9911796707
TMI Blog1889 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, that case; that defendants Nos. 1 and 2, in collusion with defendant No. 3, caused a petition of compromise to be filed in that case on behalf of the plaintiff without her knowledge and consent; and that the plaintiff accordingly brought the present suit to recover maintenance for nine months and to set aside the compromise. The defence of defendants Nos. 1 and 2 (which is the only defence necessary to consider now) was to the effect that the compromise in question was not fraudulent, but had been duly entered into with the knowledge and consent of the plaintiff, and that she thereby consented to take ₹ 30 in full satisfaction of her claim for maintenance; and that the plaintiff compromised the former suit as she was not entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case 2 B.L.R. A.C. 15 : 9 W.R. 413 : 10 W.R.F.B. 89 Sir Barnes Peacock observes: The obligation of an heir to provide, out of the estate which descends to him, maintenance for certain persons whom the ancestor was legally or morally bound to maintain, is a legal as well as a moral obligation, for the estate is inherited subject to the obligation of providing such maintenance. And the reason why what was only a moral obligation in the ancestor, becomes transformed into a legal obligation in the heir, is pointed out in the following passage in the same judgment: The maintenance of a widow being a moral obligation on the late proprietor, the son who inherits takes the estate, not for his own benefit, but for the spiritual benefit of the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the first objection: no doubt the remark of the learned Judges in Khettramani's case 2 B.L.R. A.C. 15 : 9 W.R. 413 : 10 W.R. F.B. 89 is an obiter dictum; but the proposition laid down has ample basis in the Hindu law, especially of the Bengal School which governs this case.-See Dayabhaga, Chap. XI, Section VI, para. 13. It is quite true that in the practical application of the principle embodied in the dictum to any particular case it will have to be determined whether the party claiming maintenance from the heir is one whom the late proprietor was morally bound to maintain; and that it is difficult to lay down any general rule for the determination of this last-mentioned point. But that alone would be no reason for not accepting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral in its terms; but the objection that was really raised before the lower Appellate Court was that the plaintiff was not entitled to maintenance, being only a deceased brother's widow, and there being no ancestral Immovable property in the hands of the surviving brothers; and the lower Appellate Court has allowed that objection holding that defendants were not shown to have inherited any Immovable property. Now that view of the law is clearly wrong. It does not matter whether the property inherited is moveable or immovable. 9. As however the case will have to go back to the lower Appellate Court to ascertain the amount of maintenance, I shall leave it open to that Court to determine if there was anything peculiar in the circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property inherited is meagre. Of course if there had been no evidence adduced as to the value or nature of the property inherited by the defendants, though the question as to the amount of maintenance was raised in the second issue, perhaps a remand would have been unnecessary, and the suit would have been liable to be dismissed. But, as it is, there is some evidence on the record as to the extent of the property inherited, and it will be for the Lower Appellate Court to say what maintenance the plaintiff would be entitled to, having regard to the value of that property and to all the circumstances of the family. In dealing with this question the Court of Appeal below will have to take into consideration the allegation of the plaintiff (if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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