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Madras High Court
Abdul Khadar Sheriff Saheb vs Lalu Bi on 3 March, 1926
Equivalent citations: (1926) 51 MLJ 215
Author: Odgers


Odgers, J.

1. A preliminary objection has been taken in this case on which I have heard a long argument as to whether this is a suit relating to maintenance under Article 38, Second Schedule, Provincial Small Cause Courts Act. I much regret that on a careful consideration of the case I must find against the preliminary objection. The suit is brought for a sum of Rs. 76 and is brought by a sister-in-law against a brother-in-law who is not in law bound to maintain her but who entered into an agreement evidenced by document Ex. C with her. About this document I can say nothing at present as I shall have to hear the argument on the merits, but it calls itself a deed of maintenance and the suit is apparently brought on what the plaintiff calls a registered maintenance deed. In this case I was prima facie impressed with the fact that a suit for maintenance would in the ordinary acceptance of the term be a suit by a wife or in exceptional cases a daughter against husband or father for maintenance. I should have thought prima facie the expression was inapplicable as between a brother-in-law and a sister-in-law and I was very much inclined to hold at first that this was a mere suit on the contract Ex. C between one stranger and another as far as any obligation in law is concerned dehors the document. Various cases have been quoted on either side of the line, but I think I must follow the case in Munir-ud-din v. Samir-un-nissa Bibi (1917) I.L.R. 40 A 52 which seems to show that it is not necessary in order to take the case out of the cognizance of the Small Cause Court that the person bound in law to maintain should be one of the parties. Muhammad Hussain v. Nur Jahan (1912) 16 I C 13, another Allahabad case, is to the same effect. In Munir-ud-din v. Samir-un-nissa Bibi (1917) I.L.R. 40 A 52 the cases quoted by the learned vakil for the respondent from the Allahabad Weekly Notes are distinguished and I think the main point of distinction is that the maintenance-holder was not a party in either of them. The same remark applies to Anna sami Sastrial v. Ramaswami Sastrial (1913) I.L.R. 38 M 553. The decision in Mohideen Vava Ravuthan v. Moosa Naina Ravuthan (1896) 6 M L J 137 went on the consideration (that the maintenance holder, if the expression can be allowed in this case, was himself a co-sharer with the defendant, and therefore not entitled in law to call upon the latter to provide maintenance).

2. To come to the merits this appeal which is all about Rs. 76 has taken all day in this Court. Plaintiff was the wife of Syed Ismail Saib and his sister’s husband is the defendant. It appears that Syed Ismail Saib and his wife did not live happily together. She accused him of beating her and driving her from his house, robbing her of her jewels and purchasing one acre of land which is charged with her maintenance under Ex. C which is the document in dispute in this case. It appears that the lady had applied to a Magistrate for an order under Section 488 of the Criminal Procedure Code for maintenance. She was then living apart from her husband and in settlement of the disputes between the parties, Ex. C was entered into. It should be mentioned that since the execution of Ex.C in August, 1918 Syed Ismail Saib has divorced his wife and the allegation for the defendant is that the deed has ceased to have effect for this reason. Mr. Raghava Rao for the appellant relies on three circumstances with regard to Ex. C. The deed is described as one of maintenance as I have already pointed out in the judgment on the preliminary objection. It recites misunderstandings between the brother-in-law, i.e., husband and the lady, that she desired some maintenance allowance, he agreed to provide it for the whole ‘of your lifetime’, i.e., Rs.4O payable every year on the 30th of Bahula of Pushya month. It proceeds:

During the whole of your lifetime I shall not mortgage, etc., this security Iands in favour of, etc…. You shall stay in the house of your father-in-law Syed Lathief Saib or at any other plate and be receiving the maintenance allowance.

3. It has been argued and it is conceded that the Magistrate’s order should not be executed after a divorce has taken place. It is contended that that principle should be applied to this document, Ex. C. Three facts are relied on as showing that Ex. C must have been intended to operate only during such time as Lalu Bi continued to be the wife of Syed Ismail Saib. First,she is described as Lalu Bi,”the wife of Syed Ismail Saib,” which was a perfectly true description at the time Ex. C was executed and one fails to see in what other way the lady could have then been identified. In my opinion, no force whatever can be given to the argument based on that description.

4. The second point is the Mahomedan Law, which is clear, namely, that after divorce a wife is not entitled to maintenance. Thirdly, the magisterial proceedings to which I have referred. It is clear that if you are to get away from the plain terms of the contract you have to read into it something which is not there and in order to entitle you to read into it something that is not there you must in my opinion fall within the decisions based on Taylor Y. Caldwell (5) of which Krell v. Henry (6) is an example, that is to say, there must be a state of things, which appears from the evidence, from the circumstances, from the extrinsic surroundings to have been assumed by the parties to have been the foundation or basis of the contract, so that if that basis fails the contract becomes unenforceable. You have in the words of Vaughan Williams, L.J. to ascertain from the surrounding circumstances recognised by both the contracting parties what is the substance of the contract and then to ask the question whether the substantial contract needs for its foundation the assumption of the existence of particular state of things. Why should we assume in this contract that it was only to last so long as the woman remained the wife of another man? What evidence is there that it was the intention of both parties to the contract, for nothing less will do, that that was the basis on which the contract was made when the contract contains words diametrically opposed to any such construction? Twice in the contract appear words ‘for the whole of your life-time’. It may be as the learned Subordinate Judge points out that the lady waived valuable rights of a much greater value than she has obtained under this contract. If that is the case, it seems unreasonable that, having entered into this contract with her husband’s friend and relation, the husband should have had it in his power five minutes afterwards to divorce her and thus nullify the terms of the contract. I agree with both the Lower Courts and see no reason whatever for implying as the basis of this contract which both the parties must have contemplated the condition that this lady was to remain the wife of Syed Ismail Saib or rather that the contract was only to have effect during the continuance of that relationship. For these reasons, I am of opinion that the second appeal must be dismissed with costs.

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