V.K. Mehrotra, J.
1. Kishan Datt was the owner of sizeable immovable property situate in Tika Jhikli Dar, Dakhli Khunyara, Tehsil and District Kangra. He died on February 4, 1952, leaving behind, Smt. Namo Devi, his widow and Smt. Banti Devi, his mother. The mother executed a deed of gift in favour of Smt. Vidya Devi on January 3, 1970. This she did after her name had been mutated over 1/4th share in the estate of her son Kishan Datt. This mutation had been sanctioned at Serial No. 495 on November 19, 1952. The mutation in favour of Smt. Vidya Devi was at Serial No. 670 and had been sanctioned on January 6, 1970. Banti Devi died on April 12, 1973.
2. Smt. Vidya Devi, the donee, made a further gift of the property in suit in favour of Dharam Chand and Rajinder Kumar. Thereafter, the suit giving rise to the Second Appeal was filed by Smt. Namo Devi on June 11, 1973.
3. The basic plea which has been raised by the plaintiff is that the mutation in favour of Smt. Banti Devi, Ex. P-l, only conferred life estate on her. She could not make any gift in favour of Smt. Vidya Devi. As such, the gift made in favour of Smt. Vidya Devi, as also the one made by Smt. Vidya Devi in favour of Dharam Chand and Rajinder Kumar, was void. The plaintiff claimed that she was entitled to regain possession of the house mentioned in the title of the application as also of 27 Kanals and 13 Marias of land detailed therein.
4. The senior Sub-Judge, Kangra at Dharamsala, decreed the suit by judgment dated March 23, 1978. In substance, what he held was that Smt. Banti Devi had not become full owner of the suit property even after the coming into force of the Hindu Succession Act, 1956 (briefly, 'the Act', as she had only a life estate under the mutation Ex. P-l. The case, thus, was governed by Section 14(2) of the aforesaid Act.
5. The defendants assailed the decree in appeal. The learned Additional District Judge, Kangra at Dharamsala, decided the appeal (Civil Appeal No. 54 of 1978) on August 2, 1978. He took the view that Smt. Banti Devi had a preexisting right of her maintenance which was reiterated in Ex. P-1. Such a right conferred upon her full ownership under Section 14(1) of the Act. The gift deed executed by Smt. Banti Devi was thus valid as she had acquired absolute right in the property. Consequently, Smt. Vidya Devi acquired full rights in the property which, in her turn, could also be transferred by way of gift. The appeal was, therefore, allowed and the decree passed by the trial judge was set aside. Thereafter, the present Second Appeal was filed by Smt. Namo Devi.
6. Shri K.D. Sood has appeared on behalf of the appellant. He has urged that the right of maintenance which Smt. Banti Devi had, was not pre-existing right so as to enable her to become a full owner of the property in suit, upon the enforcement of the Hindu Succession Act, under Section 14(1) thereof. All that Smt. Banti Devi had by way of rights was the one conferred upon her through Ex. P-l. It was a right of maintenance for her lifetime. As such, the provisions of Section 14(2) of the Act were applicable. Smt. Banti Devi could not transfer the property by way of gift nor could the donee Smt. Vidya Devi acquire any rights in the property which could have enabled her to make a gift of the property to the other two defendants. Shri Chhabil Dass, appearing for the defendants-respondents, has countered these sub-missions.
7. The basic question for the consideration of this Court is whether as mother of Kishan Datt, Smt. Banti Devi could claim a right of maintenance attached to the estate of Kishan Datt by way of a pre-existing right for the purposes of Section 14(1) of the Act. If this question is answered in favour of Smt. Banti Devi, there is hardly any doubt that she would acquire full ownership in the property under Section 14 (1) of the Act, which would also give her the right to make a gift of the property in favour of Smt. Vidya Devi.
8. Hindu Law recognises certain obligations upon a Hindu male in respect of persons dependent upon him. It is true both of Dayabhaga school as also of Mitakshara school. The recognition of these obligations dates back to antiquity. Basically moral in character, they have acquired, over the centuries, recognition as legal obligations. One of the obligations for a Hindu male is to maintain his wife, his minor sons, his unmarried daughters and his aged parents whether he possesses any property or not. The obligation to maintain them is personal in character and arises from the very existence of the relationship between the parties. This is found stated in paragraph 542 of Mulla on Hindu Law (Fifteenth Edition). The obligation does not depend upon the possession of any property by the Hindu male. Further, the obligation attaches itself to the estate of the person. Consequently, it becomes an obligation upon the heir of the Hindu to provide, out of the estate which descends to him, maintenance for those persons whom the late proprietor was legally or morally bound to maintain. The basic reason is that the estate is inherited subject to the obligation to provide for such maintenance. Law in this respect is found stated in paragraph 544 of Mulla.
9. The statement in Mayne's Treatise on Hindu Law and Usage (Twelfth Edition) in paragraph 722 is similar. It says that the maintenance of aged parents is a matter of personal obligation arising from the very existence of the relationship and quite independent of the possession of any property, ancestral or acquired. The paragraph extracts part of the text of Manu, cited in the Mitakshara and the Parasaramadhaviya, to the effect that '...aged mother and father...must be maintained even by doing hundred misdeeds.'
