JUDGMENT
1. The appellant sued to enforce the provisions of a contract whereby one Gajadhar Singh, now deceased, had settled on her an annuity of Rs. 800 secured by a charge on his estate mauza Lakhnaura. The appellant had lived for many years with the settlor as his concubine, and there seems no reason to doubt he was attached to her and desired to make a suitable provision for her. The respondent, the married wife of the deceased, pleaded that the deed was void under the provisions of the Indian Contract Act, Section 23, having been executed for an immoral consideration, and if not, that it was void under the provisions of Section 25 of the same Act, it having been executed without consideration,...and that the ancestral estate was so much encumbered that its profits were insufficient to defray the charges for interest. The Indian Contract Act had not been passed on the 28th March 1869, when the deed on which suit is brought was executed. We need not, therefore, consider whether under the provisions of that Act it would be void. But if the consideration was immoral, as the Court below has held, it would be void under the law administered by the Courts of this country before the Act was passed. In our judgment the consideration was not immoral. The annuity was created not in consideration of future cohabitation, which would be an immoral consideration, but to make provision for a woman for whom it was incumbent on the honour of the settlor to make some provision. Nor, as the law stood when the deed was executed, would it have been held that such a contract was void for want of consideration.... There remains, however, a plea which has not formed the subject of an issue in the Court below. Before the appellant can recover from the respondent, it must be shown that the respondent has received funds available to meet the claim from the profits of Lakhnaura or other property of the deceased. We remand this issue for trial under Section 354.