Allahabad High Court
Lakhmi Chand vs Mt. Anandi on 21 July, 1931
Equivalent citations: AIR1933ALL130, AIR 1933 ALLAHABAD 130, AIR 1932 ALLAHABAD 272
JUDGMENT Sen, J.
1. This and the connected First Appeal No. 341 of 1930 have been filed by the plaintiff and the defendant respectively from the decree of the learned Subordinate Judge of Muzaffarnagar, dated 27th May 1930 in a suit in which the plaintiff had prayed for a declaration that under the will, dated 5th June 1915 executed by Seth Baldeo Sahay and the plaintiff, the defendant had no right left in the properly specified at the foot of the plaint, mentioned in Schedules (A)(B) and (C), nor was she entitled to recover from the plaintiff the amounts of decrees in Suits Nos. 449 of 1920 and 107 of 1926.
2. Baldeo Sahay and his younger brother Seth Lachmi Chand were members of a joint Hindu family governed by Mitakshara and owned property of considerable value. During the continuance of the joint tenure, the two brothers executed a document on 5th June 1915. On this date, neither of the two brothers had any male issue. Baldeo Sahay had three sons of his daughter by a predeceased wife, a second wife Mt. Anandi and an unmarried daughter by her named Mt. Gomi. Lachmi Chand had five daughters. Baldeo Sahay died on 10th June 1915. The instrument referred to above provided that on the death of Baldeo Sahay, his widow should have a right to the profits in a moiety of the joint family property with an estate equivalent in some respects to that of a widow of a sonless and separated Hindu but that she should have no right either to the possession or to the partition of the property and that the property was to remain in the possession and management of the surviving brother Lachmi Chand. After the death of Baldeo Sahay, Lachmi Chand had apparently no intention to abide by the terms of the agreement. He got the name of Mt. Anandi recorded in the revenue papers in place of the name of Baldeo Sahay, but he never paid her, her share of the profits; and indeed her share of the profits remains unpaid up till now. Before full three years had elapsed from the date of the agreement, Seth Lachmi Chand brought a suit for its avoidance on the ground that the transaction amounted to a testamentary disposition of joint Hindu family property and could not operate against Lachmi Chand who upon the death of Baldeo Sahay had become the exclusive owner of the entire property by rule of survivorship. This was Suit No. 688 of 1918. This suit failed and Lachmi Chand was unsuccessful all along the line. His claim failed in the trial Court on 18th July 1919. His appeal was dismissed by the High Court on 12th June 1920 and his appeal was dismissed by the Judicial Committee on 15th March 1926 a report of the decision of their Lordships of the Privy Council is to be found in Lakshmi Chand v. Anandi AIR 1926 PC 54.
3. In the meantime, Mt. Anandi sued Lachmi Chand for profits for the period from 11th June 1915 to 10th June 1920 in the Court of the Subordinate Judge of Meerut. This suit was numbered as 449 of 1920. On the application of Lachmi Chand, the hearing of this suit was stayed during the pendency of his appeal to the High Court and the Privy Council. It was not till 2nd March 1928 that the trial Court passed the final decree in her favour for a sum of Rs. 81,423-12-0. On 4th August 1926, Mt. Anandi instituted a second suit against Lachmi Chand in the Court of the Subordinate Judge of Muzaffarnagar in which she claimed a sum of Rs. 1,04,999-8-6 for her share of the profits for the period from 15th June 1920 to 30th July 1926. This suit was numbered as 107 of 1926. Lachmi Chand did not file his written statement in this case till 5th January 1927. We have looked into his defence. Every objection of law or fact which could suggest inself to human ingenuity was put forward by him. Amongst other pleas, he claimed a set-off for various sums of money aggregating Rs. 98,404-10-9. The hearing of this suit was also stayed on his application upon the ground that he had preferred an appeal to the High Court against the preliminary and the final decrees passed in the first suit for profits.
4. Mt. Anandi applied for execution of her decree for profits dated 2nd March 1928. This application was made on 3rd April 1928. Lachmi Chand got the proceedings in execution stayed upon the ground that he had appealed to the High Court against the preliminary and the final decrees in the first suit for profits. The appeals of Lachmi Chand from the decrees last mentioned were dismissed by the High Court on 6th February 1929. On 15th March 1929 Lachmi Chand applied for leave to appeal to His Majesty in Council. This application was dismissed. We may mention here that Mt. Anandi obtained a preliminary decree in her second suit for profits on 25th June 1929 and a final decree was passed in her favour on 30th November 1929 for Rupees 1,06,267-1-3. Lachmi Chand has appealed to this Court from these decrees. His appeals are numbered as First Appeal No. 324 of 1929 and First Appeal No. 516 of 1929. We shall deal with these appeals separately. In considering the merits of the plaintiff's claim in the suit now under appeal before us, we cannot shut our eyes to the fact that the parties to this litigation are not evenly matched. On one side is an astute Borah Brahmin, who is in possession of the entire joint family property, who possesses considerable influence and who has vast resources at his command. On the other side is a pardanashin Hindu widow, ignorant in extreme penury, and faced with the usual hardship, attending a costly and protracted litigation. The march of events, preceding the present suit leaves no room for doubt that the person mainly responsible for these litigations is Lachmi Chand and that the aim and bent of his endeavours throughout have been to keep Mt. Anandi out of her rights, under the agreement dated 5th June 1915.
