Srimati Sabitri Thakurain vs Fredric Ammie Save

Coutts, J.—This application is against the order of the Officiating Subordinate Judge of Monghyr, passed on an application of Srimati Sabitri Thakurain praying for maintenance. It appeals that the petitioner had brought a suit for recovery of her late husband''s estate after a declaration that the will executed by him, of which probate has been granted, is not genuine and valid and this application was for ad interim maintenance during the pendency of the suit at Rs. 3,000 a month for her personal and other expenses and for a sum of Rs. 15,000 for arrears of maintenance and for meeting the expenses of the suit.

The learned Subordinate Judge has granted pendente lite maintenance at the rate of Rs. 150 a month and Rs. 50 a month for making arrangements for residence, in all Rs. 200 a month, and it is against this order that the lady has made this application in revision.

The present litigation has a long history beginning with the death of the lady''s husband, Babu Woogra Mohan Thakur, who died in 1914. He was a considerable Zemindar of Bhagalpur and the will, of which probate has been granted, is dated the 10th of May, 1913. By this the defendant No. 1 was appointed executor and the property, subject to other gifts, was bequeathed to his nephew Surjya Mohan Thakur, a minor who was also a defendant in the suit.

By this document Rs. 100 a month was provided for the maintenance of the widow of the testator and no provision was made for her residence. Very shortly after the death of Babu Woogra Mohan Thakur the defendant No. 1 in the present suit, the executor, filed an application for grant of probate and soon afterwards the widow applied for letters of administration. The application for grant of probate was made before the District Judge of Bhagalpur and the application for letters of administration was made before the Calcutta High Court and the application before the Calcutta High Court was made on the basis of another document which was said to be the real will of Babu Woogra Mohan Thakur.

An application was also made in the Calcutta High Court by the lady for transfer of the Bhagalpur case to the Calcutta High Court. This application was refused but the proceedings in the case were stayed. The letters of administration case then came on for hearing in the Calcutta High Court and the application was rejected. The probate case in Bhagalpur then proceeded and probate was granted to defendant No. 1, the executor. The lady then preferred appeals in both the probate and letters of administration cases to the Calcutta High Court.

The appeal in the Bhagalpur case was dismissed and the appeal in the Calcutta High Court case was also dismissed after a fruitless attempt to be allowed to sue in forma pauperis. The lady then filed two applications for appeal to the Privy Council. These were refused by the Calcutta High Court and applications to the Privy Council were made for special leave to appeal. This was refused in the letters of administration case but granted in the probate case. After hearing, however, the probate appeal was also dismissed in the Privy Council. The lady during the pendency of her appeal in the Privy Council, filed a plaint, exactly similar to the plaint in the present suit, before the Calcutta High Court and asked to be allowed to have the case tried there.

At the same time she also made an application exactly similar to the application now before us for pendente lite maintenance. The application for maintenance was heard first and was rejected and on the same day the plaint was also rejected and the lady was directed to prosecute her suit in Bhagalpur. In accordance with this order the, lady has filed her plaint there and she has made the application, with which we are now concerned, for pendente lite maintenance. Her prayers are for pendente lite maintenance at Rs. 3,000 a month for her personal and other expenses, provision for her residence during the pendency of the suit, a sum of Rs. 10,000 for arrears of maintenance and a further sum of Rs. 5,000 to meet the expenses of this suit.

As I have already said the application has been allowed to the extent of Rs. 200 by the learned Subordinate Judge. The application now before us is that the whole money demanded should be allowed.

The point taken before us is that the learned Subordinate Judge has exercised his jurisdiction with material irregularity in not allowing larger maintenance. It is urged that the income of the estate is more than a lakh of rupees and that this being so it is a whimsical exercise of jurisdiction to allow the lady only Rs. 200 a month out of this sum.

The learned Subordinate Judge has passed his order on the fact that the amount which has been allowed by the testator in the will, of which probate has been granted, is Rs. 100, but he has increased the amount, because of the increase in the costs of living. He has also found that although there is no provision in the will for residence the lady is entitled to residence and as she declines to live in a house which has been offered her by the executor at Bhagalpur he has granted her Rs. 50 a month to live elsewhere.

That the learned Subordinate Judge was right in basing his decision on what appeared to be the wishes of the testator, cannot I think be disputed. This is the view taken in a series of cases beginning with the case of Sreemutty Nittokissoree Dossee v. Jogendro Nauth Mullick 5 Indian Appeals 55, and it cannot be said that the learned Subordinate Judge exercised jurisdiction whimsically in taking the wish of the testator as the basis of his decision. Nor does it appear that on any other grounds the learned Subordinate Judge would have been justified at this stage in granting more maintenance.

The lady has been unsuccessful in every Court even in the Privy Council and when her application was filed in the Calcutta High Court she refused an offer of Rs. 1,000 a month for maintenance made to her by the defendants which was described by the learned Judge who heard that application as a very fair and generous offer. Moreover it appears that, the estate is burdened with heavy debts and it is impossible to say at present with any certainty what the income of the estate really is.

It has been urged that if the maintenance is not increased the lady will starve. The contention does not impress me. The lady has, as I have already said, been defeated in every Court up to the Privy Council and she has again brought this suit questioning the validity of the will.

It is not disputed that under the Hindu Law irrespective of the will she is entitled to suitable maintenance and if her suit had been brought for maintenance it could have been taken up and decided quickly without any necessity for ad interim maintenance, but she has chosen again to question the will and has raised many technical points with the result that the litigation is being protracted. I do not suggest that she is not entitled to bring the present suit or that if she can establish her case she is not entitled to succeed; but it appears to me that if she had been in such dire need of maintenance as is suggested, she would have brought her suit in another form.

In all the circumstances of the case it seems to me that the learned Subordinate Judge has exercised his jurisdiction with due discretion and I would dismiss this application with costs. Hearing fee 5 gold mohurs.

Ross, J.

I agree.