1. I have had the advantage of perusing my learned brother's judgment and merely wish to add a few words in further support of our view that Act 18 of 1937 does not take away the old Hindu law right of maintenance a widow had against her husband's joint family. There are observations at page 711 of the 11th edition of Mayne on Hindu Law and Usage edited by Sri N. Chandrasekhara Ayyar, which suggest a contrary view on the ground that Hindu law allowed widows maintenance only because of their exclusion from inheritance and from a share on partition. At the time of this commentary, a widow was still excluded from succession to agricultural land and it was observed that, therefore, a widow was entitled to maintenance notwithstanding her right under the Act to a share in the non-agricultural part of the family estate. The Act has since, by Madras Act 26 of 1947, been extended in favour of widows so as to include agricultural land. We are, with respect to the learned commentator, unable to accept the view, which would appear to follow, that this legislation has extinguished the widow's right to sue for maintenance.
The adoption of such a view would mean that a Hindu widow would have no option at all but to sue for partition under these Acts. Many a widow may not desire to pursue this remedy, which will not only have the disastrous effect of plunging the joint family into the travail of a partition suit, but may also entail trouble, botheration and responsibility for herself in administering the share partitioned and allotted to her, which she can only enjoy for her life and which she is expected to preserve for her husband's reversioners. Widows may if they are legally well advised prefer a fixation of reasonable maintenance which will free them from all such troublesome responsibility. We do not think that Act 18 of 1937 as amended by Act 26 of 1937. both of which were animated by liberal and generous motives towards widows, had any intention of compelling them to sue for partition though they may desire only to have reasonable maintenance. It may in many cases be in the interests of both husband's undivided estate and the widow herself that she should be paid a reasonable and equitable maintenance, roughly equivalent to her husband's share in the joint family income for her life, than that the joint family agricultural holding should be carved up and fragmented. Fragmentation consequential on joint family partitions without any economic safeguards of even minimum economic agricultural holdings has had disastrous effects on agrarian and rural economy. In my view these Acts were intended to enlarge a widow's rights and not to detract from or restrict her pre-existing rights under Hindu law. The result is that, her right to sue only for maintenance if she so prefers without having recourse to the remedy of partition under Act 18 of 1937 is preserved intact. The Act in my opinion, never intended to drive all widows aggrieved on the question of maintenance provision in an undivided joint family, compulsorily to partition suits cutting up and splitting up agricultural holdings as their only legal remedy.
2. This legislation does not put the widow into the position of a coparcener, but gives her a statutory right to a partition if she so desires to exercise it, without any interference to her alternative right to maintenance under Hindu law.
Krishnaswami Nayudu, J.
3. This appeal arises in a suit for partition by a Hindu widow under the Hindu Women's Rights to Property Act 18 of 1937. One Kunchithapatham Pillai died on 27-2-1947 possessed of movable & immovable properties including agricultural lands leaving behind him two sons by his deceased first wife, defendants 1 and 2 who are the appellants and a second wife, the plaintiff, who is the sole respondent in this appeal.
The suit was one laid for partition and recovery of separate possession of 1/3 share in the properties of Kunchithapatham Pillai. The properties consisted of agricultural lands and houses as also moveable including the amount due under two insurance policies taken out by the deceased. The defendants contested the plaintiff's right to partition in. certain items of immoveable properties, viz., items 12, 13, 17 and 22 of schedule A and item 4 o! plaint A-1 schedule and also in respect of certain moveables including the insurance amounts. As regards these items of immoveable properties the defendants' case was that they were the properties which were conveyed to them under a Deed of Settlement, dated 5-2-1942, Ex. B. 27, by Kunchithapatham Pillai giving under the deed a life interest in favour of the defendants' grandmother & the mother-in-law of Kunchithapatham, one Ratnathachi & Ratnathachi having died on 26-7-42, the defendants claimed sole & exclusive rights to the properties contending that they were not joint family properties, and could not therefore be the subject of any division. (After discussing the evidence His Lordship continued):--
4. On an examination of the evidence in this case and the circumstances together with the conduct of the parties both Before and after this transaction, we have no reason to disagree with the conclusion of the learned Subordinate Judge that Ex. B. 27 (gift deed) was a nominal transaction brought into existence at the instance of Ratnathachi but the properties were treated as joint family properties.
