Surathu Sitharatnamma vs Pillarisetti Seshamma and Another

Varadachariar, J.—These appeals arise out of the same suit which related to the estate of one Pillarisetti Butchi Venkatarao Naidu who died

at Masulipatam on 17th November, 1932. The first plaintiff is the junior wife of the deceased and the second plaintiff is her minor daughter. The

defendant is the daughter of the deceased by his predeceased senior wife. The main prayer in the plaint was for recovery of possession by the

plaintiffs, on the footing that the deceased died intestate. As the defendant was setting up a will alleged to have been executed by the deceased on

10th May, 1932, there were alternative prayers for maintenance, for the marriage expenses of the second plaintiff, etc. The defendant set up Ex. I

as the will left by the deceased. The plaintiff denied its genuineness and contended that even if it had been executed by the deceased, it must have

been got from him at a time when he was not of a sound disposing state of mind and as a result of undue arid overpowering influence exercised by

the defendant and those interested in her. The defendant denied these allegations. The will Ex. I contains certain provisions as regards the

maintenance to be paid to the plaintiffs and the money to be paid for the marriage expenses of the second plaintiff. The plaintiffs contended that

even if the will was true and otherwise valid, these provisions as regards the maintenance, marriage expenses, etc., could not affect their right to a

reasonable provision for the same under Hindu law.

The learned Subordinate Judge held that Ex. I was duly executed by the deceased in a sound disposing state of mind and was not brought about

by any undue influence. He accordingly dismissed the suit so far as it claimed possession of the estate. He was however of opinion that the

provisions in Ex. I as regards maintenance and marriage expenses to be paid to the plaintiffs were inadequate and unsubstantial and were not

binding upon the plaintiffs. He was also of opinion that the security for the same provided by the will was of very little value. He accordingly

enhanced the amounts payable to the plaintiffs under these heads and made better provision for securing their payment. The plaintiffs have

preferred A.S. No. 249 of 1936 against this decree and the defendant has preferred A.S. No. 151 of 1936.

So far as the claim for recovery of possession of the estate on the footing of intestacy is concerned, we see no reason to differ from the

conclusion of the learned Subordinate Judge. Ex. I purports to have been executed on the 10th of May, 1932, that is, nearly six months before the

death of the deceased. It was deposited with the District Registrar of Vizagapatam on the 16th of June, as the deceased happened to go to

Vizagapatam and stay there for nearly a month for medical treatment. D.W. 2 who was admittedly the doctor who was treating the deceased at

Masulipatam speaks to the physical and mental capacity of the deceased in May, 1932. A point has been made that this witness has not been

asked to attest the will; but the very fact that the deceased preferred to deposit the will rather than register it shows that for some reason, the

deceased did not wish the contents of the will to become known to a large circle of people. The evidence of P. W. 3, the doctor who examined

the deceased at Vizagapatam does not suggest that the deceased was not capable of executing a will on the 10th of May. He was only asked

whether the deceased was capable of engaging his mind in elaborate intellectual work requiring sustained and serious attention and clear memory

and he said ''no''.

In view of the strained relations that had long subsisted between the first plaintiff and the deceased, as shown by the evidence in the case, the

deceased practically cut off the plaintiffs with a small provision in their favour and gave his property to his first wife''s daughter, the defendant.

There is nothing very elaborate in the scheme of the will to support any argument that it was too serious a strain on the mental capacity of the

deceased to undertake at the time. On the other hand, the postcards Exs. XVIII series and XXI series written by the deceased to D.W. 4 during

the months of May and June, 1932, clearly show that he was equal to the ordinary daily work and to writing letters, etc. Direct evidence in support

of the will has been given by the writer D.W. 5 and the attestors D.Ws. 4, 6 and 8. Nothing has been elicited in their cross-examination to lead us

to think that they are not witnesses of truth. The fact that D.Ws. 4, 5 and 6 are connected with the Salt Factory in which the deceased was a

sharer is not by any means an argument against the probability of their taking part in a genuine will executed by the deceased. D.W. 5 is admittedly

the writer of two other documents Exs. VI and XIX, executed by the deceased sometime before and sometime after the will.

