Dwarka Prasad, J.
1. This second appeal has been filed against the judgment and decree passed by the learned District Judge, Jodhpur on Mar. 30, 1968 and arises in the following circumstances.
2. One Chaturbhuj had four sons, Sitaram, Ramlal, Kriparam and Daya-ram. Sitaram had a son Chhotu, while Dayaram had a son Salehraj and Ramlal died issueless. Kriparam had two sons Nenji and Bastiram. Shivnarain and Laxminarayan plaintiffs are the sons of Nenji, while their third brother Ganeshlal is said to have gone in adoption to Ramlal. Bastiram left his widow Smt. Gauri, a son Arjunsingh and five daughters including Omkumari and Smt Raji defendants. Arjunsingh who was unmarried, died on July 17, 1952, leaving two houses situated in Mohalla Khanda Falsa at Jodhpur. After the death of Arjunsingh, the plaintiffs Shivnarain and Laxminarain asserted their claims in, respect of the estate of Arjunsingh deceased on the ground of being his nearest heir, as they were Arjunsingh's uncle's sons. In one of the houses, the upper storey was in possession of the plaintiffs, while the lower portion of the said house was in the possession of the defendants Smt. Omkumari and Smt. Raji, sisters of Arjunsingh. It was alleged in the plaint that after the death of Arjunsingh, the defendants occupied the lower portion of the house. The plaintiffs also obtained a letter of administration in respect of the property of Arjunsingh deceased from the court of District Judge, Jodh-pur. But as the defendants refused to vacate the lower portion of the house in their possession in spite of notice, the plaintiffs filed a suit for recovery of possession and for mesne profits.
3. The defendants contested the suiton the ground that they were living inthe disputed portion since the time oftheir father Bastiram and that aftercoming into force of the Hindu Succession Act, 1955, they became full ownersof the property being in possessionthereof as the heirs of Arjunsingh. Theyalso pleaded a custom to the effect thaton the death of a person without anymale issue or widow, his daughters andsisters succeeded to the estate of thedeceased, in preference to the nearestreversioners. It was also pleaded by thedefendants that Nenji, father of theplaintiffs Shivnarain and Laxminarain,had gone in adoption to his maternaluncle Poonamchand in Samvat year1941 and as such they had no connection with the family of Arjunsingh andhad no right in the property left by deceased Arjunsingh. The trial court passed a decree for the recovery of possession in favour of the plaintiff-appellants,together with mesne profits @ Rupees 5/-p.m. On appeal, the learned DistrictJudge held that there was no satisfactory evidence on record to prove thata custom, as alleged by the defendants,existed in the Mali Community of Jodh-pur. However, it was held that the adoption of Nenji by Smt. Sara, widow ofPoonamchand, was proved. The learnedDistrict Judge held that the plaintiffscould not claim any right in the property of Arjunsingh and as such the appeal was allowed and the plaintiffs' suitwas dismissed.
4. The plaintiffs have filed this second appeal in this Court and it is urged by the learned counsel for the plaintiff-appellants that the adoption of Nenji, father of the plaintiffs by Smt. Sara, widow of Poonamchand, was a myth and that there is no evidence on record to establish the identity of the person, who is said to have been adopted by Smt. Sara, as the father of the plaintiffs. Mr. Hastimal, appearing for the defendant-respondents, on the other hand, supported the judgment of the first appellate court on the question of adoption of Nenji, father of the plaintiffs, by the widow of Poonamchand. He also argued that the custom set up by the defendants is fully proved by the evidence on record. It was lastly contended by the learned counsel for the defendant-respondents that the defendants Omkumari and Smt. Raji were in possession of the disputed property as maintenance holders from the time of their father Bastiram and on coming into force of the Hindu Succession Act, they have become full owners of the said property,
5. So far as the question of custom is concerned, the assertion of the defendents is that in the Mali Community of Jodhpur the custom was prevalant that if a person died issueless or without leaving a male issue or a widow, his daughters and sisters succeeded to his property in preference to his nearest heirs. Both the courts below have held that such a custom has not been proved. It is admitted by the learned counsel for the defendant respondents that the custom was not judicially recognised and not a single judgment of any court in Jodhpur has been produced in support of the alleged custom. On the other hand, learned counsel for the plaintiff-appellants relied upon the decision of the Jodhpur Chief Court in the case of Rikhabdas v. Mst. Tippo, 1939 Marwar Law Report 49 in which it was Held, on the basis of certain decisions of the courts in Marwar, that according to the custom recognised by the courts in the State of Jodhpur, daughters and sisters were excluded from inheritance. It was not disputed in that case that in the presence of collaterals, daughters and sisters could not, according to local custom, inherit the property left by a father or a brother. However, learned counsel for the defendant-respondents took me through the evidence on record. After a consideration of the evidence of P. W. 2 Mst. Dhapi, P. W. 4 Mst Kishanibai, D. W. 2 Mst. Raji, D. W., 3 Mst. Dudia, D.W. 4 Magniram, D.W. 6 Om Kumari, D. W. 8 Birdharam and other witnesses, I have not been able to find any specific evidence where sisters of the deceased had inherited to his property in preference to the nearest male reversioners. Whatever instances have been given by some of the aforesaid witnesses do not go to establish a custom, which should be ancient, reasonable and certain. The above mentioned witnesses, while stating that the daughter had succeeded to the property of their father, were unable to say as to whether the, daughter obtained the said property on the basis of a will executed by the father or otherwise. No specific instance of succession by a sister to the property of a deceased brother, on account of the alleged custom has been brought on the record and therefore in agreement with the finding recorded by the two courts below on the question of custom.
