1. This is a suit by a Hindu widow for arrears of maintenance against her father-in-law and his sons. The plaintiff was married to a deceased son of the 1st defendant, the father-in-law. The 1st defendant originally had some ancestral property along with a brother, but he relinquished it at the partition between himself and his brother's sons, reserving to himself only a waste building site. This relinquishment was before the plaintiff's marriage; and his sons including the plaintiff's husband never took exception to it. The lower Courts have dismissed the suit on the ground that the 1st defendant was not in possession of any ancestral property although he was possessed of considerable property acquired by himself as an officer in the service of Government.
2. It has been contended on plaintiff's behalf in Second Appeal that partition deed contained a clause that the 1st defendant's brothers and sons should thereafter make no claim to the properties in the 1st defendant's possession which they admitted by the terms of the deed to be his self-acquired properties, that it must therefore be taken that the release of their right or claim of right to those properties was the consideration for the 1st defendant's relinquishment of the rights of himself and his sons to a half share of the ancestral properties, that in effect the 1st defendant exchanged with his brother's sons a half right in the ancestral property for their claim of a half share in the properties which he asserted to be his self-acquisition and that she is therefore entitled to maintenance out of his self-acquired property. But on a reference to the partition deed we are unable to give any such effect to it. It does not appear from it that the 1st defendant's brother's sons laid any claim to his self-acquisitions. On the other hand it merely records an admission on their part that the properties in his possession were his own acquisition and that they had no right to them. The reason for his not enforcing his right to an equal share of the ancestral property is stated to be his sympathy towards them. There is no clause in the document that could be construed as a release or relinquishment in the 1st defendant's favour of any claim which his nephews had in the properties which he alleged to be his own. We cannot therefore see any equitable consideration for fastening on the 1st defendant's private acquisitions an obligation which would attach to ancestral property in his hands.
3. It is next contended that the 1st defendant had realised the amount due to the plaintiff's husband on a mortgage bond executed by a third party; but both the lower courts have found that though the bond stood in the name of the plaintiff's husband he was only a benamidar for the 1st defendant and had no beneficial interest in it. And this finding we see no reason not to accept in second appeal.
4. The next point urged is that the plaintiff would be entitled to some maintenance, at any rate, as the 1st defendant was still in possession of an ancestral paramba. Admittedly no income was derived from it. This is the ground on which no maintenance was allowed to the plaintiff as derivable from it. It is argued on the plaintiff's behalf that she is entitled to make the paramba profitable and to derive maintenance out of it or to have the paramba sold to provide for her maintenance. It is not necessary to consider the exact manner in which her right with respect to the paramba could be legally enforced against the 1st defendant as the learned vakil for the respondent is willing that the plaintiff should have a decree for Rs. 50 in lieu of a fifth share of the paramba to which her husband would have been entitled if a partition had taken place between him and the defendants before his death.
5. The main contention in Second Appeal is that the plaintiff was entitled to maintenance against the 1st defendant as her husband died in commensality with him even though he was not in possession of any ancestral property. According to Hindu Law, it is argued, a person is bound to maintain his daughter-in-law even if possessed only of property acquired by himself. It is not denied that the established principle according to the decisions of all the High Courts is 'that ordinarily a wido wis entitled to maintenance from the survivors of her husband's undivided family only if the family possessed joint ancestral property during her husband's life-time. The contention is that there are some exceptions to this rule which proceed on the special obligation to maintain one's very close relations. We may at once observe that even if there were such a rule according to the Hindu Law we would not be bound to give effect to it. The rules of Hindu Law are binding on the Court only where it is necessary to decide 'any question regarding succession, inheritance, marriage or caste or any religious usage or institution.' In so far as a right to maintenance is a charge on the inheritance of any person according to the Hindu Law, the rules laid down by it would be enforceable. But where maintenance is claimed against a person not on the ground that the property coming by inheritance to him is burdend with the maintenance of the person claiming it, but on the ground that the Hindu Lawgivers have placed such a duty on the defendant, the Hindu Law, as such, has no obligatory force. The Court would have to decide the question in accordance with equity, justice and good conscience. The rules and precepts of Hindu Law-givers might often be entitled to great respect in deciding the rule of justice in such cases. But the weight due to them would depend on the circumstances of each case including the conditions of modern society and the conceptions of equity and justice which the Court considers it right to give effect to. We do not find, however, that according to Hindu lawgivers a person is bound to maintain his daughter-in-law even though he has no ancestral property in his hands. Our attention has been drawn to some observations of Subramania Aiyar J. in Rangammal v. Echammal I.L.R. (1898) M. 305. This question did not arise for decision there as the suit was by a daughter-in-law against her mother-in-law who had inherited the property of the father-in-law and the property itself was found to be ancestral property in the father-in-law's hands while he was alive, having been inherited by him from her maternal grand-father. The learned Judge observed 'In regard to such property the female would have been entitled to claim maintenance even in the lifetime of the person inheriting it. This view seems to be warranted, especially as the theory that the right of the widowed female to maintenance is dependent on the possession by the party called upon to provide the the maintenance of assets derived from the husband of the female claiming the maintenance appears to have had little or no foundation in the Smritis or Commentaries, according to Messrs. West and Buhler (Digest