Judgment:
Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 23. 08. 1994 in A.S.No.61 of 1992 on the file of the Learned Principal Subordinate Judge, Chengalpattu confirming the Judgment and Decree dated 31. 03. 1992 in O.S.No.345 of 1990 on the file of the Learned District Munsif, Maduranthagam.
J U D G M E N T
1. The Appellants/Defendants 2 and 3 have focussed this instant Second Appeal adverting upon the Judgment and Decree dated 23. 08. 1994 in A.S.No.61 of 1992 passed by the Learned Principal Subordinate Judge, Chengalpattu in affirming the Judgment and Decree dated 31. 03. 1992 in O.S.No.345 of 1990 passed by the Learned District Munsif, Maduranthagam.
2. After filing of the Second Appeal, the 1st Appellant/2nd Defendant has expired and the 2nd Appellant/3rd Defendant, who is already on record, has been recorded as Legal Representative of the deceased 1st Appellant/2nd Defendant. Also, the Appellants 3 and 4 have been brought on record as Legal Representatives of the deceased 1st Appellant/2nd Defendant.
3. The Plaint averments of Respondents/Plaintiffs:
(i)The 1st Plaintiff is the mother of the 2nd Plaintiff. The Defendants 1 and 2 are Father-in-Law and Mother-in-Law of the 1st Plaintiff. The 3rd Defendant is the brother-in-law of the 1st Plaintiff. The 1st Respondent/ 1st Plaintiff is the wife of Panchatcharam. The said Panchatcharam died intestate during the year 1975 leaving the Respondents/Plaintiffs as his Legal Heirs along with the 2nd Defendant. Panchatcharam is the son of 1st Defendant (Manicka Mudaliar).
(ii)According to the Plaintiffs, they are entitled to 1/3rd share in the entire movable and immovable properties of the family. The Respondents/Plaintiffs have issued a lawyer's notice on 02. 01. 1979 for maintenance and for allotment of 1/3rd share together with profits. However, the Defendants failed to comply with the same. Another notice on 06. 08. 1989 has been sent through the lawyer. The Defendants sent a false reply. The Respondents/Plaintiffs have been keeping quite on the hope that the matter will be settled since the Defendants are close relatives. The Defendants have been assuring before the village elders that they would be giving substantial amounts. But no amount has been paid so far.
(iii)The 1st Respondent/1st Plaintiff is getting monthly pension of Rs.300/-. It is not enough for even a square meal per day. She has to maintain, educate her daughter and that the receipt of the family pension is not sufficient. The Respondents/Plaintiffs are supported by the parents of the 1st Respondent/1st Plaintiff. They have also maintained a large family. Hence forthwith it is not possible for the Respondents/Plaintiffs to live in the house of 1st Respondent/1st Plaintiff's parents house. The Respondents/Plaintiffs could claim maintenance from the family properties as per Hindu Law. The Respondents/Plaintiffs now claim a sum a sum of Rs.350/- towards maintenance for herself and her daughter. She is entitled to a sum of Rs.1000/- per annum towards clothing, Rs.1000/- per annum for separate residence. The Defendants are bound to provide maintenance. It is not possible for the Plaintiffs to live with her parents.
(iv)At the time of marriage, the 1st Respondent/1st Plaintiff have been given the following Sreedhan Articles: 1)Thirumangalyam with Mangapathu 1/4 sovereign; 2)Vazhaseepu - 1 sovereign; 3)Nanal 1 sovereign; 4)Gundu 2 = sovereign and 17 household articles which have not been returned till to-day for which the Respondents/Plaintiffs reserved their right to claim later.
(v)The Plaint 'A' schedule properties are ancestral one, in which the Respondents/Plaintiffs have 1/3rd share. They have also got a right of charge for maintenance. In spite of repeated demands made by the Respondents/Plaintiffs, maintenance amount has not been paid. A false reply has been given to the notice dated 06. 08. 1989 sent by Respondents/Plaintiffs. The Defendants are evading to maintain the Plaintiffs. Hence, the Respondents/Plaintiffs have laid the suit against the Defendants claiming (a) past maintenance Rs.350/- per month for two years; (b) future maintenance Rs.350/- per month for one year; (c) Rs.1000/- per annum for clothing; and (d) Rs.1000/- per annum for separate residence and for creating a charge over the schedule mentioned properties.
4. Written Statement Pleas of the 1st Defendant (later deceased) [adopted by the 2nd Defendant]:
(i)The suit for maintenance is not legally sustainable in law or on facts. The 2nd Defendant has not been given her share in the terminal benefits of the deceased Panchatcharam by the Respondents/ Plaintiffs. The Respondents/Plaintiffs are not entitled to 1/3rd share in movable and immovable properties of the family. The 2nd Defendant, being a Legal Heir and Representative of deceased Panchatcharam, is entitled to a share in the estate of her deceased son. The Defendants have been always ready and willing to give the rightful share to the Respondents/Plaintiffs. But the Respondents/Plaintiffs have not come forward to an amicable partition at any time. Number of attempts have been made by the Defendants to call upon the Respondents/Plaintiffs to effect proper division. The Respondents/Plaintiffs have been misguided by the 1st Respondent/1st Plaintiff's father who has made the 1st Respondent/1st Plaintiff as a puppet in his hand. In all the reply notices from 22. 02. 1977, the 1st Defendant has been expressing his readiness and willingness to effect a partition. The Respondents/ Plaintiffs never come forward for any sort of amicable partition.
(ii)The 1st Respondent/1st Plaintiff gets a pension exceeding a sum of Rs.800/- per month. The 1st Respondent/1st Plaintiff after receiving the terminal benefits payable to the deceased Panchatcharam has invested the same. She is deriving income from the said amounts.
(iii)The claim for maintenance of the Respondents/Plaintiffs from the Defendants is clearly barred by the provisions of The Hindu Adoptions and Maintenance Act, 1956. The Respondents/Plaintiffs only right is to get the family properties divided according to the provisions of Hindu Succession Act either amicably or by means of Court proceedings. They have no legal rights to sue for maintenance against the Defendants.
(iv)The Defendants 1 and 2 are very aged and they are not liable to maintain the Respondents/Plaintiffs. The 3rd Defendant is not bound to maintain the Respondents/Plaintiffs. The Respondents/ Plaintiffs are not entitled to any charge over the properties. Praying for the relief of charge will not arise as the Respondents/Plaintiffs have no legal right to claim maintenance from the Defendants. There is no cause of action for the Respondents/Plaintiffs to sue.
5. The Written Statement averments of the 3rd Defendant:
The 3rd Defendant is not bound in law to maintain the Respondents/Plaintiffs. The Respondents/Plaintiffs right is only to obtain partition of the family properties either amicably or through legal action. The 3rd Defendant is an unnecessary party to the suit.
