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Raghunath Ambaidas Shet Chitode Vs. Dwarkabai Jagannath Shet Chitode - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 448 of 1939
Judge
Reported in(1941)43BOMLR772
AppellantRaghunath Ambaidas Shet Chitode
RespondentDwarkabai Jagannath Shet Chitode
DispositionAppeal dismissed
Excerpt:
.....attaches to property in which her husband has interest--liability of person in possession of such property--suit brought against coparcener for arrears of maintenance after husband's death--right of widow for maintenance not similar to right of creditor.;under the hindu law the right of a wife or a widow for maintenance against the husband as well as the members of her husband's joint family is not the same as the right of a mere creditor against the estate arising out of contract, but is a right which attaches to her status as a member of the joint undivided family. in the case of a widow this right attaches to the undivided share in the property which her husband would have got by partition if he had been alive and she is entitled to follow the property in the hands of the coparcener..........claim is confined to this period and does not extend to her future maintenance out of the joint family property. the defendant is her husband's brother who has taken the whole of the family property by survivorship. the plaintiff' was met with the plea that she was not driven out of the house but she went away of her own accord, that she was maintained all along by her father and that the defendant was not, therefore, liable for the maintenance claimed by her. it was also contended that the claim, which was restricted to arrears of maintenance during her husband's lifetime and for one year after his death, cannot be enforced against the defendant who has taken the property in his independent right as a surviving coparcener.2. both the lower courts have granted the plaintiff's claim to.....
Judgment:

Divatia, J.

1. This appeal arises in a suit by the plaintiff to recover Rs. 4,000 by way of arrears of maintenance from the joint family estate in which her deceased husband had a half share. The plaintiff is the widow of one Jagannath who died in the year 1934. Her marriage took place in 1924, but two years thereafter she had to leave her husband's house on account of excessive cruelty and ill-treatment by her husband and mother-in-law. Thereafter she remained in her father's house and in 1935, after the death of her husband, she brought the present suit to recover the arrears of her maintenance at the rate of Rs. 500 per year from 1926 up to the date of the suit in September, 1935. The claim is confined to this period and does not extend to her future maintenance out of the joint family property. The defendant is her husband's brother who has taken the whole of the family property by survivorship. The plaintiff' was met with the plea that she was not driven out of the house but she went away of her own accord, that she was maintained all along by her father and that the defendant was not, therefore, liable for the maintenance claimed by her. It was also contended that the claim, which was restricted to arrears of maintenance during her husband's lifetime and for one year after his death, cannot be enforced against the defendant who has taken the property in his independent right as a surviving coparcener.

2. Both the lower Courts have granted the plaintiff's claim to the extent of Rs. 300 per year, and have decreed the amount of Rs. 2,700 for the arrears of maintenance for nine years. The finding of the lower appellate Court is that the plaintiff was exceedingly ill-treated, that she wag put in fear of her life, and that notwithstanding her submission to these cruelties, she was driven out of her husband's home for no fault of hers. It was also found on the evidence that the income of the joint family property was between Rs. 4,000 and Rs. 5,000 a year during1 the period in dispute, and the defendant as a surviving coparcener was now in possession of the whole of the family income. There was another widow of Jagannath as well as his mother who were also entitled to maintenance out of the joint family estate, and taking that fact into consideration the lower Courts have allowed the plaintiff Rs. 300 per annum.

3. The defendant now appeals against that decree, and the principal point urged on his behalf is that he as a surviving coparcener is not bound to pay any amount for arrears of maintenance. The contention is that whatever may be the defendant's liability for the future maintenance of the plaintiff which is not claimed in the present suit, there is no liability for arrears inasmuch as it was only a personal claim against Jagannath for which the latter might have been liable if? the suit was brought during his lifetime, but that cause of action does not survive on his death with the result that the property which the defendant gets by survivorship is not in any way responsible for the plaintiff's claim. It is also contended that if the arrears of maintenance are to be regarded as analogous to a debt due by the husband to the plaintiff, the defendant is not liable after the husband's death unless the husband's, share had been attached during his lifetime in a suit by the plaintiff as a creditor.

