JANARDHAN HARBAJI PATIL Vs. SANABAI W/O. SADASHIV

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings. Mt. Pisabai, the mother of the respondent, Mt. Sonabai, had obtained a decree for maintenance against the appellants on 7th August 1915 under which they were liable to pay Rs. 150 per annum to her for her maintenance. Mt. Pisabai applied for execution of that decree and claimed some amount to recover which eight annas village share belonging to the judgment-debtors was attached and the decree was sent to the Collector for execution. Pending these proceedings, Mt. Pisabai died on 6th September 1989 and the respondent, her daughter, applied on 22nd September 1939 for substitution of her name in place of her deceased mother. Her application was opposed by the judgment-debtors on the ground that arrears of maintenance did not constitute stridhan which could devolve on the daughter but that they were an accretion to the family estate out of which the maintenance was provided. The issue which arose for consideration was whether the arrears of maintenance which Mt. Pisabai was entitled to recover constituted her stridhan and could be claimed by her daughter in the capacity of her heir. The lower Court held that the arrears of maintenance constituted the stridhan of Mt. Pisabai and that the respondent was entitled to recover them as her heir and legal representative.

(2.) THE correctness of the view taken by the lower Court is contested by the appellants on the strength of the decisions reported in Sarat Chandra v. Charusila Dasi and Mohini Mohan v. Rashbehari . In the first mentioned case the question was whether the widow who was in possession of her husband's property was entitled to dispose of by will certain arrears of rent which were due from the lessee of her husband's property. Page, J. after an elaborate discussion of the nature and extent of the right of a widow to the income of her husband's property in her hands, came to the conclusion that since the widow had the right merely to enjoy the usufruct Of her husband's property during the subsistence of her widow's estate she lost the power to dispose of it as soon as she ceased to possess the capacity to enjoy the income. The rule propounded by the learned Judge was that a Hindu widow is incompetent to dispose by will of the income derived from her husband's estate whether such income had been received by her during her lifetime or had accrued due to her at the time of her death. Whether one agrees with that view or not, this case cannot lend any assistance to the appellants for the obvious reason that there the issue was whether a widow could by her will transfer her right to the income of her husband's estate which she was entitled to enjoy only during her lifetime and to which she had no right except in so far as she represented her husband's estate and that is not the issue in the present case.

(3.) THE money which a female is entitled to receive for her maintenance becomes her absolute property, because she obtains it in recognition of her personal right. In Subramanian Chetti v. Arunachelam Chetti (05) 28 Mad. 1, the question was whether certain property which was purchased by a Hindu widow with the money received by her under a decree for her maintenance was her stridhan and it was held that inasmuch as the widow had the right to get maintenance out of the income of the family property not for mere use and return but for actual consumption there could be no possibility of its reverting to the family estate as if she had been in possession of her husband's estate in her right as a widow. Manilal Dewadat v. Bai Rewa (93) 17 Bom. 758 is an authority which is on all fours with the present case. In that case a Hindu wife had obtained a decree against her husband for maintenance. The husband appealed and pending the appeal the wife died leaving two daughters and the question arose whether her husband or her daughters were her legal representatives. It was held that the daughters were the legal representatives and not the husband. That was on the principle that the arrears of maintenance to which a wife becomes entitled under a decree which she obtained against her husband became her absolute property as stridhan.