6. The First Appellate Court, while passing the Judgment in A.S.No.61 of 1992 and in I.A.No.369 of 1994 [Petition to receive additional documents as additional evidence under Order 41 Rule 27 of Civil Procedure Code), on 23. 08. 1994, has, among other things, observed that 'the rate of maintenance should be such as will enable the widow to live consistently with her position as a widow is something like the same degree of comfort and with the same reasonable luxury as she had in her husband's life. Allowance must be made for the circumstance that the past mode of life of the widow was either on a penurious scale or extravagant scale, having regard to the husband's total income and consequently, held that the trial Court has come to a correct conclusion on the evidence and documents placed before it and opined that it requires no change or modification and confirming the Judgment and Decree of the trial Court passed in the main suit in O.S.No.345 of 1990. '
7. Before the trial Court in the main suit, 1 to 3 issues and one additional issue have been framed for trial. On behalf of the Plaintiffs, witnesses P.W.1 and P.W.2 have been examined and Exs.A.1 and A.2 have been marked. On the side of the Defendants, witness D.W.1 has been examined and no exhibits have been marked.
8. The trial Court, upon analysis and scrutiny of the entire oral and documentary evidence on record, has come to a resultant conclusion that the Respondents/Plaintiffs are entitled to receive a sum of Rs.200/- per month towards past maintenance and to receive a sum of Rs.200/- per month towards future maintenance, towards clothings and residence per year to receive a sum of Rs.500/- each as future maintenance and decreed the suit. Accordingly, leaving the parties to bear their own costs.
9. At the time of admission of the Second Appeal, this Court has formulated the following Substantial Question of Law:
'Whether the Courts below are correct in granting a decree for maintenance against the Defendants 1 and 2 who are the parents-in-law of the first Plaintiff and the grand parents of the second Plaintiff in view of Section 19 of the Hindu Adoption and Maintenance Act?'
The Contentions, Discussions and Findings on Point:
10. The Learned Counsel for the Appellants contends that the Respondents/Plaintiffs are getting a family pension of Rs.800/- per month and that the 1st Respondent/1st Plaintiff has received all the amounts due to her deceased husband Panchatcharam and has deposited the same in fixed deposit and is in receipt of interest and as such, the Respondents/Plaintiffs can maintain themselves and that they are not entitled to claim maintenance from the parents in law especially from the 3rd Defendant who is the brother of the deceased Panchatcharam.
11. According to the Learned Counsel for the Appellants, the Respondents/Plaintiffs are able to maintain themselves out of their own earnings and that they are able to get the share of the deceased Panchatcharam in the property and that the Appellants/Defendants have been ready and willing to divide and allot the said share to them and therefore, they are not entitled to claim maintenance by virtue of Section 19 of the Hindu Adoptions and Maintenance Act, 1956.
12. The Learned Counsel for the Appellants projects an argument that the Appellants are under no obligation to maintain the daughter-in-law or sister-in-law and the grand daughter.
13. Advancing his arguments, the Learned Counsel for the Appellants takes a plea that Defendants 1 and 2 have expired and during their life time they have not been in a position to maintain themselves and further that the 3rd Defendant is under no obligation to maintain the Respondents/Plaintiffs viz., the widow and the daughter of deceased brother Panchatcharam.
14. Per contra, it is the submission of the Learned Counsel for the Respondents/Plaintiffs that the 1st Respondent/1st Plaintiff's husband Panchatcharam died in the year 1975 and that the suit has been filed 15 years later during the year 1990 and till the filing of the suit, the Appellants have not paid anything towards maintenance to the Respondents/Plaintiffs. As a matter of fact, in the suit, the Respondents/Plaintiffs have claimed past maintenance at the rate of Rs.350/- per month for two years aggregating in all a sum of Rs.8,400/-, and also claimed future maintenance at the rate of Rs.350/- per month for one year amounting to Rs.4,200/-, for clothing for a year claimed at the rate of Rs.1,000/- and for annual separate residence a sum of Rs.1,000/- each has been claimed. Further, the trial Court has rightly come to the conclusion that the Respondents/ Plaintiffs are entitled to claim a sum of Rs.200/- per month towards past maintenance; towards future maintenance it has awarded a sum of Rs.200/- per month and for clothing and residence, it has awarded each a sum of Rs.500/- as future maintenance and has decreed the suit accordingly, which has since been affirmed by the First Appellate Court in A.S.No.61 of 1992 filed by the Defendants 1 to 3, which need not be interfered with by this Court in Second Appeal.
15. The Learned Counsel for the Appellants cites the decision of this Court in Rajakannu V. Sarojammal and others, 1999 M.L.J. (Supp.) 502 wherein it is held as follows:
"... In this case, there is a merger. The only person who can execute the decree for maintenance is the wife. After passing of the decree for maintenance, the husband died, with the result that to the 1/3rd share left behind by him, his wife would become an heir, entitled to succeed to a share in the properties left behind by her husband. Therefore, subsequent to the charge in her favour, the wife had become entitled to higher right. Therefore, the security in the form of charge obtained by him, would therefore become merged with her grater right and would thus be extinguished. It is a case of merger of a lower right in a higher right. Thus, two legal rights held by the wife become united in her. She was entitled to proceed against the property for realisation of the maintenance due to her. She subsequently became entitled to a share in the properties of her husband. Therefore, the right she has acquired as an heir of her husband is of superior nature in law, to the one she has as maintenance holder. Therefore, in such a case, the merger extinguishes her legal right as to charge holds to proceed against the property. Her right to get a share in the property, being higher in nature and superior in law would put an end to her legal remedy to proceed against the property for realising the maintenance amount."
Also, in the aforesaid decision, in paragraph 13 at page 506, it is laid down as follows:
"13. That certain things had happened subsequently, is not disputed. It is stated that the maintenance decree holder, after the death of her husband sold certain properties left behind by her husband and it is stated that a number of items belonging to Samidurai has been disposed of by his wife and children and this is the only property that now remains. Therefore, I am of the view that in the peculiar circumstances of the case, the plaintiff is entitled to a declaration and injunction as prayed for. The courts below have failed to note that on the death of her husband, the maintenance decree holder becomes entitled to a larger interest and of a superior nature than a mere right to proceed against the property for the recovery of maintenance, which their would get extinguished. If at all, on the date of the death of her husband, certain claim for payment of maintenance was there against him. But, on and after the death of her husband, the right of the plaintiff to ask for maintenance comes to an end. It is only for the arrears of maintenance, if any there that was due, she had a right to proceed and not otherwise. Therefore, in such circumstances, the courts below have failed to appreciate the peculiar position prevailing in this case and ought to have taken into consideration and applied the propositions indicated in Section 100 of the Transfer of property Act. Hence, I have to hold that the plaintiff/appellant is entitled to a decree as prayed for, granting him a declaration and injunction."
