P SURYANARAYANA RAO NAIDU Vs. PBALASUBRAMANIA MUDALI

JUDGEMENT

(1.) The plaintiff is the appellant. He purchased in court auction sale the plaint house in execution of a decree passed against defendants 2, 3 and 4. The defendants 3 and 4 had no rights in the property and we may take it that the plaintiff purchased the right, title and interest of the 2nd defendant in the house. The house belonged to the 2nd defendant s husband Ekambara Mudali and then to Ekambara Mudali s only son who died a minor. On her minor son s death the 2nd defendant as his heir became the qualified female owner of the house. The minor left his two sisters, defendants 6 and 7, unmarried. The money decreed against the 2nd defendant was passed for a personal debt of the 2nd defendant, the mother and the next heir of the last male owner. The plaintiff, purchaser in Court auction, obtained delivery of the downstairs portion, but the upstairs portion of the house now in dispute was occupied by the defendants 6 and 7, the two unmarried sisters of the last male-owner, and they refused to vacate as they claimed a right under the Hindu law to reside in the house which belonged to their father and their brother till their (the said defendants ) respective marriages. Hence the suit brought to eject them on the ground that they had no such rights under the Hindu Law.

(2.) The learned City Civil Judge decided this interesting question of Hindu Law against the plaintiff and in favour of the defendants 6 and 7 and dismissed the suit Hence this appeal.

(3.) So far as the widows of undivided co-parceners are concerned (including a widowed mother), the authorities are very clear that a private sale by the surviving male co-parcener which was not for family necessity or an execution sale held for a decree debt which did not arise out of family necessity would not entitle the purchaser to oust such widows as the latter were entitled to reside in the ancestral family house till at any rate, other adequate provision is made for their residence. The question of unmarried girls who were not related to the surviving male co-parcener as direct descendants from him but as sisters or cousins (that is, as daughters of deceased undivided co-parceners) seems not to have formed the direct subject of any reported decision. In the case of the wife of the surviving co- parcener, it has been held in the Jayanti Subbiah v. Alamelu Mangamma (1902) I.L.R. 27 Mad. 45 that the wife cannot set up any right of residence against the purchaser in execution for her husband s debts. I shall presently consider the ratio of that decision. But before leaving this part of the subject, I would finally remark that the general question was elaborately considered by Sir Barnes Peacock, C.J., (with whose judgment Mitter, J., concurred) in Mungala Dabee v. Dinanathbose (1869) 12 Weekly Reporter, A.O.J. 35. The very general language of the learned Chief Justice s dictum is to the effect that the father s widow and "the other females of the family who are entitled to maintenance out of the dwelling selected by the father for his own residence and in which he left the females of the family at his death cannot be turned out of that residence at least until some other place has been provided for them." If this general dictum applies, the unmarried daughters of the father being also "females of the family entitled to maintenance " and residence can resist being turned out of the dwelling selected by their father for his own and their residence. No doubt there is a distinction between the widows of co-parceners and the father s widow on the one side and unmarried females on the other side because the former are entitled to maintenance and residence till death or re-marriage, whereas unmarried females are entitled to maintenance and residence only until their marriage. But as the learned City Civil Judge points out, the difference in the length of the period and in the circumstances when the right of maintenance and residence ceases cannot affect, on principle, the right to resist the eviction from the family dwelling house so long as the right of maintenance and residence subsists.