5. The reliefs claimed in the present suit are founded upon the following allegations: (1) Baldeo Sahay was enfeebled by age and illness when he executed the document in controversy. Mt. Anandi exercised a dominating influence over him. The agreement was therefore liable to avoidance as it has been obtained by undue influence. (2) The rights conferred upon Mt. Anandi amounted to no more than a grant of maintenance to a widow belonging to a joint Hindu family. Mt. Anandi forfeited these rights because she married one Tara Chand. Reliance was placed upon Section 2, Act 15 of 1856, which provided that all rights and interests which a widow might have in a deceased husband's property by way of maintenance or by right of inheritance or in pursuance of any will or testamentary disposition (which did not reserve to her an express permission to marry) should effectually come to an end upon her remarriage. It was also contended that her rights to profits were forfeited because she had become unchaste and that her unchastity deprived her not only of profits in future but also of her rights to profits for past years for which either she had either obtained a decree (as in Suit No. 449 of 1920) or about which her claim was still pending (as in Suit No. 107 of 1926).
6. The defendant traversed all the material statements upon which the claim was founded. She denied having married Tara Chand. She indignantly repudiated the charge of unchastity and insisted that the rights conferred upon her by the instrument dated 5th June 1915 were not those of a Hindu widow of a joint Hindu family to whom a mere right of maintenance had been granted. On the other hand, she pleaded that a special estate, although of an anomalous character, had been created in her favour whereby she was entitled to the profits for the full term of her life and that she could not in any event be deprived of that' right because the instrument contained no defeasance clause providing for the divestment of her estate,1 even if she remarried or became unchaste. She next contended that the decision of the Privy Council was a bar to this suit and lastly she claimed compensation from Lachmi Chand under Section 35-A, Civil P.C., his claim being false, vexatious and harassing. (After stating the issues and findings, the judgment proceeded.) The operative part of the judgment may be conveniently reproduced here:
I hold that the plaintiff is entitled to a declaration that the defendant has now no rights in the property detailed in Schedules (A)(B) and (C) under the agreement dated 5th June 1915, executed by the plaintiff and Baldeo Sahay. But the plaintiff is not entitled to a declaration that the defendant is not entitled to realize money of the decrees Nos. 449 of 1920 and 107 of 1926. The plaintiff's claim for a declaration that the defendant does not now retain any interest as provided under agreement executed by Seth Baldeo Sahay and the plaintiff on 5th June 1915, in the property detailed in Schedules (A)(B) and (C) of the plaint as mentioned in relief (A), is decreed with proportionate costs. The plaintiff's claim for a declaration that the defendant is not entitled to realize money under the decrees Nos. 449 of 1920 and 1C7 of 1926 is dismissed with proportionate costs.
7. Both parties have appealed to this Court. In Appeal No. 360 of 1930, the plaintiff impugns the finding of the Court below that Mt. Anandi was not married to Tara Chand. In order to establish this marriage, plaintiff examined a large number of witnesses. Five of them claimed to be eyewitnesses and deposed to having been present at the marriage ceremony. The remaining witnesses gave evidence of a vague and shadowy character and their evidence might be described as evidence of repute. Some of these witnesses sated that Mt. Anandi and Tara Chand were regarded by members of the Borah community (to which the parties belong) as man and wife. This evidence does not come within the purview of Section 50, Evidence Act, as it is not opinion, expressed by conduct as to the existence of such relationship of any person who member of the family or otherwise had special means of knowledge on the subject. If Section 50 does not apply, there is no other statutory provision either in the body of the Evidence Act or outside the said Act, under which such evidence could be let in to prove marriage. We are clearly of opinion that the whole of this evidence was inadmissible and should have been ruled out. We are further of opinion that the evidence is unreliable.
8. The Borah community is divided into two classes. The orthodox class regards widow remarriage with abomination and horror. The advanced class is sub-divided into two groups, one of which favours widow-remarriage and the other regards it with tolerance. In view of these facts, it is not open to any witness to state that the Borah community as a whole receives Tara Chand and Mt. Anandi with open arms at its social functions. We do not believe these witnesses. They are casual witnesses and are men of no status. We consider their evidence to be false and concocted for the purpose of this suit. (After considering the direct evidence, his Lordship dismissed the First Appeal No. 360 of 1930.) In First Appeal No. 341 of 1930, which has been filed by the defendant, the points which emerge for decision are: (1) Has Mt. Anandi become unchaste and has she been carrying on an. intrigue with Tara Chand? (2) What is the jural position of Mt. Anandi under the agreement dated 5th June 1915? Were the profits of the estate of her husband granted to her by way of maintenance to a widow belonging to a joint Hindu family, which she was liable to lose if she became unchaste ? or was a special estate granted to her, not under the Hindu law but under a family settlement, which was unfettered by any condition and was not liable to forfeiture, even if she became unchaste?
