Full Judgment
King, J.
1. This appeal arises from a suit brought by the widow of one Pachayappa Chettiar against the first defendant who succeeds to the property of Pachayappa Chettiar by virtue of a will executed by him on the 6th January, 1942. First defendant is the maternal uncle of the testator. In his will the testator specifically states that his wife the plaintiff has no claim to suceed to his property. The plaintiff and her husband had not lived together from 1929 until the date of the husband's death. In 1930 there was a magisterial order under the Code of Criminal Procedure against the husband for the payment of maintenance to the plaintiff, but the effect of this order was nullified by subsequent civil litigation undertaken by the testator in a suit in 1931 for the restitution of conjugal rights. In that suit he obtained a decree which was confirmed on appeal in 1933. After 1933 no serious attempts appear to have been made to persuade the plaintiff to live with the : husband and no proceedings were taken through Court to execute the decree. The validity of the will was attacked by the plaintiff in the course of her suit, but it has been found that the will was genuine and valid. The plaintiff's alternative claim, therefore, to be granted maintenanae out of the husband's estate was considered and it was held that she was entitled to maintenance.
2. The principal point which has arisen for decision in this appeal is whether in the circumstances of this case the plaintiff had any right to be maintained out of her husband's property. It is argued on behalf of the appellant that the plaintiff had forfeited her right to maintenance by her conduct, and that therefore her husband had every right when executing his will to dispose entirely of all his estate without any thought for any possible right of his wife to be maintained out of it after his death.
3. There can be no doubt in the circumstances of this case that if the plaintiff had applied for maintenance against her husband while her husband was still alive, she would have failed to get it. Though the parties may still differ as to the circumstances which led to the separation in 1929, the litigation which ended in 1933 is conclusive on that point as against the plaintiff. It is attempted to be argued for the appellant that the effect of the conduct of the plaintiff in deserting her husband for no satisfactory reason in 1929, and her refusal to obey the decree for restitution of conjugal rights has deprived her finally of any claim to be maintained in her new status as a widow. For this no direct authority has been adduced though we have been asked to regard a judgment of a Bench of this Court as dealing with facts so similar that the principle of that judgment ought to be applied. That is a case decided by a Bench of which one of us was a member. Sankaramurthi v. Subbamma. I.L.R. 1944 Bom. 374. The facts were that a claim was made by a widowed daughter-in-law against the devisee or donee of the self-acquired properties of her father-in-law. We held that during the life time of the father-in-law the daughter-in-law had no legal claim to be maintained out of his property; that the father-in-law could dispose of it as he wished; and, that no obligation attached to any person to whom he had disposed of this property by gift or will, although an obligation would have attached to his heir-at-law. The facts of this case are, in our opinion, quite distinct from the facts with which we have now to deal, and the question of the powers of a Hindu to dispose of his self-acquired property and the distinction which we drew between succession by inheritance and acquisition of property through a will or a gift do not arise here at all. The simple issue in this case is whether the right which a Hindu widow undoubtedly possesses to be maintained out of the property of her deceased husband is or is not finally forfeited by her conduct during the husband's lifetime. On this aspect of the relationship between husband and wife there is no direct authority quoted before us. On the other hand the respondent can rely upon a decision of a Bench of this Court in Surampalli Bangaramma v. Surampalli Brambaze : (1908)18MLJ254 in which the nature of the right of a wife to be maintained separately by her husband is considered. It is there held that by conduct which disqualified her from being separately maintained, a wife does not permanently forfeit her right to maintenance, but that that right is only suspended. This decision is binding upon us and if the right of a wife is suspended and is suspended only because she failed in her duty towards her husband, then it must necessarily revive and the suspension must necessarily cease when her husband dies. There can therefore be no doubt that at the moment when her husband died, the plaintiff had a right to be inain-ta,ined out of his estate and according to the provisions of the Succession Act, no person can execute a will which can defeat such a right.
4. It is next argued that the quantum of maintenance is too large but no concrete facts have been stated before us to justify this contention.
5. Finally the appellant contends that inasmuch as the plaintiff filed this suit in the alternative, to recover her husband's property itself or for maintenance, it is inequitable that the first defendant should be made to pay the whole of the court-fee due to Government, the suit being filed in forma pauperis. This is not a case in which the learned Judge has passed his order with regard to costs arbitrarily. He has been at great pains to set out in three pages of his judgment the reasons for his order. Orders as to costs are discretionary and in circumstances in which the learned Judge has carefully explained the reasons for his order, we see no reason at all to interfere with his discretion.
6. In, the result this appeal must fail and is dismissed with costs.