Judgement Law. Rep. 37 Ind. App. 152 ( 1909- 1910) Nawab Khwaja Muhammad Khan V. Nawab Husaini Begam 71 Appeal from a decree of the High Court (November 27, 1906) reversing a decree of the Subordinate Judge of Agra (August 16, 1904). The suit was brought by the respondent, Husaini Begam, under the circumstances stated in their Lordships judgment, against the appellant and certain transferees from him, to recover arrears of an annuity of Rs.6000 under a registered agreement dated October 25, 1877. The agreement is in the following terms— " I Nawab Khwaja Muhammad Khan, son of Maharana Bhagwant Singh, deceased, a Rais of Dholpur, at present residing at Akbarabad, do declare as follows — "That the marriage of my minor son Rustam Ali Khan with Musammat Husaini Begam alias Dilbari Begam, minor daughter of Nawab Muhammad Fida Ali Khan, son of Nawab Muhammad Kazim Ali Khan, resident of Moradabad, has been fixed for the 25th Shawwal, 1294 Hijri, corresponding to 2nd November, 1877. I, the executant, therefore, while in a sound state of body and mind and in the enjoyment of my five senses, declare of my own free will and accord that I shall continue to pay Rs.500 per month in perpetuity to the girl aforesaid for her pocket (Literally "betel-leaves.") expenses, &c, from the date of the marriage, i.e., from the date of her reception, out of the income of the entire property in the Agra district and the jagir in Dholpur State, detailed below. I, the executant, or my heirs who will be my representatives, shall not at any time have any objection to, or deviate from, the monthly payment of Rs.500 fixed to be paid in perpetuity for the expenses aforesaid. The whole of the property shall be liable for the money aforesaid. If I, the executant, or my heirs or representatives raise any excuse or objection to the payment of the money aforesaid in the manner aforesaid, then Musammat Husaini Begam alias Dilbari Begam shall have power to recover the said sum of Rs.500 per month from Ali the property in the Agra district and Basai, &c, in Dholpur in whatever way she may like, i.e., by bringing a suit in the Court. "As regards any of the properties aforesaid, I, the executant, or my heirs and representatives shall no have power to transfer it by means of sale or gift or in any other way, and if a transfer is made by me, the executant, or my heirs and representatives, it shall be considered invalid and shall not be entertainable by Court. I have, therefore, executed these few presents by way of an agreement in order that it may serve as evidence and be of use at the time of need." The appellant pleaded that the agreement was illegal and without consideration and opposed to public policy, and, further, that the respondent had forfeited her rights under the agreement (if any), as she had ceased to live with her husband and had become an unchaste woman. The Subordinate Judge held that the agreement was not illegal or opposed to public policy, as " its object or consideration was on the part of Khwaja Muhammad Khan to secure the marriage of his son in a respectable family," and that the respondent was " entitled under the agreement to enforce her lien against Ali the properties hypothecated in it." He found that the respondent had discontinued living with her husband on account of enmity (mukhalfat) and not because she was not called by him or requested to live with him ; that the unchasity of the plaintiff was not duly proved ; but that she was living in a mode which shewed that her character was not free from suspicion. He then proceeded " The most vital question for determination now, is whether the Court is justified in enforcing the agreement even when the plaintiff refuses to live with her husband. The agreement does not impose any condition except the one mentioned below, on the fulfilment of which the plaintiff would be entitled to the Allowance. No period is fixed during which the Allowance was to be paid. It is to be paid in perpetuity. The only condition is that she should go to her husbands house. This, she says, she has Law. Rep. 37 Ind. App. 152 ( 1909- 1910) Nawab Khwaja Muhammad Khan V. Nawab Husaini Begam 72 complied with. But when this agreement was executed both the husband and wife were minors. It is to be paid in perpetuity. The only condition is that she should go to her husbands house. This, she says, she has Law. Rep. 37 Ind. App. 152 ( 1909- 1910) Nawab Khwaja Muhammad Khan V. Nawab Husaini Begam 72 complied with. But when this agreement was executed both the husband and wife were minors. It is unreasonable to suppose that she can enforce her contract against her father-in-law, even when she refuses to live with her husband. Her visiting her husbands house was insisted on when she was minor, as a condition necessary to entitle her to the benefit