1. This second appeal with the Cross Objections is before us on a reference made by Ismail, J. The question which was raised before the learned Judge resulting in the matter being placed before a Bench is whether an unmarried daughter of a Hindu who gets a share in his estate would still be entitled for a provision for her marriage expenses in a suit for partition. One Kandasami Gounder who died on 26-9-1964 was the karta of a Hindu joint family. His only son is Karuppana Gounder, the first defendant in the suit for partition instituted by one of the daughters of the said Kandasami Gounder in the court of the District Munsif, Palani. Kandasami Gounder left his widow, Sellammal, (who has been impleaded as the 6th defendant in the suit) and five daughters apart from his Karuppanna. The eldest of the five daughters by name Chinna Nachammal is the plaintiff and the other four daughters have been impleaded as defendants 2 to 5 respectively. All the daughters except the last one by name Subbathal (5th defendant in the suit) have already been married.
2. Under Section 6 of the Hindu Succession Act (Act 30 of the 1956), the interest of Kandasami Gounder in the joint family properties would not go to his son by survivorship but devolve on his widow, son and daughters. As per explanation 1 to the section, the interest of Kandasami Gounder shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death and therefore what devolved on his widow, son and daughters is admittedly the half share in all the family properties. It is not in dispute that out of the entirety of the joint family properties, the widow and the five daughters would each be entitled to a 1/14th share and the son would take 8/14th share (7/14 representing his interest in the joint family properties plus 1/14). Subbathal (5th defendant), the unmarried daughter, contended that provision should be made towards her marriage expenses. Though this had been resisted by the first defendant, the courts below have held that provision should be made towards her marriage expenses from out of the entire joint family properties and fixed a sum of Rs. 2,500 as the proper provision in that record.
3. The second appeal has been filed by the first defendant as well as his wife who has been impleaded as the 7th defendant in the suit. There are certain other questions in dispute between the parties with which the 7th defendant is concerned and we would come to that a little later. The question of law raised before Ismail J., when the matter came up before the learned Judge is that by virtue of the provisions contained in the Hindu Adoptions and Maintenance Act, 1956(Act 78 of 1956, hereinafter referred to as the Act), the unmarried daughter who gets a share in her father's estate is not entitled to a provision for her marriage expenses. As there is no precedent in this court on the point raised, the learned Judge thought that it would be better if the matter is dealt with by a Bench if the matter is dealt with by a Bench and that is how it is before us. The question does not present any difficulty at all. We are quite clear that in the present case the unmarried daughter who gets a 1/7 share in her father's estate (1/14 share in the entire joint family properties) is not entitled for a provision being made for marriage expenses.
4. The relevant provisions of the Act, viz., Section 4 and Chapter III (Sections 18 to 28) have to be read:
"Sec. 4: Save as otherwise expressly provided in this Act.
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."
The various sections in Chapter III need not be quoted. It is suffice to note that Section 18 deals with maintenance of wife, that Section 19 deals with maintenance of widowed daughter-in-law. Section 20 deals with maintenance of children and aged parents while Section 22 deals with maintenance of dependants. Section 21 states who the dependants are for purposes of that chapter. An unmarried daughter is a dependant of either of her parents. There are other dependants mentioned under this section, but we are not concerned with them. Section 22 which provides for maintenance of dependants is as follows:--
"22(1) Subject to the provisions of sub-section (2) the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them form the deceased.
(2) Where dependant has not obtained by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate.
(3) The liability of each of the persons who takes the estate shall be in proportion to the value of the share or part of the estate taken by him or her.
(4) Not withstanding anything contained in sub-section (2) or sub-section (3), no person who is himself or herself a dependent shall be liable to contribute to the maintenance of others, if he or she has obtained a share or part of the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act."
Sections 23 to 27 deal with the quantum of maintenance and other details including as to when maintenance would be a charge. Section 28 deals with effect of transfer of property on right to maintenance.