5. An alternative contention was urged In the lower court & before us that in any event Ex. B. 27 being only a gift of Joint family property wouldnot, be valid in law. The power of a Hindu fatheror other managing member to make a gift islimited, it must be within reasonable limits if itis to. be of ancestral property and must be agift 'inter vivos'. The purposes for which sucha gift are permitted are those that are warrantedby the special texts. It is stated in Mayne'sHindu law, 11th Edn. at page 452, that,
'Apparently at one time, the father's power over ancestral moveable property was larger than his power over ancestral immoveable property. Butby the time of Vignaneswara, it is evident thatthe distinction had practically disappeared.For, Vignaneswara himself does not claim forthe father an absolute power of disposing ofmoveables at his own pleasure, but only an'independent power in the disposal of them forindispensable acts of duty and for purposesprescribed by texts of law, as gifts throughaffection to the support of the family, relieffrom distress and so forth.'
There does not seem to be really any distinction as between the moveables and the immoveables in so far as the father's power to make a gift is concerned. The gifts could be only through affection with reasonable limits. Gifts to brides on Occasion of marriage as also gift by the father to his daughter on the occasion of the marriage of a small portion of ancestral immoveable property have been held to be valid. Whatever the father is permitted in discharge of his indispensable duties in satisfaction of his moral obligation cast upon him by the texts, must be within reasonable limits and must be a small portion of the family property. Therefore, there can be no indiscriminate gifting away of joint family property by a father and the question is whether such a gift is void or only voidable at the instance of a coparcener.
6. In -- 'Baba v. Timma', 7 Mad 357 (A) a Full Bench of this court examined the relevant texts relating to the power of a father over ancestral immoveable property and held that except for purposes warranted by special texts, a Hindu father, while unseparated from his sons, has no power to alienate to a stranger his undivided share in the ancestral moveable and immoveable property.
7. Collins C.J. and Muthuswami Aiyar J. in -- 'Ramanna v. Venkata', 11 Mad 246 (B) were considering the question as to the validity of a gift made by a Hindu of a certain land which he had purchased with the income of ancestral property in a suit brought to recover the land on behalf of his minor son, who was born seven months after the gift. It was held in that case that the gift was invalid as against the plaintiff (the son) and that he was entitled to recover the land from the donee as the property was ancestral property.
In that case a suit was already brought by the father to set aside the gift and he failed and with reference to a contention that by reason of holding the gift to be invalid the son's claim being decreed, the property would be recovered by the son in which his father would also have an interest being a property of the joint family and that what the father could not himself recover in a suit would be achieved by granting a decree in favour of the son, the learned Judges, while observing that there was no doubt an apparent anomaly, stated that: 'the real question is whether the property inquestion continues to vest in the Joint family.
The gift is not binding on the family either in part or in whole, and the property in the subject of gift originally vesting in it is not divested by it, and we are, therefore, of opinion that the power of interdiction includes a right to see that the family estate is preserved for the family until a partition is made ..... in our Judgment, the decision must depend not on thequestion whether the father or the son mayhappen to die in coparcenary, taut whetherthe gift was valid at the time when it wasmade and whether it operated to transfer theproperty in the subject of the gift from thefamily to the donee either in part or whole.'
In -- 'Rottala Ranganatham Chetti v. PulicatRamaswami Chetti', 27 Mad 162 (C), a FullBench of this court observed that it has beendefinitely settled by judicial decisions that it wasincompetent to an undivided member of a Hindufamily to alienate by way of gift his undividedshare or any portion thereof, and that suchalienation was void 'in toto'.
8. A similar question arose in -- 'Venkatapayya v. Raghavayya' : AIR1951Mad318 where a gift deed was executed by the plaintiff for himself and on behalf of his minor son in favour of the defendant conveying an item of joint family property and a suit was instituted by the executants themselves stating that being a gift of joint family property the deed of gift was void and praying for a declaration that the gift was not true and was not valid in law and enforceable, the court found in favour of the invalidity of the document as one in the nature f a joint family property, which conveyed no title whatsoever to the defendant. Raghava Rao J. who decided the case, referred to the earlier decisions on the subject and observed that the well-recognised common law maxim that a man shall not derogate from his own grant had no application to a case in which the personal law of the parties rendered altogether void a grant by him which must therefore be treated in the eye of the law as altogether 'non est' and there being no rights created by a void transaction of that kind there was no estoppel or any other kind of personal bar akin thereto which precluded the plaintiff from asserting his right to recover.