6. Now, coming to the question of the alleged adoption of Nenji by the widow of Poonamchand, learned counsel for the appellant strenuously argued that the order of the learned District Judge, Jodhpur dated October 9, 1957 (Ex 1), in the proceedings for grant of letters of administration was completely overlooked by the learned lower appellate court, although it was a judgment in rem and was binding upon the first appellate court in a matter relating to succession from a perusal of the Judgment of the First Appellate Court there is no doubt that the aforesaid judgment Ex. 1 has not at all been considered by it, although, the same was specifically referred to by the trial court with the observation that it was not binding on the defendants except Smt. Om Kumari, as they were not parties to that litigation. The judgment passed by the District Judge, Jodhpur on October 9, 1957 shows that Smt. Om Kumari filed an application for probate on the basis of an alleged will, said to have been executed by Arjunsingh deceased. She also applied for grant of succession certificate in respect of the estate of her deceased brother, Arjunsingh. On the other hand, Shivnarain and Laxmi-narain filed an application for grant of letters of administration in their favour, in respect of the estate of deceased Arjunsingh. Proceedings in respect of all the three aforesaid applications were consolidated and the matter was decided by the learned District Judge by his order dated October 9, 1957. It was held that the document put forward by Smt. Om Kumari as a will could not be considered as a will, as it was not attested and that no probate could be granted on the basis of such a document. On the question as to whether Smt. Om Kumari or the plaintiffs, Shivnarain and Laxminarain, were entitled to obtain succession certificate or letters of administration, learned District Judge held that Om Kumari was not entitled to get a succession certificate and granted letters of administration in favour of Shivnarain and Laxminarain. On the question of alleged adoption of Nenji by the widow of Poonamchand, learned District Judge observed as under--
'It appears that the story of Nenji being adopted by Mst. Sara is a myth. No such adoption deed has been produced. Shivnarain still inherits his ancestral property and holds pata in his own name. He could not go in adoption and take such ancestral property with him which would in that event be claimed by other reversioners. Even Mst. Omkumari says that the other brother of her father Bastiram was Nenji whose sons are Shiv Narain and Laxminarain. She speaks of Nenji's adoption to some one whose name she does not know but whose widow she says was Mst. Sara. She also says that Laxminarain continued occupying his ancestral property though she says this was with her mother's permission. It is not conceivable that under given circumstances Omkumari's mother would let Shiv Narain and his brother occupy the house for such a long time. It then appears from a S. B. Judgment of Jodhpur High Court dt: 2nd Jan. 35 in a dispute between Saleraj and Kruparam, copy of which has been filed by the non-petitioners, that Nenurwn was still a member of the parties' family right up to the thirties and there is no evidence whatsoever that Nenuram went in adoption to another family.'
7. Omkumari filed an appeal against the aforesaid order in this court and the order pased on appeal by this Court on Jan. 15, 1958 is Ex. 4 on record. It was observed that Smt. Omkumari could not be the heir of her brother under the Hindu Law, as the Central Act No. 2 of 1927 was not applicable to Marwar and was not extended to the area comprised in the former State of Jodhpur by part B, States Laws Act, 1951. It was, therefore, held that Smt. Omkumari had no claim and her appeal was rejected.
8. Section 41 of the Evidence Act provides that a final judgment or order of a competent court in exercise of probate jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. It has further been provided by Section 41 that such judgment or order is conclusive proof of the fact that any legal character which it confers or to which it declares any such person to be entitled, accrued to that person at the time when such judgment or order declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time from which such judgment or order declared that it has ceased or should cease.
9. Thus, so far as Smt. Omkumari is concerned, the judgment passed by the learned District Judge in the proceedings for grant of letters of administration and the order passed by this Court in appeal clearly declared that she was not entitled to the legal character of heirship of her deceased brother Arjunsingh, both on the ground of intestate succession as the nearest heir and also on the ground of alleged adoption of Nenji by Smt. Sara, widow of Poonamchand. When the question of relationship of parties has been decided in a previous probate proceeding, the same question could not be agitated between the same parties in a subsequent suit. The judgment of the probate court is a judgment in rem and all the essential questions raised before the probate court must be taken to have been conclusively determined by the judgment of that court. Merely because some other persons have been added as defendants in the suit, with the allegation that they were trespassers in the property in dispute, could not confer any legal character in respect of the disputed property upon Smt. Omkumari.
10. So far as Smt. Raji is concerned, it is not disputed before me that she was a married daughter of Bastiram and her case is that after the death of her husband she was residing with her father Bastiram and her brother Arjunsingh. It was not argued by the learned counsel for the respondents that Smt. Raji, who was a widowed daughter of Bastiram, had any right or title in respect of the property left by Arjunsingh. The entire argument was advanced on behalf of Smt. Omkumari, who is said to be the unmarried daughter of Bastiram. The judgment of the probate court is a judgment in rem and is binding on all persons, even if they may not be parties thereto and any objection that they were not parties is not sus-tainable in view of the nature of the order being a judgment in rem. Even if the decision of the probate court may not be held to be binding or may not operate as res judicata in the present suit, as there are other defendants besides Smt. Omkumari, the aforesaid decision is relevant and has considerable evidentiary value.
11. Section 273 of the Succession Act, 1925 provides that letters of administration granted by the probate court shall have effect over all the property and estate of the deceased throughout the State in which the same is situated and shall be conclusive as to the representative title of the person in whose favour such letters of administration are granted, against all persons holding properties which belonged to the deceased. Of course, the grant of probate or letters of administration does not establish the title of the deceased to any of the properties specified in such grant, as belonging to the deceased nor does it establish even the existence of any such property. It is one thing to say that the title of the testator or the deceased is not established and it is very different thing to say that the representative title and the legal character of the person in whose favour such letters of administration are granted is established. In Mrs. Hem Nolini Judah (since deceased & after her legal representative Mrs. Marlean Wilkinson) v. Mrs. Isolyne Sarojbashini Bose, AIR 1962 SC 1471 it was held by their Lordships of the Supreme Court that the title of the testator was not established by the grant oi probate or letters of administration. In the present case, it is not in dispute between the parties that Arjun-singh, as the last male holder, became the owner of the properties in question and the dispute in the present case is only as to who is entitled to succeed to the ownership of the properties, which admittedly belonged to deceased Arjunsingh who died on July 15, 1952. There was thus no dispute or question raised about title, as the properties admittedly belonged to Arjunsingh deceased. As the Hindu Succession Act, 1956 came into force much later, the rights of the parties are to be governed by the law in force at the time when the succession opened upon the death of Arjunsingh. The probate court refused to grant a probate in favour of Smt. Omkumari and the question of her succeeding to the property of deceased Arjunsingh on the basis of the alleged will is no longer in dispute. Thus, the only question which remains now relates to the intestate succession to the properties left by Arjunsingh deceased.
12. The question of admissibility of the judgment given by the learned District Judge in the proceedings for grant of letters of administration has been contested by the learned counsel for the respondents. It cannot, however, be contested that the said judgment was rendered by the learned District Judge in the exercise of probate jurisdiction and the same is admissible under Section 41 of the Evidence Act.
13. It was held by their Lordships of the Supreme Court in Mobarik Ali Ahmed v. State of Bombay AIR 1957 SC 857 that the judgment of a probate court must be presumed to have been obtained in accordance with the procedure prescribed by law and is a judgment in rem. The objection that some of the defendants were not parties to it is unsustainable because of the nature of the proceeding and the judgment itself.