5. Section 3(b) of the Act defines the word 'maintenance' and it is as follows:--
"Maintenance' includes--(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage;" Maintenance (which term includes reasonable expenses of marriage of an unmarried daughter) is undoubtedly a matter for which provision has been made in the Act. If that is the correct position, then as per the terms of Section 4 quoted above, the textual Hindu law, which was in force prior to the coming into force of the Act, shall cease to have effect. However, Mr. T. R. Mani, the learned counsel for the contesting respondents, contends that under Section 6 of the Hindu Succession Act, the unmarried daughter (as well as the other daughters) gets a share only in the interest of the father in the joint family properties and as a corollary, the effect of Section 22(2) of the act would be such unmarried daughters would not be entitled to maintenance from those who take the said estate and that these provisions cannot abrogate the right of an unmarried daughter under the textual law to claim maintenance inclusive of marriage expenses against the entire coparcenary property. The substance of the contention is that because under Section 22(2) there is reference only to maintenance from those who take the estate of the deceased and not to maintenance out of the entire coparcenary property, the right of the unmarried daughter as per the textual law to proceed against that part of the coparcenary property, which is not the estate of the deceased under Section 6 of the Hindu Succession Act, has not been taken away by the provisions of the Act. This is certainly not tenable. If what the learned counsel contends is correct, then the unmarried daughter in this case has no claim for maintenance (which takes in the marriage expenses) against the half share of the father which devolved on the widow, son and daughters, but only against the half share of the son, viz., the first defendant. In order to see whether provision has been made in the Act in respect of a 'matter', it is not correct to take the quantum of right that is provided for compare it with the quantum of right under the textual law and say that provision has not been made regarding the 'matter', on the ground that certain part of the right as per the textual law has not been given under the statute.
6. The learned counsel points out that under the old textual law as declared by the Full Bench of this court in Subbayya v. Anantaramayya, ILR 53 Mad 84 = (AIR 1929 Mad 586)(FB), the right of the daughter to her marriage expenses and maintenance is based on her right to or interest in the joint family property, that this is an obligation of the joint family property which is not affected by partition and that even on partition, the son's share is also liable for the marriage expenses of the daughter of the father in proportion to the son's share in the property divided. His contention is that under the textual law, the right to maintenance, inclusive of marriage expenses of an unmarried daughter, was in lieu of her right or interest in the entire joint family property and under the Hindu Succession Act, the unmarried daughter gets a share only in the father's interest in the joint family properties and not in the entire joint family properties and that the right to maintenance provided under Section 22(2) of the Act only to such dependant who has not obtained a share in the estate of the deceased, would in no way effect the right to maintenance and marriage expenses which the unmarried daughter would have from out of the remaining part of the joint family property.
7. We are of the opinion that the learned counsel's approach to the question is wholly incorrect. The question is not, what exactly is the right of maintenance (which takes in the marriage expenses) that has been provided for under the Act. The Act (Act 78 of 1956) is one to amend and codify the law relating to adoptions and maintenance among Hindus, as stated in the long title of the Act. It is indisputable that if a statute codifies the law, then the statute alone has to be looked into to ascertain the rights of parties regarding the matters dealt with therein and the pre-existing law cannot be borrowed. In Arumugha Udayar v. , Ramamurti J. observed (in a case under the very Act which is now under consideration):--
"In the case of codifying statutes, it is a settled rule of construction that in respect of matters specifically dealt with the statute, earlier law cannot be invoked for the purpose of adding to it something which is not there. The true meaning of the provisions of the Act ought not to be influenced by considerations derived from the previous state of law."
