Rachhpal Singh, J.
1. This is a defendant's second appeal arising out of a suit for possession. The facts which have given rise to the second appeal may briefly be stated as follows : Babu Ram Narain was the owner of two-thirds share in the house in suit. Mt. Ganga Dei was his widow. They had a son, Babu Parshotam Naith, and one daughter, Mt. Nand Rani. Parshotam Nath's wife was Mt. Shama Kunwar. The family was a joint family governed by Mitakshara Law. On the death of Babu Ram Narain, his son Babu Parshotam Nath succeeded to the family estate by right of survivorship. He died in the month of June 1922 when his widow Mt. Shama Kunwar succeeded to the estate as a Hindu female. She died soon after her husband in the month of December 1922, when Mt. Ganga Dei, the mother of Parshotam Nath, the last male-holder of the estate, succeeded as a Hindu female.
2. On 13th April 1923 Mt. Ganga Dei, made a will in favour of her daughter, Mt. Nand Rani. The plaintiffs alleging themselves to be the reversioners of Parshotam Nath, instituted a suit in 1923, and in 1924 they obtained a declaration that the will was invalid. On 17th September 1928, Mt. Ganga Dei died.
3. A few months after her death in December 1928, the plaintiffs instituted a suit against Mt. Nand Rani and her son claiming possession over the estate as the nearest reversioners of Parshotam Nath. The claim, was resisted by the daughter on several grounds, but was decreed by both the Courts below. Mt. Nand Rani has come up in second appeal before this Court. The two pleas with which we are mainly concerned in this appeal were raised by Mt. Nand Rani in her defence. One was that she had defrayed the expenses of the funeral of Mt. Bhagwan Dei, and the other was that Mt. Bhagwan Dei before her death had been ailing for a number of years and a certain sum of money was spent by defendant 1 on her treatment. It was contended that the reversioners could not get the estate without paying the defendant No. 1 the amount spent by her on account of the aforesaid two items. Both the Courts below held that the defendant was not entitled to claim either of the two items. The two important points which we are asked to decide are: (1) Whether a person who has expended money on funeral expenses of the mother of the last male-holder is entitled to retain possession over the estate of the last male-holder till the funeral expenses have been paid. (2) Whether a person who has advanced money for medical treatment to the mother of the last male-holder in possession of his estate can claim to hold the estate as against the reversioners till those charges have been paid. The first thing which we have to bear in mind is that, we are dealing with the case of a mother of a deceased Hindu, governed by Mitakshara Law, and whose estate was in possession of his mother as a Hindu female. According to the provisions of Section 320, Succession Act (39 of 1925):
Funeral expenses to a reasonable amount according to the degree and quality of the deceased and death bed charges including fees for medical attendance, and board and lodging for one month previous to his death shall be paid previous to his debts.
4. This section makes it perfectly clear that reasonable funeral charges including fee for medical attendance and for board and lodging for one month prior to the death of the owner of the estate are, under the law of the country, to be paid before any other debt. The question as to whether a person spending money on these items can claim a lien over the estate however stands on a different footing. The provisions of the Indian Succession Act however cannot help in this case. The plaintiffs in the present case are not claiming the estate of Mt. Bhagvvan Dei but they are asking for possession over the estate of Parshotam Nath, who was the last male-holder of it. The learned Counsel appearing for the defendant-appellant relied on observations made in Sarvadhikari's Hindu Law, Edn. 2, p. 10, where the learned author remarks thus:
The Hindu system went further, and laid it down as an imperative rule, that the right to inherit a dead man's property is exactly coextensive without the duty of performing his obsequies. The devolution of property depends upon the competence to perform the obsequial rites of the deceased. They cannot be separated. He who is entitled to celebrate these rites, is also entitled to inherit the property; and he who gets the property must perform the funeral rits of the last owner.