14. In Arjun v. Mathura Nath AIR 1928 All 395 it was held that no judgment, except that passed by a court in the exercise of probate, matrimonial, admiralty, or insolvency jurisdiction, upon any matters indicated in Section 41, can have the effect of a judgment in rem. In that case, the question of adoption of a person was raised in the course of litigation between parties and it was held that the judgment determining the question of adoption was not judgment in rem, as it was not passed by a court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction,
15. Learned District Judge held that the father of the plaintiffs, Nenji was adopted by Smt. Sara, widow of Poonamchand and as he went in adoption to another family, the plaintiffs have no right to succeed to the estate of Arjunsingh deceased. He placed reliance upon two documents, Ex. A. 7 and Ex. A. 8, in arriving at the aforesaid finding. One Nawalia filed a suit against Kriparam, contesting the adoption of his son Nenuram to Poonamchand. That suit was dismissed and the adoption of Nenuram was upheld. In that case, Nenuram son of Poonamchand resident of Khanda Falsa filed an application dated Sept. 4, 1898, a copy of which is Ex. A. 8 in which Nenuram mentioned that he was adopted by his mother during his minority in Samvat year 1941, according to the custom of the community. These documents no doubt establish that one Nenuram, who was son of Kriparam and was resident of Khanda Falsa was adopted by Smt. Sara, widow of Poonamchand and that there was litigation in respect of the said adoption and that he belonged to the Mali community. But what still remains to be proved is that Nenuram who is referred to in the documents Ex. A. 7 and Ex. A. 8 was the same person named Nenji, who was father of the plaintiffs Shivnarain and Laxminarain. The learned District Judge observed as under in this respect.
'It is undoubtedly true that some evidence must be given to establish the identity of the person making the above application because no such presumption as to identity can be raised under the Evidence Act, but where the documents containing the admission of a particular person are very old docu-merits, the court can look into the document itself to find out whether there is some inherent evidence relating to the identity of the maker of the admission.'
16. Learned District Judge relied upon the oral testimony of Mst. Dudia, widow of Bhagwanji and daughter of Amroo, for establishing the identity of Nenuram as the same person as Nenji, father of the plaintiffs. I have gone through the statement of Mst. Dudia and I am constrained to observe that the learned District Judge has misread her evidence and that her statement does not establish that Nenji, father of the plaintiffs, was the same person who was mentioned in Ex. A 7 and Ex. A 8. The conclusion arrived at by the learned District Judge in this respect is wholly unjustified. Mst. Dudia did not say a word that the person, about whose adoption to Mst. Sara, widow of Poonamchand, she has deposed was the father of the plaintiffs. She has only corroborated the fact that one Nenuram, who was the real son of Kriparam, was adopted by Smt. Sara widow of Poonamchand and that there was long litigation between Nenuram and Amroo about the adoption which went on for about 12 years. It is pertinent to observe that Smt. Dudia D.W. 3 has nowhere in her statement identified Nenuram, who was adopted by the widow of Poonamchand, as Nenji father of the plaintiffs. Thus, the identity of the person who is referred in the two documents Ex. A. 7 and Ex. A. 8 and about whose adoption Mst. Dudia has stated as D.W. 3 has not been established and the said evidence is wholly insufficient to connect Nenji, father of the plaintiffs, with the person referred to as Nenuram in the documents Ex. A. 7 and Ex. A 8. Moreover, it is significant to observe that Mst. Dudia D. W. 3 stated that she was married at the age of 13 and that her age at the time of adoption of Nenuram was 12 or 13 years. Her statement was recorded on Oct. 14, 1958 and she gave her age at that time as 70 years. As such she must have been born about Samvat year 1945 or 1946, while the alleged adoption referred to in Ex. A. 7 and Ex. A. 8 is stated therein to have taken place in Samvat year 1941. This fact also goes to show that the oral testimony of Mst. Dudia could not be believed in respect of the alleged adoption, as she was not even horn in Samvat year 1941, when the said adoption is said to have taken place, as mentioned in the document Ex. A. 8. In the absence of cogent evidence to prove that Nenuram, who was adopted by the widow of Poonamchand, was the same person as Nenji, father of the plaintiffs, it is difficult to hold that Nenji father of the plaintiffs, had gone in adoption in another family and that on that ground the plaintiffs could not claim the property of Arjun-singh deceased by succession.
17. In Bhagwat Prasad v. Sher Khan AIR 1926 Oudh 489, it was held that under Section 90, Evidence Act a presumption has to be made regarding the genuineness of a statement recorded by a court, taut no presumption, however, could be made regarding the identity of the deponent. Of course, in the case of very old documents, any inherent evidence of identity of the deponent contained in the document itself can be considered as sufficient, if available. But in the present case, I am unable to find any such inherent evidence in the documents Ex. A. 7 and Ex. A. 8 to lead to the conclusion that they necessarily refer to Nenji, father of the plaintiffs.
18. On the other hand, evidence has been led to show that even Bastiram, during his lifetime, continued to acknowledge that Shivnarain, Laxminarain and Ganeshilal had 1/4th share in the Nohra belonging to the joint family on the basis that they were sons of Nenuram. Saleraj filed a suit claiming 1/4th share in the Nohra and alleging that Nenuram and Bastiram, sons of Kriparam, together had 1/4th share, while Ramlal and Sitaram, sons of Chaturbhuj had also 1/4th share each. A copy of the plaint is Ex. 8 on record, while a certified copy of the amended plaint has also been produced and marked as Ex. 13. It appears that during the pendency of the suit Nenuram died and his sons Shivnarain, Laxminarain and Ganeshilal were brought on record and they along with Bastiram filed a joint written-statement claiming jointly 1/4th share in the property in dispute. Ex. 9 is the judgment of the Chief Court, Jodhpur dated Jan. 21, 1935 passed on the appeal, arising out of that suit. It appears from a perusal of the aforesaid judgment (Ex. 9) that Nenuram and Bastiram were shown as sons of Kriparam and the appeal preferred by Sitaram was allowed by the Chief Court ami a decree for 1/4th share of the Nohra was granted in his favour. If Nenuram would have gone out of the family by adoption, aa alleged by the defendant respondents and if he had no longer continued to be the son of Kriparam, then Bastiram would not have Joined with his sons, Shivnarain and Laxminarain and Ganeshilal to jointly claim 1/4th share in the Nohra as mentioned in the written statement, a copy of which is Ex. 10 on the record. The fact that Bastiram had filed the written-statement Ex. 10 along with Laxminarain and Shivnarain, sons of Nenuram, claiming jointly 1/4th share in the Nohra, goes a long way to disprove the contention of the defendant-respondents, regarding Nenuram's adoption to another family. Not only that Bastiram treated Nenuram as his brother in the aforesaid litigation and acknowledged the right, title and interest of Laxminarain and Shivnarain, sons of Nenji in the joint Hindu family property other near relations namely Saleraj and Sitaram also treated Nenurara as son of Kriparam and considered that he and Bastiram together had 1/4th share in the Nohra in dispute. Under Section 35 of the Evidence Act, the written-statement Ex. 10 and the judgment Ex. 9, though not inter partes, are admissible to prove the statement made by Bastiram, who was the predecessor-in-title of the defendant-respondents. The admission made by Bastiram in the writ-ten-statement Ex. 10 about the right of Laxminarain and Shivnarain, as sons of Nenuram, in the joint family property it, certainly admissible to disprove the fact that Nenuram had gone in adoption to another family. If Nenuram would have gone in adoption out of the family, then obviously he could have no share in the joint family property.