With respect, we agree that that is a correct statement of the law. However, the learned counsel contends that the case before Ramamurti, J. was one relating to adoption and not maintenance, that in the Act there is a specific provision regarding adoption in the shape of Section 3 of the Act which says that adoption made not in accordance with the provisions of the Act shall be void, that there is no such provision regarding maintenance and that therefore there could be no bar to look to the textual law regarding the present question. Chapter II of the Act deals with adoption and as already noted. Chapter III of the Act deals with maintenance. Section 5 is the first section in Chapter II and that says that no adoption shall be made after the commencement of the act except in accordance with the provisions of that Chapter and any adoption made in contravention of the said provision shall be void. The contention of the learned counsel is that as there is no similar provision in Chapter III dealing with maintenance, there is no bar to rely upon the textual law. No doubt there is no provision in Chapter III similar to Section 5 in Chapter II. But that certainly does not help the learned counsel, for Section 4, which applies to adoption as well as maintenance, clearly lays down that the textual law shall cease to have effect with respect to any matter for which provision is made in the Act. Undoubtedly maintenance is a matter for which provision is made in the Act and therefore any one claiming maintenance, which takes in the marriage expenses of an unmarried daughter, would have to work his or her rights only under the provisions of the act and the textual Hindu law cannot be invoked at all. Even if a person who was entitled to maintenance under the textual Hindu law has not been given a right of maintenance under the provisions of the Act, he or she cannot say that he or she would rely upon the textual law to enforce the right. For instance formerly the concubine of a Sudra was entitled to maintenance from out of his estate in the hands of the persons who take the estate. But under Chapter III of the Act, no such right is given to her. Can it be said that because there is o provision for payment of maintenance to such concubine from out of the estate of the deceased made in the Act, she can rely upon the textual law? Surely she cannot. The effect of Section 4 of the Act is that only such of those persons for whom right to maintenance is provided for under Chapter III of the Act-and that too only to the extent of the right declared therein, can have a valid claim. The textual law as well as statute law cannot be in force at one and the same time regarding the particular matter, viz., maintenance. As the Act is a codifying law, relating not only to adoptions but also to maintenance among Hindus and as Section 4 of the Act clearly says that all textual law in force before the commencement of the Act, shall cease to have effect with respect to any matter for which provision is made in the Act, there is no escaping the position that right to maintenance (inclusive of marriage expenses for unmarried daughter) has to be worked out only as per the provisions of Chapter III of the act and no textual law can be invoked by any one.
8. The only direct authority brought to our notice on the point in controversy is Nalla Lalithamba v. Yella Venkatalikshmi. 1970-1 Andh WR
245. That is also a case where an unmarried daughter, who took a share in her deceased father's estate, claimed provision for marriage expenses. A Bench of the Andhra Pradesh High Court held that she was not entitled to such a claim. That is the conclusion that we have also reached, as seen earlier. However, before the learned Judges of the Andhra Pradesh High Court, the point had not been raised in the form in which it has been raised before us. It had not been contended in that case that as the provision regarding maintenance under Section 22 of the Act is related to the estate of the deceased a dependant who gets a share in such estate is denied right of maintenance only from those who take the estate, that therefore, the abrogation of the textual law under Section 4 of the Act would be limited to the maintenance right in lieu of the estate of the deceased and that such textual law as against the remaining part of the joint family property cannot be said to have been abrogated. We have already said that such a contention is wholly untenable and it is not surprising that such contention has not been put forward before the Andhra Pradesh High Court. We respectfully agree with the conclusion of the learned Judges of the Andhra Pradesh High Court that the unmarried daughter who takes a share in her father's estate is not entitled to claim a provision for marriage expenses separately.