9. In dealing with the first question, we have to take into consideration certain facts which have a material bearing on the value of the evidence produced by the plaintiff and which have not been appreciated by the trial Court. (His Lordship then discussed the evidence and proceeded as follows). Upon a consideration of the entire evidence, we (sic) hold that the charge of unchastity against Mt. Anandi is false. In view of this finding, it is not necessary to go into the other question, but as the point has been argued at great length before us, we would like to indicate our opinion on this matter very briefly. The right to maintenance of a Hindu widow, belonging to a joint family is conditional upon continued chastity. This right is not affected by the fact that the widow has obtained a decree declaring her right to maintenance or that there has been an agreement between the widow and the male coparceners to pay her a certain amount by way of maintenance. In Vishnu Shambhog v. Man gamma (1885) 9 Bom 108 it was held that:
a decree obtained by a Hindu widow declaring her right to maintenance was liable to be set aside or suspended on proof of subsequent unchastity given by her husband's relatives either in a suit brought by them expressly for the purpose of setting aside the decree or in answer to the widow's suit to enforce her right.
10. This case was followed by this Court by Burkitt, J., in Daulat Kuari v. Meghu Tewari (1893) 15 All 382. The relevant texts of Hindu law have been set out and discussed by Ayling and Shesagiri Aiyar, JJ., in Satyabhama v. Kesavacharya (1915) 39 Mad 658. This case is an authority for the proposition that the rule that by subsequent unchastity a Hindu widow forefoits her right to maintenance applies even where that right is secured to her by an agreement in writing.
11. It may be observed that Mt. Anandi was no party to the agreement dated 5th July 1915. The learned Subordinate Judge has held that this agreement is in the nature of a family settlement under which profits were agreed to be paid to Mt. Anandi in lieu of maintenance and that she was liable to forfeit her right by reason of her subsequent unchastity. We are of opinion that the nature and scope of the agreement have been misconstrued. We have a translation of the agreement at p. 175 of the paper book in First Appeal No. 360 of 1930. The translation is not very accurate, more especially that of para. 9. We would prefer to adopt the translation set out in the judgment of the Privy Council in Lakshmi Chanel v. Anandi AIR 1926 PC 54. The material terms of the agreement are to be found in paras. 3, 6, 7, 8 and 9. There are no indications in this document that the estate which was intended to be granted to the widow was in lieu of maintenance. The document does not say so. The entire profits of the moiety share in the joint family property are to go to the widow for her whole lifetime and no clause is to be found in the document, providing for the defeasance of the estate upon the happening of subsequent unchastity. Where a transaction of the nature of a family arrangement has been arrived at by the agreement of two coparceners, who constituted the joint family, whereby a benefit has been sucured to a third person, it is not permissible to only one of the coparceners, upon the demise of the other, to impose any restriction or condition in derogation of the original grant. Where the instrument, creating the family arrangement, does not provide either directly or by necessary implication that the right to profits should cease upon the subsequent unchastity of the grantee, it would be opposed to all canons of construction to import such a condition into the text. The nature and character of the estate, conferred upon Mt. Anandi, have been considered by their Lordships of the Privy Council in 24 A.L.J. 609 at p. 615; and according to this view, Mt. Anandi is entitled to have and enjoy for her life an interest in a moiety of the joint property equivalent to the interest which the widow of a sonless and separated Hindu would have in her deceased husband's estate; and that the interest which she obtained by the mutal agreement of Baldeo Sahay and Lachmi Chand should continue for her benefit, notwithstanding the birth, if it should happen, of "male issue" to Lachmi Chand.
12. The transaction in question was clearly not a maintenance grant simpliciter but was something more. Although she was not entitled to actual possession of the property and had no right to transfer the same or to claim a partition thereof, her rights extended to the full share of the profits of half the property upon the same footing as that of a widow of a separated Hindu. It resembles a widow's estate in certain particulars though it was divergent in other respects. The widow's right to the profits was to continue for her whole lifetime, unhampered by any restrictions. The nature of the estate was therefore anomalous. It may be further observed that in prescribing the course of devolution, the executants of the instrument do not follow the course of inheritance prescribed by the Hindu law but depart from it in many respects, which need not be enumerated. If it be held that Mt. Anandi derived under this document the estate of a Hindu widow or something equivalent to the estate of a Hindu widow, she could not be divested of this estate by reason of subsequent unchastity. We are however of opinion that the estate carved out to Mt. Anandi was one of a special nature and it was not liable to divestment upon the ground of subsequent unchastity, because the instrument creating the right did not provide for this contingency. The result is that we dismiss First Appeal No. 360 of 1930 with costs and we allow First Appeal No. 341 of 1930 with costs. We modify the decree of the lower Court and dismiss the plaintiff's suit with costs throughout.