1. This appeal arises out of a suit for maintenance filed by a widow named Bai Saraswati against the brother of her deceased husband Manilal, who died on July 20, 1911, in jointness with the defendant. She claimed allowance at the monthly rate of Rs. 22 and a large amount for past arrears of maintenance. Pitamber, the father of the plaintiff's husband and the defendant, died in 1912. At that date the defendant was in possession of various joint family properties, viz. a house at Ahmedabad, two houses at a place called Bhuvaldi, two fields at Bhuvaldi, and an amount of over Rs. 2,000 realised on a life policy of the plaintiff's husband plus a small amount in the Postal Savings Bank standing in the latter's name.
2. The defence was that Bhaishanker, the divided brother of Pitamber, had provided for the plaintiff's maintenance under his will, under which for three years, viz. 1933 to 1936, an amount of Rs. 15 per month had been paid to her. The property inherited by the defendant was disposed of between the years 1915 and 1929, and it was alleged that the insurance amount had been utilized in founding a public reading room and a library in the name of the plaintiff's husband, an allegation which the appellate Judge has held not proved:. The trial Court allowed the plaintiff maintenance at the rate of Rs. 12 per month from the date of the' suit and only Rs. 38, as arrears of maintenance as she had not made any demand for such arrears for more than twenty years after her husband's death. The Court's order added that the defendant's liability to pay the above amounts was not personal but limited to the family properties in his hands, so that if he failed to pay the above amounts the plaintiff would not be entitled to execute the decree against him personally but against the family properties in his hands. On appeal, the amount of maintenance was raised to Rs. 18 per month and the arrears to Rs. 57. But the appellate Court deleted the clause relating to the liability of the coparcenary or the joint family property in the hands of the respondent and substituted therefor : 'The defendant is personally liable to pay the above stated amounts to the appellant.' It is mainly against this part of the appellate Court's order that the present appeal is directed.
3. Both the lower Courts have found that the defendant has not made out that there was any necessity or binding purpose for which the joint family properties inherited by the defendant have been disposed of. It is admitted that none of them existed at the date of the suit. One property, a bungalow at Madalpur, which is not mentioned in the plaint, was purchased by the defendant after Manilal's death and was sold in 1917 for Rs. 2,450. This amount was also regarded as part of the joint family assets by the Courts below, because the presumption in the circumstances of this case would be that this property was acquired for the joint family, there having been a sufficient nucleus in the joint family at that date.
4. Mr. Thakor's first contention is that as all the properties in question had been disposed of at the date of the suit, the order of the lower appellate Court that the defendant was to be personally liable for the amounts he was ordered to pay by way of maintenance was wrong. The contention is that after his father's death the defendant became the full owner of the property and had a perfect right to dispose of it in any way he liked. It is not denied that no attempt was made at the trial to show how and on what grounds, if any, it was found necessary to dispose of all those properties. The trial Court has pointed out that there was no reliable evidence about the debts which the defendant alleged to have been the cause of the disposal of at least some of the family properties, and it remarked : 'The defendant himself is unable to state anything definitely). He is unable to state the amount of debts, why and when they were incurred and when they were paid off.' Mr. Thakor has referred us to certain letters written in the year 1918 by the defendant to Bhaishanker, suggesting that the defendant was in straitened circumstances and that there was serious illness in his family; and he has suggested that these circumstances might be held sufficiently to account for the disposal of the family properties. There is, however, the fact that the defendant about the year 1918 purchased the property at Madalpur and later on sold it, and his letters in 1918 show that he was at that time in receipt of about Rs. 95 as his monthly salary.
5. The first question, therefore, that arises is whether the mere fact that the defendant has disposed of the family property discharges his obligation to maintain the widow in his family, i.e. the plaintiff. Mr. Thakor has relied on Mulla's Hindu Law, 9th edition, pp. 581-82 and 600, paragraphs 541 to 544 and 569, in support of his contention that as there was no asset or property belonging to the joint family at the date of the institution of the suit, the defendant was in no way liable to maintain the plaintiff. Mulla's summary of the law relating to the maintenance of widows in a joint family comes to this. The liability of a Hindu to maintain others arises in some, cases from the mere relationship between the parties, independently of the possession of any property, and in other cases, it depends on the possession of property. The first kind of liability is placed only on the father, the husband and the' son, and the latter kind devolves on the manager of a joint Mitakshara family, and also on the heir to whom the family estate has descended. Such heir is bound to provide, out of the estate which descends to him, maintenance for those persons whom the late proprietor was legally or morally bound to maintain, the reason being that the estate is inherited subject to the obligation to provide for such maintenance. The last sentence of the above summary is taken from an old Bengal case, Khetramani Dasi v. Kashinath Das (1868) 2 Beng. L.R. A.C. 15. The principles summarised at p. 600 of Mulla's Hindu Law relate to the claim of a widow for maintenance where there is no charge on the estate of her deceased husband, and it is stated :-
The widow's right is liable to be defeated by a transfer of the husband's property to a bona fide purchaser for value without notice of the widow's claim for maintenance. It is also liable to be defeated by a transfer to a purchaser for value even with notice of the claim, unless the transfer was made with the intention of defeating the widow's right and the purchaser had notice of such intention. In fact, a widow's right to receive maintenance is one of an indefinite character which, unless made a charge upon the property, is enforceable only like any other liability in respect of which no charge exists.
