JUDGMENT Caspersz, J. - Dakshina Mohan Roy Chaudhuri, a Hindu governed by the Dayabhaga law, executed a Will, on the 5th November 1895, and a codicil to the same dated the 3rd July 1897. He died on the 22nd March 1898 leaving him surviving his widow Srimati Nagendra Bala Chaudhurani and an adopted son Dakshaja Mohan Roy Chaudhuri whom he had adopted on the date on which the codicil was executed. The widow contested the probate proceedings, but, in the end, probate was granted to the executors. She then instituted the suit giving rise to the present appeal for a construction of the Will of Dakshina Mohan Roy Chaudhuri, alleging that she was beneficially interested in the Will and that pertain of its provisions were invalid, inoperative, and ineffective. The Subordinate Judge gave the Plaintiff a modified decree. The surviving executor and the adopted son appealed to this Court. But, on the conclusion of the argument for the executor, the adopted son was, on his application and without opposition, transferred to the category of Respondents, and learned counsel on his behalf has argued in support of the finding of the Subordinate Judge with regard to the disposition creating certain debutter property. 2. The Subordinate Judge has increased the Plaintiff's maintenance from Rs. 125, the monthly sum mentioned in the Will, to Rs. 500 per mensem. He has declared the provisions of the Will dedicating certain properties to the worship of Idols to be established at Benares to be invalid. He has, also, declared, that the Plaintiff shall not forfeit her right to maintenance for not living at Benares or at the family dwelling-house at Madhupur in the District of Rungpur, and he has construed the Will in other respects as appears from the decree framed in accordance with his judgment. 3. The executor Promotha Nath Roy is now the sole Appellant, and Dr. Rash Behari Ghose has argued on his behalf that the provisions of cl. 5 of the Will, regarding the establishment of the Thakuranis and a Thakur at Benares, are valid according to Hindu law, and that the Plaintiff, being entitled to maintenance only and being a stranger to the estate which, on an intestacy, would go to the adopted son, is not competent to raise any question as to the validity of the debutter. It is, also, urged that unless the widow lives at Benares or at Madhupur she will not be entitled to any maintenance and that she must be limited to the monthly sum of Rs. 125 mentioned in the Will of the testator. 4. The only clauses in the Will calling for attention in the present appeal are the 5th and 14th clauses. In the 5th clause the testator says--" I have an intention to establish at Benares, after my name, the deities Dakshina-Kall, Tara, Bhubaneshwari, Thakuranis and Dakshineshwar Siva Thakur. During my life time I shall establish and consecrate the aforesaid Thakur and Thakuranis, construct temples for them, and make provisions for their sheba (service) and worship. Should I happen to die, which God forbid, without having in my life time established the said Thakuranis, in that case, as noon as possible after my death, my begotten son, if any living, and in his default, my adopted son, or if there be any son living a minor, or in the absence of any begotten or adopted son, the executor of this Will and, in his default, the ' person who may, according to the directions made below, be appointed administrator by the Judge of the Distrlot of Rungpur, for the time being, shall from the Income of any property other than the debutter property cause the aforesaid Thakur and Thakuranis to be established and consecrated and temples to be constructed for them, and Consecrated at a coat not exceeding Rs. 7,000 and the immoveable properties mentioned In the schedule given In the foot of this Will, shall be dedicated to and set apart for the said Dakshine-shwar Siva Thakur and Dakshina-Kali, Tara and Bhubaneshwari Thakuranis to meet the expenses of their sheba (service) and worship, and after my death the aforesaid properties shall be the absolute debutter properties of the said Thakur and Thakuranis and with the profits of the same the expenses of the daily and periodical worships, services and offering and other necessary expenses in connection with the same, and the expenses of the repairs of the Thakurbaris and of the construction of new houses, when necessary, shall continue to be defrayed, but on no account there shall be daily given less than 30 seers of rice and upakarans suitable to the same, and the religious mendicants, beggars, poor Brahmins and Baisnabs will be fed with the prasad of the offerings BO made. No shebait, and none of my heirs and representatives shall be able to create any Incumbrance over or to make any transfer or make putni or any other kind of permanent settlement or any ijara settlement for more than 10 years, or do any acts injurious to the profits of the aforesaid debutter property and should he do so, it shall not stand valid." 