1. The appellant herein is the widow of one Yeruku Naidu. She filed a suit in forma pauperis against her husband's undivided father and brothers for separate maintenance at the rate of Rs. 75/-P. M. and for separate residence. She also claimed past maintenance at the same rate. A claim of Rs. 200/- was also made for utensils etc. The defendants resisted the suit contending mainly that the plaintiff's right was only to sue for partition and separate possession of her husband's 1/4 share in the joint family property under the provisions of the Hindu Women's Right to Property Act, Act XVIII of 1937, and that the claim for maintenance, therefore, was unsustainable.
They further pleaded that they proposed to the plaintiff that she should take awav her 1/4 share but her father stated that it would be difficult for her to go and settle down in the village for supervising cultivation and under the circumstances it was desirable that her maintenance claim was settled and that, therefore, in accordance with the desire of the father of the plaintiff some of the elders of the place were called in and the claim for maintenance was settled at Rs. 300/- and mid to the plaintiff. Alternatively it was contended that in any event the plaintiff was not entitled to maintenance at anything more than Rs. 2/- P. M. having regard to the income realised from the property.
2. The trial Court framed the necessary issues arising from the pleadings. The first issue raised was whether the suit was not maintainable' by reason of the plaintiff having a right to claim 1/4 share in the joint family property under the Madras Act XXVI of 1947 passed after the Act No. XVIII of 1937. The trial Court while giving its findings on the other issues, dismissed the suit holding the preliminary issue against the plaintiff. This judgment was confirmed by the learned District Judge. The plaintiff has now come up in appeal.
3. The sole question for determination in this appeal is whether by reason of the right of the plaintiff to a share conferred on her under the Hindu Women's Right to Property Act (hereinafter referred to as the Act), a Hindu widow would not be entitled to claim maintenance. The learned District Judge relying upon the observations in the case of Sarojini Devi v. Sri Krishna, AIR 1944 Mad 401 to the following effect
'It may well be that if that Act (Hindu Women's Right to Property Act. 1937) conferred upon the widow a right of succession in respect of all her husband's property the right of maintenance allowed to her under the ordinary Hindu Law as compensation for her exclusion from inheritance would no longer be available; although nothing is said in the Act about the maintenance' held that the right of maintenance which was previously subsisting in the widow because of her exclusion from inheritance was no longer available.
4. Before going into the question of law to be decided in this case it is just as well that we give an account of the events prior to the institution of the suit, the husband of the plaintiff thed on 24-1-1949 leaving him surviving his widow, the plaintiff, his father and his two brothers, respondents 1 to 3. Ever since the death of the appellant's husband, no provision was made for her maintenance. She, therefore, caused a noice to be issued on 27-7-1950 calling upon the respondents to divide the moveable and immoveable property and settle her 1/4 share in the joint family property of her husband. A reply was sent by the advocate respondents to the aforesaid notice and therein it was stated that the appellant had no right to ask for partition, because she had represented to her father that she would remain in her father's house and that she required no partition of the properties as it would he difficult to arrange for the cultivation of the lands.
It is not necessary for us to go into the facts alleged in the written statement to say that the plainiff of her own accord gave up her right to partition and that she took in full settlement of her maintenance a sum of Rs. 300/- because the lower court has negatived her claim for maintenance solely on the ground that if she was entitled to a right io get a share by partition in the joint family property, she could not get any amount byway of maintenance. Both the lower Courts have come to the conclusion that the Act had extinguished the right of maintenance to which a widow would have been entitled under the ordinary Hindu Law.
5. The Hindu Women's Right to Property Actcame into force on 14-4-1937. The Act was furtheramended by Act XI of 1938. The object of theAct is to confer new rights of succession uponwidows. To the estenf to which it confers newrights of succession on widows, it makes a departurefrom the ordinary rule of Hindu Law. Accordingto Section 3(1) of the Act, where a man thes leaving amale issue, his widow inherits along with the maleissue his property if he is governed by the Mitakshara Law. The widow of a deceased co-parcenerwill have in the joint family property the sameinterest as he himself had. The effect of Sections 2 and3 of the Act is to recognize in the wife a survivorof the husband's person giving her the same rightsas her husband had.
