Charles Arnold White, Kt., C.J.
1. This is an appeal from a judgment of Mr. Justice Sankaran Nair awarding the plaintiff Rs. 25 a month by way of maintenance and giving a decree in her favour for a sum of Rs. 700 which represents the value or certain jewels which she claimed as her property. Three points were raised on behalf of the appellant. The first was that the decree was wrong in as much as it was given against all the members of the family of the plaintiff's deceased husband. The second point was that Rs. 25 a month was too much for her maintenance. The third point was that the learned judge was wrong in giving plaintiff a decree for Rs. 700 - for the jewels which she claimed.
2. I can deal with the 2nd and 3rd points quite shortly and I will take them first. In arriving at Rs. 25 a month as the proper sum to be awarded to the plaintiff for maintenance the learned Judge refers to a discussion that took place after the plaintiff's husband's death and to a decision by certain arbitrators, who were of opinion that the plaintiff should be paid Rs. 10 a month for maintenance; that she should be given jewels worth Rs. 1,500 as her absolute property and a life interest in jewels worth Rs. 500. The learned Judge points out that this really amounts to a payment of almost a sum of Rs. 1,500 as representing the value of jewels to which she is absolutely entitled and a monthly payment of Rs. 10 and a life interest in jewels worth Rs. 500 and taking them into consideration he thinks that Rs. 25 a month in lieu of a monthly payment of Rs. 10, Rs. 1,500 worth of jewels and a life interest in Rs. 500 worth of jewels would be a fair equivalent. He accordingly assesses her maintenance at that rate. I am not prepared to hold that the learned Judge was wrong in assessing the maintenance at that amount. The third point was not seriously pressed by Mr. Ananthakrishna Iyer. The learned Judge says that he is inclined to accept the evidence of the plaintiff that the jewels claimed belonged to her and accordingly found in her favor. I am not prepared to say he was wrong.
3. We come now to what is really the important point in this case. The contention on behalf of the appellant is that the judge was wrong in giving a decree against all the members of the undivided family of the plaintiff's husband, The actual form of the decree is that the 1st, 3rd, 4th and 5th defendants do pay to the plaintiff her arrears of maintenance and a further sum of Rs. 25 a month and that the arrears and the monthly maintenance be a. charge on a certain house. No. 334, Mint Street, which forms part of the family property. Now it appears from the genealogical tree which has been furnished to us that the 5th defendant is the brother of the deceased husband of the plaintiff and represents the plaintiff's husband's branch of the family. The plaintiff's husband was the grandson of the common ancestor Rangiah Chetti, he and the 5th defendant representing one branch of the family. The 4th defendant is the grandson of the common ancestor through another son, and the 1st defendant is a son of the common ancestor. The 3rd defendant is the grandson of the common ancestor through another son. There are thus 4 branches of the family of which Rungiah Chetti was the common ancestor.
4. After the presentation of the plaint by the plaintiff in this case an agreement was come to amongst the surviving members of the family for a partition of the family property. It is fairly obvious that this was a counter-move to the plaintiff's claim for maintenance Of course the other members of the family are perfectly entitled in law to take any steps which the law allows to defeat a claim for maintenance which is raised by a widow of a deceased member of the family.
5. In regard to the partition agreement, the learned judge observes that no transaction amongst defendants subsequent to the plaint can prejudicially affect the plaintiff's claims, and her claim must, therefore, be treated as that of a widow of an undivided family. It was said on behalf of the respondent that the learned Judge might have put the case more clearly than he did. His reference to the presentation of the plaint was of course with regard to the argument that was presented to him in the case, and it may well be that he could have put it that a completed partition among the defendants before the suit was instituted would not defeat the claim of the widow for maintenance. However, it is not necessary for me to discuss that question. I think it proper to deal with this case on the facts that actually arise. The case we have to deal with is a case where the widow presents a plaint for maintenance against the surviving members of her deceased husband's family and after the institution of the suit - as a matter of fact in this case after the settlement of issues - a partition is arranged between the members of the family. Mr. Ananthakrishna Aiyar contended that the proposition of the learned Judge was wrong. He relied upon the authority of the decision in Hemangini Dasi v. Kedar Nath Kundoo Chowdury I.L.R. (1889) C. 758 . In that case there is to be found, on p. 766, this passage : 'Where there are several groups of sons the maintenance of their mothers must, so long as the estate remains joint, be a charge upon the whole estate; but when a partition is made, the law appears to be that their maintenance is distributed in accordance to relationship, the sons of each mother being bound to maintain her. The stepsons are not under the same obligation.' In the course of the judgment reference is made to a passage in Dayabkaga, Ch. III, Section 1. referred to at p-764 of the report. It seems perfectly clear that the decision was given with reference to Dayabbuga Law and with reference to the special facts of that particular case, which was a case of several groups of sons, and the right to maintenance of their mothers had to be decided. I do not think the judgment in that case is binding upon us in any way with reference to the question which we have to decide under the Mitakshara Law as administered in this Presidency. I am of opinion, therefore, that the learned Judge was perfectly right when he says that the transaction subsequent to the suit cannot prejudicially affect the plaintiff's 1 claim and that her plaint must be treated as that of a widow of a deceased member of an undivided family.
