T.U. Mehta, Actg. C.J.
1. The real question which is involved in this second appeal is whether a Hindu widow of an agriculturist in Punjab had a right of maintenance out of family property before the Hindu Succession Act, 1956 came to be applied and, if so, whether the recognition of her said right of maintenance in a consent decree obtained by the parties from court before the said Succession Act of 1956 was applied, can bring the case of the same widow within Sub-section (2) of Section 14 of that Act.
2. Short facts of the case are that the appellant Siri Ram is a reversioner with regard to the disputed property and has brought this suit for obtaining a decree for declaration to the effect that the sale deed executed by respondent Smt. Hukmi on 30th August, 1966 in favour of defendant-respondent No. 2, Managing Committee, D. A. V. High School, Una, is ineffective as against his rights and for possession of the land in question. The trial Judge came to the conclusion that respondent Smt. Hukmi's life interest in the property has ripened into full ownership rights by virtue of the application of Section 14 of the Hindu Succession Act, 1956. The trial court, therefore, dismissed the appellant-plaintiff's suit. This judgment of the trial court has been affirmed by the District Judge in appeal with the result that the appellant has preferred this second appeal which has been referred to a larger Bench.
3. Some facts which form the background of this litigation can be stated as under.
4. The property in question originally belonged to one Devi Singh. This Devi Singh had two sons named Manna and Pohlo. The present appellant Siri Ram is the son of Pohlo. Devi Singh's other son Manna left a widow named Smt Tabo. He had also a son named Chingha. This Chingha was the husband of Hukmi. It is an admitted fact that Chingha predeceased his father Manna. After the death of Manna in the year 1926 A. D., his widow Tabo came into the possession of this property. But soon thereafter she gifted this property to respondent Hukmi with the result that Pohlo, the father of the present appellant, filed a declaratory suit as reversioner in the court at Una. That suit was decreed on 4-7-1930 as per Exhibit P1. According to that decree, it was held that the gift in favour of Hukmi was valid till the lifetime of Tabo. Tabo, however, died in the year 1940, but after her death respondent Hukmi remained in possession of the suit property and, therefore, the present appellant Siri Ram filed a suit for possession pursuant to the above referred decree. On 9-8-1944, this suit was compromised as per Exhibit P2 and pursuant to this compromise the court passed a decree as found at Exhibit P3. According to this compromise Hukmi was allowed to remain in possession of the property till her lifetime in lieu of her maintenance. However, Hukmi alienated this property in favour of the defendant No. 2 on 30th August, 1966 as already stated above, and therefore, the plaintiff has filed the present suit for the above referred declaration and other relief as regards possession.
5. The contention of the appellant is that Hukmi's right in the property was first determined by the decree found at Exhibit P1 dated 4-7-1930 which was obtained by Pohlo, the appellant's father. It was contended that in accordance with this decree Hukmi'had no right in that property after the death of Tabo. But since she continued to remain in the possession of the property, suit was required to be filed in the year 1944. And by the compromise which was entered into in this suit, Hukmi's right to remain in possession of the property till her lifetime in lieu of her maintenance was recognised for the first time and, therefore, the case falls under Sub-section (2) of Section 14 of the Hindu Succession Act. 1956.
6. As against this, the contention of the respondent is that Hukmi's right to obtain her maintenance out of this property was already in existence, she being the widow of a pre-deceased son, and therefore, it would not be correct to state that her right to receive maintenance out of the suit property came into existence for the first time by virtue of the compromise decree, Exhibit P3, passed in the year 1944. The respondent therefore contends that the matter is not covered by Sub-section (2) of Section 14 but is covered by Sub-section (1) thereof.
7. From the above facts, the only crucial point which arises to be determined is whether Hukmi, who is the widow of a pre-deceased son of Manna, had any pre-existing right of maintenance out of the suit property. If she had a pre-existing right to maintenance out of the suit property, then it cannot be said that her such right came into existence by virtue of the consent decree passed in the year 1944. In that case, the matter would obviously not fall within the purview of Sub-section (2) of Section 14 of the Hindu Succession Act, 1956.