10. The law of maintenance applicable to Hindus has been codified in Chapter III of Hindu Adoptions and Maintenance Act, 1956. The scheme of the Chapter on Maintenance, as noticed in Mulla at page 1081, mentions that:
'A Hindu is under the legal obligation to maintain his wife, his minor sons, his unmarried daughters and his aged parents. The obligation is personal. It arises from the very nature of the relationship and exists whether he possesses any property or not. The Act gives statutory form to that obligation and goes further than that and rules that a female Hindu as well as a male Hindu is now under a legal obligation to maintain legitimate or illegitimate children and aged or infirm parents.'
11. Later, at pages 1082 and 1083 of Mulla one finds it stated that:
'The right of dependants of a male Hindu such as for instance...... aged parents to maintenance by him did not come to an end on his death and it was well settled law that an heir was legally bound to provide, out of the estate which descended to him, maintenance for those persons whom the late proprietor was legally or morally bound to maintain...... The law on the subject of the rights of the dependants was fairly well settled but it was necessary that the law should be declared by the Legislature in statutory form in view of the changes brought about by the Hindu Marriage Act, 1955, and the Hindu Succession Act, 1956........... As a general rule it may be stated that this right of a dependant is enforceable when the dependant is unable to obtain maintenance from the estate of any other persons when he or she has a prior right to claim maintenance as a dependant of such other person.'
12. The statement of law aforesaid had roots in ancient texts of Hindu Law. They have been noticed and incorporated in judicial pronouncements from time to time.
13. In Mussumat Golab Koonwur v. The Collector of Benares, (1846-50) 4 Moo Ind App 246, their Lordships of the Privy Council ruled that the rights of the widow of the last male holder to maintenance, out of the whole of the estate that was ancestral, could not be lost even in a case where the government confiscated the whole of the property, including the ancestral estates, formerly held by him.
14. In Savitribai v. Luximibai, (1877-78) ILR 2 Bom 573, a five Judge Full Bench of the Bombay High Court examined the question of the rights of a Hindu widow to maintenance while living apart from her husband's relatives. The various Hindu texts were adverted to by the learned Chief Justice, who spoke for the Full Bench. The observations made by him at page 597 may be noticed. He says:
'....It is, however, incumbent upon us to notice, in the language of Manu and other Hindu jurists, as important distinction when, without reference to the existence of family property, they especially treat of the maintenance and support of the wife or of parents, or of an infant son, and when they speak of the maintenance and support of the females of the family at large. In the former cases their tone is mandatory, in the latter only preceptive. Amongst the texts relating to the wife or the parents are the following:-- Manu...... A mother, a father, a wife, and a son shall not be forsaken; he who forsakes either of them, unless guilty of a deadly sin, shall pay 600 paras to the king.
The meaning of the word 'forsakes' is by another text of the same sage shown to be 'does not maintain' : Thus 'Manu declared that a mother and a father in their old age,.... must be maintained, even though doing a hundred times that which ought not to be done'.'
Later at page 598, the learned Chief Justice says that:
'Looking next to the texts which would include females of the family at large, and do not refer to the possession of family property, we find the following in Manu, Ch. III:..And in 2 Digest......... is this text from Manu:
The ample support of those who are entitled to maintenance is rewarded with bliss in heaven; but hell is the portion of that man whose family is afflicted with pain by his neglect; therefore, let him maintain his family with the utmost care'.
And in the same volume......... are the following from Yajnavalkya:
'Females must be honoured by their husbands, brothers, fathers and paternal kinsmen; by the fathers, mothers, and brothers of their husbands; and by all kinsmen; with gifts of ornaments, apparel and food'.'.
15. It is not necessary to extract more portions of the judgment except for noticing a passage at page 618, where it notices the rule laid down by Norman, J., in a case cited from 2 Hyde, 103, to the effect:
'The obligation of an heir to provide, out of the estate which descends to him, maintenance for certain persons whom the ancestor was legally or morally bound to maintain is a legal as well as a moral obligation, for the estate is inherited, subject to the obligation of providing such maintenance. A son who takes his father's estate by inheritance is bound to provide maintenance for his father's widow. The obligation is a charge upon the estate, which continues as long as the widow remains chaste, whether she continues to live in the family of the heirs or not........'
16. In Hemangini Dasi v. Kedarnath Kundu Chowdhry, (1889) ILR 16 Cal 758, their Lordships of the Privy Council observed (at page 766) that :--
'The right of a widow to maintenance is founded on relationship and differs from debts. On the death of the husband, his heirs take the whole estate; and if a mother on a partition among her sons takes a share, it is taken in lieu of maintenance. Where there are several groups of sons, the maintenance of their mothers must, so long as the estate remains joint, be a charge upon the whole estate; but when a partition is made, the law appears to be that their maintenance is distributed according to relationship, the sons of each mother being bound to maintain her.'
