1. This Second Appeal arises out of a suit for partition. The plaintiff is the son of the 1st defendant by the latter's first wife. The 2nd defendant is the son of the 1st defendant by his second wife. The 3rd defendant is the widow of a predeceased brother of the 1st defendant. The 1st defendant: has four daughters by his second wife, of whom the first had been married before and the others were all unmarried at the filing of the plaint. The eldest of these was married while the suit was pending before the District Munsif about four months before his judgment, and the other two still remain unmarried. The seventh issue in the case runs thus:
To what provision, if any, is 1st defendant entitled for marriages of his unmarried daughters?
2. The District Munsif found that the 1st defendant spent Rs. 2,000 including dowry and expenses for the marriage during the pendency of the suit, and that the 1st defendant was entitled to one-third share from the plaintiff. Similarly he fixed Rs. 2,000 for each of the marriages of the remaining two girls to be married and the plaintiff's one-third share was charged on his share of the property. There was an appeal by the defendant and also a memorandum of cross-objections by the plaintiff. Among the points for determination stated by the Subordinate Judge are Point 3, namely:
Whether the plaintiff is liable to contribute to the marriage expenses of the daughters of the second wife of the appellant.
3. and Point 4, namely:
What were the expenses incurred in marrying the daughter of the appellant who was married after suit.
4. On the 4th point, he found that the expenses of the marriage might reasonably be fixed at Rs. 2,000; but on the 3rd point he held, relying on Ramalinga Annavi v. Narayana Annavi that the plaintiff was not liable to contribute out of his share towards the marriage expenses of the 1st defendant's daughters married after the date of the suit or to be married. Though the decision in Ramalinga Annavi v. Narayana Annavi relates to the marriage of a male coparcener, he thought that the principle applies also to the marriage of a female member. This Second Appeal is filed by the 1st defendant and before us it was argued on his behalf that all the members of the joint family are liable to contribute to the marriage expenses of the three daughters.
5. The learned Advocate for the appellant in the course of his arguments referred to a verse of Yajnavalkya quoted at p. 239 of Vol. II of Colebrooke's Digest (Bk. V, Ch. 2, LXXVII). This verse is also cited in Banerjee's Stridhanam, 3rd Edition, (pages 174-5). The verse does not occur in the Vyavahara Adhyaya or Book 2 of Yajnavalkya, but in the Achara Adhyaya or Book 1, where it is verse 105. The translation of that verse of Yajnavalkya and the corresponding commentary of Mitakshara shows that the verse relates to eating and not to divide the property (vide Vol. 21 of the Sacred Books of the Hindus, Yajnavalkya with Mitakshara, page 227). A similar verse oceurs in Vasishta (vide Sacred Books of the East, Vol. 14, Ch. 11 or Dutt's Dharma Sastras, page 777) where also it refers to eating. A similar verse also occurs in Manu. It is obvious that: Jagannadha misquotes a verse of Yajnavalkya misreading the word 'bhoj' (to eat or to feed) as 'bhaj' (to divide) and no argument can be rested on this quotation. I refer to this merely to eliminate it from my consideration in the rest of the judgment.
6. The main contention of the appellant is that daughters are entitled to be maintained by the joint family including the father, This right is historically the remnant of an original right to a share in the property itself. He contends that partition between the male members does not put an end to the right but the members or at least the members of a branch continue to be liable to her maintenance. We have got a series of cases to show generally that the joint family property is liable for the marriage expenses of a daughter and where the father is dead and the property has survived to the other members, whether sons or not, they are liable for the marriage expenses. (See also Strange's Hindu Law, Vol. II, page 313.) It is unnecessary to refer to these cases in detail, for it is admitted by the respondent that members of the joint family, who get the property by survivorship after the father's death, are liable for the marriage expenses of the daughters. We have, for instance, Tulsha v. Gopal Rai I.L.R. (1884) A. 632 and Vaikuntani Ammangar v. Kallapiran Aiyangair : (1900)10MLJ111 where it is observed:
That the expenses are to be borne by the family property just in the same way as the cost of maintenance there seems no doubt upon the authorities (see Tulsha v. Gopal Rai I.L.R. (1884) A. 632 West and Buhler, 754; Mayne's Hindu Law, Sections 81, 408.) The common practice of providing in partition decrees for the marriage expenses of daughters can hardly be accounted for except on the hypothesis that such expenses are properly chargeable on the family property.
