Satish Kumar Mittal, J.
1. This Regular Second Appeal has been filed by Balbir Kaur and her minor daughter Harjit Kaur against the judgment and decree passed by both the Courts below, vide which the suit for possession filed by Harinder Kaur plaintiff regarding the room in question, which is only 19'-4' x 14'-11',has been decreed.
2. The brief facts of the case are that one Major Chanan Singh, who was owner of a house, consisting of more than five rooms, was having one son and four daughters. Appellant No. 1 Balbir Kaur was married to his son Ranbir Singh. After the marriage, she was given a separate room in the said house to live in with her husband. Out of this wed-lock, two sons and one daughter were born. The relations between appellant No. 1 and her husband Ranbir remained strained, but the appellant continued to reside in the room in question. Thereafter, her husband expired in the year 1975. After the death of her husband, she continued to reside in the said room along with her three children. In the year 1977, her father-in-law Major Chanan Singh gifted the entire house including the room in dispute to his daughter Harinder Kaur (plaintiff) vide gift deed dated January 28, 1977 (Ex.P2). On May 02, 1977, about four months after the execution of the gift deed, Harinder Kaur, daughter of Major Chanan Singh, filed the suit for possession against the appellants and respondent Nos.2 and 3 (who are sons of appellant No. 1) pleading that her father Major Chanan Singh was owner of the entire house and he allowed his son Ranbir Singh, his wife and children to use the room in question for their residence. Since then appellant No. 1 and her children are in permissive occupation of the room. She further pleaded that since her father Major Chanan Singh has gifted away the entire house to her, therefore, she is entitled to have possession of the same. The defendants-appellants contested the said suit by alleging that appellant No. 1 is in possession of the room in question from the date of her marriage, which took place about 30 years back. She is in hostile and adverse possession of this room. In the alternative, it was submitted that on account of her relationship with Major Chanan Singh, she and her children are entitled to maintenance and right of residence in this house as dependents of Ranbir Singh and respondent No. 1 is bound by this obligation and cannot evict them from the room in question.
3. Both the Courts below have decreed the suit of respondent No. 1. The contention of appellant No. 1 and her children regarding adverse possession as well as their right to maintenance and residence against the estate of Major Chanan Singh in the hand of respondent No. 1 has been declined.
4. Learned counsel for the appellants has raised two contentions; firstly that the finding recorded by the Courts below regarding the adverse possession of appellant No. 1 over the room in question is totally perverse and against the evidence available on the record and the same is liable to be set aside; and secondly that appellant No. 1, being widow of pre-deceased son of Major Chanan Singh, and her children have a right of maintenance and residence against her father-in-law or his heirs or donee, even if the property is self-acquired property of her father-in-law. Therefore, respondent No. 1 cannot dispossess appellant No. 1 and her children from the room in question.
5. Learned counsel for the appellants has submitted that the following two substantial questions of law are involved in the present appeal:-
(i) Whether the finding recorded by the Courts below on issue No. 2 regarding adverse possession of the appellants is totally perverse and against the evidence available on the record and the same is liable to be set aside?
(ii) Whether a widow daughter-in-law is entitled to maintenance from her father-in-law or his heirs or his donees even if the property of her father-in-law is self-acquired property? 6. Regarding first question, learned counsel for the appellants relied upon decision of the Hon'ble Supreme Court in Ishwar Doss Jain v. Sohan Lal, (2002)1 Supreme Court Cases 434, wherein it was held that there are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations,a substantial question of law is arising. Learned counsel for the appellants has also relied upon another decision of the Hon'ble Supreme Court in Kulwant Kaur v. Gurdial Singh Mann, 2 2001(2) Recent Civil Reports 227, wherein it was held as under:
'Admittedly, Section 100 has introduced a definite restriction on the exercise of jurisdiction in a second appeal so far the High Court is concerned. Needless to record that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the finding stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the Concept of justice. Needless to say, however, that perversity itself is a substantial question worth adjudication-what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:-
'103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal-(a) which has not been determined by the lower Appellate Court or by both the Court of first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court or
(c) Court by reason of a decision on such question of law as is referred to in theSection 100.'
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate, however, but there must be definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with.'
7. I have considered the submissions made by learned counsel for the appellants and have perused the judgments rendered by the Courts below. I am of the opinion that the findings record by both the Courts below on issue No. 2 regarding adverse possession of the appellants are totally perverse and against the evidence on the record and the same are based on conjectures and wrong assumptions of law.
8. On the basis of pleadings of the parties, issue No. 2 was framed to the effect as to whether the defendants are in possession of the disputed room as owners by way of adverse possession. On this issue, the trial Court has only observed that the possession of daughter-in-law cannot be adverse against her father-in-law and it was further held that the adverse possession against the respondent Harinder Kaur has also not been established because she got this property from her father vide gift deed dated January 28, 1977, therefore, appellant No. 1 could not establish that she was in adverse possession for 12 years before the date of suit, which was filed on May 02, 1977.
