1. The appellant, whose another had filed a suit in 'forma pauperis' against her husband's brother for past and future maintenance at the rate of Rs. 100 per year to be made a charge on the family properties, was on her death brought on record as the legal representative of her mother in the trial court. Both the lower courts have dismissed the suit on the ground that the appellant's mother's claim for maintenance against her husband's estate in the hands of the coparcener was a personal claim which does not survive to her legal representative on her death. The learned District Munsif relied upon a decision of Happell J. in C. R. P. No. 675 of 1945 in which the facts were as follows:
2. A certain lady filed a suit against her husband for maintenance and while the suit was pending she died. But before her death she purported to assign her rights to past maintenance to her father, and on her death, the father filed an application to be brought on record as the legal representative of the daughter. The learned Judge held that the question of the original plaintiff's right to maintenance was a personal right and since it was not a suit to recover an ascertained sum, a transfer of such a personal right could not be recognised in law. The claim of an unliquidated and unascertained amount due to a Hindu lady by way of maintenance could not be the subject of an assignment.
3. This judgment of Happell J. has not been referred to by the learned District Judge. In his judgment the two cases cited before him viz., -- 'Rangappa Aithala v. Shiva Aithala', 65 MLJ 410 and -- 'Rajalakshmi Deviammai v. Naganna Naidu', 21 LW 461, were distinguished by the learned District Judge on the ground that they wore cases where the claim was for a specific sum of money, already ascertained as the quantum of arrears.
4. Under the Mitakshara law, it is clear that the wife of a member of a joint family, though a member of the family as such, is not a coparcener in any sense of the term. Her right to maintenance has therefore to be ascertained by a consideration of the rights which' she has to it and the obligation which her husband, or husband's coparceners, have to discharge. It is also well settled that the widow of an undivided coparcener is not entitled to claim from the survivor as maintenance more than the proceeds of the share which would have been allotted to her husband had there been a partition during his lifetime. What, therefore, is the nature of her right to maintenance in the share of her husband in the joint family property? The contention urged on behalf of the appellant is that according to Hindu law-givers, originally the wife and the husband had common ownership of property and her right to maintenance had to be traced to such ownership. It is by subsequent evolution that the ownership in the property has ceased to exist and in its place a maintenance right has been substituted.
The nature of the claim is thus described in Apastamba's Dharma-sutras, quoted at page 234 of Golapchandra Sarkar Sastri's Hindu Law, 8th edition:
"There is no partition (or separation) between husband and wife because from the 'taking of hand' (i.e., marriage) companionship (or jointness, of husband and wife) in (religious) acts (is ordained); likewise in the fruits of (acts of) spiritual merit; and also in the ownership of wealth; since (Manu and other sages) do not declare (the commission of the offence of) theft, in the case of necessary gift (made by a wife, of her husband's property."
The exact expression is (Editor: The text of the vernacular matter has
vernacular matter is required.) "Dravyaparigraheshucha".
From the fact that as a result of marriage it is stated that there is jointness in the ownership of wealth, the earlier Hindu law-givers contemplated the wife to have some kind of right in the property of her husband, The origin and nature of such a right can also be inferred from other passages in the same book, such as at p. 271:
"The wife is declared to become co-owner of the husband from the time of their marriage."
and at p. 278 where in dealing with woman's rights the learned author says as follows:
" 'Wife's right to husband's property'; The 'patni' or lawfully wedded wife acquires from the moment of her marriage a right to everything belonging to the husband, so as to become his co-owner. But her right is not co-equal to that of the husband but is subordinate to the same, and resembles the son's right to the father's self-acquired property. The husband alone is competent to alienate the same, and the wife cannot interdict his disposal, but being dependent on him must acquiesce in it, provided it does not unjustly affect her right to maintenance out of it. Nor can the wife enforce a partition of the property. But it is by virtue of this right that the wife enjoys the husband's property, and is entitled to get maintenance out of it; and it is also by virtue of this right that she gets a share equal to that of a son, when partition takes place at the instance of the male members. Thus the wife also of a male member becomes a coparcener of the family property.
The widow under Section 3, Sub-section (2) of the Hindu Women's Rights to Property Act gets in the joint family property the same interest as her husband had. Consequently, if the husband was joint with his brothers and sons, then on the death of the husband, the widow becomes a member of the coparcenary with the rights of survivorship and of securing the joint status."
5. The argument put forward is that what was once a right of the wife in the property of her husband has now become converted into a right for maintenance and for this argument other passages in the same book are also cited and they are Chapter XI, Section 3, Sub-section (iii) at page 528 dealing with the rights of the wife and the widow: and chapter XI, Section 4, Sub-section (i).
Again, at page 540 the following passage occurs:
"Where the right to maintenance is the legal incident of a right to property, such as that of the widow of the deceased proprietor, the lowest limit is to be determined by having regard to the extent of the property, and to similar right, if any of any other person."