6. Now the question is, what are the rights of a widow of an undivided family? Mr. Ananthakrishna Aiyar's argument was this, as I understood it : that the share or interest of the deceased husband of the plaintiff passed not to the members of the undivided family as a whole, but to the surviving members of that branch of the family of which he and the 5th defendant were members, and that the decree against the other members of the family was wrong. In support of that proposition he relied upon an observation of Mr. Justice Bhashyam Iyengar in the case of Jayanti Subbaya v. Alamelu Mangamma I.L.R. (1902) M. 45, the observation appearing on p. 48. The learned Judge there says : 'When an undivided Hindu family consists of two or more 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 co-parceners quoad the share or interest of her deceased husband in the joint family property which has come by surviorship into the hands of the surviving co-parcener or co-parceners, 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.' Now Mr. Auanthakrishna Aiyar contended that the words share or interest of the deceased husband in the joint family property which has come by surivorship into the hands of the 'surviving co-parcener or co-parceners' were only meant to apply to 'surviving co-parceners' who derived an immediate benefit from the fact of their being the survivors in respect of the share or interest of the deceased members of the family. That is to say, to put the case accurately with reference to the facts of this case, he contended that the 'surviving co-parceners' meant the 5th defendant, the other member of the plaintiff's branch of the family, and not the other members of the undivided family. The expression 'into the hands of the surviving co-parceners' is of course, figurative, because nothing but an intangible share passes by way of survivorship. It is no doubt true here the 5th defendant's share increases eo instanti by right of survivorship on the death of the only other member of his branch, of the family, and the shares of the other members of the family do not increase eo instanti.
7. But I am certainly not prepared to hold that the words of the learned Judge were intended to apply to the members of the branch of the family of which the deceased man was a member, and not to the members of the joint family generally.
8. We have been referred to various text-books and authorities by the learned vakil for the respondent and I dare say he would have cited more if we had not stopped him. I may refer to a few of them. I shall first take para 470 in MAYNK'S book on Hindu Law. Having ascertained what property there is to divide, the next step is to ascertain its amount. For this purpose it is necessary first to deduct all claims against the united famil for debts due by it, or other charges on account of maintenance, marriage or ceremonies which it would have to provide for, if it remained united. So the obligation to maintain is placed in exactly the same basis as an obligation to pay any other family debt. Then in BHATTACHARYA'S Law Relating to Hindu Joint Family, Edition of 1885, at p. 390, the learned author observes : - 'I have already noticed that in many instances the right of a family member to maintenance founds itself upon two or three relationships. Thus since a Mitakshara family may be composed of brothers or cousins of the first degree or those of second or third degrees, as soon as any of the members dies, his widow, as such, gets maintenance from all the surviving members together.' In WEST and BUHLER, on page 791, the learned authors say : 'Other liabilities, that is provision for maintenance or portions of persons not entitled to shares may be distributed by agreement among the co-sharers. But the estate at large is liable, at least in the hands of the members of the family making a partition; and co-parceners who desire to limit their responsibilities must obtain the assent of the persons interested.' I do not propose to cite more authorities.
9. With regard to so much of the decree as directs that the maintenance will be a charge on the house No. 3341 Mint Street, we are certainly not satisfied that the sum of Rs. 25 a month, which the learned Judge has awarded to the plaintiff is more than the value of the share of her deceased husband in the family property or the income derivable therefrom. It may be that a decree would not be enforceable ac against a member of a joint family which gave something more than the interest of the deceased husband which passed by survivorship to the surviving member. But we have not to consider this. Rs. 25 a month, does not represent more than the share to which the husband would have been entitled to if during his lifetime he had obtained partition of the joint family property. I think the learned Judge was right, and I would dismiss this appeal with costs.
10. I agree.