19. In S. K. Ramaswami Goundan v. S. N. P. Subbaraya Goundan AIR 1948 Mad 388 it was held that a previous statement or judgment containing such previous statement, made by a predecessor-in-title of the party against whom the document is sought to be used, is admissible under Section 35 of the Evidence Act, to prove the statement made by a predecessor-in-title of the party. In view of this clear admission on the part of Bastiram as contained in Ex. 10, it is difficult to place any reliance upon the documents Ex. A. 7 and Ex. A. 8, for holding that Nenuram, father of the plaintiffs Shivanarain and Laxminarain, had gone in adoption to another family. It may be pointed out here that the written statement Ex. 10 was filed by Bastiram and Shivnarain and Laxminarain together on Dec. 9, 1930, much later in point of time, as compared to the litigation represented by the documents Ex. A. 7 and Ex. A. 8. If Nenuram would have gone in adoption as early as in Samvat year 1941, then Bastiram would not have acknowledged that Nenuram's sons had 1/4th share in the joint family property along with him, in the written-statement Ex. 10 filed in the year 1930.
20. As held by their Lordships of the Supreme Court in Narayan Bhagwant-rao Gosavi Balajiwale v. Gopal Vinayak Gosavi AIR I960 SC 100 an admission is the best evidence that an opposite party can rely upon and though not conclusive, it is decisive of the matter, unless successfully withdrawn or proved erroneous. The admission of the predecessor-in-title of the defendants, contained in the written-statement Ex. A. 10, about the parentage and relationship of Nenuram and his sons Laxminarain and Shivnarain and their share in the ancestral property has not been successfully explained or rebutted by the defendants. As such I find no reason for not relying upon the said admission of Bastiram contained in the written statement Ex. A, 10, made as early as in the year 1930. I am, therefore, unable to agree with the learned District Judge that alleged adoption of Nenuram to another family has been proved and that the plaintiffs had no right in the suit property on that account.
21. The only other question which remains to be considered is as to whether the defendant-respondents were in possession of the suit property as maintenance holders from the time of their father Bastiram and that they became full owners of the said property after the coming into force of the Hindu Succession Act. Section 14(1) of the Hindu Succession Act, on which reliance was placed by the learned counsel for the defendant respondents in this respect, runs as under:--
'14 (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation :-- In this sub-section, 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.'
22. Learned District Judge did not go into this question although it was raised before him. At the outset, it may be mentioned that in the written statement filed by the defendant respondents, it was not pleaded by them that they came into possession of the suit premises in lieu of their right of maintenance. On the other hand they pleaded that the entire house in dispute was owned by Bastiram and after his death Arjun Singh became the owner thereof and the 'patta' of the house was also issued in the name of Arjun Singh and that the defendant-respondents were residing in the house in dispute since the time of Bastiram, Smt. Raji respondent is the widowed daughter of Bastiram and sister of Arjun Singh, the last holder of the property in dispute, while respondent No. 4 Omkumari claims to be an unmarried daughter of Bastiram and sister of Arjun Singh. By an application seeking amendment of the written statement filed on Nov. 30, 1960, the defendant-respondents desired to take the plea that their right as heirs in respect of the ancestral property as sisters of Arjun Singh and daughters of Bastiram was confirmed by the provisions of Section 14 of the Hindu Succession Act, 1956 aathey were in possession of the house in dispute since before the death of Arjun Singh. It was on this basis that issue No. 10 was framed by the trial court to the effect as to whether the defendants Nos. 1 to 4 were entitled to get the property of Arjun Singh deceased in accordance with the provisions of the Hindu Succession Act, 1956.
23. It must be confessed that the plea taken in the written statement and put in issue is extremely vague. However, as the question was argued by the learned counsel for the parties before me, it is necessary to consider the real legal nature and the incidents of Hindu females' right to maintenance.
24. Colebrooke in his Treatise on Hindu Law Vol. 11 quotes the Mahabharata at page 121:--
'Where females are honoured, there deities are pleased; but where they are unhonoured, there all religious acts become fruitless.'
The above passage clearly illustrates the high position enjoyed by Hindu women in the society, according to Shastric Hindu Law.
25. It appears that the original Hindu Law contained a clear provision that the right of maintenance amounts to a charge on the property of the husband and that the obligation runs with the property, with the result that the person who inherits the property also takes upon himself the obligation to maintain the widow, Mayne, in his Treatise on Hindu Law, while tracing the history and origin at the right of maintenance of a Hindu female considered the exclusion of women from inheritance as a result from the fact that normal condition of Hindu family was undivided the occasion would seldom arise for recognition of the rights of women. Manu himself enumerates six kinds of 'stridhana', which by itself is sufficient to show women had substantial rights, though their position was considered as inferior to that of men.
26. As held above, no custom has been established in the community or family of the parties recognising the right of daughters or sisters to succeed to the property left by their father or brother. No right, therefore, could devolve upon the defendant respondents by inheritance and their rights, if any, must therefore depend upon some prin-ciple of Hindu Law other than the rule of inheritance by Hindu females. It is established law that the head of a Hindu family is bound morally, if not legally, to provide for the maintenance of all the members of the family, accering (according ?) to the various rules applicable to each class of members. Thus, Hindu law imposes a moral obligation upon the father to maintain or to provide for the maintenance of his unmarried daughters and a father-in-law to provide for the maintenance of his son's widow during his lifetime, even out of his self-acquired property.
27. Chief Justice Norman in Rajjo-money Dossee v. Shibchunder Mullick, (1897) ILR 2 Hyd 103, observed that 'a Hindu heir lakes property subject to a legal obligation of maintaining persons, whom the deceased proprietor was morally bound to maintain.' The same rule of law was followed by Sir Barnes Peacock Chief Justice in his judgment in Khetramani Dasi v. Kashinath Das, (1869) 2 Beng LR 15 A. C., at page 34 (F.B.), where the learned Chief Justice observed as under:--
'The rule laid down in Rajjomoney Dossee v. Shibchunder Mullick, namely that the maintenance of a son's widow is a mere moral duty on the part of her father-in-law and that the case is distinguishable from those in which an heir takes property subject to the obligation of maintaining persons who are excluded from inheritance, or those whom the deceased proprietor was morally bound to maintain, appears to me to be correct. The obligation of an heir to provide out of the estate which descends to him, maintenance for certain persons whom the ancestor was legally or morally bound to maintain is a legal as well as a moral obligation of providing such maintenance.........If a son takes his father's estate, or a widow her husband's estate by inheritance, it is only reasonable that they should be held legally liable to do what the father or husband was morally to do, and which it is to be presumed he would have done out of the estate if he had lived; but I am not sure that even in such cases the legal liability is carried to that extent.'
