Alfred Henry Lionel Leach, C.J.
1. This appeal raises a question with regard to a Hindu widow's right to maintenance out of the family properties after partition has taken place. The appellant was the plaintiff in the suit out of which the appeal arises. Her husband died some eight years before the suit. At the time of his death the joint family consisted of the first respondent (the appellant's father-in-law), the second respondent (her brother-in-law), and the third respondent (a son of her deceased husband by a previous wife). On the 20th December, 1925, the appellant made a formal demand for maintenance. The family was still joint, but on the 17th March, 1926, a partition was effected by a registered deed. The partition was no doubt the result of the appellant's demand, but it was a genuine partition. On the death of the appellant's husband his share in the family properties devolved upon the third respondent and as the result of the partition the third respondent obtained what his father would have obtained had he lived. The appellant then filed a suit in the Court of the District Munsif, Tenali, claiming that she was entitled to a decree against all the respondents on the ground that her status as a widow gave her the right to be maintained out of the family estate as a whole and not merely out of that portion allotted to her step-son on partition. The District Munsif found in the appellant's favour and granted her a decree against all the respondents. He held that she was entitled to arrears of maintenance for seven years at the rate of Rs. 60 a year and to the payment of Rs. 90 a year from the date of the suit. In addition he awarded a sum of Rs. 20 for the purchase of utensils and directed the respondents to set aside a portion of the family house for the appellant to live in or to pay her a further sum of Rs. 100. The decree so far as the first and second respondents were concerned was a personal decree, but so far as the third respondent was concerned it was limited to his share in the family properties. The first and second respondents appealed to the District Judge of Guntur, who confirmed the District Munsif's decree with slight modifications. He directed that the sum payable as arrears of maintenance should be calculated at Rs. 60 per year for six years and at Rs. 84 per year for one year and that all the amounts under the decree were to be recovered from the respondents in equal shares. The District Judge also modified the order which the District Munsif had passed with regard to costs. The first and second respondents then appealed to this Court. The appeal was heard by Venkataramana Rao, J., who allowed it. In holding that the third respondent was alone liable the learned Judge followed the decision in Narasimham v. Venkatasubbammai, where a Division Bench of this Court (Waller and Jackson, JJ.) held that when the widow of a coparcener sues for maintenance after the family has become divided her claim is enforceable only against the coparcener to whom her husband's share has been allotted. The learned Judge felt unable to accept that decision as embodying the correct statement of the law, but as it was directly in point he felt bound by it, The decision in Narasimham v. Venkatasubbamma (1931) 62 M.L.J. 433 : I.L.R. 55 Mad. 752 runs contrary to the decision of White, C.J. and Munro, J., in Subbarayulu Chetti v. Kamalavalli Thayaramma : (1911)21MLJ493 and the present appeal, which is an appeal from the judgment of Venkataramana Rao, J., under Clause 15 of the Letters Patent, has been placed before a Full Bench in order that the conflict may be decided.
2. The decision in Narasimham v. Venkatasubbamma (1931) 62 M.L.J. 433 : I.L.R. 55 Mad. 752 is in accordance with the statement of the law made by Bhashyam Aiyangar, J., in Jayanti Subbiah v. Alamelu Mangamma : (1902)12MLJ270 , where he said:
When an undivided Hindu family consists of two or more males related as father and sons or otherwise, and one of them dies leaving a widow, she has a right of maintenance against the surviving coparcener or coparceners, quoad the share or interest of her deceased husband in the joint family property which has come by survivorship into the hands of the surviving coparcener or coparceners, and though such right does not in itself form a charge upon her husband's share or interest in the joint family property yet, when it becomes necessary to enforce or preserve such right effectually, it could be made a specific charge on a reasonable portion of the joint family property, such portion of course not exceeding her husband's share or interest therein.
3. As authority for this statement Bhashyam Aiyangar, J., gave the Full Bench decision in Ramanadan v. Rangammal I.L.R. (1888)12 Mad. 260 . The judgment delivered in that case did not lay down expressly that a widow's right to a charge on the family property should not exceed her husband's interest therein, but it was recognised that she was entitled to a charge on the family property in the hands of her son.
4. I regard the statement of the lav made by Bhashyam Aiyangar, J., as being correct, and before commenting on the decision in Subbarayulu Chetti v. Kamalavalli Thayaramma : (1911)21MLJ493 . I will state my reasons. The Smriti Chandrika, XI, I, 34, according to the translation by the late T. Krishnaswami Aiyar, reads as follows:
When the father-in-law and the like are qualified to maintain the widow and take themselves the property of the deceased undivided member of the family, they alone are to maintain the widow from the property so taken. Accordingly, Narada: - 'Whichever wife (Patni) becomes a widow and continues virtuous, she is entitled to be provided with food and raiment by the elder brother of the deceased or by her father-in-law or by a Gotraja (a member born in the same family) or any other person.'