9. It is now well-established that a Hindu father has no power to gift away ancestral and joint family property in part or in whole except for the special purposes laid down in the text, which are limited and circumscribed and that too of small portions of moveable and immoveable property, mostly to discharge a necessary moral obligation cast on a Hindu father or manager of the family. A gift otherwise is void in its inception and a document evidencing such a gift does not convey any interest to the donee. The gift can therefore be ignored and persons entitled to the property can treat the property so gifted as continuing to vest in the joint family and not haying been transferred to the donee notwithstanding even that possession of the property may have passed to the donee. It is not necessary for a coparcener or any other member of the joint family who claims to have a right or interest in the property to Interdict a gift as an alienation not binding on the family but to ignore the transaction and sue to enforce his or her rights to the said property.
10. It is, however, contended that in the present case the gift has been made with the consent of the coparceners and is therefore perfectly valid. Though a gift of coparcenary property is not as such recognised even if it is by the entire body of coparceners, a transaction evidencing the gift of ancestral property to which all the coparceners were parties cannot, however, be attacked as void 'in toto' as all the coparceners that claim to have an interest in the property must be deemed to be parties to the gift and the gift does not become invalid as the interest of any other person is not affected by such transaction. Therefore, there cannot be any real difficulty in upholding a gift with the consent of all the coparceners the gift being to one of the coparceners themselves of a property of the family or even to a stranger or charity provided nobody's interests are affected. To support the validity of such a gift, there should not certainly be any minors or a child in the womb existing on the date of the gift.
11. Exhibit B. 27 is in favour of the defendants, who are the other coparceners with a life interest reserved to their grandmother, Ratnathachl. There is nothing in the document itself to evidence any such consent. They appear to have been majors on the date of the gift, but their attestation even has not been obtained. The consent is sought to be proved by the fact of their consenting to the mortgage of the properties to the Land Mortgage Bank, Kodavasal, by their letter Ex. B. 26 dated 25-6-1945. But there is no reference in that letter to Ex. B. 27 and what is stated there is that they have no objection for a loan being granted to their father on the mortgage of their family properties. They treat the properties as family properties not as properties obtained by way of a gift. The first defendant in his evidence stated that at the time of Ex. B. 37 his father had no other sons and they consented to the settlement deed. It would certainly now suit the defendants to make that statement, especially as Ratnathachi is dead and there is no bar to their taking the property absolutely under the gift. But even here, the second defendant has not examined himself and spoken as to whether the gilt was consented to by him. The appellants have failed to establish that the consent of the coparceners was obtained to Ex. B. 27. It was suggested that the plaintiff had another son at the time, who was a minor and who is stated to have subsequently died, but there is no satisfactory evidence to prove the existence of a minor son on the date of Ex. B. 27.
12. It was, however, contended that the plaintiff, who was the wife entitled to maintenance out of Joint family properties having been in existence on the date of the gift, her rights to the properties could not be taken away without her consent lay Ex. B. 27. The question therefore aifees whether her consent would be necessary to validate a gift of such a nature. It appears to as that her consent is unnecessary as the wife is not a coparcener, but only a member of the joint family, and if the coparceners that are in existence express their unqualified consent, there feeing no minor or child in the womb the gift could be supported, notwithstanding that the wife or maintenance holder was alive on the date of the gift.