9. The learned counsel contends that the above case of the Andhra Pradesh High Court has overlooked a Full Bench decision of the same court in Ramamoorthy v. Sitharamamma. (FB) and that therefore that decision cannot be considered to be good law. This contention is fallacious. An examination of the Full Bench decision in Ramamoorthi v. Seetharamamma, , would show that far
from the same helping the present contention of the learned counsel, it is really against him. In that case, the question was about the right of maintenance of an avaruddha stree (concubine) of a Sudra, which right came to be vested in her prior to the coming into force of the Act. The man who kept her as his mistress died even in 1948, much prior to the coming into force of the Act. Under the textual law, the concubine of a Sudra was entitled to maintenance from out of the estate of he paramour in the hands of those who take the estate. The Full Bench of the Andhra Pradesh High Court pointed out that the Act, which was passed in 1956 whereunder such a concubine would not have a valid claim for maintenance from out of her paramour's estate, would not affect the rights of the concubine in that case inasmuch as a right had become vested in her owing to the fact that the paramour died prior to the coming into force of the Act. We are unable to see how this decision would help the learned counsel in this case. At page 134, column 2, the Full Bench of the Andhra Pradesh High Court, referring to Section 22 and other sections in the Act observed:--
"In our considered opinion, these sections do not bear on the pre-existing rights of maintenance-holders. The Act does not abridge those rights and leaves them untouched."
The learned counsel relies upon the above observation and contends that by virtue of the textual Hindu law as declared by Subbayya v. Anantaramayya, ILR 53 Mad 84 = (AIR 1929 Mad 586)(FB), the unmarried daughter had a right of maintenance and provision for marriage expenses in lieu of her share in the entire joint family property and that the provision in the Act cannot effect the above said, pre-existing right. There is a good deal of confusion in this argument. The learned counsel mixes up the pre-existing law with pre-existing rights. In the case before the Full Bench of the Andhra Pradesh High Court, the concubine had a pre-existing vested right inasmuch as the paramour had died prior to the coming into force of the Act. Therefore the Full Bench held that such vested right cannot be taken away by the law being changed under the Act. But here the unmarried daughter certainly did not have any vested right prior to the coming as her father died only subsequently. It is significant to note that in the above case the Full Bench of the Andhra Pradesh High Court, after the observation relied on by the learned counsel which has been quoted above, has said that the right of maintenance which the concubine had acquired against the estate of her deceased paramour prior to the Act is not nullified by the Act since Sections 21 and 22 leave the estates of Hindus, whose death occurred before the Act, unaffected. By implication the above decision means that in respect of rights that arise after the commencement of the Act, one has to be governed by Sections 21 and 22 of the Act, as the estates of Hindus, whose death occurred after the act, would certainly be affected by those sections. There can be no doubt that the unmarried daughter in the present case had no vested right prior to the commencement of the Act. No doubt under the pre-existing law she had certain rights. But the said law has been validly abrogated by the Act which is a codifying law regarding maintenance (marriage expenses included) as well as adoption.
10. The case before the Full Bench of the Andhra Pradesh High Court referred above had been taken to the Supreme Court and the decision of the Supreme Court has been reported in Raja Gopalarao v. Seetharamamma, . There also it was held, the rights of maintenance of the concubine, which had become vested in her on the death of her paramour prior to the coming into force of the Act, cannot be affected by the act which came into force subsequently. Their Lordships of the Supreme Court have held that the provisions of Sections 21 and 22 of the Act are not retrospective in character and therefore the right of maintenance, which had become vested in the concubine, would in no way be affected by the provisions of the Act. Their Lordships observe at page 1973-
"Now, before the Act came into force, rights of maintenance out of the estate of a Hindu dying before the commencement of the Act were acquired, and the corresponding liability to pay the maintenance was incurred under the Hindu law in force at the time of his death. It is a well-recognised rule that a statute should be interpreted, if possible, so as to respect vested rights, and such a construction should never be adopted if the words are open to another construction....... We think that Sections 21 and 22 read with Section 4 do not destroy or affect any right of maintenance out of the estate of a deceased Hindu vested on his death before the commencement of the Act under the Hindu Law in force at the time of his death.
On the death of Lingayyya, the first respondent as his concubine and the second, third and fourth respondents as her illegitimate sons had a vested right of maintenance, during their lives out of the estate of Lingayya. This right, and the corresponding liability of the appellants to pay maintenance are not affected by Sections 21 and 22 of the Act. The continuing claim of the respondents during their lifetime springs out of the original right vested in them on the death of Lingayya and is not founded on any right arising after the commencement of the Act."