28. The view taken by Sir Barnes Peacock. Chief Justice in the aforesaid case also found favour with a Full Bench of the Allahabad High Court in Janki v. Nand Ram (1889) ILR 11 All 194 where their Lordships observed that the principle of law that the maintenance of a widow being a moral obligation on the late proprietor, the son who inherits takes the estate not for his own benefit but for the spiritual benefit of the late proprietor, and he ought to perform the obligation of maintaining the widow, seems to be equitable and according to good conscience.
29. Sir Thomas Strange in his Treatise on Hindu Law summarised the law on the subject as under 'Maintenance by a man of his dependents is, with the Hindus, a primary duty. They hold that he must be just before he is generous, his charity beginning at home; and that even sacrifice is mockery, if tp the injury of those whom he is bound to maintain. Nor of his duty in this respect are his children the only objects, coextensive as it is with his family, whatever be its composition, as consisting of other relations and connections, including (it may be) illegitimate offspring.'
30. Dr. Gurudas Banerjee, in his Tagore Law Lectures, 1878, page 210, has supported the same view and observed as under:--
'We have hitherto been considering the claim of a widow of maintenance against the person inheriting her husband's estate. The question next arises how far she is entitled to be maintained by the heir when her husband leaves no property, and how far she can claim maintenance from other relatives. The Hindu sages emphatically enjoin upon every person the duty of maintaining the dependent members of his family.'
The following are a few of the many texts on the subject:--
Manu:-- The ample support of those who are entitled to maintenance is rewarded with bliss in heaven: but hell is the portion of that man whose family is afflicted with pain by his neglect: therefore let him maintain his family with the utmost care.
Narada:-- 'Even they who are born, or yet unborn and they who exist in the womb, require funds for subsistence; the deprivation of the means of subsistence is reprehended.'
Brihaspati:-- 'A man may give what remains after the food and clothing of his family; the giver of more who leaves his family naked and unfed, may taste honey at first, but shall afterwards find it poison.
Thus, it is perfectly clear that religious, spiritual and moral obligations rest on the head of a Hindu Family for the maintenance of the dependents of the family. Under the Hindu system, it is imperative rule that the right to inherit a dead-man's property is exactly co-extensive with the duty of performing the obsequies. As the devolution of property depends upon the competence to perform the obsequies rites of the deceased, these two 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 rites of the last owner. If there are no relatives who are legally competent to perform them, the law of succession does not apply and the property escheats to the crown. The king takes the property as an heir, and, as such, is also bound to discharge all the obligations of an heir. He must cause the last rites to be performed for the deceased, and must also see that they are periodically celebrated on the appointed days. Thus, the principle is well established that the rights of inheritance, according to Hindu Law, is wholly regulated with reference to the spiritual benefits to be conferred on the deceased proprietor.'
31. A daughter is entitled to maintenance until her marriage and to have her marriage expenses defrayed, and an unmarried daughter of a Hindu coparcener can sue the manager of the foint family for her maintenance. After marriage, her maintenance is a charge upon her husband during the lifetime, and after his death, upon her husband's family. If they are unable to support her and the widowed daughter returns to live with her father, there is a moral obligation to maintain his widowed daughter during his lifetime and to make provision out of his self acquired property for her maintenance after his death. On his death, the moral obligation becomes a legal obligation when his estate comes into the possession of his heirs.
32. The same view was also expressed by a full bench of the Madras High Court in Ambu Bai Animal v. Soni Bai, ILR (1941) Mad 13: (AIR 1940 Mad 804), where Sir Lionel Leach, Chief Justice, extended the principle enunciated by the Full Bench of the Allahabad High Court in Janki's case (1889 ILR 11 All 194) to a widowed daughter-in-law of a predeceased son from the case of a widowed daughter, and observed as under:--
'The decision in Janki v. Nandram (i) Must now be accepted as embodying a rule of Hindu law and as there is a moral obligation on a father to support his daughter, whether married or unmarried, I can seen no valid feason for refusing to apply the rule to a widowed daughter who is penniless. The only distinction between a widowed daughter-in-law and a widowed daughter is that on her marriage, the daughter passes into another family, but the moral obligation of the father to support her when in want still remains and the same reasoning, which led to the rule in Janki v. Nand Ram, ((1889) ILR 11 All 194) (FB) being laid down, applies.'
33. The following passage from Manu was quoted in the aforesaid case:--
'The father, the mother, the guru (an elderly relation worthy of respect), a wife, an offspring, poor dependents, a guest, and a religious mendicant are declared to be the group of persons who are to be maintained.'
34. Strange in his treatise on Hindu Law, (1930 Edition) referred to a case, where a Hindu died leaving two widows, a widowed sister, who had lived with him after the death of her husband, and his mother. The question was to whom should his estate go. The answer given was that the mother must be maintained, and so must the sister, if left destitute by her husband. In another case reported in Macnaghten's Hindu Law Vol. II, the question propounded was that if a person died, leaving two sons by one wife (who died before him), and a widow and her two daughters and subsequently to his death one of the sons died, there were now surviving a son of his first wife, and a widow and her two daughters; and supposing the widow have received no portion of the property from her step-son, if in such a case is she entitled to any share of the estate, and if so what is the extent of her right? The answer was in these terms:--
'The widow is only entitled to a proper maintenance from her step-son, and if her two daughters have not been disposed of in marriage, they will also, have some share of their fathers's wealth to defray their nuptial expenses. Should they, after marriage, be in want of maintenance, in consequence of their husband's inability to support them, they must be provided with food and residence by their half-brothers.' Thus according to this case, even a sister of a deceased Hindu appears to be entitled to maintenance out of his estate.
35. Mulla in his Treatise on Hindu Law (Thirteenth Edition) has observed 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. A Hindu is under no personal obligation to maintain his sister, but if he inherits his father's estate, he is bound to maintain her out of that estate, she being a person whom his father was legally bound to maintain as his daughter provided, of course, that she is unmarried.'
It has also been observed in the aforesaid treatise that a father is bound to maintain his unmarried daughters. On the death of the father, they are entitled to be maintained out of his estate. But after marriage, the daughter ceases to be a member of her father's family and becomes a member of her husband's family. Thenceforth she is entitled to be maintained by her husband, and after his death, out of his estate. If the husband has left no estate, her father-in-law, if he has got separate property of his own, he is morally, though not legally, bound to maintain her; but, after his death she acquires a legal right to be maintained out of his estate. If she is unable to obtain maintenance from her husband, or, after his death, from his family, her father, if he has got separate property of his own, is under a moral, though not a legal obligation to maintain her, and after the father's death, she acquires a legal right to be maintained by his heirs out of his estate.
