1. The defendant, Smt Ramabai, against whom the plaintiff-respondent Mirabai obtained a decree for payment of monthly amount of maintenance at Rs. 60 from the date of institution of her suit and for payment of Rs. 3,000 on account of her marriage expenses, from the Court of the Additional District Judge. Chhindwara, in Civil Suit No. 44-A of 1958, has filed this appeal.
2. The facts are these. Admittedly, Narayan Rao Dandige owned the properties mentioned in his Schedules attached to the plaint. By his first wife, he had a daughter who is the appellant Smt. Ramabai. and a son Nilkanth. By his another wife. Smt Gangubai. he had a daughter who is the respondent in this appeal. Narayan Rao died on 13-6-1942 at Nagpur. Nilkanth being his only son inherited the entire property of his father. He was minor at the time of his father's death. Therefore, the property was managed by his stepmother Smt. Gangubai on his behalf. Smt. Gangubai remarried in the month of August 1948. Before the re-marriage, she executed a deed of release Ex. D-1, dated 17-1-1948. By the said document, she relinquished all her rights in the property of her said husband. It is stated in Ex. D-l that for bringing up her minor daughter Mirabai and for purposes of her education and marriage, she had kept with her those ornaments only which were presented to her at the time of her marriage with the deceased Narayan Rao Dandige and that only an amount of Rs. 100 per year shall be paid to her by Nilkanth for bringing up the plaintiff Mirabai up to her attaining the age of 16 years or up to the time of her marriage if her marriage was performed earlier.
3. Nilkanth died on 12-8-1948. The defendant Ramabai inherited the estate as his real sister after his death.
4. In the plaint, the plaintiff Meerabai claimed past arrears of maintenance at the rate of Rs. 125 per month for three years amounting to Rs. 4,500 and future maintenance at the same rate. She also claimed a decree for Rs. 10,000 against the defendant for her marriage expenses. It was also claimed that the maintenance allowance be declared a charge over the property of Nilkanth in the possession of the defendant.
5. The trial Court only granted a decree for her maintenance at Rs. 60 per month from the date of institution of the suit and Rs. 3,000 for her marriage expenses and declared that the maintenance amount shall be a charge over the property in the possession of the defendant which she got from her brother, the deceased Nilkanth. This appeal is directed against this decree of the trial Court.
6. The first contention raised by Shri P. R. Padhye, learned counsel for the appellant, is that as the maintenance was claimed after the Hindu Adoptions and Maintenance Act, 1956, (No. LXXVIII of 1956), hereinafter called the Act, came into force, the question of grant of maintenance to the plaintiff-respondent would be governed by Sections 21 and 22 of the Act and as the appellant was not a dependant of Nilkanth within the meaning of Section 21 of the Act where 'dependants' were denned, she was not entitled to any maintenance. The point raised by the learned counsel is really that Section 4 of the Act makes the Act retroactive. It is urged that whatever rights accrued to the plaintiff under the Hindu Law were extinguished by reason of Section 4 of the said Act. It is contended that this result flowed from Clause (a) of Section 4 which reads as under:
'4. Save as otherwise expressly provided in this Act.-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) .. .. .. .. ..
7. In our opinion, this contention is without any substance. Sections 21 and 22 of the Act do not in any way abridge the pre-existing rights of the maintenance holders and these provisions of the Act are prospective and apply only to the estate of Hindus whose death takes place after the commencement of the Act. In Section 21, persons who have been defined as 'dependants' for the purpose of that Chapter are enumerated. It is true that 'sister' does not find place in the list of 'dependants' in the Section. The pbvious reason is that in cases governed by the said Act, sister would inherit the property of her father along with her brother and, therefore, there is no need for including her in the list of dependants but this would not deprive the sister of getting her maintenance from her brother out of the property left by her father where she does not inherit the property from her father as an heir. The settled position of law is that an heir is legally bound to provide out of the estate which descends to him maintenance for those persons whom the late proprietor was legally or morally bound to maintain. The reason is that the estate is inherited subject to the obligation to provide for such maintenance. (See Mt. Rupa v. Mt. Sriyabati, AIR 1955 Orissa 28).
