Decided on July 22,1960



- (1.) THIS is a second appeal by the husband-defendant in a suit by the wife plaintiff for cancellation of a Nadabi-Patra or a deed of 'non-claim'. There were various disputes between the husband and wife at an earlier stage. The wife instituted a suit for maintenance and other reliefs and the husband instituted a suit for restitution of conjugal rights. There were some other matters, which are not necessary for me to reiterate at the present stage. Finally, while such suits were pending, they entered into an agreement, which is described as a Nadabi Patra, by which the rights of the parties were amicably settled and the suits were dismissed. The plaintiff instituted the suit for setting aside the document on the ground of fraud and also for declaring that the said document was a void one.
(2.) THE only point, which has been agitated in this High Court, is whether the document is vitiated on grounds of public policy and, therefore, void in law. I would, therefore, restrict myself to that part of the case alone. The relevant provisions, which are necessary to be considered from this point of view, are (i) the wife gave up her rights to inherit the husband's property; (ii) the wife agreed to a maintenance at the rate of Rs. 12 per month and also separate residence was agreed to and (iii) the wife agreed not to charge anything other than the maintenance of Rs. 12 per month. With regard to the first question there is no dispute between the Advocates here. That part of the agreement is not valid in law. It may be said that this part of the agreement is void on the ground that after the husband dies, supposing the wife lives, the agreement would not affect the mutual rights of the reversioner and the wife because there is no agreement between them. Further such an agreement is undoubtedly bad as against public policy for the reason that section 6 of the Transfer of Property Act forbids transfer of a chance of succession. In this case, at most, the wife was transferring or surrendering or relinquishing her inheritance in favour of the husband after his death; this means nothing. Hence, this part of the contract must be considered to be void. The next thing is the agreement relating to maintenance of Rs. 12 per month and separate residence. There is nothing immoral nor illegal in it. They tried their best but they failed to live amicably and then they agreed to separate and on that condition the wife was given maintenance. This part of the contract is, therefore, valid.
(3.) THE difficulty arises with regard to the third part. According to this part, the plaintiff will not be entitled to get anything more. It has been stated that, it refers to a right to get a higher maintenance if the circumstances required it or if there are particular occasions where more money would be required; but she would not be entitled to have it, say,-for treatment of herself or, in other words, this rules out cases where the husband would otherwise be bound in law to look after the interest and well-being of the wife; this, this stated, is against the public policy Mr. Mitter has referred to a decision reported in (1) A. I. R. 1945 Bom. 537 between Hirabai v. Pirojshah. According to Mr. Mitter, "a wife cannot barter away her future rights". In order to consider whether it is against public policy, we shall have to consider whether there is any law which directly or indirectly forbids such transaction or there is some such inherent defect in the contract as would not be in keeping with the best interests of the society. Section 6 (dd) of the Transfer of Property Act is as follows:- "a right to future maintenance in whatsoever manner arising, secured or determined, cannot be transferred. ";

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