1. This appeal arises from a suit for maintenance instituted by the respondent, a childless Hindu widow and a member of the appellant's family. The appellant is the zamindar of Nilapalli and Gutala and other villages in the Godavari District. The appellant's husband was the last male owner, and, upon his death on the 25th April 1875, appellant succeeded to the zamindari. Shortly after, a disagreement arose between the appellant and the respondent, and the latter left the family residence at Yanam, a town under the French Government, and has since resided in British territory. On the 7th April 1880' she brought the present suit and claimed maintenance, together with arrears, from the 1st January 1876 at Rs. 850 per mensem. She prayed also that a tiled house at Georgepetta, belonging to the joint family, might be set a/part; for her residence, and that part of the family property described, in the schedule attached to the plaint might be declared to be liable for her maintenance. She further included the second defendant as a party to the suit on the ground that he was claiming the zamindari as the adopted son of the late zamindar. The appellant resisted the claim, and contended that, shortly after her husband's death, the respondent received certain jewels and relinquished her claim to maintenance, and that she had jewels of her own worth Rs. 100,000. She further alleged that Rs. 25 a month was a suitable maintenance, and denied the respondent's claim to past maintenance and to the declaration that the maintenance was a charge on any particular portion of the family property. She complained also that the second defendant was unnecessarily made a party in order to throw doubt on her title as her husband's heir. The subordinate' Judge at Cocanada found that there was no relinquishment as alleged by the appellant; that, when she left Yanam, the respondent had jewels with her of the value of Rs. 2,600; that they were her stridhanam property and yielded no income; that Rs. 100 a month was a reasonable allowance in the circumstances of the family; that the respondent demanded maintenance without affect since 1876, and that she was entitled to have the house claimed in the plaint for her residence. He further noticed the plea of limitation set up at the final hearing, and held that the claim was not barred. On these grounds he awarded to the respondent past and future maintenance at the rate of Rs. 100 a month and the house claimed in the plaint, and declared the family property at Nilapalli and Georgepetta and the mitta of Ingaram, specially liable to the respondents' claim. As against the second defendant, who allowed the trial to proceed ex parts, he decreed that, in the event of his succeeding to> the family property, he should be liable to the decree.
2. It is not denied on appeal that the appellant is liable to provide for the: respondent's maintenance, and at the hearing the pleas of relinquishment and limitation are not pressed upon us. It is argued, however, that the claim to past maintenance ought to have been disallowed, but we are unable to assent to this view. It is found as a fact that the respondent lived separately during the period for which arrears are claimed, and that the appellant made no payments for her support. Although no previous express demand is necessary to sustain a claim to past maintenance--and it is only evidence of a wrongful withholding of maintenance which, as observed by the Privy Council in Narayan Rao Ramchandra Pant v. liamahai I.L.R. 3 Bom. 421 is the ground of liability--the Subordinate Judge has also found in this case that demands were made but not complied with since 1876. The first and fourth witnesses for the respondent have sworn to such demands, and nothing that has been urged on appeal induces us to regard their testimoney with suspicion. On the other hand, the contention for the appellant in the Court below, viz., that the respondent's claim had been settled, and the disagreement between the two ladies, which led to the respondent's separation from the family, render probable the oral evidence. Though there is no evidence of ill-treatment or justification for the respondent's quitting the family residence, still it cannot impair her right, as she is not bound under Hindu Law to live with and under the respondent, and ;as such residence is not a condition of her right to be maintained. [Raja Pirthee Singh v. Rani Rajkooer 12 B.L.R. 238 decided by the Privy Council.] We therefore concur with the Subordinate Judge that there has teen a wrongful withholding of maintenance in this case.
3. Another objection urged in support of this appeal is that the respondent was not entitled to have her maintenance charged on any part of the zamindari, and that there was no malversation or extravagance alleged to justify such a charge.
