Chandra Reddy, C.J.
1. This appeal, under Clause 15 of the Letters-Patent, is filed by the first defendant against the judgment of our learned brother, Seshachalapathi, J. with his leave.
2. The appellant and the second respondent are the sons of the first respondent. The first respondent laid an action (O. S. No. 156 of 1955 on the file of the District Munsif's Court, Bajah-mundry) against her two sons for maintenance at the rate of Rs. 100/- per mensem and other amounts for utensils, pilgrimages etc., and a provision for residence in the family house.
3. Both the defendants resisted the suit. The plea taken by the appellant was that as he got divided from his father as far back as 1922, he was not liable to maintain his mother and that that was the obligation on his younger brother (second respondent), who was born after partition and lived in coparcenary with his father and succeeded by survivorship to his estate. The other facts pleaded by him are not quite relevant for the purpose of this enquiry.
4. The second respondent contended, inter alia, that he was willing to maintain his mother and pay his share of the maintenance as fixed: by the Court.
5. The trial Court fixed Rs. 50/- per mensem. as her maintenance and allocated it between defen-dants 1 and 2. The District Munsif fonnd that the ancestral property in the hands of the seconds respondent fetched an annual income of Rs. 600/-out of which Rs. 300/- could be regardedas the income from the shaie of her husband. Hethought that deficiency of Rs. 300/.- should bedivided equally between the two sons and thesecond defendant should be directed to pay a sumof Rs. 37-1/2 per mensem and the first defendantRs. 12-1/2 per mensem. A decree was made byhim on this basis. We are unconcerned here withthe other directions as they are not put in issuebefore us.
6. The plaintiff and the first defendant filed appeals before the Subordinate Judge, Rajahmun-dry against the decree. Differing from the District Munsif, and on a review of the evidence, the Subordinate Judge, held that each of the defendants was in possession of ancestral properties fetching an income of Rs. 1,000/- per annum. In his view, the obligation of the sons to maintain their mother under Hindu law does not depend upon possession of ancestral properties and that it being a personal obligation that liability should be shared equally between the two sons. As regards the quantum of maintenance, he upheld the finding of the trial Court.
7. The aggrieved first defendant carried the matter in second appeal to this Court. Our learned brother, Seshachalapathi, J., affirmed the decision of the Subordinate Judge and dismissed the appeal.
8. It is this judgment that is under appeal now. In support of the appeal, it is urged by Sri Bapiraju, learned counsel for the appellant, that the claim of the first respondent to maintenance could be sustained only against the share of her husband that had passed to the and defendant by survivorship and that the appellant was under no duty to maintain his mother as he had obtained at the partition his share of the property several years before the suit.
9. To substantiate this argument, the learned counsel drew our attention to some of the decisions of the Madras High Court which we will refer to presently. On the other hand, the stand taken by the learned counsel for the respondents is that the claim of the mother is enforceable against both the sons and not merely against the second son, the right for maintenance not being affected by the second son getting the. share of his father. It is urged by Sri Subrahmanyam, learned counsel for the first respondent, relying on a passage in Mayne's Hindu Law and the decisions, Savitri Bai v. Luxmibai, ILR 2 Bom 573 (FB); Subbarayan v. Subbakka, ILR 8 Mad 236; Rama Rao v. Rajah of Pittapur, ILR 41 Mad 778 : (AIR 1918 PC 81) and Srimati Hemangini Dasi v. Kedar Math Kudu Chowdhry, 16 Ind App 115 (PC), that maintenance of an aged mother is a personal obligation de hors possession of property and that it is an imperative duty and not an optional one.
10. The proposition that under Hindu law the maintenance of a wife by the husband or of the mother by her sons is a matter of personal obligation arising out of the existence of the relationship between them irrespective of their possession of ancestral or self-acquired property, is indisputable. In these relationships, the obligation is a legal and an imperative one -- not merely moral and optional. This principle, in our opinion, is not in any way inconsistent with the doctrine that the right of maintenance of a widow against the surviving co-parcener is quoad the share of interest of her deceased husband in the joint family property which has devolved by survivorship on the surviving co-parcener. The primary liability, therefore, vests on the co-parcener who has in his hands the share or interest of his father by operation of the law of survivorship.