5. It is obvious that the Thakurs and Thakuranis had no material existence, by the names mentioned in the Will, at the time of the testator's death. They were not personified or visualized, and If the case of Upendra. Lall Boral v. Hem Chandra Boral 2 C. W. N. 295 : s. c. I. L. R. 25 Cal. 405 (1897) was correctly decided, the gift or dedication of properties in favour of these deities was certainly Invalid. It was there observed :--" If there was a gift to the Idol, It was bad because there was no idol in existence at the time of his death; if there was a power to make such a gift the power was ineffective because, on the authority of Bai Motibahoo v. Bai Mamoobai 1 C. W. N. 866 : s. c. I L. R. 21 Bom. 709; L. R. 241. 709; L. R. 241. A. 93 (1897), we think that a " power must" be to convey to a person, who was In existence, either actual or in contemplation of law, at the death of the testator, and the Idol to which the dedication Is sought to have been made was not then in existence." The learned Judges then proceeded to say--"the deity, no doubt, is always in existence, but there could be no gift to the deity as such, and there was no personification of the deity to whom the gift could have been made or who was capable of taking it." The same point was similarly decided by Mr. Justice Stanley in Rojomoyee Dasses v. Troyluckho Mohiney Dassee 6 C. W. N. 267 : s. c. I. L. R. 9 Cal. 260 (278) (1901) and by Mr. Justice Stephen in Nagendra Nandini Dassi v. Raja Benoy Krishna Deb 7 C. W. N. 121 : s. c. I. L. R 80 Cal. 521 (1902). If It were necessary to decide the point, we should be disposed to accept the view of law which has prevailed since the earlier case of Doorga Prosad Dass v. Sheo Proahad Pandah 7 C, L. R 278 (1884), cited in the judgment of Mr. Justice Stanley. But, In our opinion, the widow la not competent to raise such a question, or to have a construction of the entire Will. The 5th clause, of which she seeks construction, does not militate against her interest which is restricted to maintenance on the conditions specified in the 14th clause of the Will. In this view we are supported by the decision in Brinda Chaudhrain v. Radhika Chaudhrain I. L. R. 11 Cal. 498 (1885), where it was said that a widow is entitled to maintenance and to bring a suit to have her maintenance made a charge upon the estate of her deceased husband. This case was distinguished by Banerjee and Stephen, JJ, in Garabini Dassi v. Pratap Chandra Shaha 4 C W. N. 602 (1900). But the learned Judges thought that they were entitled to look at the provisions of the Will of the adopted son of the widow's husband in order to see if it really affected the right of the widow to maintenance, and, looking at the Will, they said that It did not affect her right in any way whatever. But the learned Judges thought that they were entitled to look at the provisions of the Will of the adopted son of the widow's husband in order to see if it really affected the right of the widow to maintenance, and, looking at the Will, they said that It did not affect her right in any way whatever. It follows, in our opinion, that the widow's interest must be restricted to her claim for maintenance, and that other questions regarding the construction of the Will must be dealt with between the executor representing the estate and the adopted son who is beneficiary under the Will. The adopted son, Dakshaja Mohan Roy Chaudhuri, never sought to have construction of the Will of Dakshina Mohan Roy Chaudhuri. He is not) entitled, in his new capacity as Respondent, to have construction as against the executor who was a co-Defendant In the suit as originally brought by the- widow. The contrary view would enlarge the scope of the present litigation which, as we have said, must be restricted to the Interest of the widow only. 6. Coming, then, to the question of maintenance and residence we observe that the 14th clause of the Will of Dakshina Mohan Roy Chandhuri was based on the assumption that his widow would adopt a son in accordance with the authority delegated to her by the second clause of the Will. He having himself taken a son in adoption, by his codicil of later date, the 14th clause must be read subject to the codicil wherein he declared that " should the aforesaid Will, made by me, contain any provisions contrary to this codicil, they shall be inoperative and the provisions of the codicil shall prevail." 