OLAGAYEE Vs. PICHAMMAL ALIAS AVADAI AMMAL

JUDGEMENT

(1.) THE finding now is that the other house referred to by the Subordinate Judge is not a dwelling house. It is therefore contended that the 1st defendant, the senior wife, has a right of residence in the family house, and the gift in favour of the plaintiff, the junior wife, must be subject to such right. THE learned vakil for the appellant admits that there is no decision of any High Court which has recognised the right of a Hindu wife to residence in the particular house in which she and her husband have been living, so as to preclude the husband from alienating the house, even if he is in a position and willing to provide suitable residence for her in some other house. THE decided cases have only recognised the right of widows of co- parceners to right of residence in the family dwelling house, and, as for the wife of a Hindu, she is undoubtedly entitled as against her husband to be provided with suitable residence. It has also been held that the husband cannot alienate all his property so as to defeat the right of maintenance of his wife, and the right of maintenance of Hindu females generally has been held to be in the nature of a real right - Ramanadan v. Rangammal (1888) I.L.R. 12 M. 260. But the courts have never gone so far as to hold that a Hindu wife has during her husband s life-time a right to reside in the family house like the widows of deceased co-parceners. We have been referred to a text of Katyayana cited in in Ramanadan v. Rangammal (1888) I.L.R. 12 M. 260 which is to this effect : "Except his whole estate and his dwelling house, what remains after the food and clothing of his family, a man may give away, whatever it be, whether moveable or immoveable; otherwise it may not be given." It is obvious that the words of the text cannot be taken literally, for if it were so, a Hindu would never be able to alienate his dwelling house, even if he had no wife to claim residence, nor would he be able to sell articles of clothing, etc. We do not, therefore, feel ourselves called upon, on the authority of this text, to impose limitations on a Hindu s rights of disposition over his dwelling house other than those already recognized by the courts.

(2.) THE second appeal is dismissed with costs.