5. It would however appear that the learned author was quoting here the rule of Dayabhaga Law, because we find that at another place in the same book at p. 453 when dealing with the principle of succession under Mitakshara Law the learned author says:
It should be distinctly understood, says Mitra Misra, in another place, that the title to present exequial pindas is not the sole ground of taking the inheritance, for the younger brothers are equally entitled to the inheritance, although in presence of the eldest brother the younger brothers are not entitled to present those offerings. The younger brother's share with the eldest, because the competence to present those offerings is not extinct in them. Far it be from us, he seems to say, that the title to present pindas and the title to inheritance are co extensive terms. One is not the effect of the other. The former does not necessarily imply the latter. What we simply mean to say is, that the competence to present pindas is a test a measure of the degree of propinquity in which a given relative stands to the deceased. 'Where there are many claimants amongst the gotrajas and the like, then the fact of conferring benefits on the deceased merely settles the question of precedence among heirs.' In other words, the competence to present exequial cakes does not create the heritable right, but determines only the preferable right. It simply furnishes the principle of selection founded on superior efficacy of oblations. It determines the priority among heirs. It shows the nearer heirs who exclude the more remote. The conferring of spiritual benefits must never be accepted as the sole ground of taking the inheritance.
6. It will therefore be seen that the question before us cannot, be decided with reference to the obligation about performing the funeral rites of the last owner. It is also doubtful whether in the passage at p. 10 of the Sarvadhikari's Law of Inheritance relied upon by the counsel for appellants, the words 'the last owner' can be said to refer to a female holder of the estate. It can be argued that the words 'the last owner' refer to the person whose estate the reversioners are claiming and not to the widow. The first important question we have to consider is whether according to Hindu Law the estate of the last male owner is, or is not liable for defraying the expenses of the funeral ceremonies of the last male holder's mother. There does not, appear to be any direct authority in the ancient texts of Hindu Law on this point. The legal liability of the estate for the funeral expenses of the mother of the last male-holder cannot be decided with reference to the offering of funeral cakes. The reason is that the reversioners succeeded on the ground that they are the reversioners of the last male-holder and not on the ground of offering funeral oblations to the mother. They succeed because they are the nearest reversioners of the last male-holder.
7. The position of the mother in a joint Hindu family governed by Mitakshara Law is a very important one. First stage of Hindu Law affords complete evidence of a state in which the property belonged to a family and not to any individual member thereof. The property was held in perpetuity by the family and the members of the family were only entitled to maintenance out of the family property. The karta of the family managed the family estate. The second stage was reached when individual ownership was recognised and then it became necessary to distinguish between right of ownership and mere right of maintenance. Females and certain other members such as deaf and dumb were held entitled to maintenance while other members were held to be owners. The law went on changing slowly and a stage arrived when in the absence of a male owner the widow in the family in modification of her previous right of maintenance became entitled to hold the family estate with certain limitations. The importance of the position of a mother in a joint Hindu family is recognised in this manner that if there is a partition between a son and her husband then she is allotted a share equal to that of a son. In a joint family the mother and the widow of a deceased coparcener are both entitled to claim maintenance out of the family estate which has gone to other male members by right of survivorship.
8. In all civilised countries the funeral expenses of the deceased owner of an estate are first charges on the estate left by him. The difficulty which arises in the case before us is that it is not the estate of the deceased which is asked to pay the funeral charges. The widow's right of maintenance arises by marriage. It is not a matter of contract. It exists during the husband's lifetime and continues after his death. It is an obligation attached upon his person and remains the same after his death. As regards funeral charges one way of looking at the things is this: If the husband is alive then it will be certainly his moral obligation to defray the funeral expenses of his wife. But the question is whether he was under any legal liability to pay the funeral expenses of his wife. If he was not legally liable for these expenses, it is difficult to see how his estate could be, held liable for funeral expenses when his wife dies after him and the estate goes into the possession of his reversionary heirs. On this point the old Hindu Law texts do not give us any help. In Stoke's Hindu Law Books, p. 91, the rule of law is described as follows:
The funeral rites of the deceased, as far as the 10th days rites inclusive, must be performed by that person (among the heirs) who takes the estate, whoever it may be, from the wife downward even as far as the king himself. Even thus Vishnu says: 'He who is the heir of the estate is the giver of the funeral oblations'.
9. At p. 435 it is stated:
It is said by Katyayana Heirless property goes to the King deducting, however a subsistence for the females as well as the funeral charges....