4. The latter argument may be disposed of first. It is clear that under the Hindu law the right of a wife or a widow for maintenance against the husband as well as the members of her husband's joint family is not the right of a mere creditor against the estate arising out of a contract, but is a right which attaches to her status as a member of the joint undivided Hindu family. It is a cardinal principle of Hindu law that although she is not a coparcener taking interest by birth, she is a member of the joint family and continues as such even after her husband's death. Uptil the passing of the recent Act of 1937, by which the right to a share was given to her after her husband's death, she had a right during as well as after her husband's lifetime of demanding maintenance as well as residence from the property, whether it is undivided or divided, belonging to her husband. It has been laid down in a number of decisions that this right of a widow attaches to the undivided share in the property which her husband would have got by partition if he had been alive. As I have recently observed in the case of Secretary of State v. Ahalyabai (1937) 40 Bom. L.R. 422. this right of maintenance attaches to the property itself which is taken by the surviving coparcener, and it has been treated as a burden on inheritance with the result that the widow is entitled to follow such property in the hands of the coparcener taking it. This proposition is conceded by Mr. Desai on behalf of the appellant in so far as her right to future maintenance is concerned. But I am of the opinion that it also applies to the arrears of maintenance accrued due, because if the property belonging to the husband is liable for her maintenance, it must be liable as much for arrears as for future maintenance. It is true that the amount as well as the period for which arrears are to be decreed will depend upon the exigencies of the widow and the facts of each particular case, but the right to demand the arrears does exist whether against the husband or against the surviving, coparcener or any person who has inherited even the separate property of her husband. That being so, the rule that a creditor cannot follow the property in the hands of a surviving coparcener unless it has been previously attached during the lifetime of the deceased coparcener, cannot apply to the case of a Hindu widow both for arrears of maintenance as well as for future maintenance.

5. The next point is whether a claim for arrears, which have accrued due during the lifetime of the husband, is such a personal claim as would die with his death. In Ramabai wife of Bhikaji Bhaskar v. Trimbak Ganesh Desai (1872) 9 B.H.C.R. 283. our High Court allowed a claim for maintenance in favour of a wife, who had been deserted by her husband, as against the manager of a joint family although the husband was alive. It was held that the husband had gone away out of the family and his share in the property remained in possession of the manager of the joint family. The manager was therefore liable for the wife's claim for maintenance on the principle of Hindu law that the undivided share of the husband in the family property is liable for the wife's claim for maintenance. Here, the husband is now dead and the cause of action against the husband for arrears of maintenance for eight years no doubt arose during his lifetime. But was the widow bound to sue during his lifetime? If the widow is entitled to sue for arrears of maintenance, it would not matter whether the arrears claimed accrued during her husband's lifetime or thereafter so long as there is property against which they can be enforced. It would follow from the principle that the husband's property was always liable, that even for arrears of maintenance the surviving coparcener would be liable if he is in possession of the husband's share.