It is needless to say that in the present case there was no such vested right in the unmarried daughter for the simple reason that her father died only subsequent to the coming into force of the Act. As a matter of fact, in the above case, the Supreme Court has made the following observations which would clearly support the conclusion that we have reached earlier. At page 1973, earlier to the passage quoted above, their Lordships observe, after noting the purport of Section 22 of the Act-
"Specific provision is thus made in Section 22 with regard to maintenance of the dependants defined in Section 21 out of the estate of the deceased Hindu, and in view of Section 4, the Hindu law in force immediately before the commencement of the Act ceases to have effect after the commencement of the Act with respect to matters for which provision is so made. In terms, Sections 21 and 22 are prospective."
The learned counsel referred to a decision of the Madhya Pradesh High Court in Gowardhan v. Gangabai, where it has been
observed, referring to Sections 21 and 22 of the Act:
"Reading Sections 21 and 22 together we are of the opinion that those sections are intended to create an additional liability of maintenance on moral consideration on certain relations of the dependants. These sections do not, in any way, affect the general rule of Hindu Law that where a husband leaves share in the joint family property, his widow is entitled to maintenance out of it from those coparceners who hold that by survivorship. This view finds support from the decision in (FB)".
In the case before the Madhya Pradesh High Court also, it was a question of the right of maintenance having vested in the claimant before the coming into force of the Act. The widow of one Kapil who died in the year 1940 claimed maintenance from out of the estate of her late husband. She was not entitled to a share in the properties left by her husband. The Madhya Pradesh High Court negatived the contention that the widow was not entitled to maintenance pointing out: `The right of a widow for maintenance legally arises because of the fact that her husband left an interest in the joint and the coparceners of the family by merely dividing the joint family property in a partition cannot give a go-by to her right'. Therefore that is really a case where the right of maintenance had become vested in the claimant even in the year 1940, very much prior to the commencement of the Act, and therefore, on the principle stated by the Full Bench of the Andhra Pradesh High Court in (later confirmed by the Supreme Court as seen above), such vested right would not be abrogated by the provisions of the Act. The conclusion of the Madhya Pradesh High Court that Sections 21 and 22 of the Act have no application to such a case is perfectly justified. It is this context the observations of the learned judges of the Madhya Pradesh High Court relied on by the learned counsel (quoted earlier) have to be understood. As already noted, this decision only follows (FB)which decision has been confirmed by Supreme
11. It cannot be contended that the textual Hindu law regarding provision for marriage expenses should be held to be not abrogated by the provisions in the Act on the ground that it would result in inequality between one daughter and another. Daughters, whose marriages are performed prior to partition in the joint family no doubt get an advantage, in that their marriages are performed from out of the joint family funds and the daughter who remains unmarried at the time of partition has to go without a provision for her marriage expenses from out of the joint family properties. From this inequality alone one cannot contend that even after the coming into force of the Act, the textual law can be invoked in the face of Section 4 which specifically says that in respect of all matters for which provision is made in the act, the textual law shall cease to have force. Such inequality as pointed out above would arise not only in the case of daughters, but also in the case of sons. There may be cases where only some of the sons got married prior to partition and for their marriages joint family funds had been utilised. But on that score the sons, whose marriages are yet to be performed on the date of partition, cannot ask for special provision being made towards their marriage expenses, for Hindu Law never recognised such provision being made. When unmarried sons are placed in a disadvantageous position when compared to married sons in this regard, we do not see how such dissimilarity among daughters would in any way be helpful in deciding the point in controversy.