13. But how far such a gift would be binding on the wife or others entitled to be maintained from the joint family estate is a different question, which will be dealt with presently. Suffice it to observe that a gift made with the consent of all the coparceners, where there is no minor or child in the womb, could not be attacked as being void 'in toto'; but still will it be open to interdiction by ft person affected by such a gift, as for instance, a wife or other maintenance holder;
The answer would depend upon as to what the rights of a widow are under the Hindu law as it now stands modified, if any, by the enactment of the Hindu Women's Rights to Property Act of 1937. Prior to the Act, she was only entitled to a right of maintenance from and out of the joint family estate. But the Act, which was enacted for the purpose of giving better rights to women in respect of property, conferred on her the same interest which her husband possessed at the time of his death in the joint family estate. This is evident from Section 3, Sub-section (2) of the Act. She became therefore entitled to ask for a share in the property, that is, such share as her husband would have been entitled if he was alive, which she could enforce in a suit for partition.
But any interest which devolved on a Hindu widow under the provisions of Section 3 would be the same limited interest which she possessed and known as a Hindu Woman's estate. The only right conceded to her under the Act is to enforce a right to partition as a male owner and claim for partition and separate possession of her husband's share in the joint family properties. Prior to the Act, her rights were only confined to maintenance out of the estate. Though a member of the joint family she was not a coparcener, as she had no right by birth. As any alienation of joint family property made by the manager could only be challenged by a coparcener, who had an interest in the properties alienated which he acquired by birth, the widow not being a coparcener could not therefore be entitled to interdict an alienation made by the manager. The Act does not, in our opinion enlarge her rights except to the limited extent provided in the Act, namely, to ask for a partition of her husband's share which she would however be entitled to hold and enjoy as Hindu woman's estate, and her position and status in the joint family is not in any way affected or varied by the enactment. She continues to be a member of the joint family and does not become a coparcener, however much she might have become entitled to the interest which her husband possessed in those properties.
14. In --'Seethamma v. Veeranna Chetty' : AIR1950Mad785 , a Bench of this Court consisting of Rajamannar C. J. and one of us (Krishnaswami Nayudu J.) held that under the Act, the status of a Hindu widow of a deceased member of a joint family, governed by the Mitakshara, is not that of a coparcener, but that of a member of the joint family with certain special statutory rights. The question that arose for decision in that case was whether a widow of a deceased coparcener could, in claiming partition under the Act, ask for an account from the 'karta' on account of his management of the joint family. It was held that she was not entitled to an account. It was observed as follows:
'We do not understand the effect of the Act is to confer larger rights on the widow of a deceased coparcener than the rights which the coparcener certainly would have been entitled to if he were alive. Now, a coparcener cannot demand from the 'karta' an account of the management of the joint family except in special circumstances, e.g. fraud, misappropriation, etc. It does not stand to reason though the coparcener would not have that right, his widow would have it.'
These observations may be urged in support of the contention that whatever rights her deceased husband possessed at the time of his death, she would be entitled to, but not to any higher rights.
Speaking for myself, it was never intended by those observations that the widow of a deceased coparcener would be entitled to all the rights which he had at the time of his death including the right to interdict an alienation made by the manager on the ground of want of legal necessity. That right to attack an alienation can only vest in a coparcener and not in any member of the joint family including the widow. The position that the widow is not a coparcener in a joint family is well-known .and it cannot be said that she becomes a coparcener by reason of any right conferred on her by the Hindu Women's Rights to Property Act of 1937. The only provision which has been urged on behalf of the respondent's counsel giving her such a right is Section 3, Sub-section (2) which says,
'When a Hindu governed by any school of Hindu law other than the Dayabhag school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3) have in the property the same interest as he himself had.'
'Interest' has been understood to extend to estates, rights and titles that a man hath of, in to or out of lands (Wharton's Law Lexicon, 14th Edn page 528). It is argued that whatever right, title and interest her husband had in respect of the property the widow became entitled and that her husband having a right of action to question an alienation by the manager, such right must be deemed to have been conferred on the widow under the Act, notwithstanding that she is nob a coparcener.
15. In -- 'Saradambal v. Subbarama Ayyar', AIR 1942 Mad. 212 (F), a question having arisen whether the property taken by a widow under the Act was liable for the payment of her husband's debts. Venkataramana Rao J. held that the widow takes the husband's interest subject to the rights and obligations attached to that interest and that interest was the interest of an undivided member of a joint family in the joint family property.
