1. This is a suit brought by a widow against her father-in-law to recover possession of certain jewels which she says were given to her by her husband and her father-in-law and also for maintenance. She also claims certain clothes in Sch. C to the plaint and the defendant has now consented that she should have the clothes which are numbered 1 and 2 in that schedule.
2. The rest of the articles mentioned in that schedule are also admitted and there must therefore be a judgment for those articles.
3. The questions relating to the jewels and to the maintenance are more difficult.
4. The story of the plaintiff is that negotiations were entered into before her marriage with her deceased husband who had been married previously and who was about 22 years of age, that the plaintiff's people offered to give Rs. 2,000 for the purchase of jewels and that the defendant's people offered to let the plaintiff have the jewels which had been in the enjoyment of the first wife which they say were worth Rs. 16,000 and also to give her further jewels. * * * *
5. But the question I have to deal with is whether the plaintiff's story is sufficiently proved, and I am of opinion that it has not been sufficiently proved. * * * *
6. Then the question remains whether, apart from that evidence, the use of the jewels by the plaintiff is sufficient to show that it was intended to give them to her. Now it seems to me that the balance of evidence is that these jewels remained in the custody and control of the defendant and I cannot regard it as insignificant that these jewels were left behind when the plaintiff went to her mother's house never to return as it turned out. The plaintiff's explanation of her reasons for not taking them with her seems to me very weak, and I think there is more probability in the defendant's story that she was allowed to take away the venki only at her request as a special favour. Having regard to the fact that the defendant is a trader, not perhaps inclined to incur unnecessary expenditure, it does not seem to me likely, that he would have parted with the property in these jewels to his daughter-in-law, though, no doubt, as he says, he allowed her the very full use of them. The conclusion to which I have come is that the plaintiff's case on this point is not proved.
7. The next question is as to the rate of maintenance which should be allotted to her. Various cases have been cited to me, and in particular the judgment of Wilson, J., in Shrimati Karoonamoyee Dabee v. Administrator-General of Bengal(1) in which the learned Judge says: “I apprehend that there is no reasonable doubt now as to the principle on which the Court should try to deal with these matters, though the application is nearly in every instance extremely difficult. The principle so far as it can be defined, is substantially this. Where a widow has asked for separate maintenance, you look first at the mode of life of the family during her husband's lifetime and you try to find out what amount will be sufficient to allow the widow to live as far as may be consistently with the position of a widow in something like the same degree of comfort and with the same reasonable luxury of life as she had in her husband's lifetime. Then you see what the husband's estate is, and you also see how far that estate is sufficient to supply her with maintenance on this scale, without doing injustice to the other members of the family who also have their rights as heirs, or their rights to maintenance out of the estate.” There is no question in the present case that the husband's share of the estate is amply sufficient to supply the widow with maintenance to live in the way of life to which she has been accustomed, and therefore, the only question is what is the rate that should be awarded. The defendant's family are traders and they belong to a class of people, as has been pointed out in another case cited before me, who take greater pleasure in the accumulation than in the spending of riches, and they are shown to have lived in a modest manner at an expenditure averaging about Rs. 400 a month or about Rs. 5,000 a year in a house in one of the main thoroughfares of George Town which is said to be worth as much as Rs. 40,000. The defendant and his son kept horse and carriages and the defendant is said to have recently bought a motor car. Various cases have been cited to me in which particular sums were awarded, but each case was decided with regard to the circumstances of the family. I do not think that the circumstances of a zamindar's family are in the least a guide to the circumstances of a trader's family of this Chetty caste in George Town. As Wilson, J., says, it is an exceedingly difficult task to fix the amount. I am disposed to fix it on what I consider to be a liberal scale and have decided to award Rs. 140 a month.
8. Then the question arises as to the right of the widow to arrears of maintenance. Certain cases have been cited in which it was stated that the right of action depends upon the withholding of maintenance, and a more recent case was cited: the case of Rangathay Ammal v. Nelli Munuswamy Chetty(2). In that case it is stated: “A wrongful withholding is not necessary to entitle a widow to arrears of maintenance, if by that expression is meant that the withholding should be morally improper. No demand is necessary to give a right to receive arrears. Her status as the widow of one of the members of a joint family holding property in common is sufficient to entitle her to receive maintenance from the date of her husband's death. She may, no doubt, by living with her parents or otherwise, impliedly waive her right to be maintained by her husband's relations during the time that she lives away from them, but waiver cannot be necessarily inferred in every case from the fact of separate residence alone. The true principle to be applied is laid down in Raja Yarlagadda Mallikarjuna Prasada Nayadu v. Raja Yarlagadda Durga Prasada Nayadu(3) by the Privy Council that arrears will be refused only in cases where the person liable to make the payment had justifiable grounds for inferring “that the claim was abandoned,” and had in consequence not set aside any portion of his annual income to meet such a claim.”
9. In this case the plaintiff was maintained for nine months in her husband's family after his death, and left them when no differences had arisen. The differences according to the evidence first became acute when she refused to attend her husband's annual ceremony on 1st June 1911, and applying the principle laid down in the case referred to, I think that we may take it that from that date the defendant had notice that she did not intend to waive any claim for maintenance and therefore that I should be justified in awarding her arrears of maintenance as from that date i.e, 1st June 1911. There will accordingly be a decree to that effect with proportionate costs. There will be also a judgment for the effects mentioned in Schs. A and C to the plaint. The maintenance will be a charge on items 1 and 2, Sch. D to the plaint.
S.N/R.K
10. Suit partly decreed.