CHUNILAL PITAMBERDAS MEHTA Vs. BAI SARASWATI MANILAL PITAMBERDAS

JUDGEMENT

(1.) THIS appeal arises out of a suit for maintenance filed by a widow named Bai Saraswati against the brother of her deceased husband Manilal, who died on July 20, 1911, in jointness with the defendant. She claimed allowance at the monthly rate of Rs. 22 and a large amount for past arrears of maintenance. Pitamber, the father of the plaintiff's husband and the defendant, died in 1912. At that date the defendant was in possession of various joint family properties, viz. a house at Ahmedabad, two houses at a place called Bhuvaldi, two fields at Bhuvaldi, and an amount of over Rs. 2,000 realised on a life policy of the plaintiff's husband plus a small amount in the Postal Savings Bank standing in the latter's name.

(2.) THE defence was that Bhaishanker, the divided brother of Pitamber, had provided for the plaintiff's maintenance under his will, under which for three years, viz. 1933 to 1936, an amount of Rs. 15 per month had been paid to her. THE property inherited by the defendant was disposed of between the years 1915 and 1929, and it was alleged that the insurance amount had been utilized in founding a public reading room and a library in the name of the plaintiff's husband, an allegation which the appellate Judge has held not proved:. THE trial Court allowed the plaintiff maintenance at the rate of Rs. 12 per month from the date of the' suit and only Rs. 38, as arrears of maintenance as she had not made any demand for such arrears for more than twenty years after her husband's death. THE Court's order added that the defendant's liability to pay the above amounts was not personal but limited to the family properties in his hands, so that if he failed to pay the above amounts the plaintiff would not be entitled to execute the decree against him personally but against the family properties in his hands. On appeal, the amount of maintenance was raised to Rs. 18 per month and the arrears to Rs.57. But the appellate Court deleted the clause relating to the liability of the coparcenary or the joint family property in the hands of the respondent and substituted therefor : "THE defendant is personally liable to pay the above stated amounts to the appellant." It is mainly against this part of the appellate Court's order that the present appeal is directed.

(3.) THE first question, therefore, that arises is whether the mere fact that the defendant has disposed of the family property discharges his obligation to maintain the widow in his family, i.e. the plaintiff. Mr. Thakor has relied on Mulla's Hindu Law, 9th edition, pp. 581-82 and 600, paragraphs 541 to 544 and 569, in support of his contention that as there was no asset or property belonging to the joint family at the date of the institution of the suit, the defendant was in no way liable to maintain the plaintiff. Mulla's summary of the law relating to the maintenance of widows in a joint family comes to this. THE liability of a Hindu to maintain others arises in some, cases from the mere relationship between the parties, independently of the possession of any property, and in other cases, it depends on the possession of property. THE first kind of liability is placed only on the father, the husband and the' son, and the latter kind devolves on the manager of a joint Mitakshara family, and also on the heir to whom the family estate has descended. Such heir is bound 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 reason being that the estate is inherited subject to the obligation to provide for such maintenance. THE last sentence of the above summary is taken from an old Bengal case, Khetramani Dasi v. Kashinath Das (1868) 2 Beng. L.R., A.C., 15,34. THE principles summarised at p. 600 of Mulla's Hindu Law relate to the claim of a widow for maintenance where there is no charge on the estate of her deceased husband, and it is stated : THE widow's right is liable to be defeated by a transfer of the husband's property to a bona fide purchaser for value without notice of the widow's claim for maintenance. It is also liable to be defeated by a transfer to a purchaser for value even with notice of the claim, unless the transfer was made with the intention of defeating the widow's right and the purchaser had notice of such intention. In fact, a widow's right to receive maintenance is one of an indefinite character which, unless made a charge upon the property, is enforceable only like any other liability in respect of which no charge exists.