16. He also relies on the decision of this Court in Sasikumar V. K.Sulochana and 3 others, 2009 (2) CTC 833 wherein it is held that 'the maintenance suit should be maintained by wife and children upto the date of death of husband and not thereafter and further that the Plaintiffs are entitled to maintenance from the date of Plaint to date of death of husband and after the death of husband, wife and children could file a suit for partition and after the death of husband, no decree for maintenance subsequent to date of death of husband could be granted.'
17. Per contra, the Learned Counsel for the Respondents/ Plaintiffs cites the decision of this Court in Velammal and others V. Chokkiah Gounder and others, AIR 1971 Madras 469 wherein it is held as follows:
"Where on the husband's death pending the suit against him by the wife for future maintenance the wife becomes entitled to a share in his property she can, in the altered circumstances, be allowed to amend the plaint and seek partition and separate possession of her share."
18. He also seeks in aid of the decision of this Court in A.Gopala Pattar and another V. Parvathi Ammal and others, AIR 1929 Madras 47 wherein it is held as follows:
"The maintenance granted to an abandoned wife can be made a charge upon the husband's share of the family property. In this respect it is difficult to make any distinction between the position of a widow and that of an abandoned wife."
19. He invites the attention of this Court to the decision in Secretary of State V. Ahalyabai Narayan Kulkarni, AIR 1938 Bombay 321 at page 322 wherein it is mentioned as follows:
"Under the Hindu law, if a co-parcener takes the property of another deceased co-parcener by survivorship, he takes it with the burden of maintaining the widow and unmarried daughters of the deceased co-parcener. It cannot be said that this right of maintenance is merely personal in the sense that it has no reference to the property which he gets by survivorship. It may be that in the technical language, it may not fall within the definition of "charge" under S.100, T.P. Act. This charge is a later creation by statute, but the Hindu law has always regarded the widow's right as a burden on the property. It has thus been held that the right of maintenance attaches to the property itself which is taken by survivorship. Although it may not be a legal charge, Government acting under S. 88 are not in the same position as a purchaser for value. The holder of such interest for maintenance amounting as it does to a burden on the property is entitled as a matter of right to ask the Court to create a formal charge, and that being so, it cannot be attached by Government who are only concerned with confiscating the absconder's right, title and interest in the property.
Past arrears of maintenance are certainly a debt due to the person claiming it, and although whether to allow past arrears or not or what amount should be allowed is in the discretion of the Court, it cannot be said that it is not a debt due to the person claiming it and not inheritable by his heir."
20. He also relies on the decision of this Court in Tiruvannamalai Ammal V. Sadasiva Mudali and others, 1968 (2) MLJ 569 at page 570 wherein it is held as follows:
"Where in a suit filed by the wife of the manager of a joint Hindu family against her husband in his capacity as the manager, a decree for maintenance is passed, it will be binding on the entire joint family and a valid charge could be created against the joint family properties for the maintenance claim. The contention that the decree would not be binding on the coparceners who were not eo nomine parties to the suit or decree, is untenable.
Such a charge is not defeated by any subsequent partition effected among the members of the family. It cannot be contended that by virtue of the fact that the members are seeking a partition of their shares from that of the manager, the maintenance decree could not thereafter operate against their shares and that the operation of the charge must be restricted only to the share of the manager of the joint family."
21. That apart, he cites the following decisions:
(a) In Kunji Thomman and others V. Meenakshi and others, AIR 1970 Kerala 284 wherein it is held thus:
"The object is only to remove the disability of Hindu woman and not to interfere with contracts, grants etc. Sub-section (2) is based upon principle of sanctity of contracts and grants.
Where by an agreement a widow consents to take a share in the estate of her Father-in-Law, not as woman's estate, but as an estate for life with a vested remainder in favour of others and there is no evidence to show that the allotment of properties was for her maintenance, the case falls within the provisions of Section 14(2) and not within the provisions of Section 14(1) of the Act."
(b) In Rani Bai V. Yadunandan Ram, AIR 1969 Supreme Court 1118, it is held as follows:
"A who was the widow of the predeceased son of J was entitled to receive maintenance out of the estate of J so long as she did not remarry and she was presumably in possession of those properties in lieu of her maintenance. She could not be deprived of them even by B without securing proper maintenance for her out of those properties. That being so C who was only a trespasser could not deprive her of possession of the properties: (1894) ILR 18 Bom 679 and (1894) ILR 18 Bom 452, Rel. on.
B could not effect a transfer of all her rights to C who was a mere trespasser by merely filing a petition that she did not wish to prosecute the suit as a co-plaintiff. A who had a possessory title was entitled to restoration of possession as against C if he had no right, title or interest and was a mere trespasser and she was further entitled to remain in possession by virtue of her claim or right to maintenance until C who claimed the estate of J made some proper arrangement for her maintenance. (1893) ILR 20 Cal 834 (PC)."
22. P.W.1 (1st Respondent/1st Plaintiff), in her evidence, has deposed that the 2nd Respondent/2nd Plaintiff is her daughter who is under her care and that the 1st and 2nd Defendants are her Father-in-Law and Mother-in-Law and the 3rd Defendant is her brother-in-law and her husband's name is Panchatcharam and that she has 1/3rd right in the suit properties and that her husband has expired during the year 1975 and after the demise of her husband, the Defendants have not cared for her and that she is living separately and her husband has served as a teacher and died and that she gets a pension of Rs.300/- and apart from this, they have no other income and the pension is not enough for her food and in the income derived from suit properties, the Defendants have not given anything to her and since she has not obtained the full details of suit properties, she has not filed the partition suit.
23. It is the further evidence of P.W.1 that 3 sovereigns ear-ring, 3 sovereigns Magalsutra have been given to her by her father's house and that the Defendants have taken the same and not returned it and that she has not filed a case in respect of the jewels and that the suit properties ancestrally belonged to her Father-in-Law and she has prayed for passing of a charge decree being passed in respect of a suit property in regard to her maintenance claim and the Defendants will derive an income of Rs.20,000/- from the suit properties and since she has not been given the properties in partition, she has filed the maintenance and that she has claimed a sum of Rs.350/- per month towards maintenance; for clothing, she has claimed a sum of Rs.1000/-; for residence, she has claimed Rs.1000/- per year.
24. P.W.1 in her cross examination has deposed that after the death of her husband on 31. 12. 1975 she has remained in the house of Defendants for 20 days and since the Defendants have not given her proper food, she has gone to her mother's house by taking the 2nd Respondent/2nd Plaintiff with her and after the death of her husband, she received a sum of Rs.10,000/- from the Government and thereafter, no amount has been received and she has deposited a sum of Rs.10,000/- in the post office and pass-book has not been issued to her and a bond has been given to her which matures after 7 years and after five years she received an interest of Rs.2,000/- for the sum of Rs.10,000/- and that amount has been sent towards 2nd Respondent/ 2nd Plaintiff's education.
