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Nenu Varahalu Vs. Nene Sithamma - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 984 of 1952 and C.M.P. Nos. 3594 and 5636 of 1959
Reported inAIR1961AP272
ActsHindu Law
AppellantNenu Varahalu
RespondentNene Sithamma
Appellant AdvocateM.S. Ramachandra Rao, Adv.
Respondent AdvocateN. Bapiraju and ;S. Ramamurthy, Advs.
DispositionAppeal dismissed
family - maintenance of widow - hindu law - plaintiff filed suit against defendant for recovery of maintenance, past and future - separate property of widow which is productive not to be taken into account in assessing quantum of maintenance to be paid to her - held, person who inherit any property of husband of widow or any person to whom property survive on account of death of co-parcener has obligation to maintain widow. - - 1 at pages 171 and 172: whether, in estimating her stridhana on the occasion, her clothes, ornaments and the like, are to be taken into account or only such articles of her property as are productive of income to hear or conducive to her subsistence, does not distinctly appear; this is of course applicable only where there are male heirs, the widow succeeding.....p. chandra reddy, c.j.1. the point that falls to be considered by the full bench is whether the separate property of a widow, which is productive should be taken into account in assessing the quantum of, maintenance to be paid to her.2. the facts necessitating this reference lie in a short compass and are not in dispute. an action was laid by the respondent in the court of the subordinate judge, eluru, against her adopted son, the defendant for recovery of maintenance, past andfuture, from 1-4-1940 at the rate of 80 bags per year and for provision for residence and pilgrimage at rs. 500/- each,3. the defence to the suit was that the plaintiff was not entitled to any past maintenance or for any provision for pilgrimages and that future maintenance should be filed only at 12 hags a year as.....

P. Chandra Reddy, C.J.

1. The point that falls to be considered by the Full Bench is whether the separate property of a widow, which is productive should be taken into account in assessing the quantum of, maintenance to be paid to her.

2. The facts necessitating this reference lie in a short compass and are not in dispute. An action was laid by the respondent in the court of the Subordinate Judge, Eluru, against her adopted son, the defendant for recovery of maintenance, past andfuture, from 1-4-1940 at the rate of 80 bags per year and for provision for residence and pilgrimage at Rs. 500/- each,

3. The defence to the suit was that the plaintiff was not entitled to any past maintenance or for any provision for pilgrimages and that future maintenance should be filed only at 12 hags a year as she owned properties yielding large income.

4. The trial court granted a decree awarding past maintenance at the rate of 15 bags a year and future maintenance at the rate of 35 bags per year. The defendant brought an appeal to this Court against that judgment and decree, while the plaintiff filed memorandum of cross-objections claiming higher rate.

5. When the appeal came on for hearing before Krishna Rao, J., a contention was raised before him on behalf of the appellant that in spite of the authority Annapurnamma v. Veeraraghava Reddy, 1940-1 Mad LJ 608: (AIR 1940 Mad 547), the possession of productive stridhana properties by a widow is a factor that should be taken into consideration in arriving at the maintenance under the general law and that, in any event, it was to be taken into account under Section 23 of the Hindu Adoptions and Maintenance Act (Act 78 of 1956) after it came into force on the 21st of December, 1956.

As against this, it was maintained that the maintenance to be awarded in this case was not attracted by any of the provisions of Act, 78 of 1956 since the defendant, to whom the properties passed by survivorship, was not an heir within the sweep of Section 22, it was governed by the general Hindu Law which was left unaffected by Section 4 in respect of matters not provided for by the Act. It was also contended on behalf of the respondent that the possession of separate property by a widow cannot enter itno the determination of the quantum of maintenance.

As there are two decisions of this court, which proceeded on the view that the Act applied in similar circumstances, the learned Judge thought that the point under Section 22 of the Act was not specifically raised or considered and that the matter required an authoritative ruling. When it was posted before the Satyanarayana Raju and Kumarayya, JJ., they thought that the question raised was one or considerable importance and that it should be decided by a Full Bench. That is how this appeal is now before us.

6. Since making this reference, it was decided by a Full Bench of this court in Appeal No. 709 of 1954 that this Act was applicable only to estates of Hindus whose death occurred after the coming into operation of the Act and that it did not stand in the way of the enforcement of the rights that accrued before the commencement of the Act.

