JUDGMENT
1. This is a first appeal by Mt. Jamwati, a widow, and her lessee Pandit Ram Chandra, against a decree of the Court of first instance awarding maintenance and arrears of maintenance to the plaintiff-respondent Mt. Maharani, Mt. Maharani is a widow aged 60 and her husband Jagannath died in 1912. He left a minor son Sriram who was the husband of Mt. Jamwati, appellant, who was also minor at that time.. The entry in the revenue records on the death of Jagannath was half for plaintiff Mt. Maharani and half for her minor son Sriram. Mt. Maharani continued in possession of the estate and to make collections. Her minor son Sriram died about 1922 and Mt. Maharani still continued in possession. Her daughter-in-law, Mt. Jamwati, brought a suit No. 56 of 1924, for possession of the whole of the property on the ground that she was the widow of the last male holder. This suit was decreed on 12th December 1921, and in February 1925, on some date not specified, Mt. Jarawati obtained possession of the estate. It is stated that there was a receiver appointed on 1st April 1924, during the pendency of that suit, but this is not shown by the present record, and it is only stated in the judgment that a commissioner was appointed to make a list of property. Mt. Maharani brought the present suit on 7th April 1926 claiming maintenance at the rate of Rs. 1,100 a year and also arrears of maintenance from April 1924 to the date of the decree. . The learned Subordinate Judge has held that net income of the estate is Rs. 1,200 per annum and he has allowed Rs. 40 per mensem to the respondent-plaintiff Mt. Maharani with arrears of maintenance from April 1924, at the same rate.
2. The two questions which have bean argued on the appeal of Mt. Jamwati are firstly, that the rate of maintenance, Rs. 40, is excessive; and secondly, that arrears of maintenance should not be allowed. In regard to the first question it was pointed out that Mt. Jamwati, in the course of the litigation had to execute a lease of the property for Rs. 900 per annum and therefore it was contended that the finding of the lower Court, that the net profits were Rs. 1,200 per annum, was not correct. But this argument ignores the fact that Mt. Jamwati has only leased the land which is rented by tenants, and that she has retained in her possession the sir and khudkasht land which is stated by the plaintiff on p. 9 to amount to 70 or 80 bighas. This is also supported by the evidence of the patwari for the defendant to the effect that Mt Jamwati is looking after the sir and khudkasht land also. Accordingly we consider that the finding that the net income of the property is Rs. 1,200 per annum or Rs. 100 per mensem, is correct. As regards the amount which each widow should have for maintenance, we consider that Rs. 60 to the younger widow and Rs. 40 to the elder widow is not an unfair division. We therefore uphold the decree of the lower Court on this point.
3. The next point is in regard to arrears of maintenance. The learned Counsel for the appellant Mt. Jamwati relied on Raghubans Kunwar v. Bhagwant Kunwar [1899] 21 All. 183 and Karbasappa v. Kallava [1919] 43 Bom. 66, from which we deduce the proposition that a widow must satisfy the Court that she was in want before she can obtain a decree for arrears of maintenance. The question of maintenance does not stand on the same footing at all as the question of arrears of maintenance. The learned Counsel for the plaintiff referred to Ekradeshwari Babuasin Saheba v. Homoshwar Singh A.I.R. 1929 P.C. 128. In this ruling the question before their Lordships was from what date arrears of maintenance should be granted to a Hindu widow and their Lordships held that on the facts in the case before them the widow was entitled to arrears of maintenance from the date on which she left her husband's house and went to reside elsewhere. In the present case Mt. Maharani gives her address in the plaint as Mauza Bajhera Bhagwanpur and in the detail of houses attached to the plaint she states that the house in that village is one of the houses of the estate. It is also in para. 6 of the written statement of Mt.. Jamwati (additional pleas) that the plaintiff lives in the house at Bajbera. Accordingly the present case stands on a different footing from the case before their Lordships of the Privy Council in Ekradeshwari Babuasin Saheba v. Homeshwar Singh and must be decided on its own facts. In Mt. Lakshmamma v. M. Venkatasubbiah A.I.R. 1925 Mad. 795 and in Raja Yarlagadda Mallikarjuna Prasada Nayudu v. Raja Yarlagadda Durga Prasada Nayudu [1901] 24 Mad. 147, it was held that a case for arrears must be made out and there must be prima facie evidence of wrongful withholding of arrears. The facts in the present case are not as clear as they might be, but we consider that it is not desirable to remand this case for further investigation, because the adoption of such a course would involve the parties in a greater amount of expense than the amount of arrears in question. Taking the facts on the record which we are able to ascertain we consider that equity will be satisfied in the present case by allowing the appeal of Mt. Jamwati to this extent, that the arrears of maintenance will be reduced from Rs. 40 per mensem, decreed by the learned Subordinate Judge from April 1924, to the date of suit, to the sum of Rs. 10 per mensem from the 1st February 1925 up to 7th April 1926, the date of suit, which we now decree for arrears of maintenance. Mt. Jamwati will receive proportional costs of appeal and proportional costs in the lower Court and this would be taken into account in calculating the amount of court-fee which will be paid by the parties. Mt. Maharani is also allowed proportionate costs in proportion to her success.
4. This appeal was also argued on behalf of Pandit Ram Chandar, the lessee from Mt. Jamwati, on different grounds. His ground of appeal was that the lower Court was wrong in decreeing costs against him. His point was that because he was the lessee, he should not have been impleaded; and secondly, his learned Counsel argued that the plaintiff had in para. 10 of the plaint alleged that Mt. Jamwati had executed a fictitious lease of all the property in favour of her relation Ram Chandar. The plaintiff, however did not ask for any relief or for a declaration that the lease from Mt. Jamwati was fictitious and there was no issue on this point. If Ram Chandar had confined his written statement to contesting the question of the lease being fictitious, we might have considered the correctness of exempting him from costs; but in his written statement he went much further and alleged " para. 7 of the plaint is quite wrong and is not admitted." This was the paragraph in which the plaintiff asks for maintenance according to the Hindu law. As however Ram Chandar denied that the plaintiff should get maintenance and as the rate has been upheld in this Court we consider that the lower Court was correct in awarding costs against Ram Chandar.
5. We therefore dismiss the appeal of Ram Chandar. As Ram Chandar and Mt. Jamwati filed a joint appeal, the costs of these two persons will be governed by the total proportion of success and failure, and they will be treated as one party for purposes of the decree of this Court.