The main attempt of the learned Counsel for the plaintiffs has been to show that D.W. 4 was in a kind of conspiracy with the defendant to bring

about this will, because he expected to derive some substantial advantage for himself under the will. The advantage to the witness suggested by the

learned Counsel is that the will recognised a joint interest of the deceased in about 100 acres of lands which the deceased and his partner P.W. 5

had obtained on dharkhast near the Salt Factory. This suggestion is wholly unfounded. It is clear from Ex. A that the dharkhast grant had in fact

been obtained for the benefit of the three partners, though as the original application had been signed only by the deceased and P.W. 5, the

dharkhast grant had in the first instance been made in favour of the two applicants only. P.W. 5 who has now been examined on the plaintiffs'' side

has not stated anything to throw discredit on Ex. A. Once this suggestion of D.W. 4 having a personal interest in bringing about the will Ex. I, is put

aside, there is no reason whatever to discredit his evidence or to discredit the evidence of the other attestors who are sought to be discredited only

on the ground that they were persons interested in D.W. 4. D.W. 8 had nothing to do with the Salt Factory and he is admittedly a resident of

Masulipatam. No doubt, it does not clearly appear from his evidence why the deceased should have thought of sending for him to be an attestor;

but beyond suggestions in his cross-examination about his son and the son of D.W. 4 being legal practitioners working together and of some

marriage connection through a brother of the witness, nothing has been shown to support the contention that D.W. 8 is in any way interested in

supporting the defendant. In the view that we have expressed above that D.W. 4 had nothing to gain personally from the will, any remote

connection between D.W. 8 and D.W. 4 is no ground for discrediting the evidence of D.W. 8 so far as this case is concerned.

Some point was made of the fact that the draft from which the deceased is said to have dictated the will is not now forthcoming. In the

circumstances of the case, there seems to us very little force in this contention. The deceased himself had deposited the will before the District

Registrar and he lived for several months thereafter. It is hardly likely that he would have thought it necessary to preserve the draft. D.W. 3, the

husband of the defendant, appears to have been reading in Madras till March, 1932, and he went over to his father-in-law''s place only in April. It

is therefore nothing strange if he is unable to say when or how the draft was got prepared.

It was next contended that the will could not have been the handiwork of the deceased because there are mis-statements in the will with

reference to the interest which the testator had in certain properties which are referred to in paragraph 4 of the will as having been sold away by

the testator. As regards the first item, we do not think the argument of mis-statement is well founded. The reference to this item seems to have been

inserted after the body of the will had been written and without due regard to the way in which the inserted sentence read on with the pre-existing

sentence. There is no doubt a mistake as regards the quantum of the share which the deceased had in what is spoken of as the bungalow site. But

the bungalow site had in fact been sold away already about two years before the date of the will and the purchase of a third share therein which is

said to have been lost sight of, being nearly ten years before the will, we do not feel justified in making much of this mistake in whatever way it

might have arisen.

It was at one stage suggested that even the deposit with the District Registrar could not have been made by the deceased, as he was hardly in a

position to go to that office even in a car. We do not think the evidence on record warrants that view of the condition of the testator. All that P. W.

3 says is that if he had been asked to advise on the matter, he would have advised the testator not to go. But the other evidence in the case shows

that in spite of his illness, the testator did move about occasionally. There is the admitted fact that in the end of May, 1932, he went all the way

from Masulipatam to Vizagapatam halting at Anakapalli on the way where his brother was living and that at the end of June, he returned from

Vizagapatam to Masulipatam. This could not and did not

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It only remains to deal with the alternative claim to maintenance and other payments. The defendant in her appeal has contended that the lower

Court has fixed the maintenance too high. A question has also been raised in support of her appeal that, in the circumstances, the Court has no

power to interfere with the provision made by the deceased in the will. The plaintiffs on the other hand have, in their appeal claimed that a more

liberal provision should be made for their maintenance and for the expenses of the second plaintiff''s marriage. Having given to the contentions of

both sides our best consideration, we see no reason to interfere with the rates fixed by the lower Court.