25. It is the further evidence of P.W.1 that the balance amount is spent towards oral loan and in mother's house she stayed for 4 days and later she has been residing separately and when she has set up private residence at that time pension of Rs.60/- per month has been received by her and now the pension has been fixed as Rs.300/- and she has issued a notice to the Defendants on 15. 02. 1977 in which she has asked for maintenance and on 22. 02. 1977 the Defendants have issued a reply and in the reply, the Defendants have stated that they are willing to partition the properties, but as per notice they have not partitioned the properties and she has filed a suit for partition and also adds that she has not filed the same.
26. Further, P.W.1 in her evidence has stated that on 22. 01. 1979 again she has issued a lawyer's notice and in spite of the issuance of the second notice, she has not filed the partition suit and on 06. 08. 1989 another notice has been issued by her and in the Chengalpattu Free Legal Aid Office, she has given a petition seeking the relief of partition and the 1st Defendant has not come to legal aid office but only 3rd Defendant has come and 3rd Defendant has informed that he is ready to partition the properties but has not partitioned the properties and for 13 years demanding partition she has not taken any action through Court and that she has not received any amount towards P.F. and gratuity and that she is residing in a rented house paying a monthly rent of Rs.200/- and further that her daughter (2nd Respondent/2nd Plaintiff) is studying in +2 in a Government School and as per month towards education, she pays a sum of Rs.200/- to the school and she has taken oral loan from her brother uncle and father and her daughter is not taking noon meal food at the school.
27. P.W.2 in his evidence has deposed that in the suit property per year there will be a yield of 25 to 30 bags of paddy and that the 1st Defendant has right in the property of two acres and that the Defendants have capacity to pay a maintenance sum of Rs.350/- per month and that the 1st Plaintiff is residing separately in a rented house and that she has to incur a monthly expense of Rs.600/-, 700/- and the 2nd Respondent/2nd Plaintiff is studying in Government School.
28. D.W.1 (deceased 1st Defendant) in his evidence has deposed that the 1st Respondent/1st Plaintiff is his daughter-in-law and the 2nd Respondent/2nd Plaintiff is his grand-daughter and deceased Panchatcharam is the husband of 1st Respondent/1st Plaintiff and he expired on 31. 12. 1975 and that after the death of his son the 1st Respondent/1st Plaintiff has remained in their family for three months and thereafter, she has gone to her mother's house and that his son has serving as a teacher in School and after the death of his son a sum of Rs.10,000/- has been received from the Government and monthly pension has been received and the 1st Respondent/ 1st Plaintiff has not given any amount from out of the sum of Rs.10,000/- received by her and that she resides in her father's house and she is not residing in a rented house and to his knowledge, she is getting a pension of Rs.700/- per month and he does not know how the 1st Respondent/1st Plaintiff spends a sum of Rs.700/- and on hearsay he has come to know that the 1st Respondent/1st Plaintiff is depositing a sum of Rs.300/- per month and that he is 91 years old and his wife is 87 years old and he is no help from his elder sons and his grandson is maintaining him and 2nd Defendant.
29. It is the evidence of D.W.1 that the paddy field of family property is two acres and only irrigation is done through lake water and in the land there is no irrigation through well water and the land will yield 1 crop and he has cultivated the land for some time and later because of his inability, he has leased out the land and for the past 4 or 5 years crops have fallen down and thereafter, every year he receives 6 or 7 bags of paddy on lease and he does not know the name of the lessee and he is ready to give share of his son Panchatcharam and he has not stated there is no share.
30. Moreover, it is the evidence of D.W.1 that the 1st Respondent /1st Plaintiff has issued notice through a counsel and he has issued a reply in which he has stated there is no share in the loan and in the legal aid office since it has been informed that even in the loan there is a share the 1st Respondent/1st Plaintiff has not taken further action and the 1st Respondent/1st Plaintiff's father has 10 acres of land and he has no capacity to pay maintenance to the Plaintiffs.
31. D.W.1 in his cross examination has deposed that it is wrong to state that the 1st Respondent/1st Plaintiff is residing in rented house belonging to Purushothaman and that he has mortgaged the jewels in the Bank 7 or 8 years and has incurred a medical expense to his son and apart from the suit properties, there are no other properties and in the suit property there are velikathan trees and he has cut the trees, shared the amount and he does not know for what sum he has sold the trees but he has sold it for Rs.2,500/- and that the 1st Respondent/ 1st Plaintiff has issued a notice to him and that he has not filed the adangal and the 3rd Defendant is not enjoying the properties along with them and that he is under the care of his grandson and it is wrong to state that three Defendants are to pay maintenance amount to the Respondents/Plaintiffs.
32. The Learned Counsel for the Appellants/Defendants submits that the 1st Defendant (since deceased) Manicka Mudaliar and the 2nd Defendant (also deceased) are Father-in-Law and Mother-in-Law of the 1st Respondent/1st Plaintiff and the 2nd Respondent/2nd Plaintiff is their grand-daughter and that 2nd Appellant is the son of the deceased 1st Defendant Manicka Mudaliar and Appellants 3 and 4 are the daughter of 2nd Defendant (deceased) and the 1st Respondent/1st Plaintiff's husband died on 31. 12. 1975 leaving his wife, the 1st Respondent/1st Plaintiff and the 2nd Respondent/2nd Plaintiff daughter Mangaiyar Karasi and they filed a suit O.S.No.345 of 1990 on the file of trial Court praying for maintenance against Father-in-Law, Mother-in-Law and brother-in-law and that the Respondents/Plaintiffs are entitled to share in the suit properties and they are not entitled to claim maintenance and this has been made clear in the written statement filed in O.S.No.345 of 1990 by the Respondents/Plaintiffs.
33. Moreover, the Learned Counsel for the Appellants submits that after the demise of the 1st Respondent/1st Plaintiff's husband Panchatcharam, she received all pensionary benefits and she received monthly pension of Rs.800/- per month and as such, she is not entitled to claim maintenance and even in the written statement of O.S.No.345 of 1990 the Defendants 1 and 2 have pleaded that they have not been in a position to maintain themselves and the trial Court has awarded a monthly past maintenance Rs.200/- per month and also future maintenance of Rs.200/- per month and granted a sum of Rs.500/- each towards clothing and residence and created a charge over the suit properties.