7. The 14th clause consists of four parts: 2 C. W. N. 295 : s. c. I. L. R. 25 Cal. 405 (1897) "if, after my death, my wife, the said Nagendra Bala Chaudhurani, resides In my house at Madhupur or in my house at Benares, she shall, so long as she lives, get from my estate, an allowance of Rs. 125 a month for her maintenance and for doing religious or pious acts; 1 C. W. N. 866 : s. c. I L. R. 21 Bom. 125 a month for her maintenance and for doing religious or pious acts; 1 C. W. N. 866 : s. c. I L. R. 21 Bom. 709; L. R. 24 I. A. 93 (1897) except receiving that fixed allowance, she shall have no right to the debutter or other properties left by me, nor shall she be able to interfere with the same in any way : 6 C. W. N. 267 : s. c. I. L. R. 9 Cal. 260 (278) (1901) If, instead of residing in my house at Madhupur or in my house at Benares, she resides at Calcutta or elsewhere, and does not adopt a son according to the directions contained in para. 2 of this Will, or does not live a chaste life, she shall not get the aforesaid allowance, or any assistance or benefit from my estate: 7 C. W. N. 121 : s. c. I. L. R 80 Cal. 521 (1902) If there be any disagreement between my said wife and my begotten son or adopted son, and if my wife like to live separately, in that case, if she lives at Benares she shall get two rooms either on the first floor or the second floor of my Benares house to live in, and, if she resides in my Madhupur house, she shall construct four thatched huts within the compound of that house, which is surrounded by walls on all sides and live in the same and she shall get from my estate reasonable expenses for the construction and repairs of those huts." 8. The first sentence confers an absolute right to receive Rs. 125 a month provided the widow resides in the testator's house at Madhupur or in his Louse at Benares. The second sentence takes away all right to the debutter and other properties, and we may observe that it precludes her from seeking a construction of the 5th clause as we have already held. The third sentence has ceased to be operative because the testator himself adopted a son and the widow cannot be visited with any penalty for omitting to comply with the wishes of her husband. The fourth sentence, also, appears to be inapplicable to the present circumstances. There is no disagreement between the widow and Dakshaja Mohan Roy Chaudhuri. The third sentence has ceased to be operative because the testator himself adopted a son and the widow cannot be visited with any penalty for omitting to comply with the wishes of her husband. The fourth sentence, also, appears to be inapplicable to the present circumstances. There is no disagreement between the widow and Dakshaja Mohan Roy Chaudhuri. But this sentence is important as showing that the testator desired his widow and adopted son to live in the same house either at Benares or at Madhupur, and effect should be given to this very proper intention on the part of the testator when the question of his widow's residence comes to be settled. 9. It is unnecessary to consider the precise meaning of the term " residence " whether exclusive residence or the occasional use of the testator's house would be sufficient compliance with the provisions of the 14th clause : See Ganendro Mohun Tagore v. Juttendra Mohan Tagore L. R. I L. A. 887 (894) (1874). On the facts, we agree with the Subordinate Judge in thinking that there is "just cause" for the widow not to reside at Benares or at Madhupur. The testator's concubines are living in the Benares house, and the Madhupur house is not fit for human habitation owing to the earthquake of 1897. One of the concubines is an old woman with a family, the other is a kaharin, and no Hindu lady could live in the same premises with such persons consistently with her position and dignity. 10. The most difficult question, however, is whether the widow can challenge the express provisions for her maintenance. It is unnecessary, for the purpose of the present litigation, to consider whether she could challenge the Will if no maintenance at all had been allowed to her. It has been held In Debendra Coomar v. Brojendra Coomar I. L. R. 17 Cal. 856 (1890) that a Hindu in Bengal may by Will exclude his widow from her right to a share in his property on partition between her sons and grandsons. But this is not the case here. Again, the right of a widow to maintenance cannot be excluded by implication. This, also, is not the case here. As Mr. Mayne observes in his treatise on Hindu Law and Usage, 7th Ed., p. 628, the right of a widow to her maintenance arises by marriage. But this is not the case here. Again, the right of a widow to maintenance cannot be excluded by implication. This, also, is not the case here. As Mr. Mayne observes in his treatise on Hindu Law and Usage, 7th Ed., p. 628, the right of a widow to her maintenance arises by marriage. It seems, therefore, contrary to principle to bold that by devising property to another the husband can authorise that other to hold it free from the claim which neither he himself nor his heir could have resisted: and it seems, on the authorities, that a widow cannot be deprived of her right to maintenance by any provisions in a Daya-bhaga Will. 11. But, In our opinion, these larger questions do not properly arise in the present case. Here there