This decision has rendered it unnecessary for us to go into the question as to whether the maintenance could be awarded to a dependent as against an heir only and not in cases of devolution by survivorship, since the plaintiff's husband died long before the Act came into force. It follows that the principles of Hindu law arc applicable to the instant case.

7. Notwithstanding this, the learned counsel for the appellant pressed an argument upon us that there was no obstacle In the way of the means ofthe widow being taken into account in fixing her maintenance under the general Hindu Law and that 1940-1 Mad LJ 608: (AIR 1940 Mad 547) requires re-consideration as it is opposed to the opinion prevalent in several of the High Courts of India and to the original texts.

8. Support is sought for this proposition from passage in some of the text books of Hindu Law and also from the ruling of the Bombay, Calcutta and Allahabad High Courts and from Smriti Chandrika and translated by Setlur.

9. We shall therefore proceed to examine this question with reference to the text which according to the counsel for [he appellant is the genesis of the right of a widow to maintenance, and the opinion of the text book writers as also the judicial precedents.

10. The relevant parapraphs of Smriti Chandrika as translated by Setlur occur at page 234:

11. 'Our opinion therefore is, that the term heritage signifies only that wealth which is capable of partition and which becomes the property of another solely bv reason of relation to the owner. The wealth which a widow takes is not heritage, since it is not capable of partition. Accordingly, a stridhana derived from the husband is always impartible; division of property between husband and wife being never seen in the world and Harita having declared 'Partition does not take place between a wife and her lord'. It must, therefore, be understood that a mother is entitled not to a partition of heritage in adjustment of a pre-existent right, but simply to take such of the wealth as she stands in need of.

12. Hence, such a mother alone as is destitute of wealth, and not a mother generally, is declared in Smriti or law to be entitled to receive a share, Smriti: A mother, if she be dowerless, shall, in a partition by sons, take an equal share.

15. By the qualifying terms 'if she be dowerless' made use of in the text, para 12, it is inferable that where a mother, by means of her own separate property,' is able to maintain herself and perform such religious duties (requiring for their accomplishment the use of wealth) as are observable by her, she can take no share out of her husband's property. If the separate propery of a mother be insufficient for the above purposes, 'then she, notwithstanding her possession of such property, is to take a share, which, however, is not to be equal to that of a son, but less than that, proportionate to her wants.'

11. We feel that in order to gather the meaning of the Smriti quoted above, we have to bear in mind that Yajnavalkya says (as found in Viramitrodya a translation of which is given by the same author in Tart II of the booh at page 315).

'If a father, by his own will, separates his sons with equal shares, then he must give to each of his wives a share equal to that of a son. Thus Yajnavalkya says: If he makes the allotments equal, then bis wives to whom woman's property has not been given by the husband or father-in-law, shall be made eaual sharers.'

12. This is also found In Vyavahara Mayukha Chapter IV Section 4, Verse 15.

13. On a combined reading of the several of the paragraphs, we are inclined to think that the Smriti writers had in mind only the property given by the husband or the father-in-law. Para 12 ofChapter IV of Smritichandrika is a continuation of the concept embodied in para 11. In this connection, we may also notice verse 31 of Section 2 of Chapter III of Dayabhaga.

'The equal participation of the mother with the brethren takes effect if no separate property had been given to the woman. But if any have been given, she has half a share.'

14. This verse also lends colour to the thought that it is only property given by the husband or the father-in-law that would be relevant either in giving a share to the widow or the mother as the case may be or in fixing the quantum of maintenance.

15. The opinion expressed by Sir Thomas Strange in his book on Hindu Law, supports to some extent the proposition advanced on behalf of the appellant. The learned author says in vol. 1 at pages 171 and 172:

'Whether, in estimating her stridhana on the occasion, her clothes, ornaments and the like, are to be taken into account or only such articles of her property as are productive of income to hear or conducive to her subsistence, does not distinctly appear; though the restricting the account to the latter would seem to be reasonable, considering the object.An opinion that her maintenance should be independent of her peculiar property is unsupported.'