6. There is at least one decision, though not in the authorised series of reports, which applies to the facts of the present case. That is a decision of the Madras High Court in Lakshmi Devi Amma v. Naganna [1925] A.I.R. Mad 757. There maintenance was claimed by the wife of a Zamindar who had abandoned her after having treated her with habitual cruelty. She lived away from him for nearly twenty-three years and then sued him for arrears of maintenance for twelve years preceding the suit. The husband died during the pendency of the suit and his two sons were brought on the record in his place in the suit. The claim for arrears of maintenance for twelve years was decreed against the sons on the ground that the death of the husband pending the suit did not deprive her of her rights of maintenance and that she could enforce the rights against the husband's heirs at law. The decision is based on two grounds, firstly, that the obligation of a husband to maintain his wife is one arising not out of contract but out of the status of marriage, that is a liability created by the Hindu law and that it could be enforced against the property belonging to the husband in the hands of the surviving coparcener as well as the heir, Secondly, the general rule of a personal action dying with the person does not apply to the right of a Hindu wife against her husband for maintenance, that there was an obligation arising out of status, that under the Hindu law although the wife of a coparcener may not be entitled to a share in the estate of the family or to enforce a partition, there was no doubt as to her being entitled to maintenance from the joint family estate, that on the death of the husband the true legal representatives in the action would be the surviving coparceners of the family, or the personal legal representatives of the deceased husband, and that the arrears of maintenance due and payable to a wife by her husband could also be held to be a debt within the meaning of the Hindu law, which has regard only to undischarged obligations and to which the distinction between debts and damages was foreign.

7. With respect I entirely agree with the reasons given by the learned Judges in that decision. The only difference between that case and the present is that here the suit is brought one year after the death of the husband, while there the suit was filed against the husband and he died during the pendency of the suit. But the point involved is the same, namely, whether the claim for arrears accrued due during the lifetime of the husband is a personal cause of action or whether it is one against the property in the hands of either the heir or the surviving coparcener. It is no doubt true that the husband's liability to maintain his wife is personal in its nature. That does not, however, mean that the liability is only of the nature of a personal obligation, and therefore affords only a personal cause of action. It is also a liability which attaches to property. What is meant by personal liability of the husband is that it could be enforced not only against the property belonging to the husband, but in absence of such property also against the person of the husband by his arrest and detention in prison. It has been held that though the future maintenance cannot be assigned, arrears of maintenance can be assigned by a widow. That is to say, it has been regarded as a debt which could be transferred, and it is so because it is a: debt which can be enforced against any person. If the husband had been sued during his lifetime, he would clearly have had no answer to the wife's claim, and there is no reason why the surviving coparcener, whose share in the estate is enlarged by the husband's death, should not be bound to pay not only future maintenance but also arrears of maintenance accrued due during the husband's lifetime, if the right of maintenance is founded upon the property of her husband and is not merely a personal obligation.

8. Mr. Desai sought to make a distinction between an heir and a surviving coparcener but no such distinction could be recognised with regard to the claim of a widow for maintenance which is founded not upon the nature of the succession but upon possession of the property belonging to the husband. The principle is that whoever has got the property is liable for the widow's maintenance. If the heir is liable, much more would the surviving coparcener be liable inasmuch as he was a member of the joint family along with the deceased, and, therefore, liable to maintain his widow who is also a member of the joint family.

9. I think, therefore, both the lower Courts were right in holding that the defendant was liable for the plaintiff's claim for arrears.

10. The other contentions are with regard to the amount as well as the period. So far as the period of maintenance is concerned, the recent decision of the Privy Council in Ekradeshwari Bahuasin v. Homeshwar Singh (1929) L.R. 56 I. A. 182, is a clear authority for the proposition that a widow is entitled to maintenance as well as arrears thereof from the date of her leaving her husband's residence, although she does not prove that she had incurred debts in maintaining herself.

11. Then with regard to the amount, both the lower Courts have held that Rs. 300 per year would be a reasonable amount. Looking to the income of the family, which is about Rs. 4,000 to Rs. 5,000 per year, I do not think that I would be justified in interfering with the discretion which the lower Courts have exercised on the facts in granting Rs. 300 per year for arrears of maintenance.

12. It is unfortunate that the widow did not pray for future maintenance in this suit which is confined only to the arrears. However, I am told that a separate suit has been filed by her for future maintenance. This suit being confined to arrears, there is no question of making any distinction between future maintenance and arrears, and the lower Courts were, therefore, justified in viewing the evidence only from the standpoint as to whether the widow was entitled to arrears and if so, how much.

13. The decree of the lower appellate Court is, therefore, confirmed and the appeal is dismissed with costs.


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