36. Thus, the substance is that the father, son and husband are under a legal obligation to maintain his wife, minor sons, unmarried daughters and aged parents, whether he possesses any property or not, the obligation to maintain these relations is personal in character and arises from the very existence of the relationship between the parties. But on the death of these relations, the obligation to maintain the widow or unmarried daughter remains restricted to the possession of the family property. Although, the father is under an obligation to maintain his minor sons or daughters, but after his death, his sons, in case governed by Mitakshara Law, are bound to maintain the unmarried daughter out of the inherited estate. The obligation similarly devolves on any other heir, who may succeed to the property.
37. In Ram Sumran Prasad v. Gobind Das (1926) ILR 5 Pat 646 : (AIR 1926 Pat 582), it was observed by the Patna High Court that 'a destitute sonless widow must, however, look for her maintenance primarily to her deceased husband's family and not primarily, to her father's family. But if provision should fail and the widowed daughter has to return to live with her lather and brother, there is a moral and social obligation but not a legally enforceable right by which her maintenance can be claimed as a charge on her father's estate in the hands of the heirs'. The same view was also taken in Bai Mangal v. Bai Rukhmini (1899) ILR 23 Bom 291 and in Mokhoda Dassee v. Nundo Lal Haldar ((1900) ILR 27 Cal 555).
38. I may at once observe that there is no material on record that Smt. Raji is a destitute sonless widow, who has not been able to obtain any maintenance from her deceased husband's family. The only material available on record is that she is the daughter of Bastiram who after her husband's death returned to reside with Bastiram during his lifetime and since then she had been living with her father Bastiram and after his death with her brother Arjunsingh. In the absence of any material on record to show that she is not in receipt of any maintenance from her deceased husband's family, it cannot be said that there is any legally enforceable right in her to claim maintenance either from her father or from her brother or from the heir, who may succeed to his property, after the death of Arjunsingh.
39. In Rachawa v. Shivayogappa, (1894) ILR 18 Bom 679, it was held that where a widow is in possession of any specific property for the purpose of her maintenance a purchaser buying with notice of her claim is not entitled to possession of that property without first securing proper maintenance for her. The aforesaid Bombay case was cited with approval by their Lordships of the Supreme Court in Rani Bai's case (AIR 1969 SC J118) and V. Tulasamma's case (AIR 1877 SC 1944). In the latter case, it was observed that the widow has a right to be maintained out of joint family property and this right would ripen into a charge, if the widow takes the necessary steps for having her maintenance ascertained and specifically charged on the joint family property and even if no specific charge is created, this right would be enforceable against joint family property in the hands of a volunteer or a purchaser taking it with notice of her claim.
40. In Secretary of State v. Ahalayabai Narayan Kulkarni (AIR 1938 Bom 321), the property of one Gopal was attached by the Government under Section 88 of the Cr. P. C. as he was absconding after being charged with a criminal offence. The widow and unmarried daughter of Dhondo, undivided brother of Gopal, who had died in 4918, filed a suit challenging the attachment of Gopal's property on the ground that both of them were entitled to maintenance and the unmarried daughter to marriage expenses from the joint family property, which had devolved upon the absconder Gopal by survivorship, after the death of his brother Dhondo. Dealing with the nature of interest of the widow and the unmarried daughter as against the State. Divatia, J., observed as under:--
'The plaintiffs are clearly entitled under the Hindu Law to have their maintenance and marriage expenses defrayed from the property attached. Under the Hindu Law, if a coparcener takes the property of another deceased coparcener by survivorship, he takes it with the burden of maintaining the widow and unmarried daughters of the deceased coparcener. It cannot be said that this right of maintenance is merely personal in the sense that it has no reference to the property which he gets by survivorship......... The obligation of one coparcener to maintain the widow of a deceased coparcener whose share in the property he gets by survivorship is an obligation which attaches to that property. In other words, because he gets that property by survivorship and because his interest in the joint property is thus enlarged, he is bound to maintain the widow of the deceased coparcener who had a right to be maintained out of the property which he takes by survivorship. In that sense the property which he takes by survivorship is burdened with the obligation to maintain the widow. It may be that in the technical language it may not fall within the definition of 'charge' under Section 100, T. P. Act. This charge is a later creation by statute, but the Hindu law has always regarded the widow's right as a burden on the property. It has thus been held that the right of maintenance attaches to the property itself which is taken by survivorship............ This right of maintenance has been treated as burden on the inheritance with the result that the widow is entitled to follow such property in the hands of the coparcener taking it.'
41. In Sheojee Tiwary v. Prema Kuer AIR 1964 Pat 187, one Rajbhukhan became the sole surviving coparcener on Roshan's death, while Roshan's widow Manbirta was entitled to maintenance. Similarly, in respect of the other set of properties, Ramcharitar became the sole surviving coparcener on the death of Nauratan, but Prema, widow of the predeceased son of Nauratan, was entitled to maintenance. On the death of Rajbhukhan in 1946, Ramcharitar succeeded to the entire estate of both the branches, but Roshan's widow Manbirta continued to remain in possession of Rajbhukhan's property, When Ramcharitar himself died in 1954, Prema widow of the predeceased son of Nauratan took possession of the other set of properties. A suit was filed by the close reversioners of Ramcharitar for the recovery of possession of the properties from the two widows, claiming to be legal owners of such properties, as the heirs of Ramcharitar. In these circumstances Mohapatra, J. made the following observations (at p. 192):--
'Undeer the explanation given under that section 'property' includes property' acquired by a female Hindu in lieu of maintenance or in any other manner whatsoever. Defendants 1 and 2 were undoubtedly entitled to maintenance out of the property belonging to Ramratan's and Nauratan's branches, their possession, therefore, can well be presumed before 1956 to be at least in lieu of maintenance and in that view, of the new Act, coming into force on the 17 June, 1956, they because absolute owner' of those properties, and on the date the suit was instituted, plaintiffs had no cause of action against them. The same view also becomes irresistible even if the property is held to have been acquired by those two ladies not in lieu of maintenance but 'in any other manner whatsoever.' The word 'whatsoever' indicates the wide amplitude. For the benefits of Section 14, two things are necessary; the property should have been acquired by the female Hindu and she should be in possession. It is well established that the word 'possessed' in Section 14 is to be taken in its wide import and includes constructive possession or possession in law .................. In this case there is no difficulty in regard to the possession of the two ladies. In fact they were in possession before the Act came into force. Learned counsel for the appellants contended that the ladies did not acquire the properties lawfully and, therefore, their possession on the date of the commencement of the Act will not give them the benefit of absolute ownership. How can it be said that they came in possession of the properties in an unlawful manner? The properties belong to the family of which they were members with a right of maintenance out of those properties. On the death of the last surviving co-percener in the respective families, their right to maintenance out of those properties also remained intact and no one else ever attempted to take possession of those properties and to offer to maintain the two ladies. The very fact that the ladies remained in possession right from the date of death the last surviving coparcener in the respective families till the date of the suit indicates unmistably the lawful manner in which they came and continued in possession. The properties cannot be said to have been acquired in any unlawful manner so as to deprive the ladies of the benefit of Section 14 of the Hindu Succession Act. After stating the different manners of acquisition in the explanation to Sub-section (1) of Section 14, the Legislature thought it wise to include also other acquisitions in any manner whatsoever. .........There cannot be any doubt that the legislature intended to confer the benefit of absolute ownership on the female Hindus over the properties acquired by them in any manner either before or after the Act came into force. ............In that view of the matter, possession of the two ladies over the suit property on the date of the commencement of the Hindu Succession Act, 1958 resulted in their absolute ownership over the property, and that would bar the plaintiff's claim completely on the date the suit was instituted'.