8. It is an admitted position that the property in question is an ancestral property in which the whole family of Manna, one of the sons of the original owner Devi Singh, was interested. So far as the right of widows of a Hindu family to get maintenance is concerned, the question is exhaustively dealt with by Fazal Ali, J. in Vaddeboyina Tulasamma v. Sesha Reddi reported in AIR 1977 SC 1944. We do not propose to repeat all that the Supreme Court has observed in that decision which traces the legal position from the Shastric Law up to recent times with regard to the right of a female member of joint Hindu family to get maintenance out of the family property. In para. 21 of the reported judgment recorded by Fazal Ali J. the entire position, as summarised from the Privy Council decision in Narayan Rao Ramchandra Pant v. Ramabai (1878) 6 Ind App 114 is stated as under:
'The true rule of Hindu law in such matters would appear to be as follows--Two obligations confront a joint Hindu family; (1) The obligation to pay the debts (for instance, of the father) binding on the family; and (2) the moral obligation to provide maintenance to the widows of the family. The latter obligation would, under certain circumstances, ripen into a legal obligation, as, for instance, when a charge is crpated on specific property of the family either by agreement or a decree of the court.' Paragraph 27 of this judgment points out the following six propositions which emerge with respect to the incidence and characteristics of a Hindu woman's right to maintenance:
'(1) that a Hindu woman's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow;
(2) though the widow's right to maintenance is not a right to property but it is undoubtedly a pre-existing right in property, i. e. it is a jus and rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court;
(3) that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow's right to maintenance, the purchaser is legally bound to provide for her maintenance;
(4) that the right to maintenance is undoubtedly a pre-existing right which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre-existing right;
(5) that the right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of co-owner in the property of her husband, though her co-ownership is of a subordinate nature; and
(6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to property or purchases the same is in a position to make due arrangements for her maintenance.'
9. The learned Advocate of the appellant, however, contended that the widow of an agriculturist Hindu in Punjab had no such pre-existing right of maintenance out of the ancestral property. We find no support for such proposition. Every Hindu governed by Mitakshara Law should be presumed to be governed by all the incidence of Mitakshara Law, but this would be subject to a special custom obtaining in particular area or particular family, In this case, no such custom which would debar a widow of a Hindu agriculturist in Punjab is pleaded nor any such custom is found to be in existence. The learned Advocate of the appellant drew our attention to the decision given by a Full Bench of the Lahore High Court in Hari Kishen v. Chandu Lal reported in AIR 1918 Lah 291. In our opinion this decision has no bearing on the point involved in this appeal, because the question which was considered in that Full Bench case was whether a son belonging to high caste Hindus in Punjab can enforce partition even during the lifetime of his father. It was held that he cannot. This question has obviously no bearing on the question whether a Hindu widow of an agriculturist in Punjab can legally demand maintenance out of the family property or not. Reliance was placed on the following observations found in the above referred Full Bench decision of the Lahore High Court which make reference to a previously decided case of Jowahir v. Mt. Chandi, 1892 Pun Re 90. The High Court has in this connection observed as under:
'In this case, Sir Meredyth Plowden in his admitting order stated that in the Punjab, at least generally, the Mitakshara doctrine of a son being born with a share is not known, nor has a son a right to compel partition. This dictum was no doubt obiter and ex parte, and, therefore, in the case reported as Narpat Rai v. Devi Das, 1915 Pun Re 85 : (AIR 1'915 Lah 339) a Division Bench of this Court refused to recognise it as an authority, but at the same time having regard to the eminence of the Judge who propounded it, I think it is entitled to considerable weight.'
These observations were stressed by the learned Advocate of the appellant to show that respondent Hukmi's husband Chingha who had pre-deceased his father had no birth right to claim a share from the ancestral property, and if that was so, even Hukmi could have had no right to maintenance.
10. We are not impressed by this contention of the learned Advocate of the appellant, because there is nothing in these observations to show that a son of a Hindu family governed by Mitakshara in Punjab had no right at all in the ancestral property. What the decision in Jawahir v. Mt. Chandi (supra) seems to have decided is that a son has no birth right to demand partition till his father was alive. This, however, does not mean that the son had no right in the ancestral property against other coparceners of the family. The above observations have been utilised by the Full Bench of the Lahore High Court only for the limited purpose of showing that during the lifetime of a father the son, belonging to the Mitak-shara family in Punjab, had no right to claim partition. This proposition has obviously nothing to do with a widow's right to claim maintenance from the property belonging to the family.
