Debi Radha Rani vs Ram Dass

Varma, J.—This is an appeal of the plaintiff, who is the wife of the defendant. The suit was for realization of arrears payable under an ekrarnama, which was executed on 8th August 1931. From that ekrarnama it appears that the husband agreed to pay the plaintiff a sum of Rs. 15 a month and a lump sum of Rs. 800 at the time of the daughter''s marriage. The parties were married about 26 years before the date of the suit. There were two issues to the marriage, one son and one daughter and after the son died in the year 1928, misunderstandings arose between the parties and there are allegations of cruelty towards the plaintiff by her husband, as a result of which she went and stayed with her father. The defendant took a second wife. The defence was that the ekrarnama was executed by the defendant as a result of undue influence and coercion, inasmuch as there was at the time pending a criminal case under Sections 323 and 504, I.P.C., between the defendant and the defendant''s father-in-law, that is to say, the father of the present plaintiff. From the plaint it appears that the cause of action arose on 10th August 1931, the date of the execution o� the ekrarnama and on the 30th of each month, from May 1932 to May 1938, at Mitbapur, thana Kotwali, within the jurisdiction of the Court. The actual amount to be paid was a sum of Rs. 1095 plus damages to the extent of Rs. 65-12-0 for the years in suit.

The lower appellate Court has come to the conclusion that it cannot be held that the registered agreement (viz., the ekrarnama) was executed under any coercion or undue influence. The next point that the lower appellate Court formulated for determination was whether the agreement was valid under the Contract Act as well as under the Hindu law, and the rest of its judgment is devoted to a consideration of the circumstances under which a Hindu wife is entitled to claim maintenance. The point of view from which the learned subordinate Judge approached the case indicates that he has fallen into an error. As already mentioned in the earlier part of the judgment, the cause of action arose not on the non payment of maintenance to the plaintiff as a Hindu wife but on the non-observance of the terms of the ekrarnama which came into existence on 10th August 1931. It is argued before us that there was no consideration for this agreement. I shall refer to the terms of the ekrarnama to show how far this point succeeds in favour of the defendant, the husband of the plaintiff.

Reliance has been placed upon the decision in Sm. Rajlukhy Debee v. Bhootnath Mookerjee 4 C.W.N. 488 in which the wife sued her husband to recover the arrears of allowance which the husband agreed to pay. Their Lordships of the Calcutta High Court decided that case on the ground that the recitals contained in the agreement in question did not show any consideration moving from the wife for the agreement by the husband. It appears from the judgment in that case that there was no promise on the part of the wife to do, or abstain from doing anything; she gave up no right. It was held in that case that there was no consideration and therefore the agreement was not binding. Now, let us see if there was a consideration in this case or not. A translation of the ekrarnama has been handed over to us by the learned advocate for the appellant and its correctness has not been questioned. There, after narrating that the wife had become displeased with the husband on account of difference and discord and had as a result gone away to her father''s place the executant states as follows:

Consequently the said my wife is about to sue me in the civil Court for her maintenance allowance. I therefore think that the institution of a suit will put me to loss and disgrace and that it would be better if I made some provision for the maintenance of my aforesaid wife so as to enable her to lead a contented and happy life and so that she may not have any grievance, I, the executant, therefore made her agree to the proposal that I would give her a monthly allowance of Rs. 15 every month for life whether she lived with her father at her father''s place or with me....To this proposal of mine my aforesaid wife agreed and I, the executant, thought it meet and proper to execute in her favour a deed of maintenance so that she may be satisfied and may not be put to any trouble and inconvenience whatever.

The learned advocate for the appellant (the wife) urges this forbearance to sue amounts to consideration under the Contract Act. As the document itself indicates, the wife was prepared to sue and forbore because this contract was entered into. In support of his proposition the learned advocate has referred to the decision in Gulab Chand Vs. Kamal Singh and Another, , where it was held that

if a person believes that he has a bona fide claim to enforce, his forbearance from trying to put that claim in a Court and to have it decided will be a good consideration for a contract, however the claim, if brought, may be decided.

In that case reference was made to Gulab Chand Vs. Kamal Singh and Another, , a case on which reliance has also been placed by the learned advocate for the respondent. A similar view was expressed in Crears v. Hunter (1887) 19 Q.B.D. 341 the placitum of which is as follows:

For the purpose of inducing the plaintiff to give time to the defendant''s father for payment of a debt, the defendant signed a promissory note whereby the defendant''s father and the defendant jointly and severally promised to pay to the plaintiff the amount of the debt with interest half yearly at the rate of five per cent, per annum until the amount was paid. The plaintiff having forborne to sue for several years�held that the plaintiff having forborne from suing the defendant''s father at the defendant''s request, there was a good consideration'' for the defendant''s liability on the note, although there was no contract by the plaintiff to forbear from suing.

In support of the same principle the decision in AIR 1929 Lah 485 corresponding to Mangal Singh v. Ghasita AIR 1929 Lah. 485 has also been cited at the bar. There it was held that:

Disputed and doubtful claims to legal or equitable rights will support the consideration for a compromise, and forbearing to sue for or releasing a bona fide claim, which is reasonably doubtful in fact or in law, though no proceedings have been commenced, is a good consideration.

As against this Dr. Mitter has, on behalf of the respondent, urged that forbearance to sue may amount to consideration; but if the claim is fictitious on the face of it, then in that case forbearance to sue cannot be said to amount to consideration for the contract. For that proposition Dr. Mitter has referred us to various passages from Mayne''s Hindu Law and Mulla''s Hindu Law and has pointed out the circumstances under which these commentators say that a Hindu wife is entitled to maintenance.

As I have already said before, the present suit is based on the ekrarnama and, if it were a suit for maintenance, the plaintiff might have led evidence to bring the case well within the circumstances entitling her to maintenance as a Hindu wife. But the suit was one on the ekrarnama and the incidents previous to the ekrarnama have not naturally been fully gone into nor was evidence led on those points. It is not possible to say in the present case that the plaintiff''s claim for maintenance for which she was prepared to sue her husband was a fictitious one.

In these circumstances I am of opinion that the judgments of the Courts below should ''be set aside and the plaintiff''s suit should be decreed with costs throughout. Mr. A.B.N. Sinha on behalf of the respondent has raised the question that, as the amount of the decree is a large one, and that, as his client is drawing a poor pay, instalments should be fixed by this Court. That is, however, a matter which can well be agitated before the executing Court. The result therefore is that the appeal is allowed with costs throughout.

Shearer J.

I agree.