that in the former suit brought by the widows they claimed NARAYANRAO under the will, and to take the benefit of it. 1880 RAM CHAN- RAMABAI. Judgment. Assuming this to be the proper construction of the will, their Lordships think that the Subordinate Judge was right in his conclusion that he did not create a right which was a specific "charge on the inheritance of any estate" within the meaning of those words in the 13th sub-section of the Statute. The language of the Act is not very clear, and by two subsequent Statutes of Limitation, the events from which the time of limitation is to run in the case of maintenance are wholly different. By common law the right to maintenance is one accruing from time to time according to the wants and exigencies of the widow; and the Statute of Limitation might do much harm if it should force widows to claim their strict rights, and commence litigation which, but for the purpose of keeping alive their claim, would not be necessary or desirable. The only authority cited by the Subordinate Judge is the case of Timmappa Bhat vs. Parmeshriamma, 5 Bom. H. C. R., 130, which sustains his judgment, though the facts are not altogether the same as the facts of the case now under appeal. No decision was cited at the bar opposed to the construction which the Subordinate Judge has put upon the Act. Their Lordships have observed with some surprise that no mention of this point, which is undoubtedly one of some impor tance, was made in the judgment of the High Court, and they think that when an appellant comes to complain of the judg ment of a Court upon a point which does not appear upon their judgment, it would be proper, and at least convenient, that some explanation should be given why the point does not so appear. It may be that this point was disposed of in the course of the argument. In the absence of explanation the High Court must be taken to have agreed with the Subordinate Judge. The second point made was that the plaintiff has disentitled herself to maintenance by separating from the son and living apart from him. It is argued that it was made a condition of the will, to entitle her to maintenance, that she should reside under the same roof and in joint family with him. Their Lordships, however, think that no such condition is to be found in the will, and that she was to be left in this respect in the ordinary 1880 position of a Hindoo widow, in which case separation from the NARAYANRAO ancestral house would not generally disentitle her to mainte- DRA PANT nance suitable to her rank and condition. RAM CHAN v. RAMABAI. It was then said that no action could be maintained, because a demand and refusal had been proved. There is no evidence that Judgment. a specific demand was made for the maintenance, but the Subordinate Judge has found, and the High Court have not disagreed with him, that the maintenance was refused; and taking all the circumstances of his family into consideration, their Lordships do not doubt that there was a withholding of this maintenance by the son under circumstances which would amount to a refusal of it. These observations dispose of all the points which have been raised at the bar, and their Lordships think that this appeal fails, and they will humbly advise Her Majesty to affirm the decree of the Court below. Assignment of Lease-Liability of ultimate Assignee to indemnify a mesne In 1864, under a lease containing a covenant to repair thoroughly every fourth year, A leased certain premises to B for a term of ten years. B died during the term, and his estate was administered by the Administrator-General who, after repairing the premises, assigned the lease to L & Co., of which firm the plaintiff was a member. The lease having subsequently become vested in the plaintiff alone, he, on the 3rd February 1872, assigned it to the defendants, the assignment being expressed to be under and subject to the conditions and covenants of the lease. The defendants failed to make the repairs in 1872 required in terms of the lease, and the lease expired without such repairs being effected. The original lessor having died, his representative C, brought two suits against the defendants for damages for breach of the covenant to repair, and for arrears of rent, and obtained decrees for Rs. 6,000 for 1880 PEPIN v. CHUNDER SEEKHUR MOOKERJEE. Statement. damages, and Rs. 1,917-3 for arrears and costs. Under these decrees certain property of the defendant was attached, but satisfaction not having been obtained, C sued the Administrator-General, and obtained a decree for Rs. 8,328-3 including costs. The Administrator-General having paid that sum to C on 15th April 1876, thereupon sued the plaintiffs for Rs. 10,110-15, which included the amount of the decree obtained against him with costs, and his own costs of defence. On the 8th April 1877 the defendants compromised the claims of C under the two decrees against them by the payment of Rs. 5,500. The suit of the Administrator-General was subsequently compromised also, the plaintiff who was then defendant agreeing to a decree for Rs. 6,932-12-11, and costs which amounted to Rs. 997-7-6. Thereupon the present suit was brought to recover from the defendants the sum recovered by the Administrator-General, together with his own costs of defence which amounted to Rs. 1,028-9. Held, on the authority of Moule vs. Garret, L. R., 7 Exch. 101, that in the absence of an express covenant there was an implied obligation on the part of the defendants to indemnify the plaintiffs in respect of the covenants of the lease; and that the defendants were liable not only for the amount of the decree and