High Court had adopted that practice. I think that Sir Barnes 1872 QUEEN v. CHANDRA Appeal dismissed. [ORIGINAL CIVIL.] Before Sir Richard Couch, Kt., Chief Justice, and Mr. Justice Macpherson. S. M. NISTARINI DASI (PLAINTIFF) v. MAKHANLAL DUTT AND Hindu Law-Maintenance of Widow-Declaratory Decree-Raising Issues In a suit by a Hindu widow for a declaration of her right to maintenance out of her husband's estate which had been mortgaged to the defendant by the heir, the plaint prayed “that the rights of the plaintiff over the estate of her husband by way of maintenance, and for the expenses attendant on the marriage of her daughters, might be ascertained and declared; that it might be declared that the def endant took the mortgage subject to the plaintiff's right to maintenance and right to such expenses as aforesaid; that for such purpose all proper accounts might be taken; for an injunction; and for such further or other relief as might be necessary." No specific sum was asked for maintenance, nor was it stated on what portion of the estate the maintenance was sought to be charged, nor that the defendant took with notice of the plaintiff's assertion of her rights. The lower Court held that the suit ought to be dismissed as praying only for a declaration of right. No alteration in the form of the suit or in the issues in this respect was 1872 April 3. 1872 v. proposed for the plaintiff. Held, on appeal, that the Judge ought not to have disS. M. NISTA- missed the suit, but to have framed issues for the purpose of determining what RINI DASI should be allowed for the maintenance of the plaintiff and the expenses of the MAKHANLAL marriages, if the plaintiff should be found entitled to them. Where a plaintiff DUTT. mistakes the relief to which he is entitled in his special prayer, the Court may afford him the relief to which he has a right under the prayer for general relief, provided it is such relief as is agreeable to the case made by the plaint. THIS was an appeal from a decision of Mr. Justice Markby dated 26th January 1872. The plaint stated that one Gopal Chandra Dutt, a Hindu inhabitant of Calcutta, died on 21st November 1864 intestate, leaving an only son, the defendant Makhanlal, his sole heir and legal personal representative according to Hindu law, and leaving also a widow, the plaintiff, and three unmarried daughters, Ramanmani, Anandmani, and Saratmani; that with the exception of an undivided one-third share in the ancestral family dwelling-house in Calcutta of the value of Rs. 3,500 or thereabouts, Gopal Chandra Dutt left no effects out of which the maintenance of the plaintiff and the other dependent members of the family could be defrayed; that, on or about 26th November 1870, and shortly after the defendant Makhanlal had attained his majority, a partition into three equal parts of the joint ancestral house was come to by the defendant Makhanlal and his co-sharers, by virtue of which one equal third part was allotted to Makhanlal, and had since been held by him as his own separate estate; that sometime after the death of Gopal Chandra, the plaintiff being unable, owing to the then minority of Makhanlal, to procure funds for the purpose of defraying the expenses attendant on the marriages of her two eldest daughters by mortgage or sale of the estate which had descended to Makhanlal, raised the required sum, Rs. 2,500, by the sale of her own personal jewels and ornaments which formed her stridhan or separate estate; that shortly after the partition of the property, the defendant, who, the plaintiff alleged, was extravagant and wasteful in his habits, executed a mortgage of his one-third share in the family dwelling-house to the defendant Chandra Mohan Sur to secure the repayment of Rs. 2,000, with interest; that the plaintiff was unaware of the amount of the considera 1872 RINI DASI V. MAKHANLAL DUTT. tion (if any) for the mortgage, but she alleged that it was executed without her knowledge or consent, and without any justifiable S. M. NISTAnecessity; that except the one-third share of the family dwellinghouse, Makhanlal was utterly devoid of means or money wherewith to support the plaintiff and her unmarried daughter, or to provide them with any dwelling-house, or to defray the expenses incurred by the plaintiff on the marriage of his two sisters, or which would be incurred on the marriage of her youngest daughter; and that, notwithstanding this, Makhanlal threatened and intended to sell his one-third share of the family dwelling-house, and that the defendant Chandra Mohan Sur took the mortgage with notice of the plaintiff's rights therein. The plaintiff submitted that her right of maintenance and her right to be recouped the expenses properly incurred by her about the marriages. of her two daughters, as well as her right to be provided with the expenses necessary for the due performance of the marriage of her youngest daughter, constituted a first charge on the premises comprised in the mortgage to the defendant Chandra Mohan Sur. She prayed that these rights might be declared; that it might be declared that Chandra Mohan Sur took the mortgage subject thereto; that for such purpose all proper