34. The Learned Counsel for the Appellants submits that the Defendants 1 to 3 in O.S.No.345 of 1990 preferred A.S.No.61 of 1992 on the file of Principal Sub Judge, Chengalpattu along with I.A.No.369 of 1994 [to receive additional documents under Order 41 Rule 27 of C.P.C.] and the First Appellate Court has confirmed the trial Court Judgment and Decree passed in O.S.No.345 of 1990 dated 31. 03. 1992 and as against the said Judgment and Decree in A.S.No.61 of 1992 dated 23. 08. 1994, the Appellants have preferred the Second Appeal.
35. The contention of the Learned Counsel for the Appellants is that the 1st Respondent/1st Plaintiff's husband Panchatcharam expired on 31. 12. 1975 and that she filed the suit during the year 1990 and since her husband has expired on 31. 12. 1975, then, Section 6 of the Hindu Succession Act, 1956 comes into operative play. Therefore, the Respondents 1 and 2/Plaintiffs right to claim maintenance are not available at the time of filing of the suit O.S.No.345 of 1990 and instead they are only entitled to claim a share in the suit properties.
36. Per contra, it is the submission of the Learned Counsel for the Respondents/Plaintiffs that the 1st Defendant Manicka Mudaliar in para 4 of the written statement in O.S.No.345 of 1990 has clearly stated that the Respondents 1 and 2/Plaintiffs are not entitled to 1/3rd share in movable and immovable properties in the family, but in para 7 of the written statement has stated that Respondents 1 and 2/ Plaintiffs are entitled to get the family properties divided according to the provisions of the Hindu Succession Act either amicably or by means of Court proceedings.
37. According to the Learned Counsel for the Respondents/ Plaintiffs, as per Section 18 of the Hindu Adoptions and Maintenance Act, 1956 the husband's liability to pay maintenance to the wife is absolute and that the 1st Respondent/ 1st Plaintiff's husband expired on 31. 12. 1975 and that O.S.No.345 of 1990 has been filed 15 years later and till then, the Defendants 1 to 3 in O.S.No.345 of 1990 have not paid anything towards maintenance and admittedly the properties have not been divided and given to the daughter-in-law viz., the 1st Respondent/1st Plaintiff and that also there is no division of properties in the family of maintenance and that all the five items in the suit properties in maintenance suit O.S.No.345 of 1990 are coparcener's properties and in the Plaint in O.S.No.345 of 1990, the 1st Respondent /1st Plaintiff has stated that she is not able to maintain herself and at the time of filing of the suit in the year 1990, the 2nd Respondent/ 2nd Plaintiff has been aged about 14 years.
38. According to the Learned Counsel for the Respondents/ Plaintiffs, under the Hindu Adoptions and Maintenance Act, the Respondents/Plaintiffs are entitled to be maintained by the Defendants 1 to 3 in O.S.No.345 of 1990 and whether a Father-in-Law is possessed of a coparcenary property and if he continues to hold joint family property and he continues to hold property and receive income, then in such circumstance, he is liable to pay maintenance and as per Hindu Succession Act, the 1st Respondent/1st Plaintiff (wife of deceased Panchatcharam) is entitled to get share in the properties on the death of her husband.
39. Continuing further, as per Section 19 of the Hindu Adoptions and Maintenance Act, if a Father-in-Law holds property he is entitled to pay maintenance to the widowed daughter-in-law and moreover, a Father-in-Law is bound to maintain his daughter-in-law, so long as the 1st Respondent/1st Plaintiff's claim falls as per Section 19 of the Hindu Adoptions and Maintenance Act and if the husband of the 1st Respondent/1st Plaintiff is possessed of separate property, on his death, it will pass on his mother, wife and children as per Section 8 of the Hindu Succession Act.
40. The Learned Counsel for the Respondents/Plaintiffs submits that as per Section 19 of the Hindu Adoptions and Maintenance Act, 1956 on the death of the husband, the wife as a Class I heir becomes a sharer automatically or heir at law, but she does not become possessed of properties if they are not given to her and that it is not legally correct to say that a daughter-in-law is not entitled to claim maintenance because she gets property and that in this case, the 1st Respondent/1st Plaintiff (daughter-in-law of the 1st Defendant) is not in possession of estate and in law, there is a difference between the claim against husband and a claim against Father-in-Law. Further, the claim against the husband is absolute and not depended upon any property and the liability ceases on husband's death and that thereafter any suit cannot continue any further but in our case, the High Court has allowed the amendment of partition suit in O.S.No.103 of 1998.
41. According to the Learned Counsel for the Respondents/ Plaintiffs, Section 27 of the Hindu Adoptions and Maintenance Act deals with 'Maintenance when to be a charge' and a charge can be created on the estate of the deceased or any portion thereof, by a decree of the Court and maintenance can be made a charge as per Section 27 of the Act on the property of the deceased by a decree of the Court.
42. Also, Section 21 (iii) of the Hindu Adoptions and Maintenance Act defines "dependants" meaning the deceased widow, so long as she does not re-marry and therefore, the 1st Respondent/1st Plaintiff daughter-in-law is dependant of the Father-in-Law and moreover, Section 27 of the Hindu Adoptions and Maintenance Act deals with 'a dependant's claim for maintenance' and in the present case, the trial Court has passed a decree for maintenance in O.S.No.345 of 1990 and only later a suit for partition has been filed.
43. The Learned Counsel for the Respondents/Plaintiffs submits that as per Section 100 of the Transfer of Property Act charge does not create any interest in the property and that it is not correct to state that the security in the form of charge obtained will be extinguished and also it is not correct to state that the maintenance decree being a lower right gets and merged into a higher right of getting a share in the suit properties in a partition suit.
44. The Learned Counsel for the Respondents/Plaintiffs submits that there must be an intention to merge as per Section 101 of the Transfer of Property Act and otherwise there is no merger. Moreover, there is no merger in case of a subsequent encumbrance.
45. Furthermore, the Learned Counsel for the Respondents/ Plaintiffs submits that the charge right will continue and it is not a case of merger and that Section 101 of the Transfer of Property Act has not been brought to the notice of Court in the decision in Rajakannu V. Sarojammal and others, 1999 MLJ (Suppl.) 502 and therefore, the decision is per incuriam.
46. The Learned Counsel for the Respondents/Plaintiffs submits that as per Section 39 of the Transfer of Property Act, the Respondents/Plaintiffs are entitled to claim maintenance and the past arrears of maintenance are debt due to a person claiming it and it is heritable by heir and that the 1st Defendant-Manicka Mudaliar (Father-in-Law) and the 2nd Defendant-Muthammal (Mother-in-Law), died on 17. 12. 1994 and 05. 12. 1996 respectively and that the 3rd Defendant Shanmugam who being a coparcener and alive is in possession of joint family properties and he being a member of a coparcenary, he can be made liable for the payment of maintenance decree obtained in O.S.No.345 of 1990 by the Respondents/Plaintiffs and the 1st Defendant viz., Father-in-Law is a Karta of the joint family besides his capacity as a Father-in-Law and even in a family if partition takes place charge will not be extinguished in respect of a maintenance decree and that the means of a widow daughter-in-law is relevant in decreeing the quantum of maintenance to be paid by Father-in-Law and both the Courts below have correctly held in observing that daughter-in-law has to be maintained by the Defendants.