7. The dictum is not only valuable as an authority on the question of law but also as showing a practice to the knowledge of the learned Judges. Other cases are Bapayya v. Rukhamma (1909) 19 M.L.J. 666 Bai Mongol v. Bai Rukhmini I.L.R. (1898) B. 291, which is a case of maintenance of widowed daughters, but incidentally refers to the text relating to the maintenance of unmarried daughters, Gangu v. Chandra Bhaga Bai I.L.R. (1907) B 75 referring to unmarried daughters of disqualified persons and Nandan Prasad v. Ajudhia Prasad I.L.R. (1910) A. 325. These cases arose after the death of the father and are not directly authorities for the liability on partition during the father's lifetime. They are referred to as showing the foundation of the liability which is shown by them to be the possession of the joint family property. During the father's lifetime if there is no partition, that the whole family is liable for the marriage of the daughters is not denied by the respondent. But he contends that such liability of the joint family during the father's lifetime was only because of the father's obligation to maintain and bear the marriage expenses of his daughters and the obligation falls upon the joint family through him, and when there is a partition it is confined to the father and his share only. It is this position which has got to be examined. If the obligation is merely that of the father and it is only through him that it falls upon the joint family, the contention of the learned Advocate for the respondent may perhaps be correct. We may examine the history of the law as to the basis of the right of the daughter to be maintained and to be married. It seems to me that so far as the joint family property is concerned, the obligation is that of all the members of the family, that is, the father and the brothers, and it is not that it was originally the obligation of the father only and through him it has extended to the whole joint family. No doubt in all systems of law a parent is bound to maintain his child till a certain age. For instance, Banerjee in his book on Marriage and Stridhanam, 3rd edition, at p. 191 observes:
That a man should be bound to maintain his legitimate children is natural and obvious; and the same texts that enjoin him to support his wife may be cited also for the present purpose,
8. and he quotes Manu IX, 108; XI, 9, 10; Colebrooke's Digest, Bk. 5, 77; Vol. II, Ch. IV, 11, 12; 1 Strange 67. It is doubtful how far this obligation of a parent to maintain a child which is part of all systems of law including Hindu Law extends to the marriage of the child. On the other hand, it may be said that the obligation to marry the daughter is not a legal obligation, however much it may be a religious obligation. That is the view taken in Seshammal v. Munisami Mudaliar (1897) 8 M.L.J 105 and Sundari Animal v. Subramania Aiyar I.L.R. (1902) M. 505. In those cases it does not appear that the father was a member of the joint family or had ancestral property. The cases were discussed on the footing of the general obligation of a father to maintain or marry his daughter, and it was held that the father was not under an obligation to marry his daughter. On the other hand, it may be said that at least among Brahmins and Vaisyas with whom pre-puberty marriage is compulsory as a religious injunction, the father is legally bound to marry his daughter. But whatever may be the true view as to the liability of a father to marry his daughter considered by himself and by reason of the parental relation and apart from the posses-s' on of the joint family property, so far as the possession of the joint family property is concerned, there is no doubt that the father is bound to marry his daughter and that not because of a religious injunction about pre-puberty marriage but because of a better reason, namely, the daughter's right to be married is really the historical remnant of a larger right. It is therefore futile to confuse the two obligations, namely, the obligation of the father as a mere parent apart from property and the obligation of the father by reason of the possession of the joint family property. It is therefore not correct to say that the latter obligation is derived from the former. I think the two are independent and it is not that one is based upon the other. For this purpose we have to examine the growth of the law relating to the rights of brothers and sisters in a joint family from the earliest times up to the present day. In the very early law of property, the sons had no right to compel partition against the wish of the father except in one special case, which was, where he was old, disturbed in intellect or diseased. Omitting this special case, in general the father may make a partition because he desired it, or because he has no desire for wealth, and is disinclined to pleasure and his wife is incapable of bearing further children. Omitting these three cases, the only case that remains is after his death, when, of course, a partition can be made by sons. These four periods of partition are enumerated in Mitakshara, Chapter I, Section 2. It is contended by the learned Advocate for the respondent that this section relates to the self-acquired property of the father and Section 5 relates to the ancestral property of the father. I do not agree with this contention for the very cogent reasons given by Sundara Aiyar and Sadasiva Aiyar, JJ., in Srinivasa Aiyangar v. Thiruvengadathaiyangar I.L.R. (1914) M. 556: 25 M.L.J. 644., Sundara Aiyar, J., observes:
The contention is that these verses show that Section 3, verse 1, dealing with partition after the father's decease ... relates only to the self-acquired property of the father. To a question put to the appellant's vakil from the Bench, which text, then, provides for the division of the father's ancestral property his answer was that Section 5, verse 1, docs so ... But this verse is intended merely to show that where the brothers have an unequal number of sons, the grand-sons take per stirpes and not per capita.
9. At page 563 referring to the Smrithi Chandrika the learned Judge observes:
There is nothing to show that the author of the Smrithi Chandrika understood the expression 'paternal wealth' as meaning the self-acquired property of the father.
10. Much clearer are the observations of Sadasiva Aiyar, J. at page 567:
The distinction between the ancestral and the self-acquired property of a father was not known to the ancient Hindu Law. The expression 'paternal estate' when used in Hindu Law books does not mean the father's self-acquisition alone but merely means the estate which the son can inherit or obtain through his' relation as such son to his father. In. Venkatarazu v. Kotayya Second Appeal No. 360 of 1911. I have attempted to show that according to the Shastras, sons had no right in the property which belonged to their father till both their father and mother were dead.
