Savitribai vs Radhakishan

This appeal is against an order of Sinha C.J. (as he then was) passed on 20th December 1951.

The matter arises out of the execution of a decree which one Kundanbai obtained in a suit for arrears of maintenance in the year 1938 (Civil Suit No. 5-A of 1937 decided on 28-4-1938).

The following genealogy shows the relationship of the parties:--

Kundanbai was the widow of Ramesh war who died in a state of jointness with his elder brother Shaligram. In the year 1894 Kundanbai brought a suit for maintenance against Shaligram and obtained a decree for maintenance at Rs. 250 per month. When she started executing it, it was held that the decree was not executable because a charge had been created upon the property and the charge had to be enforced by a separate suit. Later, she brought a suit and obtained another decree and recovered all maintenance upto 5th March 1930. Subsequently, by a compromise the amount of maintenance was reduced from Rs. 250 per month to Rs. 200 per month. It is stated that some villages were offered to her in lieu of maintenance but that she declined to take them. In the year 1936 (24-9-1936) Kundanbai executed a will in favour of her brother Sheocharan and Radhakishan son of Sheocharan, bequeathing to them the arrears of maintenance for 79 months ending 24-9-1936, amounting to Rs. 15,800. These arrears were upto the date of the will. The will, which is Exhibit A-1, is attested by two witnesses Gattani and Dalchand, of whom Gattani alone has been examined. It may be pointed out that the scribe of the will was also examined. Sheocharan predeceased Kundanbai and died on 29th December 1941. Kundanbai died on 22nd July 1944. Prior to her death Kundanbai executed another will on 9th February 1944 (Exhibit A-2), by which she bequeathed the arrears of maintenance from 24-9-1936 to 24-1-1944 amounting to Rs. 17,600 in favour of Poonabai alias Mst. Shantabai. Prior to her death, however, Kundanbai brought a suit and obtained a decree, out of which the present execution matter arose. That suit was for arrears of maintenance from 5-3-1930 to 5-4-1937. She obtained a decree for Rs. 20,855 with interest at 6 per cent per annum (Civil Suit No. 5-A of 1937 decided on 28th April 1938.)

While that matter was under appeal Kundanbai died, and on 17th July 1945 in First Appeal No. 106 of 1938, the present respondents were substituted as her legal representatives. The order in that appeal follows the order in yet another appeal (F.A. No. 40 of 1943) passed on 17-7-1945 filed against Kundanbai in another suit. The order in both the appeals reads as follows:--

17-7-1945.

D.B.S.C. Dube, Counsel for appellant. Mr. K.B. Tare Counsel for the respondents. They are heard on application for substitution of the L.R. of the deceased Kundanbai.

Both sides admit that Poonabai and Radhakishan are the legal representatives of the deceased Kundanbai but Poonabai and Radhakishan claim that they have right in a double capacity (1) because of a Will and (2) because they are the natural heirs. Mr. Dube states that this dispute need not be decided here. It is enough for this purpose that they be brought on record as legal representatives. This will be done.

Sd/Vivian Bose Judge.

After the dismissal of the appeal the present respondents Radhakishan and Poonabai alias Shantabai sought to execute the decree obtained in the last suit. Objection was taken that they were not entitled to execute the decree, but the objection was overruled. On appeal to the High Court Sinha C.J. (as he then was) dismissed their appeal. This Latters Patent appeal has therefore been filed against the order of Sinha C.J.

Many Points were urged before us, The first was that the property bequeathed to Sheocharan and Radhakishan was the arrears of maintenance and not the decree, which had to be assigned under the 21st Order of the Civil Procedure Code. It was contended that without an assignment the decree was incapable of being executed by a stranger to that decree. It was urged that the arrears of maintenance fell short of the decree eventually passed in favour of Kundanbai inasmuch as bare arrears of maintenance were bequeathed to Radhakishan and Poonabai and not any right to claim interest or costs awarded by the decree, and also because the amount of maintenance awarded by the decree was for a larger period. It was also argued that since this was a specific legacy it must be taken to have been adeemed by the change in the nature of the property to wit the change of maintenance-amount into a decretal sum.