47. The Learned Counsel for the Appellants in his reply submits that the husband of the 1st Respondent/1st Plaintiff (Panchatcharam) died on 31. 12. 1975 and till the year 1989 there has been no claim of maintenance by the Respondents/Plaintiffs and although the Respondents/Plaintiffs stated that they issued notice during the year 1979 claiming maintenance, they have not produced the notice. Further, it is contended that they kept quite for nearly 14 years and the 1st Respondent/1st Plaintiff has admitted that she has been maintained by her parents and supported by them. Also, she has been receiving a monthly pension of Rs.300/-.
48. That apart, it is the contention of the Learned Counsel for the Appellants/Defendants that terminal benefits of deceased Panchatcharam have come in the hands of Respondents/Plaintiffs and no share has been given to the Mother-in-Law (Muthammal) from and out of the terminal benefits received by the daughter-in-law and the mother of deceased Panchatcharam is entitled to 1/3rd share in the terminal benefits amount and as per Section 19 of the Hindu Adoptions and Maintenance Act certain conditions have been laid down for the bias, small obligation of Father-in-Law and since the Father-in-Law has no means, he need not pay maintenance to the Respondents/Plaintiffs.
49. Continuing further, the Learned Counsel for the Appellants/ Defendants submits that after the death of Father-in-Law the right of maintenance is an unenforceable one and the Appellants have taken a defence that the Respondents/Plaintiffs are not entitled to claim maintenance but only they can claim for partition and as per Section 22 of the Hindu Adoptions and Maintenance Act, 1956 whosoever gets the estate of the deceased or a part of it, must in proportion get along with it, a corresponding obligation or the burden of maintaining the dependants of the deceased. As per Section 3(3) of the Hindu Women's Right to Property Act, 1937 under the caption 'Devolution of Property', any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Women's estate provided however, that she shall have the same right of claiming partition as a male owner and the 1st Respondent/1st Plaintiff cannot enforce the right of claiming maintenance and partition simultaneously.
50. Countering the contentions of the Learned Counsel for the Appellants/Defendants, the Learned Counsel for the Respondents/ Plaintiffs submits that in law there is no prohibition for the 1st Respondent/1st Plaintiff to claim maintenance against her Father-in-Law viz., the 1st Defendant and the test is whether the 1st Defendant viz., Father-in-Law is possessed of coparcenary property and when he possessed of coparcenary, then he is liable to pay maintenance.
51. The Learned Counsel for the Respondents/Plaintiffs contends that consequent to the death of Panchatcharam (teacher), the 1st Respondent/1st Plaintiff has received the terminal benefits and at that time, the mother of Panchatcharam Muthammal has been alive and she ought to have claimed share in the terminal benefits but she has not made any claim in this regard and during the year 1989 the 1st Respondent/1st Plaintiff has issued notice, for which a reply has been given and the reply notice dated 22. 02. 1977 and there is no proof that the Defendants have been willing to divide and to give share in the suit properties and after the death of the husband, the right to claim maintenance is given as per Section 19 of the Hindu Adoptions and Maintenance Act and that the 1st Respondent/1st Plaintiff is entitled to get share in the properties as per Hindu Succession Act but she has not been given the shares and moreover, the maintenance decree in O.S.No.345 of 1990 cannot be extinguished if property is handed over to the 1st Respondent/1st Plaintiff, she cannot claim future maintenance and the past maintenance amount is nothing but a debt arrears and therefore, the decree in O.S.No.345 of 1990 is enforceable one in the eye of law.
52. Repelling the contentions of the Learned Counsel for the Respondents/Plaintiffs, the Learned Counsel for the Appellants submits that till date the 1st Respondent/1st Plaintiff is not interested to get share in the suit properties and after the death of Panchatcharam, the 1st Defendant Father-in-Law comes into the picture and the same effect of Panchatcharam's death will be even upon the death of her Father-in-Law and the 1st Respondent/1st Plaintiff's right to claim maintenance is extinguished and as such, the decree obtained in O.S.No.345 of 1990 has clearly unenforceable in the eye of law.
53. Furthermore, in law the Father-in-Law should have means to pay the maintenance and also the Respondents/Plaintiffs should establish that from out of the suit properties the joint family gets a sizeable income and an aged Father-in-Law of 90 years cannot be asked to pay maintenance to the daughter-in-law and her daughter.
54. According to the Learned Counsel for the Appellants/ Defendants that the right to claim maintenance by the 1st Respondent/ 1st Plaintiff against the 1st Defendant [deceased Father-in-Law] is conditional upon the Father-in-Law being in possession of a coparcenary property out of which the 1st Respondent/1st Plaintiff [widowed daughter-in-law] has not obtained any share.
55. As a matter of fact, Section 19 of the Hindu Adoptions and Maintenance Act, 1956 must be read with Section 22 which pertains to the right of the dependants of a deceased person to claim maintenance from heirs who have inherited his estate by Will. Moreover, as per Section 21 (vii) of the Act, the widowed daughter-in-law is one of the dependants of a deceased Hindu.
56. The Learned Counsel for the Appellants/Defendants submits that Section 21(vi) of the Hindu Adoptions and Maintenance Act, 1956 specifies that a widowed daughter of the deceased is a dependant, to the extent that she is unable to get maintenance from her husband's estate, or from her son or daughter or their estate; or her Father-in-Law or his father; or the estate of either of them and for this purpose she is a dependant of the deceased.
57. The Learned Counsel for the Appellants/Defendants contends that when once the husband dies as per Section 6 of the Hindu Succession Act on the death of a coparcener, there shall be a deemed division of the property to which such coparcener is entitled, as if a partition has taken place and a notional partition and division has been introduced by means of a deeming fiction.
58. At this stage, this Court points out that the obligation of a Father-in-Law to maintain his daughter-in-law arises only on the death of the husband and such an obligation can also be met from the properties in which the husband is a co-sharer.
59. As per Section 21 of the Hindu Adoptions and Maintenance Act, 1956 the widowed daughter-in-law is the dependant of her Father-in-Law and the father of the Father-in-Law as per Clause 7 of Section 21 in certain given situations.