11. Lower down he refers to Mitakshara relying on a text of Gautama inferring the son's rights by birth in the (self-acquired and ancestral) properties of the father. The observations continue up to page 570 on the proper interpretation of Mitakshara. I generally agree with these remarks. I do not think that it can be said that Section 1 refers to the self-acquired property of the father in the modern and technical sense of, that term and that Section 5 refers to the ancestral property of the father. The object of Section 1 was to narrate the four periods of partition of a father's property, that is, the property which was held by the father whether it was self-acquired or ancestral; it refers to a case where the father was holding the property himself, that is, without being joint with other brothers. In other words, it refers to a case of a father and sons only and discusses the modes of partition between such a family. It describes three modes of partition during the father's lifetime, two of them being practically on his desire, one a special case and fourthly, after his death. These modes negative the right in the sons to compel partition in general. Section 5 deals with partition of a grand-father's property, that is, where there is not merely a father but father and his several brothers holding jointly, and they having sons. As there is no division between the members of the second generation, the property is referred to as the grand-father's property and the text discusses how it is to be divided between members of the third generation. In such cases no doubt the section says there is a right by birth, not that such right did not exist in the case of Section 1 but only no right to partition. The object of Section 5 is to lay down the division by stirpes. Placitum 7 of Section 5 of the Mitakshara suggests a different conclusion. It is not clear to me that the word 'acquired' means in this passage self-acquired in the modern sense of the term. But whatever inconsistencies we may find in the Mitakshara and whatever difficulties we may feel in reconciling Sections 1 and 5, the verses of Yajnavalkya are very clear and the observations of Beaman, J., quoted by Sadasiva Aiyar, J., in Srinivasa Aiyangar v. Thiruvengadathaiyangar I.L.R. (1914) M. 556: 1914 25 M.L.J. 644 are very appropriate. All that I am inclined to hold at present is that the four periods of partition mentioned in Section 1 are applicable to the grand-father's property also, the division of which should be per stirpes. It is not clear to me that the right in the son to compel partition was recognised in the Mitakshara. It seems to me that it is the inference in the modern times from the right by birth. If in the Mitakshara sons themselves have no right to partition, much less could the daughters. But this of course does not mean that the daughters have no interest in the property. Though it is not expressly. stated that they have a right by birth, we have got the fact that after the father's death the daughters had a right to a one-fourth share against the brothers. Section 7, verse 5 refers to a fourth part of a brother. How does this right arise? It cannot be said that the sons only were sharers in the property during the father's lifetime and that the daughters had no share, but after the father's death new sharers are introduced and that the sons' share is diminished. At this stage I may refer to some discussion which took place during the course of the argument as to what is meant by one-fourth share of the daughters. The text of Manu quoted at page 294 of Colebrooke's Digest, Vol. II, shows that three-fourths of the whole is taken by the brothers and one-fourth is taken by the sisters, though it is expressed in a round about form, 'let each give a fourth part of his own distinct share.' The text of Katyayana quoted at page 297 is to the same effect: 'For unmarried daughters a fourth share is ordained, and three shares for sons.' But placitum 5. of Section 7 of Chap. I of Mitakshara speaks about a fourth part of a brother's share which of course works out to a different fraction. The Smrithi Chandrika and other commentaries give their own explanation as to what is meant by this one-fourth share sometimes saying that it is not a definite share, but means marriage expenses, sometimes giving a different mode of working the fraction. In this Presidency the whole discussion as to what the exact mode of working out the fraction is academical, for now it is settled law that the daughters are. not entitled to a share, but all the same the discussion shows that the right of the daughter for maintenance up to the going to the husband's house and for marriage expenses is the present remnant of the right to a share. Therefore the right of the daughters in the father's lifetime, however much it cannot be compelled by partition, must still be described as a right or interest in the property. In Sarkar's Hindu Law, 6th edition, page 328, the unmarried daughter's right is thus described:
Similarly an unmarried. daughter acquires an imperfect right in the father's properly by virtue of which she enjoys the same and is maintainccl out of it until marriage and is also entitled to a quarter share, if partition takes place before her marriage, that is to say, when she continues as a member of the family.
12. I agree with this passage. It seems to me that in the early law both the rights of the sons and the daughters were imperfect rights in the property which cannot be materialised by compelling partition against the wishes of the father, but whereas the sons' right gradually developed into a right to compel partition, the daughters' right first became a right to compel partition against the brothers only and not against the father, and latterly degenerated into merely a right to maintenance and marriage expenses. When the daughter's right is so viewed, Mitakshara, Chapter I, Section 7, placitum 14 does not mean that the daughter's interest is not an interest in the property.. It only shows that during his lifetime she could not compel partition and should take whatever he gives, which of course does not mean that he is not bound to maintain her or marry her. This is all what is meant by Section 482 of Mayne's Hindu Law. The first sentence, 'Where a partition takes place during the life of the father the daughter has no right to any special apportionment' simply means that the daughter cannot compel partition and ask for a definite share during the father's lifetime, but it does not mean that she has no interest in the property for she had the right to a fourth share against the brothers after her father's death. I therefore infer that the right of the daughter for marriage expenses and for maintenance is a right over the joint family property of the father and the brothers and though during the father's lifetime she cannot enforce such right in the form of a partition because of placi-tum 14 of the Mitakshara, still if the father is willing to exercise his discretion in favour of the daughter by giving something towards her marriage expenses, the joint family property is liable towards such expenses. I have taken pains to trace the early history of the law and draw the above inference simply for the purpose of showing that the right to get expenses out of the joint family property is not a right derived from the parental obligation of the father to maintain a child but an independent obligation arising out of the joint family property law. The next question that arises is--after partition, on whom does the obligation fall? Mr. Raghava Rao says on the father only, because it is an obligation peculiar to the father by reason of his parental position. We have seen that the obligation existing before the death of the father is not the obligation derived from the parental position. If so, there is no reason why after partition it should fall upon the father only. It is true there are cases showing that, while during the continuance of a joint family the obligation falls on the whole family, after partition, it does not fall upon the whole family but on some branch or branches of the family. For instance in a partition between a father and two sons, debts contracted by the son not for family necessity will not fall on the; whole joint family but only on his branch, that is, on himself and his descendants, but not on his brother or on his father. But the debts of a father not illegal or immoral will certainly fall upon all branches of the family not only upon the father but upon the branches of each of his sons. In each case we have to see whether there is an obligation peculiar or personal to the head of the particular branch or sub-branch or an obligation to which the whole family is lable. In the case of a father's debts the whole family is liable; in the case of son's debts, the son's branch only is liable. Similarly in respect of marriage expenses of the daughter of a father, the whole joint family is liable. Therefore after partition the obligation falls upon all the members of the family. But in the case of the marriage of a son's daughters (the case put by my brother Jackson, J., in his judgment) though during the continuance of the joint family the whole family must bear the expenses, still primarily, it is the obligation of the son's branch and the father has nothing to do with it. I do not concede that no part of the family is liable. It stands exactly in the same position as the son's debts as contrasted with the father's debts. Therefore, after partition it falls upon the son's branch only and not upon the brothers' branches or upon his father. To put the matter briefly, the obligations of an ancestor and his family would fall after partition upon all the members of the family but the obligation of the head of a sub-branch will fall upon that branch after partition and not on other collateral branches or upon members higher in the genealogical tree. The analogy of the debts which is well established and well known makes my meaning clear. But Mr. Raghava Rao says that whereas the law covering debts relates to debts that are incurred, we are here dealing with an obligation which has not yet been incurred but which is to be incurred after partition. But the reply to this argument is that the obligation has been incurred before the partition by the birth of the daughters. It is not a case of obligation which is to be incurred after the partition. Only it is to be completed and materialised at the actual time of the marriage which may be after partition, but this does not mean that the obligation does not arise before the partition. This is easily seen when we remember that the obligation is not merely an obligation to maintain but the present remnant of what was formerly an interest in the property. I therefore hold that the obligation of a joint family does not after partition fall on the father only but on all the members of the family.
