Mt. Savitribai v. A. Radhakishan Sheocharan

1. This appeal was heard along with First Appeal No. 40 of 1943*, in which we have written a separate judgment. The facts of the case will be found in the other judgment. In this case Kundanbai sues to enforce her charge decree of Rs. 200 a month against the plaint properties in the defendant's hands.

2. It was first contended that the sum fixed in the consent decree of 1916 should be further reduced because of an alteration in the circumstances of the family.

3. We have already held in the other judgment, following I.L.R (1941) Nag. 4371 and I.L.R (1941) Nag. 5132 that in the case of a decree such reduction can only be made by a decree obtained in a separate suit filed for the purpose, unless the decree provides machinery for its own alteration; also that the reduction can only have effect from the date of the plaint in the suit so filed. The suit out of which this appeal arises is not such a suit. First Appeal No. 40 of 1943 is the suit instituted for that purpose, and that suit we have dismissed. Accordingly, nothing more need be said on this point.

4. The point argued about the divisibility of the charge decree has also been dealt with in the other judgment. For the reasons given there, we see no reason to apportion the sum due over the various properties and we hold that the charge-holder is free to realise her money from any portion of the charged property and is not bound to proceed against the rest of it if she does not want to do so. The transferees are accordingly not necessary parties.

5. The argument regarding the effect of the partition between Shrinarayan and Shivanarayan has also been decided in the other appeal. For the reasons given there, we hold that Kundanbai is entitled to disregard the partition and enforce her charge in the way she seeks to do in this case.

6. The only question which arises here and which did not arise in the other cases relates to the plaintiff's claim for interest. It is relevant to note that interest was decreed in the previous suits which the plaintiff was forced to file. It is said that this operates as res judicata, but we need not proceed on that ground because we agree with 15 Luck. 537,3 that the Interest Act of 1839 applies. As the learned Judges said there:

“The claim in the present case is for a certain sum payable at a certain time, that is monthly allowance of guzara impliedly payable at some time in every month for that month,”

and again,

“In our opinion a monthly maintenance or allowance made payable under a compromise in a suit comes within the scope of this provision.”

7. It was argued that a decree is not an “instrument” within the meaning of the Act. We find, however, that the word “instrument” is used in various senses, in some it includes a decree, in others it does not. Thus, Section 17(1)(b) of the Registration Act makes non-testamentary “instruments” of the type set out there compulsorily registrable. Sub-section (2) exempts a number of documents, deeds and so forth from the scope of S. 17(1)(b). among them certain decrees in sub-cl. (v). There would have been no need to exclude these decrees if the word “instrument” did not cover a decree. It is to be observed that certain compromise decrees are not exempted. Therefore, they are “instruments” for the purpose of the Registration Act. We see no reason why we should limit the use of the word in the Interest Act. Accordingly, we hold that the term is wide enough to cover a decree.

8. That apart, the proviso extends the Act to all cases in which interest is “now payable by law.” The Privy Council say at page 79 in I.L.R (1938) 2 Cal. 724 that this applies to cases in which a Court of equity exercises jurisdiction to allow interest. We are of opinion that we are exercising equitable powers in maintenance cases where a charge has been created by a decree. We consider that a Court of equity would, and should, allow interest in a case of this kind where for over 60 years this unfortunate plaintiff — we are speaking of the original plaintiff Kundanbai—has not been paid a pie of her money without interminable litigation in which the same matter is fought and contested at every stage over and over again. In our opinion, interest was rightly allowed. But we think that 6 per cent, per annum is too high. We reduce it to 3 per cent, per annum and accordingly reduce the figure claimed to Rs. 1827-8-0. The decree of the lower Court will be modified-accordingly.

9. In addition, we allow interest on the decretal amount at the same rate from the date of suit to the date of payment.

10. Except for this modification, the appeal fails and is dismissed with costs. We see no reason to allow the defendants any costs because of the comparatively small modification we have made in the lower Court's decree. The costs-will be paid out of the estate and not personally.

11. Decree modified.