accounts might be taken; that the defendant Makhanlal might be restrained by injunction from alienating, dealing with, or disposing of the one-third share of the dwelling-house, and for such further or other relief as might be necessary. The defendant Chandra Mohan Sur, in his written statement, stated that, on the partition of the family dwelling-house, Makhanlal's one-third part thereof had been valued at Rs. 4,109-6-1; that by mortgage dated 3rd April 1871, Makhanlal conveyed his one-third share to one Kaliprasad Chatterjee to secure the re-payment of Rs. 350 borrowed by him from Kaliprasad; that on 26th May he mortgaged it to Kaliprasad for a further sum of Rs. 713; that in June 1871, Makhanlal requested the defendant Chandra Mohan to lend him Rs. 2,000 on the security of his onethird share in the house, and stated that he required the money to pay off Kaliprasad and other debts; that Makhanlal then informed him that his mother was dead, and his sisters married; that he thereupon agreed to advance the sum required, and 1872 RINI DASI v. MAKHANLAL Makhanlal, on 17th July 1871, executed a mortgage to him, S. M. NISTA Chandra Mohan, of his one-third share in the house as security for such advance; that he had no notice of the plaintiff's claim or position before the execution of the mortgage, and he was informed and believed that the plaintiff did not, during the subsistence of the prior mortgage, make any such claim. He submitted that his mortgage was good and valid, and not subject to any claim of the plaintiff; that the plaintiff's claim in respect of the marriages of her daughters was absurd; that if there were any right to have marriage expenses raised out of the property (which right the defendant did not admit), such right was the right of the daughters, and not of the plaintiff, and the plaintiff had no cause of action in respect of the same; that on the plaintiff's own statement enough would remain after satisfying this defendant's mortgage to provide for the maintenance of the plaintiff; that, even if there were such right in the daughters to have the marriage expenses out of the estate, yet the plaintiff would not, by voluntarily paying sums on the marriage of the daughters, acquire any charge or lien on the estate for the same; that there was the plaintiff's own statement of the destitute state of the family, as appeared on an urgent necessity for the raising of money on the estate, and the sum raised was a reasonable one; that the plaint disclosed no cause of action or title to relief against him; and that the suit ought to be dismissed with costs. Mr. Lowe, Mr. Evans, and Mr. Bonnerjee for the plaintiff. Mr. Marindin and Mr. Branson for the defendant Chandra Mohan Sur. The defendant Makhanlal was in Court, but had put in no written statement. (The only matter in which he was separately concerned was as to the restraint on future alienation.) Mr. Lowe opened the case, and proposed the following issues on behalf of the plaintiff: : 1st. Is the plaintiff entitled to such rights over the estate of her husband Gopal Chandra Dutt, upon the estate coming to the hands of Makhanlal Dutt, as are stated in the plaint? 2nd. Whether the defendant Chandra Mohan Sur took the property subject to such rights? 3rd. Whether the defendant Chandra Mohan Sur took the property with notice of the plaintiff's right to maintenance ? 4th.-Whether the defendant Chandra Mohan Sur took the property with notice of the plaintiff's claim to be recouped expenses incurred for the marriage of the plaintiff's sisters? 5th. Whether the plaintiff is entitled to any and what sum out of the said estate for the marriage expenses of the youngest daughter of Gopal Chandra Dutt? 6th. Whether there was any legal necessity for the alienation by Makhanlal Dutt to Chandra Mohan Sur? 7th. Whether the mortgage was bonâ fide and for valuable consideration? Mr. Marindin took a preliminary objection that the plaint disclosed no cause of action. The suit is a merely declaratory one. Nothing specific is asked for. The widow's maintenance is not a charge on the estate of her husband in the hands of an alienee without notice, at least by the law of Bengal-Srimati Bhagabati Dasi v. Kanailal Mitter (1). The heir is primarily liable for the maintenance of the widow, it is a charge on him, not on the estate-Ram Churn Tewaree v. Mussamat Jassoda Koonwur (2); and per Peacock, C.J., in Khetramani Dasi v. Kashinath Das (3). In Heeralal v. Mussamut Kousillah (4), the purchaser had express notice of the widow's claim; but in the present case the plaint does not show that the defendant had notice of the assertion of the widow's right to maintenance, or that she actually asserted it. As to the marriage portions of the daughters, that is their own right, not the plaintiff's, and they ought to have been made parties. No injury has accrued to the plaintiff, and no probable injury is shown by the plaint; the suit is brought merely in anticipation of possible injury-Jackson v. Turnley (5), Omar Sulima Bibee v. Luckee Prea (1) 8 B. L. R., 225. (2) 2 Agra H. C., 134. (3) 2 B. L. R., A. C., 15., at p. 35. (4) 2 Agra H. C., 42. 1872 S. M. NISTA- v. MAKHANLAL DUTT. |