16-17. The assumption of the author contained in the last sentence does not seem to be warranted, especially having regard to the fact that he published the opinion of a Pundit from Nellore in the second volume of his book at page 307. The Court proposed an answer to the matter in issue as suggested in the following terms:--

'On the death of a Brahmin, leaving a widow and two sons, she and they take possession of his estate, subject to her possession of stridhana, in which case she is entitled only to a half share.'

The pandit's comment on the answer was as follows:

'This opinion is generally correct, but I do not understand either the authority or the reason for restricting the maintenance to the amount of half a share, in case of the existence of Stridhana. The division (as it appears to me) should be made without reference to any property she may hold under this title, unless it may have been accepted by her, with consent of the parties concerned, in lieu of other claims; and in this case it is evident that she is entitled to no further share in the even! of division. The widow's claim to maintenance from her husband's estate is absolute, unlimited by circumstances; but then it is only a claim to maintenance, and it is not correct to say, that she is entitled to any share or division. This makes no alteration in her right, it is still maintenance only to which she is entitled; but to this some legal measure must be assigned, and the correct opinion seems to be, that it shall be the amount of a full share as received by the coparceners, or perhaps this may be considered as its maximum. This is of course applicable only where there are male heirs, the widow succeeding by right to the property on failure of such.'

18. It is manifest from this comment that the private property of a widow should not be takeninto account in determining the amount of maintenance. It is difficult to reconcile this opinion of the pandit with that of Sir Thomas Strange contained in page 172 of the 1st volume.

19. We may now examine the judicial opinion iu this behalf. The earliest of the decided cases on this topic to which our attention was called is Chandrabhaga Bai v. Kashinath, 2 Bom. H. C. R. 323, There, a widow whose husband was divided from his father and was herself living in the house of her father, sued her father-in-law for an annual money allowance to provide maintenance, clothing etc. for her. The trial court entered judgment for her.

This was reversed by the appellate court, inter alia, on the ground that she had inherited property and, therefore, was not in such indigent circumstances as to require maintenance from her father-in-law. The matter was taken by her in Second Appeal in which it was contended on her behalf in the High Court that the circumstance of her inheriting her mother's property did not curtail her right to maintenance against her husband's family. This argument prevailted with Newton and Warden JJ., and a new decree was passed. The principle is stated in these words:

'In accordance with previous decisions of this Court, such part of the property in the plaintiff's hands (if any) as may be held to be her peculiar property, should not be taken into account if she is in need of support.'

20. The above principle was not approved by a Pull Bench of the Bombay High Court in Savitribai v. Lakshmibai, ILR 2 Bom 573. 2 Bom. H.C.R. 323 was criticised by Westropp C. J. who spoke for the Court in these terms:

'But from some of the reasons given by the Division Court for its decision and which reasons do not seem to have been actually necessary for the disposal of the case, we would express a respectful dissent and we cannot regard such unsatisfactory cases as 2 Bom. H.C.R. 323, Timmappa v. Parameshriamma, 5 Bom HCAC 130 and Bai Lakshmi v. Lakshmidas Gopaldas 1 Bom H.C.R. 13, which were there relied on by the Court as affording any sufficient basis for those reasons.'

These observations are merely obiter. It should be remembered in this connection that the question that posed itself before the Full Bench was whether a widow whose husband was, at his death, undivided in estate from his father or the widow of one undivided, at his death, in estate from his brothers, or nephews, or other relatives could claim maintenance against her husband's brother or other relatives not in possession of any ancestral estate or separated in estate from her husband. IK Is in discussing that matter that the remarks extracted above were made by the learned Chief Justice. Thus, the point in the present controversy was not decided by the Pull Bench there, though the learned Judges regarded 2 Bom. H.C.R. 328 as an unsatisfactory case.

21. The counsel for the appellant next cited to us Narayana Rao Ramachandra Pant v. Ramabai, ILR 3 Bom 415 (PC). This does not advance the case of the appellant in any way. The point that arose for consideration there was one relatingto limitation. The claim of the widow was resisted on the ground that it was barred by limitation. The Privy Council decided the issue against the defendant in the view that the right of a widow to maintenance is one accruing from time to time according to her want and exigencies. Thus their Lordships have not laid down any proposition, which is of any help to the appellant.

