1. This second appeal was first heard by Ramaswami J. who considered that an important question affecting the award of maintenance to the widow of a deceased coparcener against the surviving coparceners arose in this case, on which there appeared to be a conflict of judicial opinion. Hence this reference to a Full Bench.
2. The second appeal arises out of a suit filed by the respondent for the recovery of maintenance at the rate of Rs. 1000 per annum from, the date of suit and for arrears of maintenance for about a year before the institution of the suit at the same rate, for provision for residence and other minor reliefs. The respondent's deceased husband, Venkatarayudu, and defendants 2 and 4 who are appellants 1 and 3 were the undivided sons of the first defendant. The 3rd defendant (2nd appellant) is the son of the 1st appellant, The respondent's husband died undivided from the family nearly 30 years before the suit. The respondent claimed a sum of Rs. 1000 as a proper rate of maintenance on the allegation that the family owned about 150 acres of land fetching an annual income of Rs. 20,000 and had also a large moneylending business. The defendants pleaded 'inter alia' that soon after the plaintiffs husband's death there was an agreement between the plaintiff's father acting on her behalf and the first defendant that the plaintiff should be paid a sum of Rs. 100 per annum towards her maintenance and that neither the plaintiff nor the defendants should ask for its alteration at any time. This amount was fixed, according to them, having regard to the extent of the family estate at the time of the plaintiff's husband's death namely, about 54 acres of land of which 6 acres alone were wet, The learned District Munsif of Kovur who tried the suit held that the arrangement set up by the defendants was not true and proceeded to fix the maintenance. He held that the quantum of maintenance had to be fixed taking into consideration the income of the family on the date of the suit and the plaintiff's husband's share therein if he had been alive. He estimated the nett income of the family at not less than Rs. 7000 and fixed a sum of Rs. 750 per annum. He also awarded her arrears of maintenance at the same rate for the year 1943. The defendants appealed to the Subordinate Judge, who confirmed the decision of the District Munsif except as regards costs. The defendants thereupon filed the second appeal which is now before us.
3. The main ground which was taken in the memorandum of appeal was that the lower courts should have held that the plaintiff was entitled to maintenance only from the share of her husband in the properties that the family owned and possessed at the time of his death. Learned counsel for the appellants pressed only this point before us. He contended that the rate of maintenance should be fixed having regard to the properties which were owned by the joint family at the time of the plaintiff's husband's death and she should not get the benefit of subsequent acquisitions made by the family.
4. On this question there is direct authority in this court. In -- 'Manicka Mudaliar v. Sowbagiammal', 27 Mad L J 291 it was held by a Division Bench consisting of Sankaran Nair and Spencer JJ. that the amount of maintenance should be fixed with reference to the income of the family as it stood at the date of the suit and not as it stood at the date of the husband's death. In that case, the plaintiff's husband died in 1897 and the suit for maintenance was brought in 1911. When the plaintiff's husband died the joint family was possessed of about 1 acre of wet land and about 1 1/2 acres of dry land and was carrying on a small trade in cloth. After his death, the trade increased and the profits became large and properties were purchased out of the income from the trade. The income of the family on the date of the suit was estimated at Rs. 17500 per annum on an average. The District Judge awarded maintenance at the rate of Rs. 50 per mensem. It was contended that the lower court was wrong in fixing the maintenance with reference to the present income of the family but this contention was overruled. They observed:
"It is not contended that the property out of which the plaintiff seeks to be maintained is not joint family property; that the defendants did not take her husband's interest by survivorship and that formed in part the nucleus of this acquisition. It is also clear that if the family income had been reduced, the plaintiff would only get a reduced rate of maintenance and she would not be entitled to have it fixed with reference to the family income at the date of her husband's death."
They followed two rulings of the Bombay High Court in -- 'Madhavrav Keshav Tilak v. Gangabai', 2 Bom 639 and -- 'Adhibai v. Gurusandas Nathur', 11 Bom 199. In -- 'Madhavrav Keshav Tilak v. Gangabai', 2 Bom 639, Westropp C. J. and Kemball J. had held that a Hindu widow is not entitled to a larger portion of the annual produce of the joint family property as maintenance than the annual proceeds of the share to which her husband would have been entitled on partition were he then living, and this decision had been followed in the later case. Wadsworth J. followed the decision in --'Manicka Mudaliar v. Sowbagiammal', 27 Mad L J 291 in -- 'Veerayya v. Chellamma', ILR 1939 Mad 234. No doubt, that was a suit for enhancement of maintenance already fixed by a decree of court. But the principle applied was the same. He held that the maximum which could be awarded to the widow be the amount of the income from the share to which her husband would have been entitled had he been alive and a coparcener at the date of the suit for enhancement. The learned Judge pointed that the ruling in -- 'Manicka Mudaliar v. Sowbagia Ammal', 27 Mad L J 291 had not been challenged by subsequent rulings of this court in the 24 years which had elapsed since that decision had been passed.
5. The only support which learned counsel for the appellant sought for the contrary view for which he contended was from certain observations in two decisions of this court. In --'Jayanti Subbiah v. Alamelu Mangamma', 27 Mad 45, Bhashyam Aiyangar J. 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."
6. In -- 'Rangathayi Ammal v. Munuswami Chetti', 21 Mad L J 706, the following passage occurs in the judgment in a discussion as to the amount of maintenance which a Hindu widow is entitled to:
"No hard and fast rule can be laid down that she is entitled to a particular fraction of the income, although she could, in no event, claim more than the income of the share of the estate which her husband would have been entitled to, if a division had taken place during his lifetime."