4. How far the claim of a Hindu widow for maintenance is an existing specific charge on the family property so as to bind it in the hands of a purchaser for value, is a question which it is not necessary for us to decide in this appeal. So early as 1860 the late Sadr Court in this Presidency held that it was a charge, and that a sale of the property made by a Hindu husband was invalid when nothing was left for the maintenance of his wife. According to recent decisions, however, in Calcutta and in Bombay, it is not a charge in the sense that it is an existing proprietary right so as to bind the property in the hands of a purchaser, ft was also observed in Lakshman Ramchandra v. Sarasvatibai 12 Bo. H.C.R. 77 that the texts relied upon as declaring the maintenance to be a charge on the inheritance declare it a charge in common with debts. However this may be (and we do not now decide the question), we are of opinion that, as between the party claiming maintenance and the heir, it may be charged by way of security on a particular part of the inheritance. It was held in Mussamut Khukroo Misrain v. Jhoomack Lall Dass 15 W.R. 263 that it was a charge on the family estate into whosesoever hands it might fall. It was also observed in Bam Churn Teivaree v. Mussamat Jasooda Koonwer 2 H.C.R. 134 that, though the heir who takes the property is primarily responsible, the estate is responsible in the last resort. Thus, although the claim may be no charge on any particular portion of the family estate in the first instance, still it creates an inchoate lien on the inheritance in general, so that it may be ripened into a specific charge on a particular portion by a judicial declaration.
5. This general lien is in the nature of a right whereby the performance of an existing personal obligation may be secured and protected against accidents such as dissipation or alienation to bond fide purchasers; and the heir who takes the inheritance subject to the charges upon it, and who is bound to provide for them, is not entitled to say that the maintenance shall not be so secured. If this right is limited at all, it can only be limited in the sense that no more property than is necessary for the protection of the party claiming maintenance should be specially charged; but there is no evidence in this case to show that the charge created is in excess of the necessity for protection. We are not therefore prepared to hold that the Subordinate Judge was wrong in declaring the maintenance to be a charge on the property mentioned in the schedule attached to the plaint. As to the house at Georgepetta, claimed in the plaint for respondent's residence, it is urged that she was not at liberty to claim any particular house. The right to be maintained includes a provision for lodging, and when there are several houses belonging to the joint family, we do not see how it is unreasonable to set apart one of them for her residence. The appellant said in her written statement that there was no objection to the house in question being given to the respondent for her residence. The only other question, then, which it remains for us to decide is, whether the maintenance awarded is excessive. The annual net income from the family estate is about Rs. 10,000. The appellant now in possession of the zamindari is a childless widow, and there are three other widows in the family entitled to maintenance. It appears that there is also some moveable property, and that the appellant collected some debts, though the evidence on record is vague. The respondent's husband was the zamindar for several years, and her status in the family is higher than that of the widows of junior male members of the family. There was also some evidence that Rs. 80 a month was offered to the respondent, though it is contended before us that this offer was unauthorized. In these circumstances, the Subordinate Judge awarded to the respondent Rs. 100 a month for future maintenance and Rs. 5,100 for past maintenance.
6. Although, as the widow of a former zamindar, the respondent is entitled to some consideration, yet it appears to us, under all the circumstances of the case, that an award of Rs. 75 a month would be reasonable. Here, we may also; observe that, at the hearing of this appeal, it was contended that the Subordinate judge had no jurisdiction to entertain the suit. In the view which we take' of the respondent's right to secure her maintenance on the immoveable property in British territory, we should overrule this contention. But the objection was taken neither in the Court of First Instance nor in the petition of appeal. If it had been taken in time, the respondent might have shown that the appellant had a temporary residence at Nilapalli at the commencement of this suit. We do not think that, under these circumstances, we ought to allow the objection to be taken for the first time on appeal. As to the objection that the second defendant ought not to have been made a party, he allowed the trial to proceed ex parte, and he has not appealed against the decree in so far as it affects him. Nor does the appellant appear to have been prejudiced by it.
7. For these reasons, we modify the decree appealed against by reducing the rate of past and future maintenance to Rs. 75 a month, and disallowing the claim to interest on the arrears, and otherwise confirm the decree. The costs will be borne proportionately. The appellant will, however, pay the respondent the interest which she undertook to pay when she obtained an order pending, the disposal of this appeal for stay of execution.