22. In Rangubai v. Subaji Ramachandra ILR 36 Bom 383 the main point in issue was whether the wants and exigencies of the widow required the grant of arrears of maintenance. They laid down that as there was no indication that she was in need of maintenance prior to 1st January 1906, maintenance should be awarded only from that date. In dealing with that question, they said that it was decided by a Full Bench of that Court in ILR 2 Bom 573 that a widow's claim for maintenance should be regulated with reference, inter alia, to the amount of stridhana property which she has, available for her support. As already remarked by us ILR 2 Born 573 (FB) had not stated any such principle. We have referred above to the relevant observations in that case.

23. The doctrine of Appibai v. Khimji Cooverji ILR 60 Bom 455 : (AIR 1936 Bom 138) is not very helpful to the appellant. While negativing the contention of the defendant that the existence of private property of the widow was a bai to her claiming maintenance, the learned Judge incidentally remarked that that fact was also to be taken into account in determining the quantum. It is seen that in none of these Bombay oases has this question risen directly for decision. The observation that the stridhana property of a widow or a mother producing income could be taken into account in arriving at the quantum of maintenance to be awarded to a widow was obiter.

24. Similarly in Mahesh Partab Singh v. Dirgpalsingh, ILR 21 All 232 in holding that in calculating the allowance to be made to the younger brother of the holder of an impartible estate, regard might be had not merely to the extent of the estate but also to the other sources of income whatever possessed by the incumbent of the estate, the learned Judges incidentally said that

'The principle upon which maintenance is allowed to a Hindu widow should be applied in determining the amount of maintenance to be awarded to the plaintiff.'

Here also, the point was not dealt with by the learned Judges as it was unnecessary for them to do it. They merely assumed that that was the principle governing the fixation of the maintenance of a widow.

25. Now we turn to the rulings of the Calcutta High Court. In Siddessury Dassee v. Janardan Sarkar, ILR 29 Cal. 557 the question was whether a daughter-in-law, who lived with her parents, could be regarded as a dependant member entided to maintenance. This was answered by the Full Bench of that court in the affirmative. In the discussion of that topic, Prinsep J., who was one of the members of the Full Bench, said that

'in a partition of joint family properly, if a widowed mother, who is entitled to a share, is possessed of stridhana, that is, of private property,it is taken into account in determining what she should receive on a partition.'

This point was not raised as is specifically stated in the judgment itself nor was it considered. These remarks were made in the contest of the question relating to the obligation of the father-in-law to support her.

26. In Ramawati Koer v. Manjharikoer 4 Gal. L. J. 74 it was held that a widow having independent income sufficient for her needs could not claim maintenance from her husband's family so long as she has got such income. There does not seem to be any basis for this doctrine either in earlier decided cases or in the texts. I.L.R. 3 Bom 415 (PC), cited by the case, does not give any support to this theory. Nor does Gokibai v. Lakshmidas Khimji, ILR 14 Bom. 490 substantiate that rule. All that was observed there was that the defendant was bound to show that the widow was possessed of property out of which she could maintain herself. But there is no indication as to whether the learned Judge was referring to joint family property or the widow's other private property. This rule is also opposed to the rulings of the Bombay High Court referred to above. In some of the decided cases of that court, it is definitely laid down that the possession of separate property by a widow or mother would not deprive them of their right to maintenance. We will also presently show that this did not find favour with the Madras High Court.

27. In Indu Bhushan Chatterji v. Mrityunjoy Pal, ILR 1946-1 Cal. 128 rendered by Das, J. (as he then was) the point debated was whether the share inherited by a mother from her son should be taken into consideration in arriving at the quantum of the share to be allotted to her at the partition amongst the surviving sons. The learned Judge ruled that it was a relevant consideration in that regard, the underlying reason being that such a share would have been logically liable at least to contribute towards her maintenance as it would have been in the hands of the son had he been alive. In the course of the discussion, the learned Judge remarked.

'If maintenance be the basis of her right to a share on partition, then her want and necessities must be one of the important factors to be taken into consideration and if her separate properties are to be taken into consideration to judge of her wants and necessities, then all productive separate properties derived from all sources should be so taken into consideration.'