of Hindu Law, 3rd Edition, pages 245-252) and Dr. Jolly (History of the Hindu Law, pages 134 and 135). The latter learned author refers to a passage from the writings of Kamalakara to show that it is incumbent on sons and grandsons to maintain indigent widows and daughters-in-law, though no wealth of the father may be in existence. He also explains that the passage in the Smriti Chandrika relied on in support of the contrary view does not really touch the point. He further points out that in the Saraswati Vilasa, Section 522, the duty of a father to provide for his son's widow is stated unconditionally.' The passage in the Digest of Messrs. West and Buhler referred to is as follows: - 'Looking then to the constitution of a Hindu family, to the restrictions placed on a woman's activity and the prohibition in a united family against her making a hoard and the maledictions pronounced on those who fail to provide for the helpless members of their family, the conclusion may be hazarded that Colebrooke and others had sufficient grounds for the opinions to which the actual practice of the people generally conforms in the Bombay Presidency. In a united family it would seem that in some form maintenance may be claimed by the widow of a deceased member as a right not dependent on property though in a measure regulated by it but on the capacity only of her relatives in the order of nearness to her husband.' The learned authors also say that, according to Vyavahara Mayukha, the widow's right to subsistence does not depend on the possession of ancestral wealth; and Nilakanta's interpretation of a text from Kathiayana is referred to by them. It will be observed that the passage refers to the rights of all widows generally and not to the special claim of a son's widow against the father-in-law. But the law is now fully established to the contrary by the decisions of all the High Courts. Dr. Jolly also lays down the same general rule as West and Buhler with regard to maintenance of widows generally. The passage from Kamalakara is also cited in support of this general proposition, although a daughter-in-law is specifically mentioned in the text. The learned author refers to a text of Sankha in favour of a daughter-in-law and to Nanda Panditha's commentary on a text of Vishnu which also relates to widows generally. On the other hand, in a text ascribed to-Manu by the author of the Smiriti Chandrika it is stated that 'a mother and a father in their old age, a virtuous wife and an infant son must be maintained even though doing a hundred times that which ought not to be done.' See Smriti Chandrika Ch. XI-1 verse 34. The Mithakshara lays down 'where there may be no property but what has been acquired the only persons whose maintenance out of such property is imperative are aged parents, wife and minor children.' The correctness of Dr. Jolly's interpretation of the Smriti Chandrika, Ch. XI-1; verse 34 seems to be doubtful.
6. The question was fully considered by a Full Bench of the Calcutta High Court in Khetramani Dasi v. Kashinath Dasi (1869) 2 B.L.R. A.C.J. 15 and the majority came to the conclusion that according to the Hindu Law there was no legal obligation on the part of a father-in-law having no ancestral assets to give maintenance to his daughter-in-law. Even supposing that some ancient sacred texts could be found in support of a contrary conclusion the athority of the Mithakshara is almost paramount in this province. As already observed, the question has to be decided according to equity, justice and good conscience. Would it then be right to uphold the appellant's contion as in accordance with the sound equitable rule to be laid down in this case? An adult son has no right to maintenance against his father. How can his wife's right be regarded as standing on a higher footing? The son's marriage may have been performed after he attained his majority. It may have been performed by him of his own will and perhaps without the father's advice and consent. How could it be held that his widow is entitled to maintenance against his father in such cases
7. Again it can hardly be contended that the widow of a son divided from his father in his life-time would have any claim against her father-in-law. A brother has no right to maintenance against a Hindu out of his individual property, at any rate, if he is not an infant and under the guardianship of his brother. The considerations in favour of the appellant's contention have been summarised in the passage cited above from West and Buhler. But the difficulties in upholding the contention in favour of the liability of the father-in-law or any other member of the undivided family of a widow are equally, if not more, serious. We cannot but have grave doubts, about the desirability of fettering the inducement to acquire property by burdening the acquirer with the maintenance of persons who take no part in the labour of acquiring. It is natural that we should find conflicting views taken on the question by Hindu lawgivers. It may also be that in practice many Hindus take the responsibility of maintaining widows whom they may not be bound in law to support. But when we find that so early as the time of Vijnaneswara the view prevailed that there should be no obligation on a person to support any one except his closest relatives, namely, parents, wife and infant children out of his own self-acquisitions or by his own labour, we do not think it will be right to lay down any broad rule that a Hindu is bound to give maintenance to his daughter-in-law out of the fruits of his own industry. There may be special circumstances which may make it equitable and just in a particular case to uphold such a claim, but, in the present case our attention has not been drawn to any such circumstances. It does not appear that the plaintiff's husband was a minor when he was married to her. It is not shewn that the circumstances under which the marriage took place were such as to justify us in holding that the 1st defendant is responsible for the plaintiff's maintenance. The partition between him and his brother's sons was before the plaintiff's marriage. The plaintiff herself is not a minor and is not shown to have been a minor at the time of her husband's death. She left her father-in-law's house soon after her husband's death and did not try to establish a claim upon the 1st defendant by living with him as a member of his family. We must hold that, in the circumstances, the Lower Courts were right in refusing to make the 1st defendant liable to give her maintenance out of his self-acquisitions.
8. We modify the decrees of the courts below by directing defendants Nos. 2 to 4 (the 1st defendant having died pending the appeal) to pay Rs. 50 to the appellant out of the assets of the deceased 1st defendant with interest at 6 per cent, from this date till the date of payment. We further modify them by directing that the parties do bear their own costs throughout.