is a Will of which probate has been granted, and we have to construe that Will and not to make a new Will for Dakshina Mohan Roy Chaudhuri. The conclusion cannot, in our opinion, be resisted that the amount of maintenance fixed by the testator himself, which is not a nominal amount, and which is not contrary to any provision of Hindu law, cannot be varied by the Court. But, I think that this Court Is at liberty, In effectuating the wishes of the testator, to place a reasonable construction on the 14th clause of the Will by compensating the widow for her Inability to reside at Benares or at Madhupur. She cannot reside at either of those places owing to no fault of her own. The executor might no doubt make arrangements for the widow's residence. But this would be an unsatisfactory solution of the difficulty, regard being had to the persistent litigation which has been going on, and it would probably result In further disagreement. Moreover, the 14th clause does not contemplate that the widow should reside at Benares or at Madhupur apart from the adopted son, and, as the adopted son Dakshaja Mohun is living in Calcutta, the widow may reasonably ask to be allowed to live near him. What, then, would be a proper monthly sum to be paid to the widow to enable her to comply with the intentions of her late husband 1 The sum of Rs. 125 per mensem is obviously inadequate. It was raised to Rs. What, then, would be a proper monthly sum to be paid to the widow to enable her to comply with the intentions of her late husband 1 The sum of Rs. 125 per mensem is obviously inadequate. It was raised to Rs. 320 by an order of this Court during the probate proceedings, and, in the absence of any thing to the contrary, that sum commends itself to us as adequate. From the deposition of Kumar Chandra Kishore Roy it appears that his mother received Rs. 50 a month, but she had not to pay house rent, wages of servants, and boarding expenses (p. 232 of the paper-book). The witness Bepin Chandra Roy Chowdhury deposed that his mother received, besides maintenance whatever was needed at any time. There is abundant authority to show that a Hindu lady, in the position of the Respondent, Nagendra Bala Chowdhurani, is not obliged to live a life of asceticism. She is bound to perform various religious, social and domestic ceremonies, she is not entitled to bare subsistence or a starving allowance. The Subordinate Judge has fixed a monthly allowance of Rs. 500 which he arrived at on a consideration of certain reported cases where there were no Wills in the way fettering the discretion of the Court. If there had been no Will in the present case, we would not have interfered with the discretion of the Court below though, to a certain extent, the Subordinate Judge is wrong in taking into consideration the wants of the widow's father and other relations. He has allowed Rs. 50 on that account and, in any event, this part of his judgment could not be sustained. 12. In our opinion, the proper amount to be paid to the Respondent Nagendra Bala Chowdhurani is Rs. 320 per mensem, the excess over the sum of Rs. 125 allowed by her husband being, in our opinion, due to her as compensation for her proved Inability to reside at Benares or at Madhupur. 13. The decree of the Court below will be varied in accordance with our observations, The findings of the Subordinate Judge with regard to the debutter property and the other like provisions in the Will must be expunged. The result is that Nagendra Bala Chaudhurani will receive her maintenance and compensation from the 18th November 1905 at the rate of Rs. The decree of the Court below will be varied in accordance with our observations, The findings of the Subordinate Judge with regard to the debutter property and the other like provisions in the Will must be expunged. The result is that Nagendra Bala Chaudhurani will receive her maintenance and compensation from the 18th November 1905 at the rate of Rs. 320 per month during her life-time from the estate of the late Dakshina Mohun Roy Chaudhuri, by whomsoever represented, that she shall not forfeit her right to that monthly sum for not living in the house at Benares or at Madhupur, and that she will have a charge upon the estate for the said monthly sum BO decreed. The costs of the appeal will come out of the estate. Coxe, J. 14. I agree that the allowance of Rs. 320 is suitable, that the widow has just cause for not living at Madhupur and Benares and that she has no locus standi for contesting the grant to the Thakurs in this suit. But I am not prepared to admit the proposition that a Hindu husband has the power of limiting the amount of his widow's maintenance by Will. No authority has been shown us for this proposition and though there is no direct authority against it there is a considerable amount of indirect authority. It is well settled that the husband cannot deprive a chaste widow of maintenance altogether and the question arises whether this is because the Hindu law directs that he shall provide for her maintenance or because her right of maintenance is a right paramount or superior to his power of testamentary disposition. It appears to me that the balance of authority is in favour of the latter view. It was laid down in Jama v. Machul Sahu I. L. R. 2 All. 315 (1879) which was followed in Becha v. Mothina I. L. R. 23 All. 86 (1900) that a husband could not deprive his widow of maintenance altogether and the ground assigned was that the wife is in a subordinate sense a co-owner with her husband in the whole of his property. 