42. Learned counsel for the respondents heavily relied upon the decisions of their Lordships of the Supreme Court in Smt. Rani Bari v. Yadunandan Ram, AIR 1969 SC 1118 and Vaddeboyina Tulasamma v. Yaddeboyina Sesha Reddi (dead) by L. Rs., AIR 1977 SC 1944, in support of his contention. In Rani Bai's case the facts were that one Jangi Jogi, who had inherited landed properties consisting of some groves and a house from his father, died leaving his widow Mst. Jugli Bai and Rani Bai, widow of his predeceased son Laldas. One Yadunandan claimed the properties left by Jangi Jogi under an alleged gift deed and illegally occupied the lands. Thereupon Jugli Bai, widow of Jangi Jogi and Rani Bai, his predeceased son's widow filed a suit for declaration of their rights. However, Jugli Bai compromised the matter with Yadunandan. It was argued that Rani Bai had no right left in the properties after Jugli Bai had compromised the dispute. In this context, their Lordships of the Supreme Court made the following observations (at p. 112) :--
'It cannot be disputed that the appellant who is the widow of a predeceased son of Jangi Jogi was entitled to receive maintenance, so long as she did not remarry, out of the estate of her father-in-law. Although her claim for maintenance was not a charge upon the estate until it had been fixed and specifically charged thereupon her right was not liable to be defeated except by transfer to a bona fide purchaser for value without notice of a claim or even with notice of the claim unless the transfer was made with the intention of defeating her right. The Courts in India have taken the view that where a widow is in possession of a specific property for the purpose of her maintenance a purchaser buying with notice of her claim is not entitled to possession of that property without first securing proper maintenance for her; Vide Rachawa v. Shivayogappa, (1894) ILB 18 Bom 679. In Yellawa v. Bhimangavda, (1894) ILR 18 Bom 452, it was taken to be the settled practice of the Bombay High Court not to allow the heir to recover the family property from a widow entitled to be maintained out of it without first securing or proper maintenance for her out of the property or by such other means as might be deemed sufficient. It is clear from the provisions of the Explanation appearing in Section 14 of the Hindu Succession Act that a situation was contemplated where a female Hindu could be in possession of joint family properties in lieu of maintenance................Moreover, she was presumably in possession of these properties in lieu of her right of maintenance and could not be deprived of them even by Jugli Bai without first securing proper maintenance for or out of the aforesaid properties.'
43. In V. Tulasamma's case (AIR 1977 SC 1944) their Lordships of the Supreme Court observed that Sub-section (1) of Section 14 of the Hindu Succession Act was wide in its amplitude and covered every kind of acquisition of property by a female Hindu, including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. It was also ob-served that it was settled law that a widow is entitled to maintenance out of her deceased husband's estate irrespective of the fact whether that estate may be in the hands of his male issue or it may be in the hands of his coparceners. The joint family estate, in which her deceased husband had a share, is liable for her maintenance and she had a right to be maintained out of the joint family properties and although her claim for maintenance may not be a charge upon any joint family property until her maintenance amount was determined and made a specific charge, either by agreement or a decree or order of a Court, her right was not liable to be defeated except by transfer to a bona fide purchaser for value without notice of her claim or even with notice of the claim, if the transfer was made with the intention of defeating her right. The widow can, for the purposes of her maintenance, follow the joint family property into the hands of any one who takes it as a volunteer or with notice of her having set up a claim for maintenance. Learned counsel for the respondents specifically relied upon the following passage occurring in the judgment of their Lordships of the Supreme Court in V. Tulasamma's case (at p. 1951):--
'It is therefore, clear that under the Sastric Hindu Law a widow has a right to be maintained out of joint family property and this right would ripen into a charge if the widow takes the necessary steps for having her maintenance ascertained and specifically charged on the joint family property and even if no specific charge is created, this right would be enforceable against joint family property but it is certainly jus ad rem i.e. a right against the joint family property. Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property.'
44. In V. Tulasamma's case, Fazal Ali, J, undertook an exhaustive consideration of the nature and incidence of the right of maintenance of a Hindu female and cited with approval the following observations of Phear, J., in Shrimati Bhagavati v. Kanailal Mitter (1872) 8 Beng LR 225, which were also quoted with approval by their Lordships of the Privy Council in Mst. Dan Kuer v. Mst. Sarla Devi, AIR 1947 PC 8.
'As against one who has taken the property as heir, the widow has a right to have a proper maintenance ascertained and made a charge on the property in his hands. She may also doubtless follow the property for this purpose into the hands of anyone who takes it as a volunteer, or with notice of her having set up a claim for maintenance against the heir.'
46. In V. Tulassamma's case (AIR 1977 SC 1944) Fazal Ali, J., summarised the law on the subject as under (at p. 1960):--
(1) that a Hindu woman's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her, even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow;
(2) though the widow's right to maintenance is not a right to property but it is undoubtedly a pre-existing right in property i.e., it is a 'jus ad rem' not 'jus in rem' and it can be enforced by the widow, who can get a charge created for her maintenance on the property, either by an agreement or by obtaining a decree from the civil court:
(3) that the right of maintenance is & matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow's right to maintenance, the purchaser is legally bound to provide for her maintenance;
(4) that the right to maintenance is undoubtedly a per-existing right, which existed in the Hindu Law long before passing of the Act of 1937 or the Act of 1956, and is, therefore, a pre-existing right;
(5) that the right to maintenance flows from the social and temporal relationship between the husband and the wife, by virtue of which the wife becomes a son of co-owner in the property of her husband, though her co-ownership is of a subordinate nature; and(6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to property or purchases the same is in a position to make due arrangements for her maintenance.'
