K. Ahmad, C.J.
1. These two applications in revision arise out of the same order dated 22-10-64 passed by the Subordinate Judge in title Suit No. 69 of 1963 which is still pending for disposal. C. R. No. 310 of 1964 has been filed on behalf of the plaintiffs 1 and 2, but at the time of hearing that has not been pressed. Therefore, it is dismissed Then remains the other C. R. No. 320 of 1904. That has been filed on behalf of defendant No. 2. It is directed against the portion of the aforesaid order which reads that :
'The defendant No. 2 who is an applicant for some paddy is not entitled to any as her maintenance is not binding upon those to whom the suit property has come by means of succession. Hence her petition is rejected.'
It is not denied that defendant No. 2 is the widow of Bankanidhi, the brother of Baneh-hanidhi. Bankandhi died in 1921 issueless leaving behind him his widow Annapurna, defendant No. 2. He was joint with his brother Banchhanidhi. Therefore, on his death the properly came to Banchhanidhi by survivorships. Banchhanidhi died on 10-10-56 leaving two widows Jasoda plaintiff No. 1. and Satyabhama defendant No. 1. He also left behind him his daughter Kunja plaintiff No. 2 by his widow Jasoda and his son Gobinda (who is now deadj by his widow Satyabhama.
The suit at present pending in the Court of the Subordinate Judge has been filed by Jasoda and Kunja--plaintiffs 1 and 2 for partition of the family properties. In the meantime in that suit a petition had been filed on behalf of the defendant No. 2 for maintenance. It is this petition which has been disposed of by the Subordinate Judge by the order just quoted above. The petition has been dismissed as it appears from the order on the ground that the maintenance claimed by her is not binding upon those to whom the suit properly has come by means of succession. This view is obviously wrong in law. Mulla while dealing with the widow's right of maintenance in Article 559 in his Hindu Law has stated,
'A widow who does not succeed to the estate of her husband as his heir, is entitled to maintenance .. .. ...... ..
(i) .........; also,
(ii) Out of property in which he was a coparcener at the time of his death. '.
In support of this view reliance has beenplaced by the learned author on a number ofdecisions including one in Jayanti v. Alamelu.ILR 27 Mad 43. Therefore, on principle underthe Hindu Law the view taken by the learnedSubordinate Judge cannot be supported andthere is no provision made either in the HinduSuccession Act, 1956 or the Hindu Adoptionsand Maintenance Act, 1956 that this part of theold Hindu Law has been in any way repealedor changed. In that view of the matter theCourt below in rejecting the application madeby defendant No. 2 for maintenance has actedon a wrong notion of law and has therefore failed to exercise the jurisdiction vested in him.Accordingly that application has to be allowed.The Court below on hearing the parties will,in the light of the law as stated above, fix themaintenance as she may be found entitled toin the circumstances of the case. The application (C. R. No. 320 of 1964) is therefore allowed. But in the circumstances of the case therewill be no order for costs. The other application (C. R. No. 310 of 1964) as already statedis dismsised.