6. Mr. Thakor's case is that here the widow's right has been defeated by the transfers effected by the defendant.
7. Reference has also been made to Lakshman Ramchandra Joshi v. Satyabhamabai I.L.R. (1877) 2 Bom. 494 and Savitribai v. Luxmibai and Sadashiv Ganoba I.L.R. (1878) 2 Bom. 573. In the earlier case, which was a suit for maintenance brought by a Hindu widow, the defendant was her husband's brother, who was the sole surviving member of the family as well as against bona fide' purchasers for value. The brother had sold the family property to defendant No. 2, who had sold a part of it to defendant No. 3. West J. in a very elaborate judgment relied on an earlier decision in Srimati Bhagabati Dasi v. Kanailal Mitter (1872) 8 Beng. L.R. 225, where Phear J. had said, in a similar case of the sale of the family property by the holder thereof after the death of the widow's husband (p. 229) :-.the consideration received by the heir of the sale of the deceased's property will, so far as the widow's right of recourse to it is concerned, take the place of the property sold.
West J. further remarked (p. 519) :-
It will take its place so long as it remains undissipated; but as 'the Hindu wife, upon her marriage, passes into and becomes a member of (her husband's) family, it is upon that family that, as a widow, she has her claim for maintenance' (per Judicial Committee in Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo, I.L.R. (1876) Mad. 69 and her right is not extinguished by any wilful or negligent diminution of the means of satisfying it.
This case, therefore, is an authority for holding that if a person in the position of the present defendant has disposed of the family property wilfully or negligently, or even diminished its value, he will not be discharged from his obligation to maintain the widows in the family. In Savitribai v. Luxmibai and Sadashiv Ganoba I.L.R. (1878) 2 Bom. 573 the husband had died in 1872 and the widow had brought a suit for maintenance against the husband's uncle named Sadashiv. Sadashiv had sold the family property in 1854, and the suit was dismissed on two grounds, first, that her husband and his father were, before their deaths, separated in estate from the defendant Sadashiv; and, second, because, at the time of the institution of the plaintiff's suit, there was not, in the possession or subject to the disposition of Sadashiv, any ancestral estate, or estate of the plaintiff's husband or his father; and it was remarked that either one of these reasons, independently of the other, was fatal to the plaintiff's claim to a money allowance. Mr. Thakor has relied on the second of these grounds, particularly on the words 'at the time of the institution of the plaintiff's suit.' But, as I have already pointed out, the husband had died in 1872, while the disposal of the property had taken place as early as 1854, and that there does not seem to have been any evidence that there had been any family property, or any part of the sale-proceeds thereof, in the hands of Sadashiv even at the date of the husband's death.' This case is later than both Satyabhamabai's and Bhagabati's cases. If, according to Srimati Bhagabati Dasi v. Kanailal Mitter, the consideration when the property is sold, takes the place of the property sold, and the sale takes place after the husband's death, the question arises whether the widow has not a claim on the heir based on the amount of such consideration, in the absence of evidence as to how the proceeds of sale have been applied thereafter. There can be no doubt that, as held in Khetramani Dasi v. Kashinath Das, an heir to whom the ancestral estate has descended inherits such estate 'subject to the obligation of providing the maintenance ' of the persons whom the ancestor was legally or morally bound to maintain. It seems to me that it would be altogether inequitable if such heir can get out of his liability by merely spending the proceeds of the sale. If a part of the proceeds has to be spent for the needs of the family, no doubt his liability for maintenance would be reduced pro tanto. But equity certainly demands that some limit must be set to the purpose for which and the manner in which the assets are reduced or dissipated, just as if it can be shown that the original assets have been increased, so that the increased assets can be held to be coparcenary property, the person entitled to maintenance may claim a larger amount. It seems to us that the defendant must show that he has spent the proceeds of the sale in such circumstances that he has got a good discharge from his liability. The burden of proving that he has spent the assets in such manner and in such circumstances must be on the defendant, and so long as he has not discharged that burden, the assets which he received as family property before its disposal must be taken to be still in his hands, i.e. at the date of the institution of the suit. There being no evidence in favour of the defendant on this point, I think that the Courts ' below have rightly held that the money value of the property sold must be taken as the basis for determination of the maintenance of the widow. In the trial Court that amount was taken as Rs. 9,339. It left out of account an amount of Rs. 2,136 which was realised by the defendant as insurance money under the life policy left by the plaintiff's husband. We think that the lower appellate Court rightly added that amount; there is a finding by that Court that the widow neither consented to nor acquiesced in the expenditure of this amount on the founding of a public reading room and library, and the evidence as to the utilisation of the amount for such purpose was also considered unsatisfactory by that Court. The lower appellate Court, accordingly, after adding this sum and increasing the rate of interest originally awarded from three per cent. per annum to four per cent. found the total value of the joint family property to be Rs. 11,475.