of contract, and how can it reasonably be inferred that after attaining majority she will be entitled to her Allowance even in case of her refusal to live with her husband ? To hold so would be repulsive to conscience and common sense. I hold that if the plaintiff prove unchaste or refuse to live with her husband, there is no obligation on her father-in-law (the defen dant) to pay her any Allowance. Her witness, Shamshuddin, deposes that Rustam Ali Khan has kept a woman and has incurred debts, but these do not justify her to refuse to live with her husband. In the present case unchastity has not been legally proved, but her refusal to live with her husband is most satisfactorily proved, and I therefore hold that she is not entitled to her Allowance." The High Court decreed the respondents suit, placing the following construction on the agreement in suit—"In it the defendant Khwaja Muhammad Khan, after reciting that the marriage of his son Rustam Ali Khan with the plaintiff had been fixed to take place on the 2nd of November, 1877, declares that he will continue to pay Rs.500 per month in perpetuity to the plaintiff for pin-money (pandan) from the date of the marriage, that is from the date of the plaintiffs arrival at her husbands house, out of the income of certain property in the Agra district and a jagir in the Dholpur State which is specified in the document. Then follows a provision that neither the executant nor his heirs or representatives shall have power to object to the monthly payment and that the whole property shall be liable for the amount of it; and further that the plaintiff shall have power to recover the annuity from Ali the property in the Agra district and the property in Dholpur in whatever way she pleased. This is the substance of the document. Details of the property, the subject of the charge, are then given and the signature of the executant is appended with that of several witnesses. The execution of the document is admitted, and it is also admitted that arrears of the annuity are due in case there be any liability on foot of the agreement. It is to be observed that there is no condition whatever attached to the payment of the annuity. There is nothing said as to the chastity or unchastity of the plaintiff; nor is there any provision under which the executant can claim freedom from liability in case the plaintiff cease to live with her husband, or by reason of any other act done by the plaintiff. We therefore fail to understand how the learned Subordinate Judge arrived at the conclusion that the fact that the plaintiff was not living with her husband relieved the defendant Nawab Khwaja Muhammad Khan from his obligation to satisfy his undertakings. He is in our opinion clearly wrong as to this. " We may point out tht the reason assigned by the plaintiff for her refusal to live with her husband is that he has been in the habit of entertaining a prostitute in his house and otherwise misconducting himself and that it was owing to his misconduct that she left his house. Our attention was not called by either the learned counsel or advocate for the respective parties to the evidence upon the record, nor was it indeed necessary to do so in view of the fact that the execution of the agreement for the payment of the annuity is admitted and payment is not Alleged. "Mr. Karamat Husain on behalf of the defendant contended that the plaintiff was no party to the agreement of October 25, 1877, and that at the time when it was executed she was a minor, and that, therefore, she could not take advantage of its provisions and sue upon it. "Mr. Karamat Husain on behalf of the defendant contended that the plaintiff was no party to the agreement of October 25, 1877, and that at the time when it was executed she was a minor, and that, therefore, she could not take advantage of its provisions and sue upon it. We do not think that there is any substance in this contention. The document was executed in pursuance of an agreement entered into between Khwaja Muhammad Khan, the father of the intended husband, and the father of the plaintiff, who was a child of tender years at the time. In consideration of the agreement, the father and guardian of the plaintiff Allowed the marriage to take place, and on the faith of it the marriage between the girl and Rustam Ali Khan was consummated. The document provides that the plaintiff shall have power to recover the amount of the annuity and she is expressly named in the document as Law. Rep. 37 Ind. App. 152 ( 1909- 1910) Nawab Khwaja Muhammad Khan V. Nawab Husaini Begam 73 the person for whose benefit the agreement was executed. Under circumstances such as these it is idle, we think, to put forward the plea that the plaintiff cannot take advantage of a document which was executed solely for her