10. But these texts however do not refer to the case of a female limited owner. It appears to have been however held in several cases that the sradh of a female is a legal necessity according to Hindu Law. The first reported case on the point is Raj Chunder Deb Biswas v. Sheeshoo Ram Deb (1867) W.R. 146 where it was held that according to Hindu Law the sradh of a mother was a legal necessity. This view was followed in a later ruling of the Calcutta High Court in Srimohun Jha v. Brijbehary Misser (1909) 36 Cal. 753. The next Calcutta case on the point is Rama Dhari v. Parma (1913) 21 I.C. 716. In this case it was held that the reasonable expenses on the sradh of the widow of a deceased Hindu should be paid out of the estate in the hands of the reversioners and the reversioners who inherit the estate should contribute towards such expenses. It will thus be seen that the view is that the expenses of the sradh of the widow are a legal obligation on the estate which the reversioners get. The Madras High Court in Vaidyanatha Aiyar v. Aiyasamy Aiyar (1909) 32 Mad. 191 has, taken a similar view. It was laid down that the funeral expenses of mother are defrayable out of the family funds. The Bombay High Court has adopted a similar view. The first case on the point is Sadashiv Bhaskar Joshi v. Dhakubai (1880) 5 Bom. 450. The observations as regards the point in question are to be found at p. 460. It is stated:
Then as to sum alleged to have been expended by the first and second defendants in and about Chandrabhaga Bai's funeral, I find no case in which a question whether a Hindu widow can charge her husband's estate with the payment of a sum of money raised for the payment of her funeral expenses has been decided. But it has been held that a Hindu widow may validly charge her husband's estate with the payment of money received for her maintenance, if the income of the estate be insufficient; and I see no reason why she should not likewise be able to charge the estate with, a reasonable amount for the purpose of her proper and necessary funeral expenses, according to her station in life.
11. No authority is cited by the learned Judge for this proposition. The next case is Ratanchand v. Javherchand (1898) 22 Bom. 818. In that case the reversioner of the husband of one Mt. Diwali sued for possession. The defendant claimed the estate under a will executed by her, which was held to be invalid. The defendant further claimed funeral expenses incurred in connection with the death of Mt. Diwali. The learned Judges in their judgment remarked that they could find no authority on the Hindu Law texts on the point but relied on Sadashiv Bhaskar Joshi v. Dhakubai (1880) 5 Bom. 450. It was held that a widow could charge an estate with the liability to pay her funeral expenses Vrijbhunandas Dwarkadas v . Bai Parvati (1908) 32 Bom. 26 is the next case. In that case it was held that a reversioner could not recover the estate in possession of a Hindu mother without paying the funeral expenses incurred by the person in possession under a will executed by the widow and it was further held that these expenses were charged on the estate. The learned Judge observed:
that the duty of performing the funeral ceremonies of a mother that is, pinda dan or offering the funeral oblations, is laid down as a religious injunction binding on her son in absolute terms by the Hindu Law. The duty is independent of any assets left by her. The expenses of performing funeral ceremony are a charge on the son's estate.
12. Coming to our own High Court I may refer to Maqbul Ahmad v. Baijdio Tewari 1930 All. 529. In that case it was held that a Hindu daughter was justified in selling property inherited by her from her mother to pay off a prior mortgage deed under which the money has been borrowed for the barkhi (annual death ceremony) of her mother. One of us (My Lord the Chief Justice) was a party to that decision and it was clearly laid down that the performance of such a ceremony would be the duty on the person who inherits the estate and the expenses could be met out of such property. Having regard to the view which has prevailed in most of the High Courts since several years, I do not see any reason for taking a different view in the case before us. It appears to me that according to the case-law the rule is well established that the funeral expenses as well as the expenses of sradh ceremonies of the mother and the widow of the deceased last male-holder, are in the nature of legal charges and if a person is obliged to defray those charges then the estate of the last male-holder is liable for them.
13. The next question which arises for consideration is whether a person spending money on funeral charges is entitled to retain possession of the estate until the expenses incurred by him are paid. In considering this question we have to differentiate between the case of a person who was lawfully in possession of an estate and a person who is in wrongful possession. Suppose, that a Hindu widow of the last male-holder or his mother makes a gift of the estate to a relation, the gift is certainly valid for her life. And further suppose that the donee is living with the doner at the time of her death. The donee who was in lawful possession of the estate incurs funeral expenses because the reversioners were not or could not be present at the time when the widow or mother died. The question may arise whether in these circumstances, a person who is in lawful possession of the estate, may or may not claim a lien in respect of the funeral charges which he or she has been compelled to defray. If a person is in lawful possession and during that possession he is compelled to incur a liability binding on the estate then, possibly, he might claim a lien but that would be, as observed in Ghansham Singh v. Tej Bahadur Singh (1912) 13 I.C. 191 because being lawfully in possession under the deed of gift during the lifetime of the iady; he discharged a liability which was binding on the reversionary heirs. The case before us however stands on a different footing altogether. Here, the mother of the last male-holder of the estate was herself in possession. She had executed a will in favour of defendant 1 and it was held that it was not binding. On the death of the mother defendant 1 was not entitled to get possession over the estate.
