JUDGMENT Sen, J.
1. This is an appeal from the-decree of the District Judge of Bareilly dated 31st January 1929 reversing the decision of the Subordinate Judge dated' 5th July 1928 in a suit to recover arrears of a certain allowance called kharch-I-pandan by enforcement of an instrument; dated 28th February 1921.
2. Kharch-i-pandan is a recognized institution amongst Mahomedan families of noble descent and its nature and incidents have-been defined by judicial pronouncement of final authorities.
3. In 1919, the plaintiff was married to Akhtar Ali Khan, son of the defendant respondent and her dower was fixed at. Rs. 1,25,500 of Mohammad Shahi ashrfis A child was born of this marriage, but died shortly afterwards. Some time after this event, the plaintiff left her husband's house and began to live with her parents.
4. On 28th February 1921, the defendant-respondent executed a document in favour of the plaintiff under which he agreed to pay her Rs. 30 every month for her kharch-i-pandan and other expenses, and in order to secure its due payment he-hypothecated a three biawa zamindari share in Mauza Tanda. Under this instrument, he stipulated not to transfer the property to any third party and declared that the agreement was binding upon his heirs and legal representatives. It is possible that the defendant's object in executing this document was to offer inducement to the plaintiff to return to her husband, but this object was not achieved.
5. On 13th June 1921, the defendant brought a suit in the Court of the Subordinate Judge against the plaintiff. According to the plaintiff, the ostensible object of this suit was to seek a construction of the document dated 28th February 1921, but the real object was to procure its avoidance. This suit was withdrawn. On 29th June 1923 the defendant made a wakf of his entire property including the property hypothecated.
6. Since its execution, the defendant has not paid the allowance to the plaintiff; hence this suit to recover arrears for six years together with interest. The suit was resisted upon the following two grounds:
(a) The agreement was procured from the defendant by undue influence and was not enforceable.
(b) The payment of the stipulated allowance was dependent upon the fulfilment of a condition precedent that the plaintiff should return to her husband and continue to live with him, and as this condition was not fulfilled the plaintiff was not entitled to the allowance claimed.
7. The Court of first instance overruled both of these pleas and gave the plaintiff a decree for the principal amount claimed, but not for the interest.
8. Before the lower appellate Court, the defendant did not urge the plea that the document had been obtained by undue influence. We are not surprised that the plea was abandoned. Where the parties are at arm's length and the party against whom undue influence is pleaded is not in a position to dominate the will of the other party, there can be no undue influence. In view of the fact that the plea has been abandoned, the matter need not be pursued any further.
9. But controversy appears to have centred upon the construction of the document; and the defendant contended that the agreement relating to the payment of the allowance was not unconditional, but was dependent upon the plaintiff's return to her husband to fulfil her marital obligations. We have not the slightest doubt that in view of the pleadings this was the only point available to the defendant, and argument was addressed on this point. The learned Judge remarks as follows:
The only argument urged before me was whether the defendant was bound to pay the monthly allowance to his daughter-in-law, after she returned to her parents a second time, or whether the allowance was dependent on her remaining with her husband....
It was argued on appeal that this was the vital point in the whole case.
10. The lower appellate Court in agreement with the trial Court overruled the defendant's contention on this point. It was definitely held that the alleged condition could not be traced in the four corners of the document. The defendant might well have had that object in view, when he executed this document, but he did not express it. The finding of the learned District Judge may be reproduced:
The lower Court on the other hand considers that if this was the intention of the father-in-law he could have said so in clear terms so that there would have been no further discussion, but he has said that with his own free will he makes a monthly allowance of Rs. 30 to his daughter-in-law and will put no objections in the way of payment. According to the lower Court's argument it is possible that the daughter-in-law would not have returned to her husband at all if the intention of her father-in-law was merely to pay Rs. 30 a month, while she lived with her husband, but she might have returned and in fact did return for a short time understanding that she was to receive an allowance of Rs. 30 a month for the rest of her life irrespective of the fact whether she was able after making the attempt to continue living with her husband. I agree with the lower Court that this is the probable interpretation. The father-in-law was very anxious about his son's health and sanity and was willing to make a favourable offer to the plaintiff to return hoping that she would remain with her husband indefinitely, and if she did not he would still have to pay. It would have been very easy for him to enter in the document that the money was to be paid only as long as his daughter-in-law lived with her husband, but this omission cannot be explained now on the ground that this was the intention.