11. This proposition is stated by Bhashyam Ayyangar, J. speaking on behalf of the Division Bench in Jayanthi Subbaiah v. Alamelu Man-gamma, ILR 27 Mad 45 in these words:
'When an undivided Hindu family consists of two or more males related as father and sons or otherwise and one of them dies leaving a widow, she has a right of maintenance against the surviving co-parcener, or co-parceners quoad the share or interest of her deceased husband in the joint family property which has come by survivorship into the hands of the surviving co-parcener or coparceners and though such right does not in itself form a charge upon her husband's share or interest in the joint family property, yet when it becomes necessary to enforce or preserve such rights effectually, it could be made a specific charge on a reasonable portion of the joint family property such 'portion of course not exceeding her husband's share or interest therein.'
It thus emerges that the liability to maintain the widow attaches to the share of her husband which has passed by survivorship to one of the coparceners.
12. This view was reiterated by another Division Bench of the Madras High Court in Narasimham v. Venkata Subbamma, ILR 55 Mad 752 : (AIR 1932 Mad 351). The head-note of the case, which summarises the judgmtent correctly, reads as follows :
'When the widow of a co-parcener sues for maintenance after there has been a partition, she cannot enforce her right against any of the surviving co-parceners except those who have taken her husband's share.'
This rule commended itself to a Full Bench of the 'Madras High Court in Lakshmidevamma v. Veera Reddi, (1939) 2 Mad LJ 340 : (AIR 1939 Mad 781 (FB), Leach C. J., who delivered the opinion 'f the Full Bench, remarked that he re-garded the statement of law made by Bhashyam Ayyangar, J. as correct. After referring to the Smriti Chandrika, the learned Chief Justice stated thus :
'There is here a clear statement that the duty of maintaining the widow devolves on the persons 'who take the property of the deceased undivided member of the family and it is emphasized that the duty is dependent on the taking of the property. If the obligation to maintain the widow depends on the taking of the deceased husband's share in the family estate, it follows that there can be no right in the widow to claim to be maintained out of the shares which fall to the other members. While the family remains undivided, the position is different. The property is held jointly and of necessity the amount required for a widow's maintenance has to be paid out of the estate regarded as a whole, but in no circumstances can she claim an allowance greater than the income of her husband's share in the estate.'
It is true that these cases did not raise the question of the personal obligation of the son to maintain his parents independent of the possession of ancestral property. But, in our opinion, the logical deduction is that the right of maintenance of the widow mainly attaches to her deceased husband's share that has passed by survivorship to one of the sons.
13. In our considered judgment, the principle enunciated above cannot be said to be in dis-consonance either with the rule stated by Westropp C. J., in ILR 2 Bom 573 (FB), that in certain relationships, independent of possession of ancestral property, payment of maintenance was a legal and an imperative duty and not a moral and an optional duty or with the proposition laid down in ILR 8 Mad 236; that under Hindu law a son is bound to support his aged mother whether he has inherited property from his father or not. The law contained in ILR 41 Mad 778 : (AIR 1918 PC 81) is in accord with the above principle. Lord Dunedin, in the course of his judgment, observed as follows :
'There must also be added another class, equally the subject of special texts. The right o this class to maintenance lies in personal relationship, but is limited to the widow, the parent and the infant child.'
14. In the same trend of thought is the judgment of Their Lordships of the Privy Council in 16 Ind App 115 (PC) where it was held that where there are several groups of sons of a deceased Hindu by different mothers, the maintenance of the mothers must so long as the estate remains joint be a charge upon the whole estate and that when a partition has been made each mother is entitled to maintenance against the share allotted to her own son or sons and has no claim against the share of her step-sons. We feel that there is really no conflict between the two concepts, namely, that the sons are under an obligation to maintain their aged mother irrespective of possession of ancestral property and that the right of maintenance of the widow or the mother against the surviving co-parcener is quoad the share or interest of her deceased husband in the joint family-property which had passed by survivorship to the surviving co-parceners. The fact that one of the sons has become entitled to the share of the father by survivorship could not be ignored. It cannot be disputed -- and it is conceded -- that if the father was alive, the right of maintenance of the mother could only be against the father, i.e., her husband, and the sons could not be made to share the liability to maintain her. If that were so, we fail to see how the existence of the property of the father in the hands of his son could altogether be left out of account. If, however, the income from the share of her husband in the hands of the surviving co-parcener is not adequate to maintain her and something more is needed to meet her wants, the deficiency should be contributed by all the sons equally irrespective of the possession of ancestral property. This would reconcile both the theories.
15. That being the real position, we feel that the maintenance of the first respondent in excess of the income referable to her husband's estate, i.e., Rs, 100/- should be contributed by both the sons equally.
16. In the result, the judgment under appeal is modified accordingly. Parties will beartheir own costs throughout.