60. Section 8 of the Hindu Succession Act, 1956 deals with General rules of succession in the case of males. Whether a male Hindu has died intestate, the property shall firstly devolve upon the heirs specified in Class I of the Schedule. As per Section 39 of the Transfer of Property Act, 1882, the right of maintenance, even of a Hindu widow, is an indefinite right which falls short of a charge as per decision in Somasundaram V. Unnamalai (1920) ILR 43 Mad 800. Further, it is not a charge unless it has been made a charge by decree or agreement [as per decision in Ram Kunwar V. Ram Dai, (1900) ILR 22 All 326], or unless the widow is in possession of specific property allotted for her maintenance as per decision in Imam V. Balamma (1889) ILR 12 Mad 334.
61. Section 100 of the Transfer of Property Act, 1882 speaks of 'Charges'. A charge can be made in respect of an movable and immovable properties. After all a charge is nothing but a devise to create security which is enforceable in the Court of Law also a charge can be created by act of parties or by operation of law. The property to which charge attaches must be specified. A charge made by a decree over 'all the property of the judgment debtor both movable and immovable' cannot be said to be void for uncertainty as per decision in Narsinhamurthi V. Satyanandan (1941) 2 Mad LJ 386.
62. Section 101 of the Transfer Property Act speaks of 'No merger in case of subsequent encumbrance'. Section 25 of the Hindu Adoptions and Maintenance Act, 1956 provides for creation of charge on the estate and also that the claim even of a widow for maintenance is not a charge upon the estate of her deceased husband, whether joint or separate till it is fixed and charged upon the estate. If no charge is specifically created, then, no such charge can be presumed. The property that may be charged for meeting a dependant's right to maintenance is ordinarily that, which would have constituted the husband's share, but it would be unreasonable to encumber family properties to a greater extent than which is necessary to secure the payment of maintenance. When a Court creates a charge for maintenance in favour of a claimant, it should not do so, over the estate of the deceased far out of proportion to the quantum of maintenance in favour of the claimant as per decision Ramaswami Gounder V. Bhagyammal, AIR 1967 Mad 457.
63. Undoubtedly, ancestral property is a species of coparcenary property. If a Hindu inherits a property from his father, in his hands it becomes ancestral in nature. His sons, grandsons, great-grandsons acquire an interest by birth, by coparcener properties by birth. The coparcener property ownership is in the entire body of coparcenary and enjoyment thereof is in common.
64. Admittedly, Hindus get a joint family status by birth, and the joint family property is only an adjunct of the joint family [vide Mulla on Hindu Law 'Joint Hindu Family Coparceners and Coparcenary Property-Mitakshara Law' ' 212 under the sub-caption 'Joint Hindu Family]. The term 'Joint Family Property' is synonym with 'coparcenary property'. 'Separate' property includes 'self-acquired' property [vide Mulla on Hindu Law, Chapter XII as referred to above ' 220 under the sub-heading 'Classification of Property']. The normal condition of Hindu society is joint and an undivided family. The existence of joint estate is not a prerequisite factor to constitute a joint family and a family, which does not possess or own any property can also be joint. The joint Hindu family comprises of all persons leniently descended from a common ancestor and includes their wives and unmarried daughters.
65. In Balbir Kaur and another V. Harinder Kaur and others, AIR 2003 PUNJAB AND HARYANA 174, it is held as follows:
"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."
66. In Laxmi and another V. Krishna Bhatta and another, AIR 1968 MYSORE 288, it is observed as follows:
"The award of arrears at the same rate as future maintenance would cause undue hardship to the person who is liable to pay maintenance and would make available to the person who is entitled to the maintainence a fund which could be collected only to the great detriment of the person liable to pay maintenance. Generally speaking, it is in the discretion of the court to award arrears of maintenance at a smaller rate and quite often, arrears of maintenance are awarded only at a rate which is half the rate at which future maintenance is awarded. "
67. In Raj Kishore MishraVv. Smt.Meena Mishra, AIR 1995 ALLAHABAD 70, it is held as follows:
"Under Section 19 one of the conditions for Father-in-Law to maintain the daughter-in-law is that the daughter-in-law is not able to maintain herself from the estate of her parents. A clear finding is necessary whether her parents have estate sufficient to maintain her and on what circumstances, she is unable to maintain herself or by her parents. For this purpose parents of plaintiff arc required to be heard. This is possible if they are made parties to the suit. In their absence any finding will not bind them. Where, from the estate of the parents, the daughter-in-law can maintain herself, question of obligation of Father-in-Law does not arise. An order issuing direction to Father-in-Law to pay maintenance to the daughter-in-law without considering these aspects is without jurisdiction."
68. In Sm.Parul Bala Dassi V. Bangshidhar Nandi and another, AIR 1971 CALCUTTA 270, it is observed as follows:
"No doubt the moral obligation of Father-in-Law to maintain his widowed daughter-in-law ripened into a legal obligation into the hands of the heirs of such property. This legal obligation of heirs has been codified in S.22(1) and if conditions specified in Section 28 are satisfied an alienee from such heir is bound by the transferor's obligation to maintain. But Section 28 does not apply where his separate property was transferred by the Father-in-Law himself. The reason is, not being bound by any legal obligation he was free to alienate his property and confer absolute title to the transferee free from any obligation to maintain. The words 'such estate ......... is transferred' must be interpreted to refer to transfer by deceased owner himself and the liability of heir could not be imposed on a transferee from Father-in-Law himself. Under the pre-statute law such a widow had no rights even against a transferee from her husband himself. Her position could not be better against an alienee from her Father-in-Law and there is nothing in the Act also to suggest that her position has improved under the Act."
69. In Gurdip Kaur V. Ghamand Singh Dewa Singh, AIR 1965 PUNJAB 238 (FULL BENCH), it is held thus:
Per majority:- (Mehar Singh J. dissenting) The term co-parcenary property occurring in section 19(2) of the Hindu Adoptions and Maintenance Act, 1956, means the property which consists of ancestral property, or joint acquisitions, or property thrown into the common stock and accretions to such property.
Per Mehar Singh, J:- The expression 'co-parcenary property' in sub-section (2) of section 19 of the Act has the meaning and scope as that expression is used in Mitakshara and it only extends to 'ancestral property', which is co-parcenary property on account of its being ancestral according to the Mitakshara, and it does not apply to 'ancestral property' as the expression is understood in Punjab Customary Law, rules of which govern the parties to the case in regard to nature and character of immovable property or land. AIR 1961 Punj 391 and AIR 1964 Punj 393 Ref to.