These observations are comprehensive enough to bear out the argument of the appellant that this is an authority for his contention, especially having regard to the statement of the learned Judge, while adverting to Lingayya v. Kanakamma, I.L.R. 38 Mad. 153 : (A.I.R. 1916 Mad. 444) which disagreed with 4 Cal. LJ. 74, that the reason of the right to a share on partition and the change of principle which he has discussed were not adverted to in the Madras case. These observations are In consonance with the view expressed in ILR 29 Cal. 557.

28. The remarks of the High Court of Oudh in Har Partab Singh v. Thakurain Raghuraj Kuar,A.I.R. 1933 Oudh 550 are in accord with these dicta. The learned Judges thought that this opinion of theirs derived support from Ekradeshwari Bahuasin v. Homeshwar Singh, 57 Mad LJ .50 ; (AIR 1929 P.C. 128) which does not seem to be correct.

29. Next, reliance was placed by the counsel for the appellant upon the 'Principles of Hindu Law' by Mulla and Mayne's Hindu Law. In the 12th Edition of Mulla's 'Principles of Hindu Law' at page 717 it is recited :

'In calculating the amount of maintenance, the widow's stridhana must be taken into account unless it is of an unproductive character, such as clothes and jewels. But if the ornaments are of great value and are likely to be converted into money, that fact may be considered.'

30. To the same effect is the statement in the 10th Edition of that book.

31. Similar is the statement of law contained in some of the earlier editions of Mayne's Hindu Law. See 5th Edition page 512 and 10th Edition page 834. The foundation for these statements are the rulings of the Bombay and the Calcutta High Courts mentioned above. In neither of those test books are the decisions of the Madras High Court which contain contrary views noticed. However, in the 11th edition of Mayne's Hindu Law, a different note is struck. What is stated there is that

'there seems to be no reason why a widow's stridhana property or private income should be taken into consideration as her right to maintenance is absolute and the duly of persons who are in possession of her husband's estate unqualified and unconditional.'

32. Now coming to the decisions of the Madras High Court in ILR 38 Mad. 153 : (AIR 1916 Mad. 444), the facts were these. A Hindu widow instituted a suit claiming maintenance against her husband's brother. The courts found that the defendant was in possession of the family property yielding an income of about Rs. 100/-. The widow had personal property out of which she could get Rs. 40/- to Rs. 50/- a year. The claim to maintenance was resisted on the plea that as she was able to support herself out of other property, she had no right to ask for anything out of her husband's estate. This contention was disposed of in the following words :

'The wives of male coparceners in a Hindu family are not entitled to equal shares with the males in the family estate, nor do they take their husband's shares by representation on their death, but in place thereof they are entitled to a portion of their estate for their enjoyment during their life time sufficient to maintain them in comfort according to the means of the family. This Is an absolute right due to their membership in the family and does not depend on their necessity arising from their want of other means to support themselves.'

33. It is clear that this passage, especially the last part of it, furnishes the basis for the right of the widow to maintenance. It also establishes that this right is absolute and is not conditioned by the absence of separate property of the widow fetching an income to support herself. The learned Judge did not concur with the principle underlying 4 Cal LJ 7.4. They remarked that the authority cited in the judgment did not supporttheir view.

34. Another Bench of the same court dealt with this subject exhaustively in 1940-1 Mad LJ 608: (AIR 1940 Mad 547). The learned Judges reviewed the case law concerning this matter and dissented from the dicta contained in the Bombay cases and cases expressing similar opinion. Abdur Rahman, J. who surveyed the case law on the topic, summed up the legal position thus :

'On principle as we have already stated above, there seems to be no reason why a widow's stridhana property or private income should he taken into consideration if her right to maintenance is absolute and the duty of persons who are in possession of her husband's estate unqualified and unconditional.'

35. The judgment of pandrang Row, J. has pointed out the uncertainties resulting from the principle that the existence of stridhana property should be taken into account in estimating the maintenance to which a widow or a mother would be entitled. The learned Judge at page 615 (of Mad LJ) : (at p. 551 of AIR) observed:

'It is obvious that the recognition of any such contention will introduce greater uncertainty into a field where already there is too much uncertainty. Because while it is no doubt very easy to say in a general way that the income from the separate property should be taken into consideration, the extent and mode of taking it into consideration are left vague, and vagueness in a point like this means trouble to the parties who will have to get the question determined by one court after another.'

