V. Ramaswami, J.
1. The defendant is the appellant. He had two sons by name Gurusami and Raghavan. There was no partition between the defendant and his sons and they constituted Mitakshara Joint Hindu family. Raghavan died sometime in 1960 leaving his widow the first plaintiff and a minor son Ulaganathan who is the second plaintiff in this case. The plaintiffs filed a suit out of which this second appeal arises claiming past and future maintenance at the rate of Rs. 75 per month. Both the courts below have concurrently held that the sum of Rs. 75 claimed by them towards the maintenance was reasonable and accordingly the suit was decreed as prayed for.
2. In this second appeal the learned counsel for the appellant contended that after the Hindu Succession Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 (hereinafter called the Act), the first plaintiff widow is entitled to claim a share in the joint family properties as heir of deceased Raghavan and that she is not entitled to claim any maintenance. On the other hand it was contended by the learned counsel for the respondents that under Section 19 of the Act, the first plaintiff is entitled to be maintained
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after the death of her husband by her father-in-law the appellant and that, therefore, she is entitled to the decree for maintenance.3. It is admitted that there was no partition between the defendant and his two sons during the lifetime of Raghavan and that Raghavan died as a member of Mitakshara Hindu joint family. There is also no dispute that there was no partition subsequent to the death of Raghavan and that the defendant-appellant is in possession of the entirety of the coparcenary properties. Thus a substantial question of law arises as to the right of a widow to claim maintenance after the death of her husband from her father-in-law.4. Prior to the Hindu Women's Rights to Property Act, 1937 as amended in 1938 (hereinafter called the 1937 Act), a widow who does not succeed to the estate of her husband as his heir was entitled to maintenance out of her husband's separate property as also out of the property in which he was a coparcener at the time of his death. This right was available to her against the entire coparcenary property and not merely against that portion of the property referable to the share of her deceased husband. Under the 1937 Act, when a Hindu governed by Mitakshara school of law dies intestate leaving separate property his widow was entitled in such property the same share as a son. Similarly when a Hindu governed by Mitakshara school of Hindu law died having at the time of his death an interest in Hindu joint family property his widow shall have in the property the same interest as the deceased himself had. Under Clause (3) of Section 3 of that Act any such interest devolving on a Hindu widow shall be a limited interest known as a Hindu woman's estate, provided however, that she shall have the same right of claiming partition as a male owner. It was held in a series of cases that the acquisition by the widow of the same interest as her deceased husband in the joint family does not itself disrupt the Mitakshara joint family and that she does not by operation of the Act become a coparcener; but continues as before to be a member of the joint family. It was also held in Rathnasabapathi v. Saraswathi, 1953-2 Mad LJ 459 in Gajavalli Ammal v. Narayanaswami, AIR 1962 Madras 187 and in Varahalamma v. Ammathalli, AIR 1959 Andhra Pradesh 590, that the right to claim partition given to a widow under the 1937 Act does not negative her right to claim maintenance. It was held that it is only an enabling right and she may ask for maintenance instead of partition. But she cannot enforce both the rights simultaneously. In Sarojini Devi v. Sri Krishna, AIR 1944 Madras 401, it was further held that the share she gets on partition is in lieu of maintenance and if she can get a share in all the coparcenery property including agricultural lands, her right to maintenance would cease. The right of claiming partition conferred upon a widow under the Act was also held to be personal to her and it would come to an end an her death if no partition had taken place. (Vide Alamelu Ammal v. Chellammal, AIR 1959 Madras 100 (FB)).5. But under the Hindu Succession Act, 1956, the widow had become a Class I heir in respect of the properties of her deceased husband and she takes her share absolutely and not as widow's estate. Neither remarriage of the widow nor conversion to another religion will be the ground for divesting the estate inherited by her from her husband. The estate of her husband includes not only the separate or self acquired property of her husband but also his interest in the coparcenary property.6. It was, therefore, claimed by the learned counsel for the appellant that after the Hindu Succession Act the widow had become an heir to her husband's properties and takes her share absolutely and not as widow's estate as in 1937 Act. This makes all the difference in the right of the widow to claim maintenance and the decisions under the 1937 Act which conceded a right to maintenance when she had not in fact been given on partition a share in the coparcenary properties are not applicable. On the other hand, learned Advocate General who at some stage appears for the respondents argued that we are concerned with the statutory provisions under the Act and under Section 19 of the Act unless there is factually a partition and the widow had obtained a decree in such partition, she is always entitled to claim maintenance subject to the conditions mentioned in Section 18. I think the learned Advocate General is well founded in his contention.7. Under Section 22 (1) of the Act, the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased. With respect to the deceased husband his widow is a dependant under Section 21 (iii) of the Act. The heirs referred to in Section 22 (1) in such a case