13. The idea I attempted to express in the last paragraph, namely, that the obligation to marry a girl is binding upon her father or his descendants but not upon his collaterals or his ascendants is also implied in the following dicta. In Narayana v. Ramalinga I.L.R. (1915) M. 587. Sankaran Nair, J., says:
Nor is it necessary for us to decide, as we have been pressed to do, that if provision for future marriages is obligatory it is so only between coparceners of one generation, though the references in the texts to 'brethren' may support that conclusion.
14. Though they did not decide the point they might have disallowed the marriage expenses in that case on this ground also. In Gopalam v. Vcnkataraghavulu I.L.R. (1915) M. 632: 1915 29 M.L.J. 710. Seshagiri Aiyar, J., says:
Such a provision should be made only for persons who are of the same degree of relationship as those who have been married at the expense of the family.
15. I may here mention that the decision in Gopalam v. Venkataraghavuhi I.L.R. (1915) M. 632 : 1915 29 M.L.J 710 was reversed by the Privy Council on another point. In Yerukola v. Yerukola : (1922)42MLJ507 the paragraph at page 650 and particularly the sentence, 'Gopalam v. Venkataraghavulu I.L.R. (1915) M. 632 : 1915 29 M.L.J. 710 and Jairam v. Nathu are distinct authorities against the extension of this concession to persons who are not in the same degree of relationship as those who have been married at the family expense' are to the same effect. So also in Jairam v. Nathu I.L.R. (1907) B. 54 it was held that the children of a brother are not entitled to any sum for the performance of ceremonies on partition. (See also West and Buhler, 4th edition, page 714, where they say 'but not of a brother's son'). These dicta will not now apply to marriages of males after the decision of Ramalinga Annavi v. Narayana Annavi , which reversed one of these, namely, Narayana v. Ramalinga I.L.R. (1915) M. 587, but will still apply to the marriages of female members of the family.
16. Mr. Raghava Rao also sought to rely on the analogy of an illegitimate son of a father, whose right to be maintained by a joint family will fall on the father only after partition. It seems to me that the sons can never be bound by such an obligation, because it is an immoral obligation. It is not illegal in the sense that the law imposes no obligation on the father; it is certainly legal and, so long as the father is joint and especially when he has no self-acquired property, the joint family may have to bear the expenses. But after partition to impose an obligation upon the sons is to make them liable for an immoral obligation of the father. This ground is enough to distinguish the case of an illegitimate son. We are here dealing with an obligation of the father which is both legal and moral.
17. My general conclusion as to the liability of the joint family including the father and sons is also supported by Strange's Hindu Law, Vol. I, page 170. Medhatithi who is a famous commentator on Manu after quoting Manit 9, Section 118, proceeds to comment on it. At page 53 of the Hindu Law by Ghose, Vol. II, he refers to the text of Narada, 'What is left of the father's property after discharging the father's debts (shall be divided by the brothers).' Then he says, 'By payment of debts, the duty of marrying a daughter is also intended.' This shows that my likening the obligation to marry a daughter with debts is not fanciful but is sectioned by a commentator. Mr. Raghava Rao contends that Medhatithi is only a commentator on Manu, an ancient Smrithi writer, and has not got the same weight as Mitakshara; but Mitakshara itself is a commentary on the ancient Smrithi of Yajnavalkya. I do not mean to say that when Medhatithi and Mitakshara are in conflict, Medhatithi should override Mitakshara in this. Presidency. In the present case there is no such conflict. I have drawn my conclusion from the consideration of Mitakshara itself and I refer to Medhatithi merely as supporting my inference.