11. The judgment of the trial Court incorporates the following translation of the, material portion of the disputed document:
Now having regard to the changes of time and the march of events I strongly apprehend that a disagreement will arise between the wife and the husband because my aforesaid daughter-in-law has gone to her parents. As my son has no, moveable or immovable property of any sort in his name with which he may meet his necessary expenses, the said Musammat is in great difficulties. Now it is necessary for and, binding upon me to bring my daughter-in-law, aforesaid, to my house and keep her with her, husband aforesaid.
12. There is nothing in the document to indicate that the agreement to pay the allowance was qualified by a condition precedent. The document does not reserve to the executant any power of revocation either upon the happening of a future contingency or at his own sweet will and pleasure. We are clearly of opinion that the construction put upon the instrument by the Courts below was correct.
13. In view of the findings of the lower appellate Court upon the points raised in the memorandum of appeal, there was no further point to arrest the attention of that Court and the appeal should have been dismissed.
14. The lower appellate Court appears to have gone astray in allowing the defendant to raise a new point which did not arise from the pleadings. The learned Judge observes:
Assuming it proved that the father-in-law made this allowance to her without any stipulation, the next point is whether this agreement which is without consideration is not void under Section 25, Contract Act.
15. This plea was not taken in the written statement. No issue was framed on this point. No arguments were addressed to the trial Court and the plea was not taken in the memorandum of appeal to the lower appellate Court. The defendant ought not to have been allowed to break fresh ground during the progress of the argument in a Court of appeal. The question did not involve a mere point of law. It required the determination of a question of fact, viz., whether the agreement was made on account of natural love and affection. The Court below was not justified in recording a finding that the plaintiff had not proved that there was any affection between herself and her father-in-law. There was no occasion in this case for the plaintiff to offer any proof on a point which was not raised at the trial. We are of opinion that the learned District Judge has erred in entertaining and giving effect to this plea.
16. It has been argued before us that the agreement to pay the allowance is a nudam pactum, that it is not supported by consideration and that it is unenforceable. If this was the defendant's case, it ought to have been indicated in the pleadings and the defendant should have pressed for a distinct issue on this point. This was not done. To allow this plea to be raised at this stage of the case will be unfair to the plaintiff and to the Court below. For the same reason we refuse to entertain the plea that the defendant revoked the instrument.
17. Our attention has been drawn to the decision of the Judicial Committee in Khiwaja Mohammad Khan v. Husaini Begam [1910] 32 All. 410. In this case an agreement, resembling in certain respects an antenuptial settlement was made between the father of Husaini Begam and Khwaja Mohammad Khan, the prospective father-in-law, under which the latter agreed to pay Husaini Begam a certain allowance which was described as kharch-i-pandan. The allowance was specifically charged upon certain immovable property. Husaini Begam sued her father-in-law for recovery of the allowance which had fallen into arrears. It was held by the Privy Council that Husaini Begam was beneficially entitled to the allowance and that the Common law doctrine propounded in Tweddle v. Atkinson [1861] 1 B.& S. 393 could not be applied in India and among communities circum. stanced as the Mahomedans, etc. : see p. 413. The points of divergence between that case and the present are that here the contract is post-nuptial and that the daughter-in-law is a party to the agreement.
18. In our opinion the transaction between the parties partakes of the nature of a family settlement. It was entered into between two members of the family and its object was to promote goodwill between Latif Jahan Begam, the daughter-in-law and her husband Akhtar Ali Khan.
199. The existence of a dispute or the assertion of a claim to any property is not essential for the creation of a family settlement. Where an arrangement has been arrived at between certain members of the family that is designed to promote peace and goodwill amongst certain of its members, this by itself is a good consideration to support the transaction. It is an established rule of law that in cases of family arrangement, Courts will not scan too closely the quantum of consideration. We allow the appeal, set aside the decree of the lower appellate Court and restore that of the trial Court. Plaintiff is entitled to her costs in this Court and in the lower appellate Court.