14. It must therefore be held that her possession was unlawful. So the question which we have to decide is whether a trespasser who has obtained possession over her estate unlawfully land illegally, can claim a lien in respect of the funeral charges which he might have incurred of his or her own accord. It appears that the question must be answered in the negative. The position which has to be accepted is this: The mother of the last male-holder who was in possession died and defendant 1 as mere volunteer, defrayed the expenses of the funeral ceremony. The pleadings do not show that it was ever asserted that the plaintiffs refused to perform those ceremonies and on account of that refusal defendant 1 was forced to spend money on funeral expenses. Under these circumstances it cannot be said that defendant 1 can claim a lien over the property in respect of the funeral expenses. On the death of the widow there was no legal liability imposed upon defendant 1 to defray the funeral expenses. It was the estate of the son of the deceased lady which was legally liable for the funeral expenses. If defendant 1 defrayed the funeral expenses, she did so as a mere volunteer. All that can be said is that she performed a moral obligation. But is clear that a relation of the deceased mother cannot improve his position in any manner by performing a moral obligation which he or she was not legally bound to perform. A trespasser cannot take possession of the estate and claim to retain it on the ground that he has a right to do so until the amount expended by him or her on funeral expenses is repaid. All the three Bombay rulings : Sadashiv Bhaskar Joshi v. Dhakubai 5 Bom. 450, Ratanchand v. Javherchand (1898) 22 Bom. 818 and Vrijbhunandas Dwarkadas v. Bai Parvati (1908) 32 Bom. 26, are certainly in favour of the contention of the appellant. These cases were decided on the analogy of the widow's right of maintenance. It was held that as the estate in the hands of the reversioners was charged with the maintenance of the widow, so on the same analogy the funeral expenses were also a charge on the estate. It appears to have been assumed that the widow's charges in respect of her maintenance stood on the same footing as a charge as denned in Section 100, T.P. Act.
15. With the utmost possible respect to the learned Judges, I myself find unable to agree with the broad proposition laid by them. It is well settled now that the right of maintenance is not a charge unless it is so declared. The right however can be converted into a charge either by an agreement, by decree, or under a will. If the property out of which the maintenance is to be paid to the widow is transferred for family necessity, then the widow cannot get maintenance from the alienee. The law makes the position of the widow safe by declaring that a transfer of the family estate liable for widow's maintenance if made fraudulently, will be ineffective against her. But a widow who is entitled to maintenance cannot contend that her maintenance is a charge which may be enforced against the third person. When we say that the widow has a charge in respect of her maintenance over the family estate, all that we mean is that the family estate, if not transferred for legal necessity, remains liable for the maintenance of the widow. Charge as understood under the provisions of Section 100, T.P. Act, can only arise either by operation of law or by the act of parties. And unless there is an agreement or a decree declaring a charge, it cannot be held that the maintenance is a charge on the family estate. D.F. Mulla in his Hindu Law, Edn. 7, p. 587, defines the position as regards the maintenance of a widow thus:
The claim oven of a widow for maintenance is not a charge upon the estate, whether it is joint family property in the hands of the surviving coparceners of the husband or the separate property of the husband in the hands of his sons until the amount of maintenance is fixed and made a charge upon specific property.
16. In Parvati Devanna Jagadal v. Shrinivas Ramchandra Patil 1920 Bom. 219, it was held:
That a claim for maintenance by a female member of a joint family is a personal claim against members of the family and can only be made a charge on the family property by an order of the Court or by a properly executed document.
17. An estate of a deceased Hindu may be under an obligation for the maintenance of the widow, but it does not follow from this that a simple creditor of a widow, who has paid her money for maintenance, can insist on getting possession and on retaining the property of the family till the amount due to him is paid. It appears to me that the position of a person advancing money to a widow for her maintenance or spending money on her funeral expenses is no better than that of an unsecured creditor. I do not think that he has lien. In a very old case Zubburdust Khan v. Indurmasi 1 N.W.P. 71 (F.B.), it was held that:
the creditor of a deceased Hindu does not on the death of his debtor obtain any better position as against the debtor's estate, than that which he enjoyed during the debtor's lifetime.