She cannot be held to possess all the rights that her husband possessed as observed by Bhagavathi, J., (as he then was) in Nagappa v. Mukambe, : AIR1951Bom309 . It is a special statutory right that she gets by reason of her being the widow of a member of the joint family. The reason behind the proposition that a Hindu widow's right to maintenance is extinguished by reason of the coming into force of this Act which confers a right to a share, on partition, on a Hindu widow, is that she was allowed maintenance in lieu of a share in the estate and when that share was being given to her under the new Act the right of maintenance available to her under the ordinary Hindu Law would no longer he available, This question has been judicially noticed in the cases which came up before the Madras High Court, (6) The first case that might be referred to in this regard is the case of Venkata Subba Rattamma v. Krishniah, AIR 1943 Mad 417. This was a suit filed for partition by the widow of the brother of defendant No. 1 basing her rights to partition upon Act XVIII of 1937. It would appear that the Federal Court declared this Act XVIII of 1937 ultra vires of the Central Legislature in so far as il related to a share in the agricultural lands. When this decision was known, the plaintiff in that case sought to get the plaint amended claiming a share in the non-agricultural lands and maintenance in so far as that portion of the property was concerned which was agricultural land. Although the amendment was allowed, the question arose as to whether she would get both the reliefs.
She was called upon to elect which remedy she would have. Against that order a revision was preferred to the High Court. While dealing with this question, King J., observed that the Act substituted a new and better remedy to the widow than she had previously. The learned Judge also observed that the mere existence of Act XVIII of 1937 did not put an end to the right of maintenance on the part of the Hindu widow. Finally it was held that to the extent to which the property was agricultural lands she could have her right of maintenance and with regard to the other property she could claim a share in them.
7. The matter came before a bench consisting of Wadsworth and Patanjali Sastri JJ., in ILR (1945) Mad 61: (AIR 1944 Mad 401). In this case the Widow of a deceased co-parcener of the jointfamily filed a suit for partition and delivery of 1/3 share in the property to which her husband was entitled. Although originally, she claimed a share in all the property she gave up her claim to a share in the agricultural land by reason of the judgment of the Federal Court in In the matter of Hindu Women's Right to Property Act, 1941 F. C. R. 12: (AIR 1941 FC 72). The dispute arose with regard to the plaintiffs right to maintenance and the learned Judges had to consider whether notwithstanding the right to a share in the non-agricultural property, thg widow was entitled to a right of maintenance as under the ordinary Hindu Law. They straightway said:
'It seems to us that this question must beanswered in the affirmative.'
After making the aforesaid observations the learned Judges went on to remark:
'It may well be that, if the Act conferred upon the widow a right of succession in respect of her husband's pronertv, the right of maintenance allowed to her under the ordinary Hindu LAW as compensation for her exclusion from inheritance would no longer be available, although nothing is said in the Act about the rights of maintenance.' and they referred to the decision of King J., in AIR 1943 Mad 417 already adverted to. In the case before us the District Judge has based his conclusion that the widow's right of maintenance is extinguished, upon this remark of the learned Judges. The further remark of the learned Judge which the District Judge has ignored is to the following effect:
'It would be strange and anamolous if as a result of an enactment designed to give better rights to the widow she were to be placed in a worse position by being deprived of her pre-existing right of maintenance, with consequences which may well prove disastrous where the bulk of her husband's joint or separate property consists of agricultural land.'
What the learned Judges meant by this observation of theirs was that if it happened that the bulk of the property in respect of which she could claim a share is agricultural land, and if by reason of the judgment of the Federal Court she cannot claim a share in such property, it cannot be said that her original right of maintenance is lost.
The sum and substance of this remark of the learned Judges comes to this that where the widow cannot get her share by partition she is certainly entitled to maintenance. We might herein refer to another decision of the Madras High Court in Cherutty v. Nagam Parambil Ravu, 1940-2 Mad LI 358: (AIR 1940 Mad 664). Leach C. J. while adverting to the Privy Council decision in Vellapaippa Chetty v. Natarajan, 58 Ind App 402: (AIR 1931 PC 294) observed that the share of inheritance is not given in substitution of a right of maintenance. The learned Chief Justice went on to observe
'as there was a right to maintenance, there must be an appropriate remedy when that right is denied. To say that member of a joint family to whom, maintenance had been denied shall cause the family to be divided and the family estate partitioned, or go without anything, is not Providing an appropriate remedy, for the injustice done to him. He may not want to have the family divided and it may be against his interest to have the family estate partitioned.'
The other learned Judge, Krishnaswami Ayyangar, J., also stated that there was no warrant for holding that an excluded member, that is to say, a coparcener of a joint family must either sue for partition or be content to remain without being maintained at the expense of the joint family property.