70. As far as the present case is concerned, the 1st Respondent/ 1st Plaintiff's husband viz., Panchatcharam has expired 31. 12. 1975. On the death of her husband, the 1st Respondent/1st Plaintiff is entitled to claim a share in the joint family properties comprising of her Father-in-Law viz., 1st Defendant, Mother-in-Law viz., 2nd Defendant and the 3rd Defendant, brother-in-law. On the death of her husband, the 1st Respondent/1st Plaintiff becomes one of the sharers along with other heirs and she gets her right to get the share in the joint family properties. In the instant case on hand, even though Panchatcharam [Teacher] viz., the husband of the 1st Respondent/1st Plaintiff has expired on 31. 12. 1975, the 1st Respondent/1st Plaintiff has kept quite for nearly 14 years and only later she has filed the suit for maintenance in O.S.No.345 of 1990 against Father-in-Law, Mother-in-Law and brother-in-law. When the 1st Respondent/1st Plaintiff is entitled to get a share consequent upon the death of the husband Panchatcharam on 31. 12. 1975, then, she is not entitled to claim maintenance against the Appellants/Defendants.
71. As per Section 6 of the Hindu Succession Act, after the death of a coparcener, his undivided interest, is taken by his heirs under Section 6 as tenants-in-common. In Commissioner of Income Tax V. Mulchand Sukmal Jain (1993) 200 ITR 528 (Gau), it is held that 'where a person died after this Act leaving his wife and son, it was held that the undivided share passed by succession and not by survivorship.' Although some of the heirs may continue to be the joint family, the karta of the family cannot exercise his powers as karta, in respect of the interest of the deceased coparcener which had devolved on his heirs as per decision Govinda Reddy V. Obulamma, AIR 1971 AP 363 FB and as per decision in Veerasekhara V. Amruta Valliammal AIR 1975 Madras 51.
72. Under the Hindu Women's Rights to Property Act, 1937 if the husband dies as a coparcener, then his widow takes the property as a limited owner. The widow is not a coparcener though she possesses a right similar to coparcenary interest in the property; and is a member of the joint family by virtue of the rights showered under the 1937 Act. After the commencement of the Hindu Succession Act, 1956, the widow becomes an absolute owner under Section 14 with a fresh stock of descent under sections 15 and 16 of the Hindu Succession Act.
73. At this stage, this Court aptly points out the decision in Tukaran Dhondiba Padatare V. Savithri 1 (2002) DMC 396 (Kar), when the widow has been aged 12 years, being below the prescribed age at the time of her marriage, her marriage has been held valid and she is held entitled to inherit her husband's entire property as Class I heir as per Section 6 of the Act.
74. In Bhaiya Ramanuj V. Lalu Maheshanuj, AIR 1981 SC 1937, it is held by the Hon'ble Supreme Court that by reason of Section 6 of the Bihar Land Reforms Act, 1950, the land will be deemed to be settled with all the coparceners and they shall all become ryots, that where there has been no partition between the coparceners, after the death of the coparcerner his interest devolves on the other coparceners as per Section 6 of the Hindu Succession Act.
75. In Appaih V. Special Tahsildar, 1988 (1) ALT 289 (FB), it is held by a majority that a wife in South India has no right to claim a share in joint family property during the lifetime of her husband. Such a right has been conferred on her for the first time after the death of her husband under the Hindu Women's Rights to Property Act, 1937. However, that Act was repealed by the Hindu Succession Act. Hence, if the death of the husband takes place after the Hindu Succession Act, she is entitled to a share as an heir under Section 8 read with Schedule I.
76. If a coparcener dies leaving behind any family relative specified in Class I of the Schedule to the Act or male relative specified in that Class claiming through female relative, his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession.
77. In fact, Explanation 1 to Section 6 of the Hindu Succession Act, 1956 provides a mechanism in and by which the undivided interest of a deceased coparcener can be ascertained and viz., that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. It means for the purpose of finding out the undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenery property which he would have got in notional partition.
78. As per tenor of Section 8 of the Act, the same must be construed in the context of Section 6 of the Hindu Succession Act, 1956. As per Section 8 of the Act, the property devolves on heirs, male or female absolutely. The term 'Widow' as per Hindu Succession Act clearly means and implies a female who has been united in marriage recognised by law and who survives the husband without remarriage.
79. In regard to the plea of the Appellants/Defendants that the mother of the deceased Panchatcharam upon his death is entitled to get the terminal benefits as a sharer, this Court points out that right to receive terminal benefits are all independent rights of the Respondents /Plaintiffs and as such, the contra plea taken by the Appellants in this regard is not accepted by this Court.
80. In view of the fact on the date of death of Panchatcharam, the 1st Respondent/1st Plaintiff, being the wife and the 2nd Respondent/ 2nd Plaintiff are entitled to get a substantial share in the joint family property because of the simple fact they become one of the sharers like any other sharers and as such, they are not entitled to seek the relief of maintenance. All the more, when they are entitled to get shares immediately on the death of Panchatcharam on 31. 12. 1975, then, Respondents/Plaintiffs ought to have filed a suit for partition. Therefore, the maintenance suit O.S.No.345 of 1990 filed by the Respondents/Plaintiffs against the Appellants/Defendants is not maintainable in law and as such, the decree passed in O.S.No.345 of 1990 and A.S.No.61 of 1992 are only void decrees, in the considered opinion of this Court. Both the Courts below have incorrectly held that the Respondents/Plaintiffs are entitled to claim maintenance against the Appellants/Defendants. Viewed in that perspective, the Judgment and Decree passed in O.S.No.345 of 1990 by the trial Court towards maintenance etc. in favour of the Respondents/Plaintiffs and further, the Judgment and Decree dated23. 08. 1994 in A.S.No.61 of 1992 passed by the First Appellate Court in affirming the Judgment and Decree of the trial Court in O.S.No.345 of 1990 are clearly unsustainable in the eye of law because of the fact that as per Sections 6 and 8 of the Hindu Succession Act, there has been a devolution of interest in coparcenary property, a notional partition takes place immediately on the demise of the 1st Respondent/1st Plaintiff's husband Panchatcharam on 31. 12. 1975. Indeed, the maintenance right/claim will be available to the Respondents/Plaintiffs only when they are not entitled to any share in the joint family properties, as opined by this Court. But, in the instant case on hand, the Respondents/Plaintiffs are entitled to get shares in the joint family properties in accordance with Hindu Law. Therefore, invoking the ingredients of Section 19 of the Hindu Adoptions and Maintenance Act, 1956 is not correct, in the considered opinion of this Court. Accordingly, the Substantial Question of Law is so answered in favour of the Appellants.
81. In the result, the Second Appeal is allowed, leaving the parties to bear their own costs. The Judgment and Decree of the trial Court dated 31. 03. 1992 in O.S.No.345 of 1990 as well as the Judgment and Decree of the First Appellate Court in A.S.No.61 of 1992 dated 23. 08. 1994 are set aside by this Court for the reasons assigned in this Appeal. It is held by this Court that O.S.No.345 of 1990 filed by the Respondents/Plaintiffs against the Appellants/Defendants is not maintainable in law.