had been fixed at a low figure, we are unable to give her any assistance, as the cross-objection is not directed against the future maintenance allowed by the Court. The only objection that is preferred is with regard to the disallowance of maintenance of Rs. 6 per month which he has given to the minor daughter for the arrears. The reason given by the Subordinate Judge does not commend itself to me, as he says, that the lady was maintained by her brother in his family during the period for which the arrears of her past maintenance are claimed. We are not aware of the circumstances of the brother; and because she had to live with her brother, there is no reason for disallowing the full rate allowed for maintenance or cutting it down to six years only. In my opinion, she ought to be allowed the past maintenance for six years, and three months, that is, the period of the claim at the rate of Rs. 16 per month. The cross-objection to the extent of Rs. 480 is, therefore, allowed with costs. The Court-fees for this has been paid by the respondent and she is entitled to recover it from the appellant.

(3.) Hearing-fee both in the appeal and the cross-objection is assessed at three gold mohurs each. Roy, J.