18. Only one question remains to be discussed, namely, whether the decision in Ramalinga Annavi v. Narayana Annavi applies to the case of daughters as held by the Subordinate Judge. In my opinion, the two cases are plainly distinguishable. In the case of male members the right to maintenance and marriage is a right existing during jointness and it is in addition to the claim of partition. When a family is divided there are no more items of accounts to be settled by coparceners. When the member himself sues for partition, it may be said that he elects to get one advantage and lose another advantage. But, as my learned brother Jackson, J., pointed out in the course of the argument, the partition may be at the instance of a father or an elder brother. In such a case the conclusion in Ramalinga Annavi v. Narayana Annavi looks harder than in the other case because the younger unmarried brother does not choose. But even there it can be said though he loses one advantage, he gets another advantage, namely, being the master of his own property even if he does not desire it. But whatever hardship there may be in the matter, it is clear on the other hand that all mutual rights and liabilities inter se between two coparceners are put an end to by partition. It is difficult to say that there is still a claim by one outstanding against the other. It may be that a father may anticipate a suit for partition and may set apart a sum for the expenses of the marriage of an unmarried son prior to the suit, and probably future attempts to evade the decision will be made in this direction. The question before me is not to explain or justify the decision of the Privy Council but to see how far it applies to the case of a daughter. In the case of a daughter her rights to maintenance and to marriage expenses are not in addition to the right of partition but in substitution for an ancient right to a share which has now become obsolete. There can be no suit for partition with her as a sharer. In her case there can be no question of mutual rights and obligation between her and other coparcener being put an end to by partition. We thus see that every circumstance applicable to a male becomes different when attempted to be applied to a female. On principle it is difficult to see how a third person's rights against A and B can be affected by some action between A and B. I have already dealt with the apparent anomaly (for it is only apparent) that rights against a joint family of certain members may after partition subsist only against some of the members and not against all the members. That is because the obligation is peculiar to one branch and through it only to the whole family. Apart from that, there is no reason why the daughter's rights should be put an end to by partition altogether. It is conceded before us that, after the father's death, brothers, who are liable to the marriage expenses of their sisters, cannot put an end to her right by dividing the property between themselves. I do not see how there should be a different result during the father's lifetime. Similar cases occur in the case of the right to maintenance of widows of predeceased members of the family. Here again the right to maintenance is not put an end to by partition, though, with reference to the relationship of the widow to the members of the family, her claim may after partition subsist only against some branches and not against the whole family. Anyhow in this respect it is clear that the position of a female is so different from the position of a male member that I hold that Ramalinga Annavi v. Narayana Amiavi does not apply to a female member. I therefore hold that the Subord nate Judge has not correctly decided the third point. I would therefore allow a deduction out of the amount to be decreed to the plaintiff of a sum of Rs. 666-10-8 being one-third of the expenses actually incurred for the marriage of one of the daughters after suit. As to the other girls while holding that the plaintiff is also liable to contribute one-third of the expenses, I think it is not necessary to make an anticipatory provision by way of setting apart a particular sum. It is true that the decision in Srinivasa Aiyangar v. Thiruvewgadathaiyanga I.L.R. (1914) M. 556: 1914 25 M.L.J. 644 where Spencer, J., directed such a sum should be set apart was followed in Gopalam v. Venkataraghavulu I.L.R. (1915) M. 632: 1915 29 M.L.J. 710., but this is after all a matter of discretion. Provided we safeguard the rights of parties there is no harm in not actually setting apart the amount. It may be that the marriage may never come off for reasons which need not be suggested. It is enough to fix a maximum limit for the expenses of marriage and to make it a charge on one of the items of the plaintiff's property for one-third share. Though one girl's marriage has cost Rs. 2,000, I do not see why Courts should encourage habits of extravagance in the matter of dowry. Where the expenses have been actually incurred, it may be, we have no discretion. But where it is to be incurred we should do nothing to encourage extravagance. I would fix a maximum limit of Rs. 1,500 for the expenses of the marriage of each of the two daughters that remain unmarried. Of course the actual amount may be less; this is only the maximum amount and it is enough to charge an item of the plaintiff's share for Rs. 1,000 to cover one-third share of the expenses of the marriages of the two girls. The 1st defendant will give notice before the marriage and before making his claim to the plaintiff's share of the actual amount of the dowry that is settled. This disposes of the Second Appeal.
19. There is a memorandum of objections filed by the plaintiff. The Subordinate Judge would not enquire into the amount of mesne profits for the year 1922, though the judgment: of the District Munsif dealt with it and awarded profits. By a slip, the amount of mesne profits was omitted in the decree; but the plaintiff is certainly entitled to the profits. We call upon the Subordinate Judge to hear objections of both parties as to the quantum of profits for that year and report his finding to the High Court within two months. Though the appellant has not appealed in this matter, 1 think he is also entitled to be heard on the question of the proper amount. There is no need for him to appeal, because there is no decree against him. That is no reason why his objections ought not to be heard. Seven days will be allowed for objections.
20. Another objection raised by the respondent is that item 21 was wrongly disallowed by the Subordinate Judge. The question is one of fact and we cannot go into the correctness of the Subordinate Judge's judgment. It may, however, be pointed out that he relies on the evidence of P.W. 3, which shows that the sum was paid to the payee and not to the 1st defendant. This objection must be disallowed.
21. Both parties will bear their own costs both in the Second Appeal and in the memorandum of objections in this Court. The order of the Lower Appellate Court as to costs will stand.