benefit." Cave, K.C., and Ross, for the appellant, contended that as the respondent was not a party to the agreement and was a minor when it was executed she could not sue upon it see Tweddle v. Atkinson. (l B. & S. 393.) [Lord Macnaghten. There is a distinct charge created on property in the respondents favour with power to her to enforce it.] ([Compare Chinnaya v. Ramayya, ( 1881) I. L. R, 4 Madr. 137.]) Not being a party, she was not entitled to enforce its provisions. At Ali events the Allowance sued for was not recoverable after the date on which she left her husbands house and refused to live with him. It was given with the intention that she should therewith defray her expenses as a wife and should support the position which she had obtained. That intention was frustrated by her own conduct in deserting her home, and the appellant was no longer liable to pay under his contract. Reference was made to Sir Roland Wilsons Anglo-Mahomedan Law (3rd ed., 1908), pp. That intention was frustrated by her own conduct in deserting her home, and the appellant was no longer liable to pay under his contract. Reference was made to Sir Roland Wilsons Anglo-Mahomedan Law (3rd ed., 1908), pp. 123, 125, and 133 ; Donovan v. Needham (( 1846) 9 Beav. 164.) ; Howard v. Die/by ((1834) 2 CL & F. 634, 653.); Wilsons Glossary, pp. 279 and 393, as to the meaning of kharch-i-pandan. De Gruyther, K.C., and Cow ell, for the respondent, were not heard. The judgment of their Lordships was delivered by MR. AMEER ALI The suit which has given rise to this appeal was brought by the plaintiff, a Mahomedan lady, against the defendant, her father-in-law, to recover arrears of certain Allowance, called kharch-i-pandan, under the terms of an agreement executed by him on October 25, 1877, prior to and in consideration of her marriage with his son Rustam Ali Khan, both she and her future husband being minors at the time. The agreement in question recites that the marriage was fixed for November 2, 1877, and that "therefore" the defendant declared of his own free will and accord that he " shall continue to pay Rs.500 per month in perpetuity " to the plaintiff for " her betel-leaf expenses, &c, from the date of the marriage, i.e., from the date of her reception," out of the income of certain properties therein specifically described, which he then proceeded to charge for the payment of the Allowance. Owing to the minority of the plaintiff, her " reception " into the conjugal domicile to which reference is made in the agreement does not appear to have taken place until 1883. The husband and wife lived together until 1896, when, owing to differences, she left her husbands home, and has since resided more or less continuously at Moradabad. The defendant admitted the execution of the document on which the suit is brought, but disclaimed liability principally on two grounds, namely, (1.) that the plaintiff was no party to the agreement, and was consequently not entitled to maintain the action, and (2.) that she had forfeited her right to the Allowance thereunder by her misconduct and refusal to live with her husband. Evidence of a sort was produced to establish the Allegations of misconduct, but the Subordinate Judge considered that it was not "legally proved." In another place he expresses himself thus "Although unchastity is not duly proved, yet I have no hesitation in holding that plaintiffs character is not free from suspicion." Their Lordships cannot help considering an opinion of this kind regarding a serious Law. Rep. 37 Ind. App. 152 ( 1909- 1910) Nawab Khwaja Muhammad Khan V. Nawab Husaini Begam 74 charge as unsatisfactory. Either the Allegation of unchastity was established or it was not; if the evidence was not sufficient or not reliable, there was an end of the charge so far as the particular matter in issue was concerned, and it was hardly proper to give expression to what the judge calls " suspicion." The Subordinate Judge, however, came to the conclusion that the plaintiffs refusal to live with her husband was satisfactorily proved, and, holding that on that ground she was not entitled to the Allowance, he dismissed the suit. The plaintiff thereupon appealed to the High Court, where the argument seems to have been confined solely to the question of the plaintiffs right to maintain the action, as the learned judges observe that neither side called their attention to the evidence on the record. They held that she had a clear right to sue under the agreement, and they accordingly reversed the order of the first Court and decreed the plaintiffs claim. The defendant has appealed to His Majesty in Council, and two main objections have been urged on his behalf to the judgment and decree of the High Court. First, it is contended, on the authority of Tweddle v. Atkin son (1 B. & S. 393.), that