On the question of law raised by Mr. Subba Rao on behalf of the defendant, he drew our attention to the conflicting observations of the two

learned Judges of the Calcutta High Court who took part in Promotha Nath Roy v. Nagendrabala Chaudhrani 12 C.W.N. 808. It happened in

that case that both the learned Judges agreed as to the propriety of the provision that has actually been made in the will. The observations on the

general question were therefore obiter. It has not been disputed before us that if the husband had bequeathed his property ignoring the wife''s claim

to maintenance, such giving away will not affect the widow''s claim to maintenance. If this is the true legal position, it appears to us that there is

more to be said in favour of the view taken by Cox, J., in Promotha Nath Roy v. Nagendrabala Chaudhrani 12 C.W.N. 808 that any provision

made by the husband in his will as regards the wife''s maintenance cannot be regarded as taking the matter out of the Court''s power to fix a

reasonable maintenance but can only be taken as a suggestion made by the husband as to what would be a reasonable provision for maintenance.

Mr. Subba Rao conceded that if the provision, in the will was so unsubstantial as practically to make it illusory, the Court might regard it as a

fraudulent exercise of the husband''s power, if any, in the matter. Without using such strong language, the learned Subordinate Judge has, in this

case, held that the security provided in the will for the payment of maintenance to the plaintiffs is of very little value.

It is no doubt true that for many years before the testator''s death, the husband and the wife had been living apart; but there are conflicting

versions as to the reason for the same. Fortunately, no improper motives have been suggested for the plaintiffs living apart and it must be said to

the credit of both the husband and the wife that in spite of all the strain involved on their good-will by such living apart, the husband never thought

that the wife was no longer entitled to claim maintenance or by her conduct had forfeited it. Even during the time that he was ill, he took particular

care to see money sent to her every month for her maintenance and a provision has been made in the will on the same lines. While giving credit for

this to the husband, we cannot help feeling that when it came to his making these provisions in the will, the estrangement caused by such living apart

has weighted his feelings far too much against the plaintiffs. The mere fact that during his life time he has been giving her Rs. 20 per mensem will not

of itself establish that that was an adequate provision for all time. The first plaintiff was day by day growing older and her father on whom she might

at one time have relied was growing older too. On the other hand, the second plaintiff, as she was growing in age, would require greater

expenditure to bring her up in a decent way befitting their position in society. There is again the fact that during his illness which was chronic and

protracted, the husband had to spend large amounts on his own treatment and that might well have made it difficult for him to make a more liberal

provision for the plaintiffs. But that necessity ceased with his death. In these circumstances, we have come to the conclusion that the provision

made by the deceased in his will in favour of the plaintiffs is inadequate and it is within the power of the Court to substitute a more reasonable

provision.

The learned Counsel for the defendant next contended that by reason of the first plaintiff living apart from her husband for so many years, she

must be deemed to have forfeited her right to maintenance and that a right to the same in these circumstances cannot be enforced against the

legatee from the husband. In support of this proposition, he relied on the decisions in Bommadevara Naganna Nayudu Bahadur v. Bommadevara

Rajya Lakshmidevi Amma (1928) 55 M.L.J. 242 (P.C.) and Sankaramurthi v. Subbamma AIR 1938 Mad. 914. The point decided in

Sankaramurthi v. Subbamma AIR 1938 Mad. 914 does not now arise for decision. The learned Judges recognised the existence of a conflict of

judicial opinion on the point then before them, namely, the right of a daughter-in-law to claim maintenance from a legatee who has taken the father-

in-law''s self-acquired property under a bequest. The decision proceeds on the footing that the daughter-in-law had no legal right to claim

maintenance from the father-in-law during his lifetime. That is not the position here; because, subject to the defendant''s argument as to forfeiture by

reason of separate living, the plaintiffs undoubtedly had a legal right to claim maintenance from the defendant''s father. The decision of the Privy

Council in Bommadevara Naganna Nayudu Bahadur v. Bommadevara Rajya Lakshmidevi Amma (1928) 55 M.L.J. 242 (P.C.) does not support

the argument that a wife for ever forfeits her claim to maintenance by living away from the husband. Their Lordships were only dealing with a claim

for arrears of maintenance claimed in respect of a period during which the wife had been living away from the husband without justifiable cause.

No question arose in that case with reference to a claim for future maintenance. We have examined the record of that case and the judgment of the

Subordinate Judge explains why no claim for future maintenance had to be considered in that case. The wife did not there sue for future

maintenance and as a matter of fact, her husband died two months after the institution of the suit. By the affirmation of the trial Court''s judgment,

their Lordships of the Judicial Committee could not be taken to have negatived the wife''s right to future maintenance, because the learned

Subordinate Judge stated in that case at the conclusion of his judgment that since the date of her husband''s death, the plaintiff would certainly have

been entitled to maintenance. It seems to us therefore safe to proceed on the footing that in Bommadevara Naganna Nayudu Bahadur v.