11. On the contrary, we find that a Division Bench of Lahore High Court has held in Bhagwan Singh v. Mt. Kawal 'Kaur, reported in AIR 1927 Lah 280, that a manager of a joint Mitakshara family is under a legal obligation to maintain all male members of the family, their wives and their children, and on the death of one of the male members he is bound to maintain his widow and his children. Such therefore, is the personal law of the parties governed by Mitakshara system of Hindu Law even in Punjab,
12. It is obvious that on the death of Chingha, the husband of respondent Hukmi, his share in the joint property went to enlarge the share of the other coparceners of the family, and simply for that reason Chingha's widow would be entitled to claim maintenance from the property belonging to the family. The whole question has been exhaustively dealt with by Fazal Ali, J. in the above-referred decision of the Supreme Court. We would, however, like to point out certain decisions which are exactly on the point under our consideration. We find that as early as the year 1886, the High Court of Bombay held in Adhibai v. Cursandas Nathu, reported in (1887) ILR 11 Bom 199, that a widow of a member of a joint family was entitled to maintenance from the other coparceners. The facts of that case were that the plaintiff was the widow of one Pitambar Nathu who was the son of one Nathu Jadowji, Nathu Jadowji had three sons, Morarji, Pitambar, and the defendant Cursandas, and all lived together as a joint family. Pitambar died when he was fourteen years of age, while his wife, the plaintiff was still living with her parents. After her husband's death, the plaintiff went to the house of her father-in-law, Nathu Jadowji and was residing there at the time of Nathu Jadowji's death. Nathu Jadowji died intestate in 1881, leaving some self-acquired property. Thereafter, the plaintiff in that case, sued her brother-in-law Cursandas for maintenance. The court held that the plaintiff being Pitambar's widow, a member of her husband's undivided family, was entitled to maintenance from the defendant. The court further observed that upon Nathu's. death, intestate, his property devolved upon his sons Morarji and Cursandas as ancestral property for the benefit of the undivided family of which he (Nathu) was in his lifetime the head. This devolution of interest was subject to the incidence to which the ancestral property is generally liable. The Court also observed that the plaintiff in that case by reason of her sex was disqualified from inheriting in competition with males, but nonetheless she was entitled to maintenance out of the ancestral estate which had devolved upon the males and with whom she constituted an undivided family. This decision has been subsequently quoted in various other decisions, all of which are not necessary to be quoted. We may, however, refer to the decision given by Calcutta High Court in Devi Persad v. Gunwanti Koer, reported in (1895) ILR 22 Cal 410, wherein following pertinent observations are made while recognising a Hindu female's right to claim maintenance out of family property:
''And it does not stand to reason that the death of the son, which on the one hand, places the daughter-in-law in a more helpless condition, while, on the other, it enlarges to some extent the father's estate, should extinguish, his liability to maintain her. It is true that the father in such a case does not take anything from the son by inheritance in the strict sense of the term; but his estate and that of the other coparceners are enlarged by survivorship, by the death of the son, who was one of the coparceners. Accordingly, Hindu law provides, as reason and justice require that the surviving coparceners should maintain the widow of a deceased coparcener.'
The same principle has been followed by Madras High Court in Jayanti Subbiah v. Alamelu Mangamma, reported in. (1904) ILR 27 Mad 45, wherein it is observed that where an undivided Hindu family consists of two or more males, related as father and sons, or otherwise, and one of them dies leaving a widow, she has a right of maintenance against the surviving coparcener or coparceners qua the share or interest of her deceased husband in the joint family property which has come by survivorship into the hands of the surviving coparcener.
13. It is thus clear that respondent Hukmi had already a pre-existing right to receive her maintenance out of the joint family property which was held by her father-in-law Manna. This right has been recognised by subsequent decrees and when the consent decree, Exhibit P3, was passed in 1944, it was nothing but the further recognition of this right. Under the circumstances, we find that on the application of Section 14 of the Hindu Succession Act, 1956, Hukmi's rights were enlarged and she became the full owner. She was undoubtedly in possession of the property in exercise of this right of maintenance. In this view of the matter, this appeal fails and the same is dismissed with costs.