46. In V. Tulasamma's case (AIR 1977 SC 1944) Fazal Ali, J., also observed as under (at p. 1967):--
'the claim of a Hindu female for maintenance is undoubtedly a pre-existing right and this has been so held not only by various Courts in India but also by the Judicial Committee of the Privy Council and by this Court. It seems to us, and it has been held as discussed above, that the claim or the right to maintenance possessed by a Hindu female is really a substitute for a share which she would have got in the property of her husband. This being the position, where a Hindu female who gets a share in her husband's property acquires an absolute interest by virtue of Section 14(1) of the Act, could it be intended by the legislature that in the same circumstances a Hindu female who could not get a, share but has a right of maintenance would not get an absolute interest? ...... Furthermore, it may be necessary to study the language in which the Explanation to Section 14(1) and Sub-section (2) of Section 14 are couched. It would be seen that while the Explanation to Section 14(1) clearly and expressly mentioned 'property acquired by a female Hindu' at a partition or in lieu of maintenance of arrears of maintenance'' there is no reference at all to this particular mode of acquisition by a Hindu famale which clearly indicates that the intention of the Parliament was to exclude the application of Sub-section (2) to cases where the property has been acquired by a Hindu female either at a partition or in lieu of maintenance etc.
Approving the decision of the Bombay High Court in B. B. Patil v. Gangabai, AIR 1972 Bom 16 their Lordships of the Supreme Court quoted with approval the following observations of Palekar, J. (as he then was) in the aforesaid case (at pp. 23, 24):--
It appears to us that in the context of the Hindu widows the right to maintenance conferred under the Hindu Law is indistinguishable in quality from her right to a share in the family property. That may well be the reason why the explanation to Sub-section (1) of Section 14 of the Act makes the female allottee of property 'in lieu of maintenance' as much a limited owner as when the widow acquires on 'inheritance' or 'at a partition'. And if in the latter two cases it is conceded the Sub-section (2) does not apply on the ground of antecedent right to the family properties, we do not see any rational justification to exclude a widow who has an equally sufficient claim over the family properties for her maintenance.'
47. Their Lordships of the Supreme Court in V. Tulasamma's case (AIR 1977 SC 1944) did not agree with the proposition that the right of maintenance is not an enforceable (sic) maintenance of a Hindu lady, did not confer on her any right, title or interest in her family property. It is true that the claim for maintenance is not an enforceable right and even though no charge is created on the properties which are liable for her maintenance, yet it is a right against the property. The right of maintenance cannot strictly be said to constitute a right to property, yet as observed by Bhagwati J. in the aforesaid case it is 'jus ad rem'. Where a family possesses property, in case of husband's death, his heirs are burdened with the obligation to maintain the widow and thus, the widow's claim for maintenance is undoubtedly a preexisting right. The same situation is equally obtainable in the case of an unmarried daughter and her right to be maintained out of the joint family property or from the property left by her deceased father, may not be a right to property yet it is certainly a right against that property,
48. It was also argued that the Hindu Women's Rights to Property Act, 1937 was not applicable to the area comprised in the former State of Jodhpur and as such 'Hindu Women's estate was a conception which was not known in the former State of Jodhpur. In V. Tulasamma's case (AIR 1977 SC 1944) Fazal Ali, J. made the legal position absolutely clear in this respect (at p. 1976) :
The Act of 1937 did not introduce any new right but merely gave a statutory recognition to the old Sastric Hindu Law on the subject. In this respect the Act of 1937 is very different from the Act of 1956, the latter of which has made a revolutionary change in the Hindu Law and has changed the entire complexion and concept of Hindu Women's estate. In these circumstances, therefore, if the widow's claim for maintenance or right to get the share of a son existed before the Act of 1937, it is futile to dub this right as flowing from the Act of 1937.........The claim for maintenance is an important right which is granted to the widow under the Sastric Hindu Law which enjoins the husband to maintain his wife even if he has no property. Where he has a property the widow has to be maintained from that property so much so that after the death of her husband any one who inherits that property takes the property subject to the burden of maintaining the widow. Even where the property is transferred for payment of family debts and the transferee has the notice of the widow's claim for maintenance, he has to discharge the burden of maintaining the widow from the property sold to him. Thus the nature and extent of the right of the widow to claim maintenance is undoubtedly a pre-existing right and it is wrong to say that such a right comes into existence only if the property is allotted to the widow in lieu of maintenance and not otherwise.'
49. The legal conclusions on the subject were summarised in the aforesaid case, after an exhaustive consideration of the entire law on the subject, as under:--
(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu, such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.
(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends soughts to be achieved by this long needed legislation.
(3) & (4) xxx xxx xxx
(5) The use of express terms like 'property acquired by a female Hindu at a partition.' 'or in lieu of maintenance' 'or arrears of maintenance' etc. in the Explanation to Section 14(1) clearly makes Sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of Sub-section (2).
(6) The words 'possessed by' used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.
(7) xxx xxx
50. 'Applying the principles enunciated above to the facts of the present case, it is apparent that Smt. Omkumari, being the unmarried daughter of Bastiram, had a right to be maintained out of the joint family property in the hands of Bastiram and after his death in the hands of his son Arjunshigh'. Even after the death of Arjun- singh, Smt. Omkumari had a right of maintenance out of the properties left by Arjunsingh, and although the aforesaid right may not constitute a right to the said properties, she certainly had a right to be maintained out of the properties in question or in other words it may be said that she had a right of maintenance against the property in question. The plaintiffs, though are nearest reversioners of deceased Arjunsingh, cannot, therefore, be entitled to claim possession of the property in question as they have not made any suitable arrangements for the maintenance of Omkumari. The decision of their Lordships of the Supreme Court in V. Tulasamma's case (AIR 1977 SC 1944) directly leads to this conclusion that even if no specific charge is created in her favour, yet the right of maintenance possessed by Omkumari, is enforceable against the joint family property left by Arjunsingh, irrespective of the fact whether the property may be in the hands of reversioners of deceased Arjunsingh. The right is enforceable against the joint family property or even against a volunteer or reversioner or even against a purchaser, taking the same with notice of her claim. In this view of the matter, as Omkumari is presumably in possession of the property in dispute in satisfaction of her claim for maintenance the suit for possession filed by the nearest reversioners must fail.
51. In the result, the decree passed by the learned District Judge, Jodhpur dated Mar. 30, 1968 is upheld, though on different grounds and the appeal filed by the plaintiffs is dismissed. However, the parties are left to bear their own costs in all the costs (courts?).