as the plaintiff was no party to the agreement, she cannot take advantage of its provisions. With reference to this it is enough to say that the case relied upon was an action of assumpsit, and that the rule of common law on the basis of which it was dismissed is not, in their Lordships opinion, applicable to the facts and circumstances of the present case. Here the agreement executed by the defendant specifically charges immovable property for the Allowance which he binds himself to pay to the plaintiff; she is the only person beneficially entitled under it. Here the agreement executed by the defendant specifically charges immovable property for the Allowance which he binds himself to pay to the plaintiff; she is the only person beneficially entitled under it. In their Lordships judgment, although no party to the document, she is clearly entitled to proceed in equity to enforce her claim. Their Lordships desire to observe that in India and among communities circumstanced as the Mahomedans, among whom marriages are contracted for minors by parents and guardians, it might occasion serious injustice if the common law doctrine was applied to agreements or arrangements entered into in connection with such contracts. It has, however, been urged with some force that the Allowance for which the defendant made himself liable signifies money paid to a wife when she lives with her husband, that it is analogous in its nature to the English pin-money, over the application of which the husband has a control, and that, as the plaintiff has left her husbands home and refused to live with him, she has forfeited her right to it. Kharch-i-pandan, which literally means " betel-box expenses," is a personal Allowance, as their Lordships understand, to the wife customary among Mahomedan families of rank, especially in Upper India, fixed either before or after the marriage, and varying according to the means and position of the parties. When they are minors, as is frequently the case, the arrange ment is made between the respective parents and guardians. Although there is some analogy between this Allowance and the pin-money in the English system, it appears to stand on a different legal footing, arising from difference in social institu tions. Pin-money, though meant for the personal expenses of the wife, has been described as " a fund which she may be made to spend during the coverture by the intercession and advice and at the instance of the husband." Their Lordships are not aware that any obligation of that nature is attached to the Allowance called kharch-i-pandan. Ordinarily, of course, the money would be received and spent in the conjugal domicile, but the husband has hardly any control over the wifes application of the Allowance, either in her adornment or in the consumption of the article from which it derives its name. Law. Rep. 37 Ind. App. Ordinarily, of course, the money would be received and spent in the conjugal domicile, but the husband has hardly any control over the wifes application of the Allowance, either in her adornment or in the consumption of the article from which it derives its name. Law. Rep. 37 Ind. App. 152 ( 1909- 1910) Nawab Khwaja Muhammad Khan V. Nawab Husaini Begam 75 By the agreement on which the present suit is based the defendant binds himself unreservedly to pay to the plaintiff the fixed Allowance; there is no condition that it should be paid only whilst the wife is living in the husbands home, or that his liability should cease whatever the circumstances under which she happens to leave it. The only condition relates to the time when, and the circumstances under which, his liability would begin. That is fixed with her first entry into her husbands home, when, under the Mahomedan law, the respective matrimonial rights and obligations come into existence. The reason that no other reservation was made at the time is obvious. The plaintiff was closely related to the ruler of the native State of Rampur; and the defendant executed the agreement in order to make a suitable provision for a lady of her position. The contingency that has since arisen could not have been contemplated by the defendant. The plaintiff herself was examined as a witness for the defence. She states in her evidence that she has frequently been visited by her husband since she left his home. Neither he nor the defendant has come forward to contradict her statements. Nor does any step appear to have been taken on the husbands part to sue for restitution of conjugal rights, which the civil law of India permits. On the whole their Lordships are of opinion that the judgment and decree of the High Court are correct and ought to be affirmed. Their Lordships will therefore humbly advise His Majesty that the appeal be dismissed. The appellant will pay the costs.