16. In -- 'Natarajan Chettiar v. Perumal Animal', AIR 1943 Mad. 246 (G), where a question arose as to whether succession certificates would be necessary for a widow to recover the amount due on a pronote of which the husband was the payee, Horwill J. observed that the widow does not obtain a right given under the Act by survivorship or by inheritance and the effect of Section 3, Clauses 2 and 3 may be considered as a survival of the husband's persona in the wife giving her the same rights as her husband had except that she can alienate the property only under certain circumstances. The same learned Judge in another decision in -- 'Satyanarayanacharlu v. Narasamma', AIR 1943 Mad 703 (H), observed that the widow by reason of the Act stands in the shoes of her deceased husband, that although she is not a coparcener, she has the rights of her husband, who was a coparcener, that she is a member of the joint family and the person to bring a suit on a debt due to the family is her son on behalf of the joint family.
17. In -- 'Nagappa Narayan v. Mukambe' : AIR1951Bom309 , it was held that under the terms of Section 3, Sub-Ss. (2) and (3) of the Hindu Women's Rights to Property Act, 1937, there is ho right of survivorship created in a Hindu widow; but that does not necessarily lead to the inference that what she has got is an estate of inheritance, and it is, therefore, neither survivorship nor inheritance, but is a special propertywhich is created for the widow's benefit which she gets by reason of her being the widow of a deceased member of a joint and undivided Hindu family. Bhagwati J. expressed in his judgment his agreement with the view of Horwill J. in--AIR 1943 Mad. 246 (G)' as representing the true position in law of a widow under the Act namely, that the effect of Section 3(2) and (3) might be regarded as a survival of the husband's persona in the wife giving her the same rights as her husband had, except, that she could alienate property only, under certain circumstances and that, as the widow did not inherit her right, no succession certificate would be deemed to be necessary.
In -- 'Chinniah v. Sivagami Achi' : AIR1945Mad21 . the word 'interest' in Sub-Ss. (2) and (3) was held to mean not the same thing as the word 'share' as the Interest which the husband had in the family estate was a fluctuating interest. That is because the interest which the deceased husband enjoyed at the time of his death; and which came to be enjoyed by the widow after his death by virtue of Section 3(2) of the Act was the undivided share, right, title and interest in the family properties fluctuating by its nature, capable of being increased by deaths and decreased by births in the family and capable of being defined or fixed only at the time when a severance of joint status was effected or a partition was claimed, as pointed out by Bhagwati J. in, the above referred case.
18. The view of Venkataramana Rao J. In--'AIR 1942 Mad 212 (F)' that the widow takes the husband's interest subject to the rights and obligations attached to that interest and that interest was the interest of an undivided member of a joint family in the joint family property and the observation of Horwill J. in --'AIR 1943 Mad. 246 (G)' that the effect of the Act may be considered as a survival of the husband's persona in the wife giving her the same rights as her husband had, and the further observation of the same learned Judge in --'AIR 1943 Mad. 708 (H)', that the widow stands in the shoes of her deceased husband might lend support to the argument that whatever rights and liabilities to which her husband was entitled and subjected, the widow would become entitled to the same rights and subject to the same obligations, the rights including a right by her husband to interdict an alienation made by the manager without his consent and not being for any legal necessity.
19. It is impossible to ignore the true position and status of a Hindu widow in a Hindu joint family under the general Hindu law she being only a member of the joint family entitled to the right of maintenance, not being a coparcener and not being entitled to all the rights which a coparcener possesses and even though the object of the Act was to enlarge her rights in respect of property, unless there is any specific provision in the Act conferring on her all the rights which her husband-coparcener had, it will not be safe to infer from the use of the word 'interest' in Section 3(2) that all the right, title and interest which her husband had she become entitled to including a right of action which he would have had to question an alienation if he had been alive: 'Interest' in Section 3(2) of the Act could only be understood to mean the quantum of interest which the husband would be entitled to in the joint family properties, though not the share which he had at the time of his death, which share would certainly be fluctuating by reason of uncertainties in the lives of the members of the Joint family before the time when the widow actually asks for a partition. 'Interest' cannot be extended to mean all that is connoted by that term bringing within it all the rights of a coparcener.