18. A creditor cannot be permitted to take possession over the estate and then claim a lien. Similarly if a person is obliged to spend money on the funeral expenses of the mother of the last male owner of the estate, then it is open to him to sue the heirs and obtain a decree. He will get a decree because the funeral expenses are de-frayable out of the estate. But lie cannot improve his position by getting possession over the estate. The Transfer of Property Act is applicable to Hindus. Under the provisions of Section 100, T.P. Act:
Where immovable property of one parson is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to ft simple mortgage shall, so far may be, apply to such charge.
19. Even if we suppose for a moment, without conceding the point, that the funeral charges were a charge on the estate in the terms of Section 100, T.P. Act, the position of defendant 1 is no way improved. Her position will be something akin to that of a simple mortgagee. Now, a simple mortgagee cannot go and take possession over the mortgaged property. The same rule will be applicable to the case of a person who has a charge, as understood by the Transfer of Property Act, over a particular property. He can enforce his charge by instituting a suit, but has no right to go and take possession over the estate which may be subject to a charge, and which the law enables him to treat for the repayment of his loan. Now charges are created either by act of parties or by operation of law. In the case before us it cannot be said that a charge in respect of the funeral charges incurred by defendant 1 was created by act of parties, and there is no warrant for holding that it is a case in which a charge was created by operation of law. Some of the instances in which a charge is created by operation of law are to be found in the Transfer of Property Act. Under Section 55(b) there is a charge in the case of an unpaid vendor; under Section 55(6)(b) there is a charge for the purchase money paid in advance; under Section 73 there is a charge in favour of a mortgagee on surplus sale proceeds of a revenue sale. Other instances of statutory charges are to be found in Section 92, T.P. Act. For the reasons given above, I am clearly of opinion that defendant 1 cannot claim any charge in respect of the funeral expenses of the mother of the last male-holder.
20. The real question for the determination in the case before us is whether defendant. 1 can claim a lien in respect of the funeral charges of the mouther of the last male-bolder over his estate, which has come in possession of his reversiianers. In Hindu Law the term 'lien' was unknown. I have consulted various books of Hindu Law, and I can find no reference to the doctrine of 'lien' anywhere. The learned Counsel appearing for the appellant was unable to cite any rule of Hindu Law under which such a lien as claimed by his client could be asserted. There may be two kinds of liens known to the law. They are: (1) 'Liens affecting moveable properties (chattels).' (2) 'Liens affecting immovable properties.' Generally in both cases the right of the person claiming a lien would arise out of a contract between the parties, either express or implied. As regards chattels, one of the liens which is well-known is a bailee's lien. In the case before us we have nothing to do with the liens affecting moveables or chattels. We are here concerned with a lien claimed in respect of immovable property:
Lien in its primary sense is a right in one man to retain that which is in his possession belonging to another until certain demands of the person in possession are satisfied. A lien is a right of defence not a right of action.... Halsbury's Laws of England, Vol. 19, 1st Edition, pp. 2 and 3.
21. At p. 4 of the same book the learned author observed that no lien can be obtained by wrongful possession. In the case before us on the death of the widow, the estate vests in the reversioners of the last male-holder and defendant 1 who obtained wrongful possession over it, cannot claim a right of lien in respect of the estate. Section 69, Contract Act, enacts that:
a person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.
22. But it is significant that no right of lien is given to such a person. I would therefore hold that in the present suit the defendant cannot resist the claim of the reversioners for possession even if it be assumed that defendant 1 defrayed the funeral expenses. She got the possession over the estate unlawfully, and therefore cannot claim any lien. As regards the claim about the money alleged to have been spent on the medical treatment of the mother of the last male-holder, defendant 1 has no case. She had, if her allegations be true, advanced money to the mother of the last male-holder for expenses in connection with, her illness. Her position is like that of an ordinary creditor. She may sue for the expenses which she has incurred in regard to her mother's illness and obtain a decree. But she has no lien over the estate. For the reason given above, I would dismiss the appeal with costs.
23. I agree.
24. I agree.