1. This appeal raises an important question, regarding the right of maintenance. The respondent is the widow of one of the sons of one Surayya. Her husband died in 1920. In 1923 Surayya became a Sanyasi after executing and registering a document described as a will (Ex. IV-C). In that will he bequeathed his self-acquired properties to his grandsons (defendants 3 and 4 in the suit) who are respectively the sons of Surayya's two other sons (defendant 1 and defendant 2). Surayya handed over his properties to his grandsons, and thereafter disappeared out of their lives. In 1926 the respondent sued the four defendants for maintenance and in both of the Courts below she has obtained a decree for maintenance against defendants 3 and 4, which is also charged upon the property acquired by them under Ex. IV-C. Defendants 3 and 4 have now filed this second appeal, and in our opinion the appeal must succeed.
2. The construction of Ex. IV-A need not delay us long. Though it appears to have been treated throughout the trial and the first appeal as a will which spoke from the day on which Surayya renounced his civil rights, we think it should be more properly styled a gift deed which came into effect when possession of the properties was actually given to the appellants but whether it will be a will or a gift deed, we think the principles upon which any rights of the respondent to maintenance are or are not affected by it are the same.
3. We begin the discussion of the question before us by enunciating two propositions of law which are well established and have not been contested.
(i) A widowed daughter-in-law has no legal right to maintenance from her father-in-law out of his self-acquired property but only what is called a moral right, and
(ii) But if on her father-in-law's death that property descends by inheritance to his heirs her moral right becomes a legal right at the moment of his death, as against them and as against the property which they have so inherited.
4. The point which now arises for determination is:
Does she acquire a similar legal right against the devisee or donee of self-acquired property or against the property itself if it descends not by inheritance but by will or gift.
5. Now in discussing this matter the first thing which strikes us is that the second proposition of law which has been enunciated above is a very startling one, and we immediately ask ourselves the question:
Why should an estate which is unburdened in the hands of one owner become burdened in the hands of a second owner who acquires it from him.
6. This is contrary to all general provisions of law, and it must be due to some peculiarity in the nature of the death of a Hindu and of succession to his property. The answer is given in Janki v. Nand Ram I.L.R.(1888) 11 All. 194 (F.B.) in these words:
An essential element of the son's right of inheritance from his father is the spiritual benefit which in the contemplation of the Hindu Law the son confers upon the soul of his deceased father. Therefore the son inheriting the self acquired property of his father takes that property subject to such moral obligations as are conducive to the spiritual benefit of his father, and that such moral obligations become legal obligations as against the son who holds his father's property by inheritance.
7. Now it is true, of course, that this may not be the only answer, but throughout the long arguments in this case that was the only answer that the learned advocate for the respondent could give, or that appears in the authorities which he brought to our attention. Let us therefore examine whether this answer can be pressed into service in the case of a will or gift. It seems to us obvious that it cannot. It is impossible to argue that there is anything in the nature of the transference of property by will or by gift which requires that the legatee or donee should take any thought for the spiritual welfare of the testator or donor. The legatee or donee may be a stranger, may be a Muhammadan, may be a Christian, may be anybody; and, as has happened in this case, the donor may expressly say that his widowed daughter-in-law is not to be maintained. The essence of the idea of inheritance is that only the heir-at-law can succeed - the essence of the idea of a will or a gift is that the testator or donor is disposing personally and at this own will and pleasure, of the property which he possesses. The Bombay High Court, it may here be mentioned, has consistently held the view that the widow acquires no legal right in circumstances like the present see. Yamunabai v. Manubai I.L.R.(1899) 23 Bom. 608 Bai Parvati v. Tarwadi Dolatram I.L.R.(1900) 25 Bom. 263 and Bhagirathi bai v. Dwarkabai A.I.R. 1933 Bom. 135 and has drawn a clear distinction between the acquisition of a father's property by inheritance and by other means such as a will.
8. There is however an important pronouncement in a case in Madras (which has been followed in Calcutta and Allahabad) and it is necessary to discuss this before finally disposing of this appeal. The case Rangammal v. Echammal (1898) 9 M.L.J. 14 : I.L.R. 22 Mad. 350 is reported in I.L.R. 22 Mad. 305 and Subramania Aiyar, J. is there dealing with the very question which is now before us namely, whether a widow acquires a legal right to maintenance out of the self-acquired property of her father-in-law which had been bequeathed by will. What the learned Judge says is this:
The better conclusion is, perhaps, that the party whose moral claim becomes a legal right would not be affected by testamentary dispositions in favour of volunteers made by the person morally bound to provide the maintenance. No doubt, if the title of the female claiming the maintenance were dependent on the volition of such a testator he could, by his will, have directed that she should get no maintenance out of his estate. But in cases like this, her claims to maintenance originating from the status acquired by her marriage, becomes a legal right independently, of his volition and comes into existence at the same moment* as the dispositions in favour of the volunteer become operative. It is consequently difficult to see how the latter could affect the former, It is not, however, necessary to put our decision in favour of the appellant on this ground.
9. It will at once be clear from this quotation that what Subramania Aiyar, J., says, though deserving of the very greatest respect, does not lay down the law in the full sense of that term. It is expressly made obiter dictum, and is prefaced by the word 'perhaps' which can hardly suggest that the learned Judge had finally made up his mind. We ourselves are again, with great respect, unable to follow him. He does not cite any-test or any authority in support of his statement of the law. He does not say why the right to maintenance is independent of the volition of the testator. His argument really in our opinion amounts to this, that the right to maintenance is charged upon the testator's self-acquired property, and that he cannot get rid of the charge. But if the widow has no legal claim against him during his lifetime it cannot be charged on his property. We return to what we said when considering the distinction between inheritance and the passing of property by will or gift, and repeat that we can see no valid reason why the right of a Hindu to dispose of his self-acquired estate should be in any manner restricted.
10. The rulings in Gopal Chandra Pal v. Kadambini Dasi : AIR1924Cal364 and Jeot Ram v. Mt. Lauji : AIR1929All751 in our opinion merely accept and follow Rangammal v. Echammal (1898) 9 M.L.J. 14 : I.L.R. 22 Mad. 305 without attempting any analysis or examination, and cannot advance the case of the respondent any further. On the other hand we are fortified in our conclusion by Bhagwanti v. Thakur Mall A.I.R. 1926 Lah. 198 where it is laid down without qualification (though without, it is true, considering specifically the case of a will) that 'a man has absolute right under the Hindu Law to dispose of his self-acquired property in any way he chooses.'
11. For these reasons we think that the decrees of the Courts below cannot be supported. The appeal is allowed and the plaintiff's suit dismissed with costs throughout. The plaintiff must pay the court-fee due to Government on her plaint.