The right to interdict an alienation is one peculiar to a member of a coparcenary, which he gets by reason of his having acquired an interest in a property immediately on his conception or birth and which right could be exercised by him alone and not by any other member of the family his wife or daughter. The Act only conferred on the widow a right to claim partition and separate possession of whatever her husband was entitled to in the Joint family property on the date of the partition claimed by the widow, instead of her right to claim a sum of money as and for maintenance out of the estate. Though there is no doubt that the Act does not effect a severance of the joint family on the death of the member of the joint family, who leaves a widow, and the joint family continues for all practical purposes, at any rate on the date of the partition her husband is treated as a divided coparcener on the date of the partition at the instance of the widow and his share which is allowed to be taken by his widow is what the widow of a separated member would be entitled in the absence of an issue to inherit In her husband's property. By this observation we do not hold that the estate which she gets is by inheritance and we are inclined to agree with the view taken by Bhagwati and Dixit JJ. in : AIR1951Bom309 , that under the Act she does not get either by survivorship or by Inheritance, but it is a special statutory right which she gets solely by reason of her being the widow of her husband. She would not be entitled to question any alienation made by the manager even though her husband would be entitled to such a right. 'Interest', therefore, in Section 3(2) of the Act does not include a right to interdict an alienation, or any other right, which her husband possessed and which could only be exercised by a coparcener and not by any member of the joint family.
20. In this case, however, there is no question of an alienation by a manager as the alienation is by her husband himself, and it is also not necessary for the widow to question the validity of Ex. B. 27, as it is a gift by a coparcener of joint family property which we have held on the evidence as having been made without the consent of the other coparceners and therefore void at its inception, Ex. B 27, not having the effect of transferring validly any rights in the property in favour of the defendants. In such a case the properties covered by the gift must be deemed to have continued to vest in the joint family as joint family properties and the widow in this suit for partition can, as she has done, ask for a share in those properties covered by Ex. B, 27, ignoring the document altogether. In that view, in so far as her claim to a share in these properties is concerned, she would be entitled to it in view of the void nature of Ex. B. 27.
21. The Act, which has been brought into the statute book for the purpose of giving better rights to married women and dealing only with a particular and defined aspect of the widow's rights to joint family property and not being comprehensive enough and not pretending to cover all the rights which a Hindu widow would be entitled to In respect of joint family property, has given rise to certain difficulties and anomalies in the matter of ascertaining and adjudicating on a Hindu widow's rights in general in or to the Joint family property. If instead of a gift, her husband had alienated most of the family properties in favour of strangers for a consideration with a view to deprive his widow of any share or made an alienation by which her share would be considerably reduced, though such an alienation would not be upheld if challenged by a coparcener, if in such a case she claims a partition under the Act, she could only ask for a share in the joint family property as it then stands, the extent of which must have been considerably reduced by reason of the improvident alienation made by her husband 6r by the 'karta' of the family. In such a case, she would be disentitled from questioning the alienation, as under the Act she would be entitled only to such interest or the quantum of share which her husband would be entitled on the date of the partition.
But, if she sues for maintenance against her husband's estate, she might invoke the provisions of Section 39, T. P. Act, & enforce her right to maintenance against any transferee, if he had received notice of her right to receive maintenance, or if the transfer is gratuitous. She could, in a suit for maintenance, claim a reasonable sum on the basis of the entire joint family property, and enforcing such a right even against the aliences. Such a right is denied to her under the Act in view of its special restricted provisions. This is one of the anomalies where the Act which was promulgated to give her better rights to property results in practically diminishing her rights, if she is to sue for partition and recover a share.
But the question has been raised whether the right of the widow to maintenance still subsists after her being given a right to partition and to recover her husband's interest in the joint family property. It is stated in Mayne's Hindu Law, 11th Edn. at page 711.
'The rights to maintenance of the widows mentioned in the Act are not expressly abolished; but it is obvious that as the Act confers upon the widow rights of succession in respect of all the husband's property, the right of maintenance allowed to her under the ordinary Hindu law would no longer be available; for Hindu law allows them maintenance only because of their exclusion from inheritance and from a share on partition.'