8. Section 4 of the Act only provides that in respect of matters provided in this Act, it shall prevail despite any provision relating thereto in any other Act previously existing or incident of any custom under Hindu Law which previously governed such matters. This, however, in our opinion, does not mean that the Section entirely obliterates the operation of the texts, rules, etc., obtaining prior to the commencement of the Act and. as such, the provision contained in Section 4 does not stand in any way of enforcements of the rights that accrued before the commencement of the Act. The same view was taken by a Full Bench of the Andhra Pradesh High Court in Ramamoorty v Sitharamamma, AIR 19(51 Andh Pra 131 (FB) ,
9. The plaintiff's father was under a legal obligation to maintain her whether he was possessed of any property or not and on his death. Nilkanth was bound to provide, out of the estate which he inherited from his father, maintenance for the plaintiff under Hindu Law and when the defendant acquired the estate of her brother through inheritance, she similarly became liable to provide maintenance to the plaintiff The fact that the preexisting right of maintenance continues to exist must in its turn necessarily imply that the old law which created that right must also exist to support the continuation of that right As the old law continues to exist for the purpose of supporting the pre-existing right of maintenance, that law must cover the exercise and enforcement of that right for the future also and there can be no question of the new Act preventing exercise of that right. On the ground that the right of maintenance is a recurring right, in our opinion, it cannot be said that after the commencement of the Act, the plaintiff would be governed by the provisions of the Act and her right of getting maintenance became extinguished after 21-12-1956 when the Act came into force. Thus, the first contention is overruled.
10. The second contention raised by Shri Radhye is that the deed of relinquishment (Ex. D-1) is binding on the plaintiff and, therefore, in any event, she could not claim from the defendant more than Rs. 100 per year, as stated in that deed.
11. This contention also, in our opinion, is without any substance. In Shewatlbai v. Shamrao, Second Appeal No. 436 of 1951, dated 10-1-1952 (Nag). Hidayatullah, J. (as he then was) held that relinquishment being a personal act could only be performed by that, person and not vicariously. A minor is, therefore, incompetent to relinquish personally or through his guardian. It is in evidence that Ramabai was born on 9-12-1942 about three months after her father's death. At the time when Ex. D-1 was executed by her mother, Smt. Gangubai, she was only six years of age. Smt. Gangubai therefore as her guardian had no right to relinquish her rights. Therefore, the document (Ex. D-1) has no binding force on the plaintiff and in spite of the terms of that deed, she is entitled to claim proper amount of maintenance. This contention, therefore, fails.
12. The third contention raised is that the plaintiff's mother Smt. Gangubai has set apart ample provision for monthly maintenance and marriage of the plaintiff when she managed the properly from the time of the death of Narayan Rao Dandige up to the time of her remarriage and, therefore, the plaintiff is debarred from claiming anything in the suit.
13. This contention is required to be stated only to be rejected. Even if it be assumed in favour of the defendant that the plaintiff's mother kept cash or gold surreptitiously with her and did no[ part with that property ai the time of her remarriage in favour of the plaintiff, it is apparent that the proper remedy of the defendant would be to claim those properties from the plaintiff's mother. The possibility of there being some property, as alleged, in the possession of her mother itself is no ground to deny the maintenance to which the plaintiff may be found entitled. Further, there is no evidence at all on record to show that any item of the property possessed by her father was given to the plaintiff either by her mother or by the defendant. Actually, the lower Court on consideration of the evidence has held that the contention of the appellant that the plaintiff's mother had set apart some amount for making provision for the maintenance and marriage of the plaintiff has not been proved. We find nothing on record to take a different view For these reasons, this contention also is without any substance.