9. The first appellate court recorded the following findings on this issue of adverse possession:-
'The evidence of the plaintiff that the room in question was given to Ranbir Singh to live with his family by Major Chanan Singh appears to be probable. It does not sound to reason that a father-in-law would give the separate possession of a room to his daughter in-law. Smt. Balbir Kaur had been on litigation terms with her husband Ranbir Singh. There had been maintenance proceedings in between them. Sh. S.K. Dhir, Chief Judicial Magistrate, Patiala, fixed maintenance for the defendants against Ranbir Singh on 19.8.75 which would go to show that Ranbir Singh was alive till the year 1975. In other words, the possession of Balbir Kaur even if considered adverse would start after the year 1975. The present suit saw the light of the day on 30.4.77. As such the plea of adverse possession was a clear exercise in futility. Ranbir Singh must be in possession of the room with the permission of his father and the possession of Balbir Kaur should be considered only from the date of death of Ranbir Singh i.e. somewhat after the year 1975.'
10. I have considered and perused the findings recorded by both the Courts below as well as the evidence led by the appellants to prove this issue. In my view, the findings recorded by the Courts below on this issue are totally perverse, based on conjectures and have been recorded by taking the erroneous legal view. The appellants have led sufficient evidence on the record, which clearly establishes adverse possession of appellant No. 1 on the room in question and that evidence has not been considered by the Courts below. Admittedly, room in question was given to appellant No. 1 and to her husband by her father-in-law Major Chanan Singh after their marriage for their residence. It is also admitted position on the record that since then appellant No. 1 is residing in this room. After the death of her husband, she continued residing therein till the filing of the suit. The appellants have examined three witnesses in support of their case. DW.2 Atma Singh has stated that initially, the relations between appellant Balbir Kaur and her husband Ranbir Singh remained smooth for about seven years. Thereafter, the same became bitter. In spite of this, Balbir Kaur remained in forcible possession of the room in question in her own right. DW.4 Inder Singh has also stated that Balbir Kaur along with her children was living in the disputed room from the day of her marriage during the life time of her husband. After the death of her husband also, she used to reside therein He stated that in spite of the strained relations between Balbir Kaur and her husband, she remained in possession of the disputed room asserting herself to be owner thereof. In my view, possession of appellant No. 1 and her children on the room in dispute constitute adverse possession as her possession was open and hostile to the true owner, namely Major Chanan Singh. The observation of the trial Court that possession of the daughter-in-law cannot be adverse against her father-in-law is erroneous and cannot be accepted. It also cannot be accepted that possession of Balbir Kaur even if considered to be hostile and adverse, the same will start after the year 1975, when her husband died. The findings of the Courts below that the appellants have failed to prove 12 years adverse possession as the adverse possession will only start after the year 1975 is totally erroneous and the same, too, cannot be accepted. Thus, the findings recorded by both the Courts below on issue No. 2 are reversed and possession of appellant No. 1 on the room in question is held to be adverse against respondent No. 1 and her predecessor Major Chanan Singh.
11. The second question of law, agitated by learned counsel for the appellants, arose from issue No. 3-A, which was framed by the trial Court as under:-
3-A. Whether the defendants are entitled to the maintenance and residence in this house as alleged in para 3 of the amended written statement?OPD
12. The right of maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife. The right in case of a widow is a pre-existing right, which existed under the Shastric Hindu law long before the passing of the Hindu Women's Rights to Property Act, 1937 or the Hindu Married Women's Rights to Separate Residence and Maintenance Act, 1946 or the Hindu Adoptions and Maintenance Act, 1956. These Acts merely recognised the position as was existing under the Shastric Hindu law and gave it a statutory backing. The right of maintenance and residence of a widowed daughter-in-law against her father-in-law also existed under the Shastric Hindu law and the same has been recognised by various judicial pronouncements and the statute i.e. Hindu Adoptions and Maintenance Act. In Gopal Chandra Palv. Kadambini Dasi and Ors. A.I.R. 1924 Calcutta 364, a Division Bench of the Calcutta High Court held that though a widowed daughter-in-law has no legal right to maintenance as against the self-acquired property of her father-in-law but if her husband died during the life time of her father-in-law then the father-in-law is under moral obligation to maintain his widowed daughter-in-;law, even though he has no ancestral assets in his hands. The position of the heirs, who took the estate of the father-in-law by inheritance is different. What is a moral obligation in respect of the father ripens into a legal obligation when the estate passes into the hands of his heirs. This principle is applicable even when the father-in-law has made a testamentary disposition of his property or has during his life time made a gift of his property. In that case, even the donee or alienee are legally bound to maintain the widowed daughter-in-law. This principle was also adopted by the Allahabad High Court in Jeot Ram Chaudhari v. Mt. Lauji and another, A.I.R. 1929 Allahabad 751, wherein it was held that father-in-law is under a moral obligation to maintain a widow of a pre-deceased son and this moral liability becomes a legal obligation in the hands of his surviving sons who inherit father's estate and no distinction should be drawn in this respect between property which is inherited from the father-in-law and property which is gifted by him. Thus, if father-in-law gifts a portion of self acquired property to one of his sons, daughter-in-law is entitled to maintenance out of such property. In Ambu Bai v. Soni Bai, A.I.R. 1940 Madras 804, the Full Bench of the Madras High Court observed as under:-
'The doctrine that a moral obligation becomes a legal obligation when the estate of a person on whom the moral obligation lay comes into the possession of his heirs may be open to criticism but it is too late in the day to indulge in it and the court must confine itself to the question whether the principle should extend beyond the case of widowed daughter-in-law.'