costs obtained by the AdministratorGeneral, but also for the costs incurred by the plaintiff in defending the suit brought by the Administrator-General against him. Baxendale vs. London, Chatham, and Dover Ry. Co., L. R. 10, Exch. 35; and Fisher vs. The Val de Travers Asphalte Co., L. R. 1 C. P. D., 511, distinguished. [Compare Indian Contract Act, section 145, illustration (a)-ED.] Held, further, that as under Art. 83 of the Limitation Act, XV of 1877, limitation in the case of a contract of indemnity runs from the time when the plaintiff is actually damnified, limitation, in this case, must be taken to have run from the time when the Administrator recovered against him, and that the suit was not barred. IN this case the plaintiff sought to recover from the defendants the sum of Rs. 7,832-4, which was paid to the AdministratorGeneral of Bengal by the plaintiff in settlement of suit No. 491 of 1877, brought by the former against the latter, and also for Rs. 1,027-9 for costs incurred by the latter in defending such suit, with interest. The facts, as stated in the plaint, and admitted in the written statement, or proved at the hearing, are as follows : In June 1864, one Kissen Kissore Ghose granted to one Archer a lease of premises No. 125, Bow Bazar, for a term of ten years 1880 b PEPIN v. SEEKHUR Statement. at a rent reserved. The lease contained a covenant to repair thoroughly in every fourth year during the term. Archer died, and the Administrator-General administered his estate. The CHUNDER Administrator-General, having repaired the premises, assigned MRJEE. them to the firm of Lepage and Co., of which firm the plaintiff was a member, and the lease subsequently became vested in the plaintiff alone. On the 3rd February 1872, the plaintiff assigned the lease, together with the business of Lepage and Co. to the defendants, in the name of the defendant Poorno Chunder alone. The assignment was expressed to be under, and subject to the conditions and covenants of the lease. When the fourth year for making repairs came, the defendants failed to make any, and the term expired with the premises unrepaired. The original lessor being dead, his widow and representative, Burnomoye Dossee, brought a suit against the defendant Poorno Chunder in this Court. In this suit she claimed arrears of rent and rates and damages, for breach of covenant to repair. On the 2nd of February 1875 a decree was made in that suit which showed that the rent and rates had been paid after suit brought, and awarded Rs. 6,000 as damages for non-repair with costs. The same person brought a second suit against the same defendant. In this suit she claimed possession of the premises and arrears of rent and rates, and mesne profits. The decree in this suit, dated the 7th of April 1875, shows that after suit possession had been given, and awards Rs. 1,917-3 in respect of arrears with costs. Under these two decrees Burnomoye attached certain property of the defendant Poorno Chunder, but failed, at that time, to obtain any satisfaction. Burnomoye then brought a suit against the AdministratorGeneral as Administrator of Archer, in which she claimed Rs. 1,167-3 for arrears of rent and rates, and Rs. 6,000 as damages for non-repair. The Administrator-General defended the suit, and a decree was made for Rs. 6,167-3, with costs. The Administrator-General had also his own costs to bear. The decree and the plaintiff's costs amounted to Rs. 8,328-3. The Administrator-General's own costs amounted to Rs. 1,491-L. VOL. VI. 22 22 1880 PEPIN v. CHUNDER MOOKERJEF. Statement. On the 13th of September 1876, the Administrator-General paid to Burnomoye the Rs. 8,328-3, the amount of her decree and costs. In the meantime the property of the defendant, Poorno ChunSEEKHUR der, remained under Burnomoye's attachment. The first decree against that defendant was for Rs. 6,000. The taxed costs of Burnomoye in that suit, including those of an unsuccessful appeal, were Rs. 3,261. The second decree was for Rs. 1,917-3, and the taxed costs of Burnomoye amounted to Rs. 491. Early in April 1877, the representatives of Burnomoye and of the defendant Poorno Chunder met at the office of Burnomoye's attorney. The accounts in respect of the two decrees were gone into, and soon after, on the 8th of April, Poorno Chunder paid to Burnomoye Rs. 5,500, which was accepted in full satisfaction of the two decrees, and the attachment was withdrawn. This Rs. 5,500, it must be observed, was considerably less than the difference between the sum paid as damages by the Administrator-General and the sums due to Burnomoye under the two decrees for debt and costs, and that without any allowance for interest to which she was entitled. In 1877 the Administrator-General brought a suit against the present plaintiff to recover from him the amount which he had been compelled to pay to Burnomoye. He claimed Rs. 10,110-13, which included the amount of the decree against him, with Burnomoye's taxed costs and his own costs of defence. The present plaintiff gave notice of this suit to the present defendants, and called upon them to intervene and defend if they desired to do so. They made no reply. The present plaintiff filed his written statement in that suit, but subsequently consented to a decree for Rs. 6,932-12-11 with costs. The costs amounted to Rs. 997-7-6, and the plaintiff has paid, or is liable to pay, the whole. Thereupon the present suit was brought to recover from the defendants the sum recovered from him by the AdministratorGeneral, together with his own costs of defence amounting to Rs. 1,028-9. Jackson, Bonnerjee and Trevelyan, for the Plaintiffs. |