(1) During the pendency of the investigation of pauperism of the petitioner herein the respondents have applied to this Court for rejection of the application of the petitioner to sue as a pauper under Order 33 Rule 5 of the Code of Civil Procedure on the ground that the plaint does not disclose any cause of action. For the purpose of this application it must be assumed and I am assuming that the allegations contained in the plaint are correct.
(2) The Petitioner claims to be an illegitimate daughter of one Mafatlal Gagalbhai (hereinafter referred to as the said deceased). The petitioner has alleged that her mother Sushilabai was concubine and Avaruddha Stree of the said deceased during his life time. The said deceased died intestate on the 19th day of July 1964, living behind him surviving his two sons, named Navinchandra and Bhagubhai, as his heirs and next-of-kin according to Hindu Law. The said Navinchandra and Bhagubhai have died, and Respondents Nos. 1 to 3 are the sons of the said Navinchandra and Respondent No. 4 is son of the said Bhagubhai. The petitioner alleges that she is unmarried, and as such illegitimate unmarried daughter of the said deceased, is entitled to maintenance out of the estate left by the said deceased. The petitioner also claims to be entitled to have a suitable provision made against the estate of the said deceased for her marriage expenses. The petitioner accordingly seeks to recover from the estate of the said deceased Mafatlal in the hands of the respondents, arrears of maintenance and future maintenance till she is married and for suitable provision made for her marriage expenses.
(3) The question that falls for my determination is 'Do the aforesaid facts disclose any cause of action?' In other words, will the Court grant any relief to the petitioner on the aforesaid facts being ultimately established before the Court? The consideration of this question depends upon the construction of the provisions contained in Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the said Act).
(4) In order to sustain her claim, the petitioner has to rely upon the provisions contained in Section 22 of the said Act, which came into force on the 21st of December 1956. Prior to the coming into operation of the said Act an illegitimate daughter of a Hindu was not entitled to claim any maintenance against such Hindu or against his or her estate. It is only by virtue of the provisions contained in the above Act that the illegitimate daughter of a Hindu has for the first time acquired the right to claim maintenance from such Hindu during his or her life time and on his or her death against the estate of such deceased Hindu. Section 29 of the said Act casts an obligation on a Hindu to maintain his or her legitimate or illegitimate children and that section confers corresponding right on such legitimate or illegitimate children to claim maintenance from their father or mother. An illegitimate daughter is one of the 'dependants' enumerated under Section 21 of the said Act. Section 22 of the Act provides for maintenance of dependants enumerated in Section 21 of the said Act. Section 22 (1)and (2) are relevant and the same read as under:
(1) 'Subject to the provisions of sub-section (2) the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased.'
(2) 'Where a dependant has not obtained by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate.'
(5) It cannot be, and has not been disputed before me that the rights created under Sections 20 and 22 are only prospective and not retrospective. It is also well settled principle of law that the statute should not, as far as possible, be interpreted so as to divest the estate already vested. Keeping in view the above principles, can the Court say that any right is created in favour of the 'dependent' to claim maintenance against the estate of the deceased, dying prior to the commencement of the said Act? in my opinion, the answer to the above question must be in the negative.
(6) On interpretation of Section 22 of the Act, the opening words of sub-section (1) of Section 22, namely 'subject to the provisions of sub-section (2)', clearly indicate that the provisions contained in sub-section (1) are controlled by sub-section (2). On a proper interpretation of sub-sections (1) and (2) of Section 22 of the said Act, a dependant, who has not obtained any share in the estate of the deceased dying after the commencement of the said Act is entitled to claim maintenance against the estate of the deceased dying after the commencement of the said Act. Reading sub-section (1) and sub-section (2) of Section 22 of the said Act together in my opinion, an illegitimate daughter is not entitled to claim maintenance against the estate of the deceased, dying prior to the coming into operation of the said Act. Under the circumstances, the petitioner, who has founded her claim for maintenance by virtue of the provisions contained in Section 22 of the said Act, is not entitled to claim maintenance from the estate of the said deceased, who admittedly died prior to the coming into operation of the said Act. Under the circumstances, I am of the view that the plaint filed by the petitioner does not disclose any cause of action whatsoever.
(7) The view which I have taken finds support from the decision of the Mysore High Court reported in Muktabai v. Kamlakshi, AIR 1960 Mys 182. The question that has arisen before me was canvassed in that case and the Mysore High Court after considering the relevant provisions of Section 22 of the said Act came to the conclusion that the estate out of which the defendant is to be maintained and to which Section 22 refers is the estate of a person who dies after the commencement of the said Act.
(8) Mr. Samant, appearing on behalf of the petitioner, has, however, relied upon the decision of the Punjab High Court reported in Gulzarsingh Natasingh v. Smt. Tejkaur, . I have carefully gone through that judgment and after considering the same, I am of the view that the Punjab case has no bearing whatever on the subject under consideration before me. The question posed before me was neither canvassed nor decided by the Punjab High Court. In that case the only question that appears to have been canvassed was whether a person acquiring the estate of the deceased by virtue of a will can be termed as an 'heir' within the meaning of Section 22 of the said Act. In my opinion, the decision on that question has no relevance whatsoever to the question raised before me.
(9) As the plaint does not disclose any cause of action, the application of the petitioner to sue as a pauper is liable to be dismissed under the provisions of Order 33 Rule 5 of the Code of Civil Procedure. The result is that the petition presented by the petitioner to file the suit in forma pauperis is hereby dismissed. Having regard to the nature of the case, I make an order as to costs.
(10) Petition dismissed.