22. In this suit a son sues his father and his. stepbrother for partition. There are three step-sisters, and the question for determination is whether provision should be made for the costs of their marriages. One of the sisters was married after the institution of the suit, and two are still unmarried. In the Munsif's Court the plaintiff seems to have admitted that the cost of these marriages would fall upon the coparcenary. But the point was taken in the Lower Appellate Court and the learned Subordinate Judge holds that the liability and cost fall upon the father and not upon the brothers. Therefore any marriage performed or to be performed after the disruption of the joint status cannot be a charge upon the coparcenary. The Subordinate Judge has assumed that after partition the daughter would have no claim upon the family, and applies the ruling in Ramahnga Annavi v. Narayana Annavi only to justify his conclusion that partition had occurred before one of the daughters was married, so that the expenses of her marriage could not be charged against the family assets as cost incurred before the family was disrupted. Having found so much he proceeds 'the plaintiff who became divided ... was not liable to contribute out of his share ... towards the marriages yet to take place ... ,' paragraph 16. That follows upon his assumption of the law, and not upon anything to be found in Ramalinya Annavi v. Narayana Annavi What we have to decide is whether his assumption is correct.
23. In the course of the discussion two positions stood out in clear contra distinction. It is agreed that the most which a daughter may claim on partition is maintenance including under that term her marriage expenses. The appellant would have it that this maintenance is claimed as a matter of right against the coparcenary, it being the last vestige of the daughter's original share. The respondent on the other hand argues that that share has passed entirely into oblivion. The maintenance is what the daughter may claim from her father, and if it is paid by the coparcenary in the father's lifetime before partit:on, that is merely because the father happens to be absorbed.in the joint family. As soon as the father divides from the joint family the liability to maintain his daughter is his alone. It is no longer a liability chargeable upon family assets. But if he dies before partition his liability must be undertaken by the coparcenary, and provision made for it on partition.
24. If the appellant's view is correct, one would expect every female member who in the old days would have had an actual share still to have a right of maintenance chargeable on the family property. To take three generations, calling them father, son, and grand-son, the daughter and the grand-daughter would both have their right of maintenance against the family property. Hut it seems to be conceded that the family would not be held liable for a grand-daughter's marriage expenses, that being an obligation which falls after partition upon the son's share. Therefore if the daughter's right is to be traced to her original but obsolete share, there would seem to be a flaw in the logic of the argument so long as the grand-daughter is allowed no such right. Unless it is to be assumed that these provisions in Hindu Law are arbitrary or fortuitous, some logical basis must l)e found other than this original right to share. One may start with the primary conception that a father must maintain his children, a proposition which, if we are to delve into prehistoric times, must have been self-evident before the Mitak-shara. Then comes the idea of children acquiring coparcenary rights at. birth. Does a daughter acquire such a right, or must she be dependent upon her father? The answer to this question seems to be in the Mitakshara, Chapter I, Section 7(5) and (14):
By the brethren after the decease of their father, sisters should be disposed of in marriage giving them as an allotment the fourth part of a brother's share. (14) Therefore after the decease of the father an unmarried daughter participates in the inheritance. But, before his demise, she obtains that only whatever it be which her father gives.
25. I cannot profess to do more than interpret this English version. But it has not been suggested to us that the translation is wrong, it is plain English and seems to mean that the daughter participates in the inheritance after her father's death; but before his death she does not. That too is how the passage is read in Mayne, Section 482, Edition IX:
Where a partition takes place during the life of the father, the daughter has no right to any special apportionment. She continues under his protection till her marriage; he is bound to maintain her, and the expenditure he is to incur is wholly in his discretion.
26. This can hardly mean that where a partition takes place during the life of the father, the daughter has a right to some apportionment, but the special figure must be decided by the father who is bound to maintain her. If the father is to incur the expenditure it is not incurred by the family assets. Nor do I interpret the Mitakshara in that way as reading, after the decease of the father an unmarried daughter participates in the inheritance and before his demise she participates in the inheritance, only the exact amount must be decided by her father. If that could be the right rendering the translation is most unhappy. I may add that if the father can name the figure of the sum to be apportioned to his daughter out of the common fund on partition it puts him in a very invidious position.
27. I do not think that any help is to be gained from the analogy of cases where the father is dead before the partition. All are agreed that in that circumstance the coparcenary is liable; but whether the liability was always upon it, or has fallen upon it because a fellow-member is dead, these cases will not help us to decide.
28. There does not seem to be a single case directly in point. The respondent relies upon the summary of law in Rama Rao v. Rajah of Pittapur (1918) L.R. 45 LA. 148: I.L.R. 41 M. 778: 3S M.L.J. 392 which, I think, supports his case as far as it goes, but of course is not a direct decision upon the point. The members of an ordinary joint family governed by the Mitakshara law are placed in categories. First there are the persons with the inchoate right to raise an action of partition, who, so long as they remain joint are entitled to have their necessary expenses paid out of the family income, a right of maintenance which begins where coparcenary begins and ceases where coparcenary ceases. It was not suggested that daughters in these days belong to that class, which is confined to the male members of the coparcenary. Then come the maintenance holders who cannot succeed as co-owners. Firstly idiots, lunatics, and so on, who suffer from a personal disability. Daughters cannot come into that category, because the children of such persons get the full right of coparcenary. Lastly there is the class of persons whose right of maintenance lies in personal relationship. The husband is obliged to maintain the wife, the son the parent, and the father the infant child. It is an obligation attaching to the individual, independent of the fact of there being joint family property. Therefore it would seem from this summary that the daughter's right to maintenance is a right to be maintained by her father. When her father is a member of the joint family the cost of maintenance will be defrayed from the joint income. If her father dies, the joint family must assume the liability. If he lives and goes out of the joint family, he takes with him his personal liability to mam-tain his daughter. If it is held on the contrary that the liability rested originally upon the joint family, and continues to rest upon the joint family as a common debt at the time of partition, then the observation that the right of the infant child to maintenance lies in personal relationship must be held to be wrong.
