Decided on March 23,1900



Ameer Ali, J - (1.) The plaintiff is the daughter of one Dharmo Dass, who died in the year 1852 or 1853. Besides the plaintiff, who was an infant at the time of his death, he left him surviving a widow named Bidhumukhi, and two brothers, Radhanath and Jatadhari. Subsequently upon a partition one-third of the joint, estate was allotted to Bidhumukhi as the heiress of her husband. Jatadhari died, it appears, before Bidhumukhi. Bidhumukhi died on the 20 of October 1891, and under a decree in a suit brought by Radhanath Haldar against the plaintiff he obtained possession of Dharmo Das share which had devolved upon Bidhumukhi. The decree contained a declaration that it was without prejudice to any rights the plaintiff had to maintenance. The plaintiff Mokhoda was married to a man named Digambur Dutt, son of Dino Nath Dutt. Digambur died in his father's lifetime. The plaintiff had by him several daughters, and a son Jogendra. Unfortunately for her that son died during the life time of her mother, and the result was, as I have pointed out, that upon the death of Bidhumukhi the property was held to have passed to the brother of Dharmo Das and not to her, she being a sonless widowed daughter. She now brings this suit against the sons and grandsons of Radhanath Haldar, who has died since the decree, for maintenance out of the share which was of Dharmo Das in his lifetime. I should have thought that the people who took the property of Dharmo Das would have the generosity to make some provision for her, but in this country at, times there is great liberality and kindliness of feeling; at other times equally great meanness; and the defendants have taken their stand on the Hindu Law; and it is by that law that I must decide this case. Whether it is harsh or otherwise it is not for me to determine.
(2.) This is the first case of its kind on this side of India. The only direct authority on the question requiring my determination is the case Bai Mangal V/s. Bai Rukmini (1898) L.R., 23 Bom., 291, decided in the Bombay High Court which is against the plaintiff. Before dealing with the legal rights of the parties, it is necessary I should state some of the facts on which the question of law turns. The plaintiff states she was married by her uncles and that after her marriage she occasionally lived at her husband's place and occasionally in her ancestral house which is at Sulkea. But as her evidence proceeded it appeared that after the partition her mother Bidhdumukhi left Sulkea, and took up her abode at Jorasanko in her brother's house, and it is probable, as the plaintiff states, that, whilst her husband was alive, she lived occasionally with her mother, and it is more than probable that after her husband's death she lived altogether with her mother,
(3.) Dino Nath Dutt, her father-in-law, was, upon the evidence, a man in fairly good circumstances, and possessed of some property which has come into the hands of one of his grandsons, Tulsi Das, who gave his testimony in this case. I have no doubt that Mokhoda is in destitute circumstances; she is living now in a house belonging to her deceased son-in-law Purna Chunder Daw, who has provided by his will that its rent should be paid out of his estate. The evidence regarding her other means shows that she is at present maintaining herself by borrowing. It was attempted by Mr. Bonnerjee to prove that a will was left by Dino Nath Dutt, under which Mokhoda Dassee was to get Rs. 5 a month for her maintenance, in case she resided in the family dwelling-house, but did not choose to mess with the family.;

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