MAKTULIA Vs. BACHAU

JUDGEMENT

(1.) THIS is a defendant's second appeal in a suit for maintenance. Of the three defendant-appellants the first two are the step sons of the plaintiff-respondent while the third appellant is her own son, born of her marriage with Kattu. That was her second marriage. She was earlier married to one Munni Lal from whom she had a son Chhedi. Kattu was already dead when the suit was filed and the claim for maintenance was made by the plaintiff as Kattu's widow from the property inherited by the defendants from him as his sons. She herself appears to have received no share in the property. The amount claimed was Rs. 90/- per month, and the sum of Rs. 810/- was claimed by way of arrears since 1st November, 1972, on which date she alleged, she was turned out of the house after the death of Kattu which occurred on 16th November, 1960. The defence was that the plaintiff was not married to Kaftu that she was living with her son Chedi Lal and had no connection with the defendant. It was even said that Bansh Bahadur was not her son. The trial Court held that the annual income of the properties left by Kattu was not less than Rs. 12000/- that the plaintiff was married to Kattu in the Sagai form and was his widow and decreed the suit in toto for recovery of Rs. 810/- as arrears and Rs. 90/- per month as maintenance from the date of the suit. On appeal, the lower appellate Court modified the decree and reduced the amount of maintenance awarded, to Rs. 72/- per month reducing also the amount of arrears proportionately to Rs. 646/-, with the finding that the plaintiff was entitled to 1/5th of her maintenance from Chhedi her son. It may be added here that the lower appellate Court found it as a fact that of the three defendants Bansh Bahadur was the son of the plaintiff and that the plaintiff was the lawfully wedded wife and widow of Kattu. While the defendants have appealed from the decree of the lower appellate Court, the plaintiff has filed a cross objection. It was stated before me by the learned counsel for the respondent that Lhhedi son of the plaintiff-respondent had been murdered during the pendency of the appeal in this Court. THIS fact hag not been disputed by the learned counsel for the appellants. The factum or the validity of the marriage of the plaintiff with Kattu has not been questioned by the learned counsel for the appellants in this Court. What was contended, however, was that the plamtiti- respondent had no right to be maintained from the estate of Kattu so long as she lived with her son Chhedi and was being maintained by him from out of his own efforts or from property inherited by him from the plaintiff's former husband. Learned counsel for the plaintiff-respondent on the other hand urged that under sub-section (iii) of Section 20 of the Hindu Adoptions and Main tenance Act, 1956, the liability of Chhedi to maintain the plaintiff-respondent did not arise in the case at all in as much as the plaintiff-respondent was entitled to maintenance from out of the property left by her husband Kattu. Having heard learned counsel for the parties I find that the second appeal in this case must fail while the cross-objection must be allowed. The plaintiff being the widow of Kattu was his dependent within the mean ing of clause (iii) of Section 21 of the Act; and not having obtained any share in his property, she was entitled to maintenance from the defendant-appellants who had taken the whole of Kattu's estate under the provisions of Section 22 of the Act. It has been found by the trial Court that the income of the pro perty left by Kattu was Rs. 12,000/- per annum. The amount of maintenance claimed was only Rs. 90/- per month. The defendant- appellants are the three sons of Kattu. It has not been contended before me that the amount of maintenance claimed was excessive or that it could not come out of Kattu's estate. That being so the plaintiff was a person who was entitled to mainten ance from property left by Kattu. Consequently Chhedi her son was not obliged to maintain the plaintiff in as much as sub-section (iii) of Section 20 provides that the obligation of a person to maintain his or her aged or in firm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property Although it was contended by the learned counsel for the defendant-appellants that the word 'other property' is governed by his or her, and the property must be the property of the parent who claims maintenance before his or her son or daughter can be absolved from the obligation, it appears clear to me the property referred to here is property other than the earnings of the parents. The property may be the property of the parents or may be the property of another person. The plaintiff is in the position of parent of Chbedi Lal and she has a right to be maintained from the property of her deceased husband Kattu and it has not been show that, she is unable to maintain herself out of that property. Accordingly the obligation of Chhedi to maintain her does not arise under Section 20 of the Hindu Adoptions and Maintenance Act, 1956. So far as the defendant-appellant are concerned, their liability to maintain the plaintiff arose not under Section 20 but under Section 22 read with Section 21 (iii) of the Act. At this stage learned counsel for the defendant-appellants urged that the liability of the three defendant-appellants should in that event be separated inasmuch as while the first two defendant-appellants are the step sons of the plaintiff, the third defendant-appellant Bans Bahadur has been found to be her own son There would have been a case for apportionment if it would have been established during the trial that the estate of Kattu taken by them had been divided by the three sons in proportion to their share. So long as the estate of Kattu is being enjoyed by them jointly, their liability to maintain her shall be joint. If at any stage there is a partition between the three defendant-appellants of the estate of Kattu in their hands they can at the time of partition apportion the liability of maintaining the plaintiff-respondent among themselves in propor tion to the estate taken by them. No other point was pressed before me. The appeal fails and is dismissed with costs. The cross-objection is allowed with costs The judgment and decree passed by the lower appellate Court are set aside and the decree passed by the trial Court is restored. The plaintiff-respondent shall be entitled to her costs throughout. .