Recently, the Full Bench of Andhra Pradesh High Court in T.A. Lakshmi Narasamba v. T. Sundaramma and Ors., A.I.R. 1981 Andhra Pradesh 88, while dis-agreeing with the view of the Bombay High Court has held as under: -
'We are unable to agree with the reasoning of the Bombay High Court. The Bombay High Court mainly proceeded on the ground that the father-in-law has absolute power over his self-acquired property to deal with the same. He has a power to exercise will or gift and deprive the daughter-in-law of her maintenance. When the absolute owner has exercised that power and transferred the property under gift or will, the question of enforcing her right against the transferees would not arise at all. The Bombay High Court put it on the ground that the property acquired by valid testamentary disposition is not governed by the rules of the Hindu Law of inheritance and when the power of making such disposition is unrestricted, it -is difficult to conceive any consistent ground on which the devisee could be held bound by an obligation from which the testator had power to relieve him and by the bequest had actually relieved him. With great respect, we are not able to agree with this view. The leaned Judges there have not taken into consideration the duty of the Hindu heirs to provide for her bodily, and mental or spiritual needs of their immediate and nearer ancestors, and also the fact that there was no rigid distinction between the moral duty and legal duty as there is in the modem society. They have also not considered the concept of 'duty' to be performed by the head of the family and that if he died without performing that duty he had committed sin and that the sons have to discharge that obligation to relieve him from that sin. The Madras High Court in Sankaramurthy v. Subbamma (A.I.R. 1933 Madras 914) followed the view of the Bombay High Court expressed in Yamunabai v. Manubai, (1899) I.L.R. 23 Bombay 608; Bhagirathibai v. Thakur Mal, (A.I.R. 1926 Lah. 193), but with great respect we are not in agreement with this view.
In the result, we are in agreement with the view expressed in Rangammal v. Echammal, (1899) I.L.R. 22 Mad. 305; Gopal Chandrapal v. Kadimbini Das, (A.I.R.)1924 Cal 364) and Foolcomari Dasi Debendra Nath, (A.I.R. 1942 Cal. 474) wherein in it was held that the legal liability upon a Hindu heir to provide maintenance to daughter-in-law exists irrespective of the fact whether the heir takes the property by intestacy or under a will or gift.'
13. Section 19 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as 'the Act') deals with the right of maintenance of a widowed daughter-in-law. Whether married before or after the commencement of the Act, she can claim maintenance only if she is unable to maintain herself from her own sources or out of the estate of her husband or her father or mother or from her son or daughter, if any, or his or her estate. The right to claim maintenance from the father-in-law, in the circumstances stated above is, however, conditional upon the father-in-law having in possession of coparcenary property out of which widowed daughter-in-law has not obtained any share. Though under the Act, the right to claim maintenance by widowed daughter-in-law against her father-in-law is limited to the extent of coparcenary property in the hand of father-in-law, out of which widowed daughter-in-law has not taken any share, but under the old Hindu Law, prevailing before the enactment of the Act, this right of maintenance to the widowed daughter-in-law against the self-acquired property of her father-in-law, was available. This right is still available to the widowed daughter-in-law of the pre-deceased son against the self-acquired property of her father-in-law, as this right shall not cease to be in force because the same is not inconsistent with any provision contained in the Act. Thus, the widowed daughter-in-law of a pre-deceased son is entitled to claim right of maintenance against the self-acquired property of her father-in-law, whether it is in his hand or in the hand of his heir or donee.
14. Learned counsel for respondent No. 1 only contended that all the judgments cited by learned counsel for the appellants only deal with the right of maintenance and not the right of residence. In my opinion, the maintenance necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head.
15. In the present case, Major Chanan Singh, father-in-law of appellant No. 1, was owning huge property. He was having only one son and four daughters. It has come in evidence that Major Chanan Singh was owning four different houses. He had gifted all the four houses to all of his four daughters. He did not gift any property to his son Ran-bir Singh or his widowed daughter-in-law. Learned counsel for the appellants contended that the widowed daughter-in-law, appellant No. 1 herein, did not inherit any property from her husband or from her father-in-law. The entire properly, whether ancestral or self-acquired was gifted by Major Chanan Singh to his four daughters. The appellants are in possession of only one room, from which also respondent No. 1 had sought their dispossession. I am of the view that appellant No. 1 is entitled to maintenance from the estate of her father-in-law in view of the aforesaid legal position and since she is in possession of the same in lieu of her pre-existing right of maintenance, she cannot be dispossessed therefrom.
In view of the above discussion, the appeal filed by the appellants is allowed. Judgments and decrees, passed by the Courts below, are accordingly set aside and suit of the plaintiff-respondent No. 1 for possession regarding the room in question is dismissed.
No order as to costs.