Bommadevara Rajya Lakshmidevi Amma (1928) 55 M.L.J. 242 (P.C.), their Lordships did not pronounce an opinion on the question whether a

wife who, during her husband''s lifetime, had lived apart from him without justifiable cause but for no improper purpose forfeits her right to

maintenance for all time or is merely prevented from claiming separate maintenance during the time that she is living apart. In Surampalli

Bangaramma Vs. Surampalli Bramhazee, , one of the learned Judges was clearly of opinion that it would merely be a case of suspension of the

right and not a forfeiture. Even on this question, it is unnecessary in the present case to express a definite opinion, because the husband s conduct

itself clearly showed that he never regarded the wife as having forfeited her claim to maintenance. As we have observed already, he was,

throughout his lifetime, remitting monies to the first plaintiff for the maintenance of herself and the second plaintiff and made what he considered a

suitable provision for the same in the will. The only question for decision therefore is as to the reasonableness of the provision that has been made

by him.

It was next contended by the learned Counsel for the defendant that the lower Court had over-estimated the income from the Salt Factory and

that the provision made by the lower Court in favour of the plaintiffs was much too onerous to the defendant. On the other hand, it has been

contended by learned Counsel for the plaintiffs that the lower Court''s estimate of the income was unduly low and that the provision made by the

lower Court is inadequate. We do not think there is any justification for the contention that the lower Court''s estimate of the income is too high. It

is true that the testator contemplated the possibility of the income some times going below Rs. 1,000; but the suit was actually tried three years

after the testator''s death and the defendant was in the best position to produce satisfactory materials to establish what the income was. Though we

have held that the plaintiffs were not justified in suggesting any kind of conspiracy between D.W. 4 and the defendant during the testator''s lifetime

to bring into existence the will Ex. I, there can be little doubt that during the trial D.W. 4 has been doing his best to support the defendant''s case.

The reason given for the non-production of the factory accounts for the years 1932-33 and 1933-34 is wholly unconvincing. The accounts for

1934-35 have been produced. Mr. Lakshmanna has contended that even these accounts are not reliable because, according to him, the prices

shown for the sale of salt are not true prices. The learned Subordinate Judge was also of the opinion that D.W. 4 and the defendant were

estimating the income much too low. We think that the figure fixed by him is perhaps the safest estimate in the circumstances. On that basis, we see

no reason to. differ from the rates fixed by him for the maintenance of the plaintiffs and for the expenses of the second plaintiff''s marriage.

The result is that both the appeals must be dismissed with costs and the lower Court''s decree confirmed except in respect of two matters. As

the plaintiffs instituted the suit in forma pauperis, the lower Court has made provision in its decree for payment of the court-fee payable to

Government and the amount thus directed to be paid is Rs. 2,539-13-0. Mr. Lakshmanna has contended - and we think rightly - that the lower

Court has arrived at this figure on a wrong view of the law. The plaint contained alternative prayers either for possession or for maintenance. When

the matter was before the District Court, the District Court made an order on 15th January, 1935, directing that court-fee should be calculated u/s

17 of the Court-Fees Act on three separate heads, namely, the claim for possession, the claim for maintenance, etc. and the claim in respect of the

C schedule. Totalling up the three heads the learned District Judge made up the sum of Rs. 2,539-13-0 as follows: - Rs. 1,582-7-0 for recovery

of possession, Rs. 837-7-0 for the maintenance claim and Rs. 119-15-0 for the C schedule claim. The inclusion of Rs. 837-7-0 as a separate item

seems to us unwarranted. The payment of court-fee for the higher claim for possession was, in the circumstances, sufficient to cover the alternative

claim as well. The sum of Rs. 2,539-13-0 mentioned as court-fee in the lower Court''s decree will accordingly be reduced to Rs. 1,702-6-0.

It has also been brought to our notice that the decree of the lower Court does not incorporate the provision in the judgment for the expenses of

the second plaintiff''s marriage. This provision will be included in the decree as it is covered by the provision for charge made in the concluding

portion of the lower Court''s decree. The decree will however state that the amount awarded for the marriage expenses will be claimable only three

months before the date fixed for the marriage.