In order to maintain the widow, the elder brother, or any of the others above mentioned, must have taken the property of the deceased; the duty of maintaining the widow being dependent on taking the property.
5. The authority of the Smriti Chandrika is accepted. There is here a clear statement that the duty of maintaining the widow devolves on the persons who take the property of the deceased undivided member of the family and it is emphasized that the duty is dependent on the taking of the property. If the obligation to maintain the widow depends on the taking of the deceased husband's share in the family estate, it follows that there can be no right in the widow to claim to be maintained out of the shares which fall to the other members. While the family remains undivided the position is different. The property is held jointly and of necessity the amount required for a widow's maintenance has to be paid out of the estate regarded as a whole, but in no circumstances can she claim an allowance greater than the income of her husband's share in the estate. An adequate allowance may be less than the income of her husband's share, but it represents the maximum available-See Savitribai v. Luximibai I.L.R.(1878) 2 Bom. 573 , Madhavrav Keshav Tilak v. Gangabai I.L.R. (1878) 2 Bom. 639 and Pachayammal v. Paramasiva Mudaliar (1937) M.W.N. 785.
6. In Savitribai v. Luximibai I.L.R. (1878) 2 Bom. 573 Westropp, C.J., observed:.
It would need very strong and distinct authority, in the ancient treatises of Hindu Law, to convince us that the widows of such separated husband's stand, as to maintenance out of such portion of the family estate as remains in the hands of the other ex-parceners, in a better position than the husbands themselves occupy with regard to any right to resort to that residue for a further share, albeit under the name and guise of maintenance.
7. The ancient treatises of Hindu Law do not furnish such authority. In the Smriti Chandrika there is, however, strong authority to the contrary.
8. The learned advocate for the appellant has conceded that when there has been a partition during the husband's lifetime and the husband has dissipated his share in the family properties his widow is not entitled to be maintained out of the properties falling to the shares of the other members. If the widow is not entitled in such circumstances to be maintained out of the properties in the hands of the other members of the family, the logical deduction is that her right to maintenance merely attaches to her husband's share and on partition she has no claim against the assets forming the shares of the others.
9. I will now turn to examine the decision in Subbarayulu Chetty v. Kamalavalli Thayaramma : (1911)21MLJ493 . In that case a widow sued for maintenance against the surviving members of her deceased husband's family and after the institution of the suit the defendants arranged a partition. The Court held that the partition-suit could not prejudicially affect the plaintiff's claim. White, C.J., quoted the passage which I have quoted from the judgment of Bhashyam Aiyangar, J., in Jayanti Subbiah v. Alamelu Mangamma (1902) 12 M.L.J. 272 : I.L.R. 27 Mad. 45, but he was not prepared to hold that the words of Bhashyam Aiyangar, J., were intended to apply to the members of the branch of the family of which the deceased was a member and not to the members of the joint family generally. I am unable to place this interpretation on the words used by Bhashyam Aiyangar, J., and I am at a loss to understand how the fact that the partition took place after suit could make any difference. It was not suggested that the partition was a sham or in any way unfair. The members of the family had the right to divide and their rights in the family properties could not be affected by the widow's suit. The decision in Subbarayulu Chettt v. Kamalavalli Thayaramma : (1911)21MLJ493 was followed by Krishnan Pandalai, J., in Rangappaya v. Shiva : AIR1933Mad699 but the judgment in the latter case calls for no additional comment. In my opinion Subbarayulu Chetti v. Kamalavalli Thayaramma : (1911)21MLJ493 was wrongly decided and Narasimham v. Venkatasubbamma (1931) 62 M.L.J. 433 : I.L.R. 55 Mad. 752 should be followed.
10. The result is the appeal in the main fails, but the decree of the District Judge requires amendment. The provision that the maintenance be paid equally by the respondents must be set aside. The amount awarded to the appellant by the District Judge from the date of the partition, namely, 17th March, 1926, will be paid by the third respondent out of the properties which have come into his hands and represent the share of the deceased husband in the joint family estate. The amount representing arrears of maintenance before that date will have to be paid by all the respondents, and therefore there will be a charge against all the family properties in respect of the amount payable for maintenance before 17th March, 1926. In respect of the amount due for maintenance after that date the charge will be on the third respondent's share only. The first and second respondents are entitled to their costs.
Krishnaswami Aiyangar, J.
11. I agree.
12. I agree.