36. To illustrate the untenability of such a view, the learned Judge gives the following example. If a widow would be entitled legitimately to maintenance allowance of Rs. 100/- a month in a given case, the rate of maintenance allotted to her should be reduced by Rs. 50/- a month i.e., by the amount of income from her separate estate. On the same reasoning if the income from the widow's estate property is Rs. 100/- a month, the rate of maintenance to which she would be entitled would be nil. Such a position, the learned Judge said, would be

'in the teeth of all principles for the right of a Hindu widow to maintenance from out of the property belonging to her deceased husband is absolute and not subject to any condition that she should be in need of any allowance for maintenance.'

He adds that

'the co-existence of an absolute right to get maintenance with conditions of this kind is really difficult to postulate, for what is absolute must be unconditional and if there are conditions, there cannot he any absolute right.'

Further down, the learned Judge continued :

'The fact that a court has to determine the exact money value, so to say, of a right which is not determined by the law itself, cannot converb what is an absolute right into a conditional right, that is a right that can be claimed or that can bo said to exist only if certain conditions are satisfied.

The only condition -- if one may call it a condition--to be satisfied in a case like this is that the person who claims maintenance must show that she is the widow of a deceased coparcener and that the family has property on which the claim for maintenance can be fastened.'

37. With great respect to the learned Judge, we express our respectful agreement with this reasoning.

38. Recently in an unreported judgment of a Bench of this Court consisting of one of us (Satyanarayana Raju, J.) and Kumarayya J., in Appeal No. 451 of 1956, assent was given to this position.

39. To a like effect is the decision of Anantakrishna Aiyer J. in Kodandaramireddi v. Chenchamma, 59 Mad LJ 531 : (AIR 1930 Mad 479). It was decided by the learned Judge that the fact that a Hindu widow is in possession of private funds or that she was earning as a result of her activity should not be taken into account in arriving at the amount of maintenance payable to her. He referred to a number of earlier rulings of that court which bore on the right of a junior member of a Malabar tarwad.

40. In Teyan Nair v. Ragavan Nair, I.L.R. 4 Mad. 171, it was held that a karnavan of a tarwad is not justified in excluding a junior member from participation of the family property on the ground that the junior member had other property of his own. In this case, it was remarked by limes and Tarant JJ. that if such separate property were to be an element in the consideration of the right to maintenance, a

'man's own individual industry and exertions might be the means of depriving him of his rights in the joint property.'

41. To a like effect is the decision of another Bench of that Court in Thayu v. Shangunni, I.L.R. 5. Mad. 71. Anantakrishna Aiyer J. observed that these cases were taken to lay down the law correctly in Manikkath Ammini Animal v. Manikkath Pedmanabha Menon, I.L.R. 41 Mad. 1075 : (A.I.R. 1919 Mad 677) and Maravadi v. Pamakkar, ILR 36 Mad. 203 at p. 211. The learned Judge pointed out the distinction between the possession of private funds by a widow and the possession of property belonging to her husband or to the estate of the joint family, and said that while in the former it could not be taken into consideration, the latter stood on a different footing.

42. This ruling shows' that the Madras High Court was taking consistently the view that the properties possessed by a junior member of a family of a Malabar tarwad should be disregarded in determining the quantum of maintenance.

43. A Division Bench of the same court followed in Nagtndramma V. Ramakotayya, : AIR1954Mad713 . Rangamma v. Chinnabbayi, 1956 Audh LT 631 : (AIR 1957 Andhra Pradesh 598), also contains some useful discussion on this subject. The learned Judge followed 1940-1 Mad. LJ. 608 : (A.I.R. 1940 Mad. 547) and the earlier decisions which enunciate the same rule. There is thus an immense range of decisions of that court in support of this principle.

44. Our attention was not drawn to any decision of the Madras High Court, which has struck a different note. That court has consistently taken the view that the private property of a Hindu widow would not be a relevant factor in the determination of the quantum of maintenance, while possession f property belonging to the husband or the joint family would be an element to be considered in arriving at the amount of maintenance. In our opinion, these rulings seem to be in accord with the principle of 57 Mad LJ 50 : (AIR 1929 P.C. 128). The- category of circumstances to be taken into consideration is enumerated by their Lordships in that case.