17. In Pratapmull Agarwalla v. Dhanbati Bibi, AIR 1936 PC 20, the Privy Council noticed the decision of Mitter, J., in Sheo Dyal Tewaree v. Jadoonath Tewaree, (1868) 9 WR 61, with approval, when it said that:
'The decision of Mitter, J. in the above-mentioned case...... which is material to the matter now under consideration was that according to Mitakshara law, the mother or the grandmother is entitled to a share when sons or grandsons divide the family estate between themselves, but that she cannot be recognised as the owner of such share until the division is actually made as she has no preexisting right in the estate except a right of maintenance.'
18. And of the Allahabad High Court in Betu Kuar v. Janaki Kuar, (1911) ILR 33 All 118 to the effect that:
'It is only when the sons actually divide the property and effect a complete partition that the mother can get a share. There is nothing in the Mitakshara from which we may infer that upon a mere severance of the joint status of a Hindu family a mother can claim a share.
The above mentioned decisions of Mitter, J and Stanley, C. J. and Banerji, J. were followed by the High Court of Bombay in ILR 42 Bom 535 (6): (AIR 1918 Bom 175).
In their Lordships' opinion the above-mentioned decisions correctly represent the Mitakshara law on the matter now under consideration, for it is not suggested that there is any difference in this respect between the rights of a wife and those of a mother or grandmother.'
19. The principle that the coparcener, who takes the property of another deceased coparcener by survivorship takes it with the burden of maintenance was reiterated by the Bombay High Court in Secy. of State v. Ahaiyabai Narayan Kulkarni AIR 1938 Bom 321.
20. The decision of the Supreme Court in Vaddeboyina Tulassamma v. Vaddeboyina Sesha Reddi, AIR 1977 SC 1944, contains observations which support the above view. In his concurring judgment Fazal Ali, J., while dealing with the case of the rights of a Hindu widow to property in lieu of her maintenance, noticed (in paragraph 17 of the report) extracts regarding the extent and nature of the rights of the Hindu woman from the original texts as observed by Golapchandra Sarkar Sastri in his treatise 'Hindu Law'. The learned Judge says:
'.....Sastri quotes from the original texts various extracts regarding the nature and extent of the right of maintenance of the Hindu woman some of which may be extracted thus:
'The support of the group of persons who should be maintained is the approved means of attaining heaven, but hell is the man's portion if they suffer; therefore, he should carefully maintain them.
The father, the mother, the Guru..... a wife.... are declared to be the group of persons who are to be maintained...........
It is declared by Manu that the aged mother....... must be maintained even by doing a hundred misdeeds............'
Similarly, Sastri in his book quotes Yajnavalkya at page 523 thus:
'Property other than what is required for the maintenance of the family may be given..........
There is no difference between the two schools as regards the view that the ancestral property is charged with the maintenance of the members of the family, and that no alienation can be made, which will prejudicially affect the support of the group of persons who ought to be maintained. Hence heirs are bound to maintain those whom the last holder was bound to maintain'.'
21. In paragraphs 19 and 20 of the judgment, the learned Judge extracts portions of the statement of law contained in Mayne, Mulla and some of the aforesaid decisions and concludes by saying that:
'In Pratapmull Agarwalla v. Dhanbati Bibi AIR 1936 PC 20, the Judicial Committee pointed out that while a mother may not be the owner of her share until partition is made and has no preexisting right with regard to the share in the property, but she has a preexisting right for maintenance. This Court also has made similar observations in a large number of cases regarding the nature and extent of the Hindu women's right to maintenance.......'.
22. The legal position appears clear. And, it is this:
The right of a mother for her maintenance is in the nature of personal obligation upon the son on account of the relationship between them. The obligation of the son to maintain the mother attaches to his estate. Those inheriting the estate do so with the burden of maintaining the mother of the deceased coparcener. The right of the mother for maintenance is in the nature of preexisting right for the purpose of Section 14( 1) of the Hindu Succession Act, 1956. Any property which the mother gets, in lieu of this preexisting right, is as a full owner of the property under Section 14(1) of the Act, which says:
'14. Property of a female Hindu to be her absolute property.--
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.-- In this sub-section, 'property' includes both moveable and immoveable property acquired by a female Hindu by inheritance...... or in lieu of maintenance..... or in any other manner whatsoever........' (2) xx xx xx xx xx'.
23. On the conclusion aforesaid, it is clear that the right which Smt. Vidya Devi acquired under the deed of gift made by Smt. Banti Devi on January 3, 1970 was a right as a full owner. She was also, in turn, entitled to make a gift thereof to the other defendants.
24. In the view that I have taken, the second submission of Shri K.D. Sood that the mutation Ex. P-l conferred on Smt. Banti Devi rights as limited owner and that the case was, therefore, covered by sub-section (2) of Section 14 of the Act, does not survive.
25. The appeal fails. It is dismissed. Parties are, however, left to bear their own costs in this Court.