29. If the daughter's primordial right to a share in the joint family property had survived to these days in the form of a claim for maintenance and marriage expenses, it would be such an interesting feature of Hindu Law that modern students and commentators could hardly have overlooked it. Yet none of them mention it; and though the argumentum ab silentio should not be unduly stressed, their silence is certainly significant. Mayne, as I read his commentary, does not admit the existence of any such right. In her father's lifetime the daughter is dependent upon the father (whether he be in or divided from the coparcenary). And the allotment she gets after his death though it is called a fourth share is only a sufficient amount to defray her nuptials. Sir Thomas Strange (Ed. 1830, p. 190) says 'Daughters take nothing as of right during their father's lifetime.' Ghose and West and Buhler do not appear to discuss the question. Sarkar (Ed. V, p. 303) says that a daughter acquires an imperfect right in the father's property by virtue of which she is maintained out of it until marriage, and is also entitled to a quarter share if partition takes place before her marriage, that is to say, when she continues as a member of the family. If 'father's property' here means joint-family property it undoubtedly supports the appellant's case; but may it not mean that the daughter has a claim to maintenance against her father's property; and by virtue of this right she can claim a share when her father is dead and she is still a member of the coparcenary. The only way in which an unmarried daughter can cease to be a member of the family would seem to be by her father becoming a divided member and herself also being treated as divided in his branch. If that is so, even according to Sarkar's commentary, in the present case the daughter of the already divided father would have no right to a share.
30. That the right to maintenance after the death of the natural supporter is derived through him, and is not an independent right to a share of the family assets is borne out by an obiter dictum of Kumaraswami Sastri, T., in Natarajan v. Muthiah Chetty (1926) M.W.N. 73.
persons who by reason of certain circumstances are not entitled to a share in the estate are entitled to maintenance by those to whom the estate has passed by survivorship. The liability to maintain is on the coparceners by virtue of the fact that they take the estate of their deceased relations.
31. And even if one goes back to the earliest texts, the right to maintenance seems to be a right against those who have survived and enjoy the family assets, rather than a right to enjoy a share of those assets along with them. 'Sisters also who are not already married must be disposed of in marriage by the brethren, contributing a fourth part of their own allotments.' (Mitakshara, Chapter I, VII, 6). Not, be it noted, taking a fractional allotment in her own right but looking to the brothers for a contribution from the property already divided amongst them. But here a difficulty supervened. If a brother had to contribute quarters of his share to several sisters, or several brothers to one sister, gross inequalities would result. Therefore the commentators exercised their ingenuity and devised a fictional extra brother whose fourth share the sisters could enjoy. Hence it appears, says the Mitakshara, that daughters also participate after the death of their father. In fact they have become participators through the difficulty of arranging their maintenance allotment: which is exactly the reverse of the appellant's theory that they are given a maintenance allotment because they never lost their right to be participators.
32. And this clearly explains why it makes all the difference whether the father is alive or dead. When he is alive the daugh-ters are under his care and there is no question of participation. But when he is dead, and the brothers have to allot the maintenance, in working it out, the daughters become a quasi participator.
33. This theory also explains what otherwise is difficult to understand, why, if the daughter has had a right to share continuously from the earliest times it has degenerated (as the appellant concedes) into a right of maintenance. Along what path of thought or custom did it proceed until it degenerated into maintenance? I can understand its steadily dwindling, and being circumscribed in all manner of ways, but why if it had nothing to do with maintenance should it ever have fallen under that category? Is not the answer that the underlying idea has always been maintenance, and not participation? Maintenance when the father was alive; and then when his death had thrown his responsibilities upon the coparcenary, maintenance at first worked out in terms of a share, and then again treated simply as maintenance.
34. In this view of the case the assumption of the learned Subordinate Judge will be correct, and I am not prepared to disturb it. In respect to the other matters raised on appeal I entirely agree with Mr. Justice Ramesam, and have nothing to add. Only if my view on the main question had prevailed I should have allowed respondent his costs.
35. I do not think it is necessary for me to discuss at length the main question in this appeal, which has been dealt with in the judgments already pronounced. It is admitted that, while a Hindu family remains undivided, the expense of marrying all the daughters of the family, whichever member of the family is their father, falls upon the family funds. It is contended for the plaintiff that the explanation of that is that the expense naturally and properly falls upon each girl's father but, while he is undivided from the rest of the family, his personal obligation must be met from the family funds. That explanation appears to me to conflict with the conception of a joint family. As soon as a joint family widens beyond the descendants of one living head it becomes clear that the right of each member born into the family arises by birth into the family not by descent from one member of the family rather than another. This comes out clearly in the typical joint family of Malabar Law, where no individual has a right to claim partition. Every member must be the child of a woman of the family, but the right to maintenance and the extent of that right has no relation to the fact that the member is the child of one woman rather than another. The special claim of a child on its parent to care and support is a matter of human instinct, which may have left its trace on every system of law; but it has essentially no place in the joint family system. If we find that in an undivided Hindu family the girls have to be married at the expense of the family, I do not think we are justified in inventing for that natural and logical feature of the joint family system any explanation other than that it is part of that system. To say that in such circumstances the obligation on the whole family to meet the marriage expenses of the girls is due to the fact that they are daughters of a member of the joint family and not due to the fact that they are themselves members of the family appears to me to confound the explanation how they come to have a claim on the joint family funds with the nature of the claim itself. In this case we are concerned with the question on whom the claim falls when a son with sisters demands partition while his father is alive. But it has been pointed out and admitted that, if after their father dies his sons make a partition, they must provide for the marriage expenses of their sisters as if it were an obligation of the joint family. In explanation of that it is suggested for the plaintiff that, if in his life the obligation had been primarily that of the father, then, as his interest in the joint-family property lapsed to the sons on his death, the obligation came upon them with it. Apart from that explanation being in my opinion in conflict with the conception of a joint: family it is almost impossible to reconcile the explanation with the fact that ancient Hindu Law specified a definite share, described as a fourth, as that of the sister in such a partition after her father's death. By whatever method such a fourth was to be calculated--and about that there were many differences of opinion--no method could bring it into any settled proportion to the interest of the father which had lapsed to the sons on his death. The fact that a fourth was ever specified for the sister's share in such circumstances indicates the idea that her right was her own by birth in consonance with the joint-family system and not merely a right as daughter of a deceased coparcener, whose death had benefited the surviving coparceners.