'Maintenance depends upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the condition and necessities and rights of the members, on a reasonable view of change of circumstances possibly required in the future, regard being, of course, had to the scale and mode of Jiving and to the age, habits, wants and class of life of the parties. In short, it is out of a great category of circumstances, small in themselves, that a safe and reasonable induction is to be made by a court of Jaw in arriving at a fixed sum.'

45. We think that this list exhausts the Considerations that are appropriate in the computation of maintenance. It will be adding to this list if the rule enunciated in the Bombay or Calcutta cases adverted to above is to be accepted as correct, because their Lordships have not included the private means of a widow in the enumeration of the circumstances that are relevant in this context.

46. In this connection, we cannot also ignore the fact that there has been unanimity of judicial opinion that her earnings by her own exertions could not be taken into account in calculating the amount of maintenance. At any rate, we are not aware of any ruling, which has gone to the extent of laying down that, even the earning of a widow by her exertions would be one of the determining factors in this regard. If that were the position, we do not see how the possession of personal property by a widow should stand on a different footing.

The only ground upon which the enjoyment of income from private property by a widow should be taken into account is that to that extent the wants and exigencies of the widow are reduced and she will be entitled to so much as is required to make upon the amount, which would enable her to live with the same degree of Comfort and reasonable luxury which she had during the life time of her husband. The same principle should apply to a case of earnings by her exertions. Such earnings according to judicial opinion should not go in reduction of the maintenance, because in the words! of Anantakrishna Aiyer J:

'If the result of their honourable activity and laudable attempts to earn a portion of their maintenance should work against them in claiming maintenance from their husband's estate; in my Opinion, it will be a disadvantage both to them and to the family. The interests of social advancement (if one is entitled to have regard to the same) would be in Favour of allowing her claim as put forwardin the present case. If the result of her activity in earning or saving money by laudable means be to deprive her of her right to receive proper maintenance from the husband's estate, which is admittedly rich, such people would have no inducement to work or to save.'

We feel that this rule applies with equal vigour to the case of possession of properties from which in* come is derived. If the existence of independent means were to be a disadvantage to a widow or to a mother in the matter of obtaining maintenance, there would be no inducement for them to save out of their earnings and lay by a part of their savings or to acquire property.

47. We feel that the possession of separate funds or property by a widow is not an element to the consideration of the claim to maintenance. The situation is different if the properties yielding income were given to her by her husband or father-in-law, in which case she will be entitled to so much as together with that income she would be enabled to live with the same degree of comfort and luxury as she had during her husband's lifetime.

48. This problem does not present any difficulty if we remember that the basis of the right of a widow is not her want of means to support herself. It arises out of her being a member of her deceased husband's family. At one time, she was entitled to a share when the sons came to a partition. The present right of a widow to maintenance is a relic of a claim to a share in the family property. Such a right must be an absolute and an unconditional one and cannot be hedged in with conditions such as the absence of private means etc.

The person, who inherits the property of the husband of the widow or any person to whom the property survives on account of the death of the coparcener would take it only subject to the obligation to maintain the widow. For all these reasons, we hold that 1940-1 Madras LJ 608 : (AIR 1940 Mad 457), states the law correctly on this question and no exception could be taken to the proposition contained therein, and, therefore, it does not require re-consideration. Our answer to the question is in the negative.

49. Learned counsel for the appellant then fell back upon the argument that even if the maintenance of the widow is to be fixed only with reference to the value of the joint family estate, future maintenance awarded in this case is very excessive. It is urged that 35 bags of paddy out of a total net income of 120 bags is too much and requires reduction. We cannot accede to this argument. We feel, taking into consideration all the factors such as the mode of the life of the widow during her husband's life time and Other relevant consideration that the maintenance fixed by the trial court is proper and there will be no warrant to reduce it.

50. In the result, the appeal fails and is dismissed with costs.

51. In the memorandum of cross-objections, it was maintained by Sri Ramamurthy for the respondent that past maintenance, should be enhanced, while the rate for the future might be maintained. We are unable to give any effect to this contention. We think that there will be no justification to increase it to 20 bags as requested by the respondent. The trial court had fixed past maintenance at 15 bags having due regard to the attendant circumstances. Therefore, there are no grounds to interfere with the decree of the trial court in this regard also.

52. In the result, the memorandum of cross objections also is dismissed with costs.

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