SREEMUTTY NITTOKISSOREE DOSSEE Vs. JOGENDRO NAUTH MULLICK

JUDGEMENT

(1.) THIS is an appeal from a judgment of the High Court of Bengal sitting in its ordinary original jurisdiction. The action is brought by Jogendro Nauth Mullick, claiming to be the adopted son of Choytun Churn Mullick; and the Defendant in the suit (the Appellant) is Nittokissoree Dossee, the widow of Choytun Churn, and his heir in default of his leaving a natural or adopted son. The principal question in the suit was whether the Plaintiff had been adopted by Choytun Churn or not. A great deal of evidence was gone into upon both sides upon the issue so raised. It is unnecessary for their Lordships to advert to that evidence, inasmuch as the learned counsel for the Appellant, upon his opening at their Lordships' Bar, expressed his inability to overturn the judgment on that issue by any argument that he could raise before us upon the evidence. Their Lordships think that in taking that course he exercised a wise discretion, and in no way injured the interests of his client. They have read the judgment of the High Court, and it appears to them that the case was very carefully tried. The judgment contains a lucid and elaborate analysis of the evidence, and assuming that analysis to be accurate, their Lordships can have no doubt that the Court arrived at a sound conclusion in declaring that the adoption had taken place.

(2.) ANOTHER question arises however in the suit, namely, the maintenance to which the Defendant is entitled as a widow, upon the assumption that the Plaintiff was the adopted son of her husband. Their Lordships would be extremely reluctant to interfere with the decision of the Court below upon a question of maintenance, and they would hesitate very much to do so unless there were some special circumstances in the case which indicated that there had been a miscarriage in the way in which the maintenance had been arrived at. It appears to have been the usual course, when there was a Master attached to the Court, for the Court to refer to the Master the question of maintenance, and to consider the proper amount upon hearing the report. In this case the Court did not apparently make any separate inquiry with regard to the maintenance, but acted upon the facts as they appeared in evidence before them, upon the general case. An ordinary form of reference appears to have been this: " Refer it to the Master to settle the amount, regard being had to the value of the estate." Their Lordships think that another element to be considered is the position and status of the deceased husband and of the widow. The main subject of inquiry would be the value of the estate; and the question for the Master, and ultimately for the Court, to consider would be the due proportion which should be given to the widow out of it for her proper maintenance, including not only the ordinary expenses of living, but that which she might reasonably expend for religious and other duties incident to the station in life which she might occupy.

(3.) ON the 12th of February it was intimated to their Lordships by counsel on both sides that the parties in India adopted the suggestion made by their Lordships in the foregoing judgment, and their Lordships therefore agreed humbly to report to Her Majesty that, the parties having consented thereto, the decree of the High Court of Judicature ought to be varied by raising the allowance to the widow for maintenance from Rs. 4000 to Rs. 6000 a year, and further that in other respects the decree ought to be affirmed, each party paying their own costs of this appeal.