8. The matter came to be considered in Rathina Sabhapathi Pillai v. Saraswathi Ammal, : AIR1954Mad307 . The learned Judges categorically declared that the widow's general right to be maintained out of the joint family estate had not been taken awav by the Act since there was no reference to it. Such a right, the learned Judges said, was still available and the option would rest with her to claim maintenance or share but not both. It may bp useful to refer to Mayne's Hindu Law as regards this proposition'. It is stated therein that the rights of maintenance of the widows mentioned in the Act are not expressly abolished.
But it is obvious that as the Act confers uponthe widow rights of succession in respect of thehusband's properly the right of maintenance allowed to her under the ordinary Hindu Law wouldno longer be available. Obviously, this means thatthe widow cannot exercise both the rights at oneand same time and if she desires to take a sharein the husband's property, she could not claim maintenance. The fact that maintenance was beinggiven to her in lieu of her share in the husband'spronerty cannot deprive her of her right of maintenance where the did not take the share in herhusband's property.
9. Learned Counsel for the respondent invited our attention to a decision of the Oudh Chief Court wherein it was held that the effect of Act XVIII of 1937 was to take away the right of a Hindu widow to claim maintenance under the Hindu Law. The case referred to was Misrilal v. Mt. Sunarta, ILR (1948) 23 Luck 277. This was a suit by the widow of an undivided member of a joint family against her father-in-law and her mother-in-law. She complained that she had been driven out of the family residence and her ornaments were taken possession of forcibly. She, therefore, prayed for a decree for the recovery of the ornaments or their value and also claimed a decree for maintenance at the rate of Rs. 50/- P. A. with also a house for residence. She obtained a decree for maintenance and this was questioned in appeal before the Chief Court. The learned Tudaes who decided this case referred to a passage in Mayno's Hindu Law, 10th Edn. by Srinivasa Aiyangar at page 828 wherein it was stated:
'Their (widows') rights of maintenance under the Hindu Law are not in terms taken away by the new Act but that must be the necessary consequence if they were allowed maintenance only because they were excluded from inheritance and a share on partition.'
They also referred to a passage from Golapchandra Sarkar Sastri on Hindu Law to the effect that the question of her right to maintenance out of her husband's estate will not arise after the Act came into force. Relying on these passages the learned Judges go on to say that the right of maintenance was based upon the fact that the widow had no share or a right to partition and, therefore, when she had been given by the Act a right of partition, the right to maintenance must be deemed to have been extinguished.
We may in this connection observe that neither the passage in Mayne's Hindu Law nor the text of Golap Chandra Sarkar Sastri on Hindu Law is capable of the construction that by the coming into force of the Act, the right of the widow to maintenance had been extinguished. They cannot be held to mean that if she chooses not to ask for partition, then the right of maintenance that she had under the Hindu Law would not be available to her; for, to put such a construction upon these passages would amount to interpreting the provisions of the Act in a way against the express intention of the Act. The new enactment was passed, as has been already observed, for the purpose of conferring better rights on a Hindu widow, which meant that instead of the widow getting a mere maintenance from her husband's estate, she could claim a share in the same
If for some reason she is not in a position to ask for a share, surely her right to claim maintenance from her husband's estate by reason of her being the widow of a member of a co-parcenary, cannot be said to have been lost. We feel that the learned Judges of the Oudh Chief Court only meant to lay down that the widow cannot be a maintenance-holder in respect of the very property which she owns for her life. If the learned Judges meant anything more than this i. e., to say that regardless of the fact as to whether she had a share in the estate of her husband or not, she would be disentitled to maintenance by reason of the new enactment, with great respect we beg to differ.
So long as there is no provision in the Act expressly or by implication taking away the right of maintenance, it could not be argued with any force that the right to partition was in substitution of the right to be maintained. A decision of the Orissa High Court also was brought to our notice in Thirthabasi v. Trinayani Dasi, : AIR1951Ori306 . in that case some of the properties over which the widow had a charge for her maintenance passed out of the family and in these circumstances it was held by the learned Judge, Jagannath Das, J., that there was no scope to say that the right to maintenance out of certain properties which passed out of the family should be held to have vanished.
10. On a consideration of the various decisions, we are of opinion that the judgment of the lower Court is wrong. The appellant cannot be deprived of her right to maintenance. This appeal is allowed with costs of all the three Courts, and the judgment of the lower Court set aside. The case is remanded to the trial Court for going into the question ot the maintenance payable to the appellant. The trial Court is directed to dispose of the case expeditiously, preferably in four months, after the date of the receipt of the records.
11. We cannot help remarking that the casehas drawn its weary length on account of therecalcitrant attitude of the respondent herein. WeTherefore direct the trial Court to expedite the disposal of the case and go on with the trial of thesuit from day to day after the first hearing.