would be the heirs under Section 8of the Hindu Succession Act, 1956, which includes the father of the deceased that is the father-in-law of the widow. The estate of the deceased in that section would include his separate and self acquired property as well as his interest in the coparcenary properties and Section 22 (1) is subject to the provisions of Clause (2) of that section. That sub-clause provides that the dependent shell be entitled to maintenance from those who take the estate only when the dependant has not obtained by testamentary or intestate succession any share in the estate of the deceased. Under Section 20 of the Hindu Succession Act, a Hindu is not only entitled to dispose of by Will or other testamentary disposition his separate or self acquired property but also his undivided interest in the coparcenary property. If in exercise of this power her deceased husband had bequeathed all the properties in favour of others and had disinherited the widow she as a dependant who has not obtained any share in the property of her deceased husband would be entitled under Section 22 to claim maintenance from those who take the estate. In the case of intestate succession also a dependant within the meaning of Section 21 might not get any share at all. Of course in the case of a widow she will be entitled to a share under Section 8; but the definition of a dependant includes not only those who would be in the nature of heirs to the deceased but also some of them who could not claim to be the heir of the deceased under any of the provisions of the Hindu Succession Act. For example, the dependants referred to in Section 21, Clauses (8) and (9) are not legal heirs of the deceased and as such they would not get any share in the estate of the deceased under the Hindu Succession Act; but they will be entitled to be maintained under Section 22 by those who take the share. It is because of this, in my opinion, under Section 22 (2) it was provided that only where a defendant has not obtained by testamentary or intestate succession any share in the estate of the deceased the defendant shall be entitled to maintenance from those who take the estate. Section is, according to the learned Advocate General, is the provision relating to the right of a Hindu widow to claim maintenance from her father-in-law. If might be that even under Section 22, as a person who had taken the estate of her deceased husband the father-in-law might be liable to maintain her, but the liability under that section is only to the extent of the value of the share or part of the estate taken by him, that is, to the extent of the share of his deceased son which had come into his possession. But under Section 19 a larger right to the widow as against her father-in-law is provided, subject to the condition that the daughter-in-law has not obtained any share in the coparcenary property the right to maintenance is enforceable against the father-in-law against the entirety of the coparcenary property in his possession and not merely to the extent of the interest of her husband in the coparcenary property Clause (2) of Section 19 shows two conditions precedent for the liability of the father-in-law to maintain his widowed daughter-in-law (1) his means to pay from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share and (2) the widow remains unmarried. In other words in either of the events of the remarriage or the daughter-in-law factually obtaining a share in the coparcenary properties on a partition the liability of the father-in-law shall cease. So long as there is no such partition and the widow does not remarry the obligation subsists.8. It only remains to consider the effect of proviso to Section 19 (1). Under the proviso, to the extent she is unable to maintain herself out of her own earnings or properties or from the estate of her husband, her father or mother or son or daughter, the father-in-law is liable to maintain her. The reference in this proviso to obtain maintenance from the estate of her husband or her father or mother or son or daughter is a reference to maintenance provided to her under Section 22. Thus her earning or owning property or obtaining maintenance under Section 22 has to be taken into account in fixing the quantum of liability of the father-in-law under Section 19. This is further conditioned under Clause 2 on the means of the father-in-law to pay maintenance to widowed daughter-in-law from any caparcenary property in his possession out of which the daughter-in-law has not obtained any share. A combined reading of these provisions, therefore, shows that when there is no factual obtaining of a share in the coparcenary property a widow could claim maintenance against the coparcenary property from her father-in-law. The quantum of liability of the father-in-law depends on his means to do so from any coparcenary property in his possession under the proviso to Clause (1) of Section 19. Though her right to a share both in the separate and self-acquired property as well as the interest in the coparcenary property of her deceased husband is not liable to be divested on the ground of remarriage, her right to maintenance under Sections 19 and 22 will cease on such remarriage. We have, therefore, to answer the question in favour of the widow in respect of her claim for maintenance against her father-in-law.9. So far as the maintenance payable to the minor son is concerned the defendant did not seem to have disputed his liability both in the trial court and the lower appellate court and, therefore, the courts below have not dealt with this question and the suit was decreed simply giving maintenance for the son also. In these circumstances the appellant should not be permitted to argue that question in this second appeal. In the result, the second appeal fails and it is dismissed. No costs. No leave.Appeal dismissed.
"1977 AIR (Mad) 372" == "1977 (3) HinduLR 628" == "1977 (2) MLJ 379" == "1977 (3) ILR(MAD) 301,"