36. Then is there any binding authority which drives us to treat the daughter of a coparcener not as a member of the joint family with a claim for her marriage expenses on the family funds to be distributed as such on a partition in her father's life, but as having a claim only on her father and on his share in such a partition? What the plaintiff relies on is Chap. I, VII, 14 of the Mitakshara. But, if that passage refers to partition in the father's life at all, which appears to me open to some doubt, it may well mean no more than that at such a partition she must be content: with the provision he thinks fit to make. As the passage says 'there is no special precept respecting this case'--in contrast with the special precept that in a partition after her father's death she is to have a fourth. The statement in Mayne, Section 482, that, when a partition is made in the father's 1ife, he is bound to maintain his daughter and pay her marriage expenses is based only on this passage in the Mitakshara, which is open to another interpretation. The statement quoted from Strange's Hindu Law--'Daughters take nothing as of right during their father's life'--appears to be the learned author's inference from the same passage. I agree with Ramesam, J., that there is nothing in Chap. I, VII, 14 of the Mitakshara which necessarily supports the view that the daughter's claim is only on her father and not directly on the joint family.
37. If there is no compelling authority to support the plaintiff's view of this matter, then the obligation to maintain, and pay for the marriage of, a daughter should fall on the whole joint family and be so provided for at partition even in her father's life, as would be the maintenance of a disqualified son. But there is one recognised feature of partitions which is at first sight incompatible with this view and has caused me some doubt. If a joint family consists of a man and his children and his sons' children, then the maintenance and the marriage expenses of his daughters and his sons' daughters alike fall on the joint family. But if there is a partition between him and his sons, it is admitted that the maintenance and marriage expenses of his sons' daughters thereafter fall upon the branch joint families headed by his respective sons. Is that because the grand-daughters after all are primarily dependent on their fathers? If so, why are not the daughters primarily dependent on their father? With great respect I doubt whether any analogy drawn from the son's debts and the father's debts is of much assistance to us in this connection. So long as the whole family is joint the claims for maintenance and marriage expenses of both the grand-daughters and the daughters fall on the joint-family funds; but the liability of the joint-family funds for the debts of the sons and of their father is not the same. On consideration the explanation of the fact that after a partition between a father and his sons the claims of the sons' daughters for maintenance and marriage expenses are on the shares of the respective sons only appears to me to be that, while a girl is a member of a joint family, her claim for such expenses can be only on the joint family to which at the time she belongs: when a son who has a daughter is divided from his father, he becomes at once the head of a new branch joint family even if he has not yet begotten or adopted a son: it is on that joint family and its property that his daughter's claim must fall. But, when sons divide from their father, their sisters do not remain members of a joint family with their father, either a remnant of the old joint family or a new joint family which comes into being on the partition; the old joint family, so far as the generation of the sons and their sisters is concerned, has gone, and, though the father may beget new children and so become the head of a new joint family, his daughters living at the time of the partition are not members. of that joint family. If that is the correct view, then the fact that on a partition between a father and his sons the maintenance and marriage expenses of the sons' daughters fall on the respective sons' branches alone, as do the expenses of the sons' sons, and not on all who were coparceners in the old joint family, is not inconsistent with similar claims of the sons' sisters falling on all who were coparceners of old joint family. If one of several sons alone divides from his father and brothers, then his sisters remain members of the joint family of his father and his remaining brothers; but in that case the son who goes out by division would not escape liability for his share of his sisters' maintenance and marriage expenses.
38. I agree therefore with Ramesam, J., that on partition between a father and his sons the sons remain liable for the marriage expenses of their sisters in proportion to their shares of the property divided. As mentioned in Vaikuntam Ammangaar v. Kallapiran Aiyangar : (1900)10MLJ111 it has been a common practice in this Presidency to provide in partition decrees for the marriage expenses of daughters out of the family funds. Of that practice we all, I think, have knowledge, and in the District Munsif's Court the plaintiff himself did not object to it being followed in this case. It may not be appropriate to fix a definite sum for marriage expenses years before a marriage takes place; but the recognition in the practice that the claim for such expenditure is one which must be met from the funds of the joint family and not by the father alone after partition is in my opinion in accordance with the law. I agree that this matter is not affected by the decision of their Lordships of the Privy Council in Ramalinga Annavi v. Narayana Annavi.
39. On the other points in the case also I agree with the judgment of Ramesam, J.