At page 541 we find the following passage:
"But all this is open to the objection that the right to maintenance being a right to property, which the law confers on one person against another, and annexes it to some estate, why should any such extraneous consideration affect it in the manner set forth above, when the law does not say so? It is, therefore, held that improvement of her financial condition is no ground for reducing the maintenance."
6. These passages may refer to Dayabhaga System of law.
7. A right to maintenance is also described as arising from the theory of an undivided family- where the head of the family is bound to maintain its members, their wives and children. See page 813 of Mayne on Hindu law and Usage, 11th Edition.
8. If the basic principle of the right of a male member's wife for maintenance to be paid out of the property of the joint family, or that of a widow from her husband's estate in the hands of the surviving coparceners, is based upon the theory that in remote past, when the Hindu law had not developed as a result of judicial decisions as it is today, the female member had some kind of rights in property without being a coparcener and without being entitled to claim a share, then it is said that such a right is one which relates to rights in property and can be made the subject of inheritance or transfer. In -- 'Hoymolutty Debia Chowdrain v. Korrona Moyee Debia Chowdrain', 8 WR 41, a Bench of the Calcutta High Court held that such a right is heritable and transferable. But the report is so meagre that it is not possible to ascertain as to whether the subject of that decision was an ascertained sum or a mere right to claim maintenance out of the estate. Our attention was also invited to -- 'Subbarayulu Chetti v. Kamalavalli Thayaramma', 21 MLJ 493 at p. 499 and --'Rajalakshmi Deviammal v. Naganna Naidu', 21 LW 461 at p. 468. But as the learned District Judge has himself remarked, these were cases where a specific, ascertained and liquidated sum of money was claimed from the estate. If that is so, such an amount is capable of being transferred. We do not think that the passages at pages 88 and 92 of Travelyan's Hindu Law, 2nd Edn., carry the case any further than what has been stated in the quotations extracted above from Golapchandra Sarkar Sastri's Hindu Law, 8th edition.
9. The real difficulty which the appellant has to encounter is that even if the widow's right is one which arises in property or out of property, still, since that amount is not ascertained, liquidated and specified, it cannot be the subject of a transfer. For one thing it might be, as is contended by the respondent in this case, the widow is entitled to nothing as she has remarried or she might have become disentitled to maintenance on account of her subsequent unchastity. Therefore, it is not, in all cases, that a Hindu widow can have a defined and ascertained sum claimable from her husband's estate unless by agreement between the parties a sum of money has been specifically fixed, which has to be paid out of the estate.
10. For the respondent it is contended that right to maintenance is not property and that a woman is not a coparcener though she is a member of the family. Since the right to maintenance is not property it cannot be assigned. At pages 333 and 334 of Mayne on Hindu Law and Usage, llth Edn. the learned author states that the female members of the family have no vested right by birth and come in only as heirs to obstructed heritage and cannot be coparceners with the male members, though, along with the males, or in exceptional cases by themselves, they are members of the undivided family as a corporate body.
That this is so is clear from observations in various authorities such as -- 'Radha Animal v. Commissioner of Income-tax, Madras', ILR 1951 Mad 56 and -- 'Seethamma v. Veeranna', ILR 1950 Mad 1076. Both these cases arose after the Hindu Women's Right to Property Act (XVIII of 1937) was passed, but even then it has been held that she is not a coparcener though entitled to a share on the death of her husband. At page 1082 of the report in --'Seethamma v. Veeranna', ILR 1950 Mad 1076, the learned Chief Justice says as follows:
"In our opinion, the status of a Hindu widow of a deceased member of a joint family governed by the Mitakshara under the provisions of the Act is not that of a coparcener, but that of a member of the joint family with certain special statutory rights."
If that is so such inchoate rights which have not crystallised into a definite sum cannot be made the subject of transfer. In this connection an earlier decision of the Calcutta High Court reported in -- 'Bhyrub Chunder v. Nubo Chunder', 5 WR 111, which was followed in -- 'Naradabai v. Mahadeo Narayan Kashinath Narayan and Shama Bai', 5 Bom 99, 103, 104, is worthy of note. At pages 103 and 104 of the latter decision West J. observes as follows:
"The husband's duty of maintaining his wife is one which he cannot owe to another. Her right as against him is one that she cannot transfer to another. Even a widow's right to maintenance against the heirs taking her husband's property cannot be assigned. Ordinarily, therefore, a Hindu wife has no property in her husband's estate that she can part with as a consideration for a contract to her, and a right in her maintenance by way of contract cannot rest on such a consideration."
With respect we are inclined to follow the expression of opinion by West J. and hold that a widow's right to maintenance against her husband's property is one which cannot be transferred or assigned. It seems to us therefore that the decision of the lower appellate Court is right and the second appeal is dismissed with costs.