14. The last question for consideration is whether the quantum of monthly maintenance end the provision for marriage, of Rs. 3,000, which has been awarded and made by the trial Court, is excessive. It is well settled that the quantum of maintenance should be fixed keeping in view the value of the estate, taking the debts for which it is liable also into consideration, the position and status of the family and the reasonable wants of the claimant paying due regard to the circumstances affecting the mode of living, habits, wants and class of life of the parties, The Court should also take into consideration the independent means of support, if any, of the person claiming maintenance. In the present case, it is not even suggested that the plaintiff-respondent has any independent means of support. There is no evidence to show that she had any property in, her possession belonging to her father. It is admitted that the plaintiff-respondent is receiving her college education and that she wants to study further for post-graduate degree.
Her mother, Smt. Gangubai (P. W. 1) and her two witnesses, Doulatram (P. W 2) and Sadashiv (P.W. 5) have clearly indicated that the income from the agricultural land is about Rs. 4,000 per year. The evidence of these witnesses has been relied on by the trial Court. Doulatram (P. W. 2) himself purchased a field from the mother of the plaintiff. He deposed that his annual income from the said field was about Rs. 2,000 and he estimated that the income from the fields in the possession of the defendant must be about Rs. 6,000 at least if the supervision is proper. We find no good reason to disbelieve the evidence of this witness who does not appear to be a partisan witness. In rebuttal, the defendant examined herself on commission Admittedly, she has been in possession of the said land from the year 1948 but no accounts were produced by her to show as to what the annual income from cultivation was. The statement of Rajaram (D.W. 1) is ludicrous on the face of it and. in our opinion, has been rightly disbelieved by the trial Court. He tried to say that the annual income from the said fields was only about Rs. 100 to Rs. 200 per year.
Considering the status of the deceased Narayan Rao Dandige and his family, we are of the view that the award of Rs. 60 per month as maintenance really errs on the side of being inadequate, and, in no sense, can it be said to be excessive. Similarly, the provision of Rs. 3000 only for her marriage is apparently inadequate. Smt. Gangubai had deposed that the marriage expenses would be about Rs. 10,000 to Rs. 12,000 considering the status of her late husband. Babu Rao Purohit (P.W. 6) who belongs to the same community has deposed that he actually incurred Rs 8,500 in the marriage of his daughter This evidence has not been controverted by the defendant. Her suggestion that if the incurred were performed in the Vedie form, the expenses might be about Rs. 50 only cannot be accepted. In our view, the provision made for her marriage does not call for any reduction.
15. The result is that this appeal fails and is dismissed with costs. Counsel's fee Rs. 200 in this Court, if certified.
Shiv Dayal, J.
16. I entirely agree with all the conclusions and the result of the appeal contained in the judgment of my learned brother. I would merely add a word. Under the Hindu Law as it was administered before the commencement of the Hindu Adoptions and Maintenance Act, 1956: (1) a Hindu was under a legal obligation to maintain his unmarried daughter; (2) on his death, his heir was legally bound to maintain his daughter. This obligation was, however, limited to the estate which descended to the heir. (3) On the death of the aforesaid heir, the succeeding heir was bound to maintain the daughter as the last holder was legally bound to maintain her. The subsequent heir inherited the estate subjecl to that obligation. Where X was survived by his son Y and unmarried daughter Z and his estate devolved on Y, Y was legally bound to main tain Z out of that estate. On the death of Y, his heir H was also legally bound to maintain Z inasmuch as the estate which Z inherited was subject to the legal obligation of Y to provide for her maintenance. That is how the unmarried daughter had the right to be maintained out of her father's estate. This right the daughter acquired if her father died before the commencement of the Act of 1956 and that right has not been taken away by the said Act because, in the absence of A specific provision to the contrary, il came into operation prospectively.
17. The reason for the omission of 'sister' in Section 22 of the Act of 1956 is obvious enough. The Hindu Adoptions and Maintenance Act (No. 78 of 1956) was enacted sub sequent to the Hindu Succession Act (No. 30 of 1956), under which the son and the daughter inherit together, so that the question of the daughter's maintenance does not arise. This further fortifies the conclusion that the Main tenance Act (No. 78 of 1956) is not retrospective in operation. There is nothing in Section 4 of the Act to abrogate the pre-existing right of maintenance of the sister from her brother who had received her father's estate before the commencement of the Hindu Succession Act