8. Mr. Thakor's second argument is as to the quantum of the maintenance awarded. He seemed to argue that the property at Madalpur should not have been taken into account, because it was not in existence at the date of the suit, nor had it been purchased at the date of the plaintiff's husband's death. But as there is a finding that it became joint family property by virtue of the family nucleus, I see no reason for differing from the conclusion of the Courts below on this point, viz. that this property must be taken into account in arriving at the quantum of maintenance.
9. Mr. Thakor has put in an application for additional evidence on the question of the widow's income, and it is alleged that she has been getting dividends from certain shares that were allotted to her under the will of Bhaishanker. We do not think that a case has been made out for producing this additional evidence at this stage of the litigation, as there is no reason at all why this evidence should not have been produced at the trial. We think that the lower appellate Court was right in taking Rs. 11,475 as the basis and in awarding Rs. 18 per month as maintenance to the plaintiff and Rs. 57 for past maintenance. Strictly speaking, the plaintiff would be entitled to maintenance up to the extent of a half of Rs. 11,475, the share of her husband. But as we find that the income accruing from this share would not be less than what has been awarded to her, we think that there is no need to limit the order by making any reference to any specific amount.
10. The order of the lower appellate Court is, therefore, correct, and the appeal must be dismissed with costs.
11. The application for fresh evidence is also dismissed with costs.
John Beaumont, C.J.
12. I agree. I would add a few words in deference to Mr. Thakor's impassioned argument, that our decision infringes elementary principles of Hindu Law, and that there is no case to be found in the books in which a widow has been allowed maintenance in the circumstances of this case.
13. Mr. Thakor's argument is that the defendant, as a sole surviving coparcener, became absolutely entitled to the joint family property, and that though the widow of his deceased brother had a right to maintenance, that right to maintenance was not a charge upon the property. She could have secured a charge either by a grant or by a decree of the Court, but, not having done so, she had no charge on the property, and in consequence, the defendant was entitled to sell the property, and the purchaser, buying without notice of the widow's claim, would enjoy a perfectly good title. So far I agree with Mr. Thakor's contention. But then he says that the defendant having sold the property and having spent the proceeds, the widow's right to maintenance ceased, because the property out of which he had to pay is no longer in his hands. Mr. Thakor's contention is that the sole surviving coparcener is only under an obligation to pay maintenance to the widow of the deceased coparcener out of the joint family property to which he has succeeded and to the extent of such property in his hands, and that as soon as he shows that the property is not in his hands, the right of the widow to maintenance necessarily ceases. The fallacy of that argument can be seen by supposing the joint family property, to which the surviving coparcener succeeds, to consist only of currency notes, I will assume 50 currency notes of Rs. 100 each, kept in the family safe. If the surviving coparcener spends those currency notes on his own entertainment, or if he pays those notes into a Bank and therefore substitutes for the currency notes an obligation on the Bank to pay Rs. 5,000, can it seriously be suggested that the claim of the widow of the deceased coparcener to maintenance out of those notes has ceased because the notes are no longer there to answer the claim The argument seems to me absurd. It is perfectly true that the widow, not having obtained any charge on this property, is unable to follow it and by her omission she risked the defendant selling the property and not being able to discharge her maintenance. But the obligation of the defendant is to pay her maintenance to the extent of the property to which he succeeded, and if he chooses to dispose of that property without making any arrangement to secure her maintenance, he is liable to an order to pay such maintenance personally to the extent of the property to which he succeeded. The only way in which he can discharge himself of that obligation is, not by showing that he has made away with the joint family property, but by showing that he has applied that property for family purposes, having priority over the plaintiff's claim to maintenance. The obligation is on the defendant to prove such application, and in this case he has not done so. Therefore, his liability to pay maintenance remains to the extent of the property to which he succeeded. As my learned brother has pointed: out, having regard to the value of the property and the amount of the maintenance, that really involves an order on him personally to pay the maintenance. There is no reason, therefore, for interfering with the order made by the lower appellate Court.