As pointed out in -- 'Bansidhar Lala v. Champoo Bibi Mst.', 21 Luck 152, the observations in -- 'Jayanti Subbiah v. Alamelu Mangamma', 27 Mad 45 cited above can scarcely be regarded as authority for the proposition that the maximum limit for the maintenance allowance of a Hindu widow is her husband's share in the income of the family property at the time of his death. In that case, no question arose as to the amount of maintenance. A creditor of the deceased husband of a widow had obtained a decree on a promissory note executed by him and in execution of that decree he became the purchaser of the house which belonged to the deceased in which the widow was living. When the decree-holder proceeded to obtain delivery of the house he was resisted by the widow on the ground that she had a right of residence during her lifetime and that she could not therefore be ejected from the residential portion of the house. The District Judge upheld her contention. But the learned Judges of this court reversed the decision of the District Judge on this point. It was in the course of dealing with the nature of the widow's right of maintenance that the learned Judge made the observations above extracted. In -- 'Rangathayi Ammal v. Muniswami Chetti', 21 Mad L J 706, no doubt the question was, what was the proper rate of maintenance to be awarded to a widow against her step-son. It appears from the facts set out in the judgment that no considerable time elapsed between the death of her husband and the institution of the suit for maintenance by the widow. No question therefore arose as to whether the income of the family on the date of the husband's death or on the date of the institution of the suit should be taken into consideration in fixing the amount of maintenance. We cannot therefore take this decision as a direct authority on the question now before us. We may also mention that there is no reference by the learned Judges to the Bombay decisions which were referred to in -- 'Manicka Mudaliar V. Sowbagiammal', 27 Mad L J 291.
7. On principle, we are in entire agreement with the decisions in -- 'Manicka Mudaliar v. Sowbagiammal', 27 Mad L. J 291 and -- 'Veerayya v. Chellammal', ILR 1939 Mad 234. The law is well settled that thy widow of a deceased coparcener in a joint Hindu family has a right of maintenance against the surviving coparceners 'quoad' the share of her deceased husband which survives to them. This is an absolute right which accrues to her as a member of the joint family. The correct conception of the widow's right is thus set out in -- 'Lingayya. v. Kanakamma', I L R 38 Mad 153, at p. 154:
"The wives of the male coparceners in a Hindu family are not entitled to equal shares with the males in the family estate, nor do they take their husband's shares by representation on their death, but in place thereof, they are entitled to a portion of their estate for their enjoyment during their lifetime sufficient to maintain them in comfort according to the means of the family. This is an absolute right due to their membership in the family and does not depend on their necessity arising from their want of other means to support themselves."
(Vide also -- 'Commr. of Income-tax v. Bhagwati', ILR 1947 All 543 at p. 551 P.C.).
8. It must not be overlooked that the wives or widows of the coparceners, though they may not be themselves coparceners are members of the undivided family along with the males. (-- 'Bhagwati v. Commissioner of Income-tax', ILR 1941 All 43). There can be a joint family even with the single male member provided there are widows of the deceased coparceners or other persons entitled to maintenance from him (--'Vedathunni v. Commissioner of Income-tax, Madras', 56 Mad 1). Their Lordships of the Judicial Committee expressly say that they do not agree that a Hindu joint family necessarily consists of male members only: (--'Kalyanji Vithal Das v. Commissioner of Incometax, Bengal', ILR 1937-1 Cal 653 PC). There can be a joint family whore there are widows only, for a Hindu joint family is not finally terminated so long as it is possible in nature or law to add a male member to it. Any of the widows can bring into the family a new male member by adoption (Mayne's Hindu Law, 11th Edn., page 334).
9. It follows, therefore, that on the death of her husband a widow continues to be a member of the joint family along with the male coparceners. Her fortunes are bound up with the fortunes of the family. If the income of the family increases she will be entitled to the benefit of it. Likewise, if the income of the family decreases she must submit to a reduction of her maintenance. The learned advocate for the appellants did not contest the proposition that the Quantum of maintenance to which a widow is entitled is subject to variation, even when fixed by the court, by reason of a change of circumstances. This feature is inconsistent with the contention of the appellants that the widow's maintenance should be fixed taking into consideration her husband's share in the in come of the joint family at the time of his death and at no subsequent time. Reference was made to the decision in -- 'Audemma v. Varadareddi', ILR 1948 Mad 803. The exact question which is now before us did not arise in that case. But Govindarajachari J. notices the apparent conflict between -- 'Rangathayi Ammal v. Munisami Chetti', 21 Mad L J 706 and--'Manicka Mudaliar v. Sowbagia Ammal', 27 Mad LJ 291. It was unnecessary for the purpose of that case to resolve the conflict. But we agree with the following observations made by the learned Judge in dealing with the claim for maintenance by a widow against coparcenary property in which at one time her husband was a sharer:
"If it is borne in mind that the widow's right of maintenance is the truncated right which still remains out of what was at one time a claim to a share of the family property, there will be no difficulty in recognising that, as a necessary and logical consequence of the nature of the right possessed by the widow, her maintenance would be dependent upon the varying fortunes of the family. Her comforts would dwindle if the family property is reduced; but, if the family becomes more affluent, she will be entitled to participate in that affluence."
We have therefore no hesitation in holding that in fixing the rate of maintenance the courts below were right in taking into consideration the income of the joint family at the time of the institution of the suit. Having regard to the net income estimated at Rs. 7,000, we think that the amount fixed by the courts below, namely, Rs. 750 per annum, is proper and reasonable. We see no reason to alter that figure. The second appeal and Memorandum of objections are dismissed with costs.