315 (1879) which was followed in Becha v. Mothina I. L. R. 23 All. 86 (1900) that a husband could not deprive his widow of maintenance altogether and the ground assigned was that the wife is in a subordinate sense a co-owner with her husband in the whole of his property. Babu Golap Chandra Sarkar in his work on Hindu law states that there cannot be any doubt that under Hindu law a widow's maintenance is a legal charge on the husband's estate and though this cannot be said to be a correct statement of the law if it means that it is a charge that binds the property in the hands of persons who have purchased it honestly without notice and without any attempt to defraud the widow of her rights, still there are numerous cases that lay down that in the hands of heirs, and of purchasers colluding with heirs to defeat the widow's rights, the property is charged with the widow's maintenance. I may refer for example to the remarks of Wilson, J., in Sorolah Dossee v. Bhooban Mohun Neogi I. L. R. 15 Cal. 292 (1888). 15. If then a husband cannot deprive a widow of maintenance, because she is in a subordinate sense a co-owner with him in the property and her right to maintenance is in a limited way a charge on the property, it seems logically to follow that he cannot limit Its amount. It seems illogical to say that when the question is whether the husband can deprive his widow of maintenance, her right to maintenance is superior to his power of testamentary disposition; but that when the question is how much the widow ought to have his power of testamentary disposition is superior to her right to maintenance. 16. It is true, of course, that a husband can within limits lay down that his widow shall forfeit her maintenance if she does not live in the family house. This certainly, at first sight, seems to make her rights subject to his power of disposition. In the Calcutta cases on this point the question was whether the widow forfeited her rights under the Will on a breach of the condition, and the question whether she forfeited her rights under the law outside the Will does not seem to have been considered. In the Calcutta cases on this point the question was whether the widow forfeited her rights under the Will on a breach of the condition, and the question whether she forfeited her rights under the law outside the Will does not seem to have been considered. But in the Bombay cases it was decided that she forfeited her rights altogether. At the same time it must be remembered that in the eye B of Hindus the family house is undoubtedly the proper place for the widow to reside, and the special right given to the husband to insist on her living there need not necessarily be regarded as making the right to maintenance entirely subject to the husband's power of disposition. 17. It is true, too, that a husband can by Will deprive his widow of a right to a share on partition [Debendra Coomar Roy v. Brojendra Coomar Roy I. L. R. 17 Cal. 886 (1890)]. But, that is quite a different thing to depriving her of maintenance and, in the case quoted, the latter right was admitted. I cannot, therefore, agree that a Hindu husband has the right to reduce the amount of a chaste widow's maintenance below the proper provision. That provision has to be calculated on (i) the value of the estate and, (ii) the position and status of the deceased husband and the widow [Sm. Nittokissoree Dossee v. Jogendro Nath Mullick L. R. 5 I. A. 55 (1873)]. I agree, however, that in calculating the amount due on the second consideration great weight should be attached to a statement in the husband's Will, not as being a legal limitation of the widow's right but as evidence as to what a lady in the position of his widow should need. And I think the learned Subordinate Judge has not given sufficient consideration in this case to the husband's estimate of his widow's needs. I think the allowance of Rs. 320 sanctioned by the Court of Wards which usually makes careful enquiries into matters of this kind as reasonable allowance and may be granted. It follows from the above remarks that in my opinion the widow's rights are not in any way affected by the attempted grant to the Thakurs and that she has no locus standi for questioning those grants in this suit.