The widow's general right to be maintained out of the joint family estate has not been taken away by the Act, since there is no reference to it. In the view of the framers of the Act, as indicated in the preamble, the Act was 'to give better rights to women in respect of property'. They have been given a right to partition and to claim a share and there is nothing in the Act expressly taking away their right to maintenance and it does not appear to us that even by implication it could be suggested that the right to partition was in substitution of any other right including the right to be maintained out of the Joint family estate. Courts were obliged to arrive at this conclusion, namely that it would still be open to the widows to claim maintenance apart from partition by reason of the fact that the Act, as originally passed before the amendment of 1947, did not give a right to the widow to claim a share in agricultural lands.
22. In -- 'Sarojinidevi v. Sri Kristna' : AIR1944Mad401 , where a widow claimed maintenance in addition to a share in the non-agricultural properties, the question arose as to her right to claim maintenance in addition to a share in the non-agricultural properties and PatanjaliSastri J. (as he then was), in delivering the judgment of the Bench, observed at page 402:
'The question accordingly arises whether, notwithstanding the right to a share in the non-agricultural properties of the family allowed to her under the Hindu Women's Bights to Property Act, 1937, the widow of a deceased coparcener is still entitled to any right of maintenance as under the ordinary Hindu law. It seems to us that this question must be answered in the affirmative. It may well be that, if the Act conferred upon the widow a right of succession in respect of all her husband's property, the right of maintenance allowed to her under the ordinary Hindu law as compensation for her exclusion from inheritance would no longer be available although nothing is said in the Act about right of maintenance. But that is not the position according to the decision of the Federal Court already referred to (In re the Hindu Women's Rights to Property Act ). The widow still stands excluded from succession to agricultural land in the absence of provincial legislation on parallel lines in respect of such land. It cannot, therefore, be said that the reason of the right had ceased to exist and the right is gone. It would be strange and anomalous if, as a result of an enactment designed to give 'better rights' to the widow, she were to be placed in a worse position by being deprived of her pre-existing right of maintenance, with consequences which may well prove disastrous where the bulb of her husband's joint or separate property consists of agricultural land.'
23. By reason of the amendment of 1947 whereby the widow had become entitled to claim a share in all the properties of the joint family including agricultural lands could it now be contended that a suit for maintenance by the widow after this enactment would not be maintainable. It may be argued, however that the reason for the right has ceased to exist. But in view of the rather disastrous consequences that might result in confining her right to a partition in the circumstances arising out of the alienation of the joint family properties involving deprivation of the widow of her just share in the properties and her inability to question an alienation made by the manager or coparcener during the lifetime of the husband, it could not reasonably be held that the right to maintenance no longer subsists. There is nothing in the Act to deprive the widow of her right to make her choice as to whether she would have a decree for maintenance or a decree for partition. That would depend upon the view the widow would take of the benefit she would realise by adopting one course or the other. We find it difficult to agree with the view taken by the learned commentator of Mayne's Hindu Law, 11th Edn, at page 711, that the right of maintenance allowed to her under ordinary Hindu law would no longer be available.
It does not appear to be obvious though the reason behind the enactment is to place the Hindu women in a better position than they were. But, when it is shown that, by reason of her being confined to a particular course of action, she would not be in a better position than what she was before the Act, it will be inequitable and will cause hardship to her to take away the general right which she has under Hindu law to claim maintenance, unless we are forced to such conclusion by any express language in the Act taking away her right to maintenance.
Rights conferred under law cannot be deemed to be taken away impliedly by any subsequent enactment, unless there are express words in the Act to justify the conclusion. As maintenance generally under Hindu law is allowed only because of the persons claiming maintenance being, excluded from inheritance and from a share on partition, it can reasonably be urged that once that share is conceded under legislation, the right to maintenance is taken away. But there is nothing in the Act which could be construed to yield to such a result. The use of the words 'to give better rights to women' in the preamble may be relied upon to show that the right of maintenance was a lesser right the better right being a share and a right to partition such share must be deemed to be in lieu of maintenance. However, in view of the difficulties and hardship which result in the application of the Act, we are prepared to deprive the widow of a right which she possesses under the general Hindu law. There being no provision expressly taking away her right to maintenance, such a right to maintenance is not abolished and will still be available and the option would rest with her to claim maintenance or a share, but not both.
24. In the result, the appeal is dismissed with costs.