On the side of the respondents it does not appear to have been argued specifically, though the order of the learned Chief Justice shows that reference might have been made to the contention that Radhakishan and Poonabai having been substituted as the legal representatives of Kundanbai they were entitled to execute the decree as it stood without the assistance of the will. Before us this argument was amplified by the learned counsel for the respondents, who also contended that the legacy was not specific but demonstrative and therefore could not be said to have been adeemed.

Before us yet another argument was raised by the appellants, viz., that Kundanbai could not will away the arrears of maintenance and that such a will was incompetent.

We shall take up these arguments for consideration. The first question to decide is whether Kundanbai was capable of making a will of her arrears of maintenance. It must be remembered that on the date Kundanbai made the will, her husband was no more. Indeed, she was entitled to maintenance only because her husband was dead. The arrears of maintenance under the Hindu Law belonged absolutely to Kundanbai and were not subject to any control. Indeed, as stridhan they would have been subject to the control of only the husband or near relations of the husband under certain circumstances, which circumstances do not obtain here. Kundanbai was therefore entitled to dispose of these arrears in any way she liked. (Explanation 1 to section 59, Indian Succession Act. See also page 72 of Mitra''s Transfer of Property Act, 1955 "arrears of maintenance.")

It was faintly argued that the will was not proved as only one attesting witness was examined. u/s 68 of the Indian Evidence Act it is not necessary to examine more than one attesting witness. The two Courts below have accepted that evidence and have also held that Kundanbai was of a sound disposing mind when she made the disposition of her property. These must be treated as findings not ordinarily open to attack In a Letters Patent appeal. We were not shown any material from which we can hold that the findings have not been correctly given. The result therefore, is that the will must be taken to have been proved and artist be treated as competent in so far as the making of it was concerned and also in so far as the right to bequeath arrears of maintenance was concerned. We hold accordingly.

The next question is whether the legatees under the will, who between them covered different portions of the period for which the decree was passed, are entitled to execute the decree. It was contended by the appellant that this was a specific legacy and must therefore be taken to have been adeemed by the change in the nature of the property. It Was argued that the decree not only included interest and costs which were not the subject-matter of the legacy by Kundanbai, but was for a period different from that for which maintenance was bequeathed to the two respondents. The question, whether the legacy was demonstrative or specific has to be decided u/s 150 of the Indian Succession Act. Having regard to the illustration given, it is quite clear that this must be regarded as a specific legacy and not a demonstrative legacy. A specific legacy is a legacy of that very thing. In the present case the arrears of maintenance for a particular period were in their entirety bequeathed to the two legatees under the will. The legacy in either case therefore falls within the first part of the illustration and not within the second part. The legacy was therefore a specific and not demonstrative. This being a specific legacy and the nature of the property having changed, the question arises whether it must be taken to have adeemed by the fact that the arrears of maintenance were converted into a decree of a different kind. This question was considered by Sinha C.J. (as he then was). While we doubt respectfully whether the lagacies were not adeemed, in our opinion it was not necessary to decide this point, Kundanbai died when the appeal was still pending, and the present respondents were substituted in place of Kundanbai, not only as legatees under the will but also as her legal representatives. The order of the High Court, which we have quoted, clearly shows that no objection was raised to this substitution, and, in our opinion, as legal representatives of Kundanbai already brought on the record of the case the respondents were entitled to execute the decree as it stood, whether they benefited by the legacy or not. The appeal, therefore, must be decided on the short point that the legal representatives of Kundanbai brought upon the record without demur are entitled to execute the decree won by Kundanbai in a suit against the present appellant.

This short point therefore disposes of the appeal, and we need not consider the other argument which Sinha C.J. considered and which is not fundamental to this question. We accordingly uphold the decision of the learned Chief Justice, though for different reasons. The appeal fails and is dismissed with costs.