12. The learned counsel also invited our attention to Nanakchand v. Chandra Kishore, . That is a case where the Supreme
Court held that Section 4(b) of the Act does not repeal or affect in any manner provisions of Section 488, Crl. P. C., and that there is no inconsistency between the Act and the above said section in the Criminal Procedure Code. Their Lordships have pointed out that the Act, as well as Section 488, Crl. P. C., can stand together as the scope of the two laws is different inasmuch as while the Act is one amending and codifying the law relating to adoptions and maintenance among Hindus, Section 488, Crl. P. C., provides a summary remedy and is applicable to all persons belonging to all religions and has no parties. We do not see the relevancy of this decision as far as the point now under consideration is concerned. Therefore, our conclusion is that the 5th defendant in the suit is not entitled to a provision for marriage expenses. The appeal filed by defendants 1 and 7 has to be allowed to that extent.
13. Two other questions are raised by defendants 1 and 7 in this second appeal. The first is in respect of two promissory notes which the first defendant had executed in favour of two strangers, one for Rs. 2,000 and the other for Rs. 1,000. It was claimed that these amounts had been borrowed for the purpose of the joint family and therefore the debts should be treated as joint family debts. Both the courts below have held that these two debts are only personal to the first defendant, that they had not been borrowed for joint family purposes and that they cannot be treated as joint family debts. This finding is based on evidence and we do not find any ground whatsoever to disturb such a finding. Certainly there is no error of law regarding this aspect. The learned counsel for the appellants (defendants 1 and 7) also did not seriously press this point.
14. The other question raised in the second appeal is about the two mortgages covered by Exs. B-5 and B-6, standing in the name of the 7th defendant, the wife of the 1st defendant. The courts below have held concurrently that the below have held concurrently that the 7th defendant is only a benamidar, but that the moneys under the above said two mortgages had been advanced by Kandasami Gounder, the Karta of the family, and that the mortgages had been taken in the name of the 7th defendant. The case of the plaintiff has been that the mortgages had been taken benami in the name of the 7th defendant, as she happened to be the only daughter-in-law of the family and the consideration for the mortgages came only from her father Kandasami Gounder and that the 7th defendant had absolutely no means of her own to advance moneys on the said mortgages. This case has been accepted by the trial court as well as the first appellate court. The learned counsel for the appellants (defendants 1 and 7) contends that the courts below-particularly the first appellate court-have thrown the burden of proof wrongly on the 7th defendant regarding this question and therefore the finding has been vitiated. We were taken through that portion of the judgment of the first appellate court as well as that of the trial court and we are satisfied that there is no question of throwing the burden of proof wrongly. The issue raised correctly throws the burden on the plaintiff to prove the benami nature of the transaction. The courts below have accepted the evidence of the plaintiff that the moneys had been advanced only by her father and that the 7th defendant is only a benamidar. The plaintiff is a widowed daughter and she had been living with her father, brother (first defendant) and sister-in-law (7th defendant) during the relevant time. So it cannot be said that she had no personal knowledge about those transactions. The courts below have also pointed out that the evidence showed that the 7th defendant could not have had any means of her own for advancing the moneys on the two mortgages. Under these circumstances, we do not find any ground to interfere with the finding of the courts below.
15. In the cross objections filed by the plaintiff, the question raised is about a particular property standing in the name of the first defendant. The plaintiff's case is that the property in question had been purchased by her father for the family, but the sale deed Ex. B-4 had been taken in the name of the first defendant benami. This case, though had been accepted by the trial court, has not been accepted by the first appellate court which found that the consideration for the purchase of the property had not come from the joint family funds and that the property is the absolute property of the first defendant. Though the first appellate court has reversed the finding of the trial court regarding this aspect, we do not find any error of law calling for interference. The question whether the property in question is joint family property or whether it exclusively belonged to the first defendant, is only a question of fact and there is a clear finding regarding that by the first appellate court. We cannot interfere with the same.
16. The result is, the appeal is partly allowed and the provision of Rs.2,500 towards marriage expenses of the 5th defendant in the suit is negatived. In other respects, the appeal is dismissed, but under the circumstances, without costs. The cross-objections are also dismissed without costs.
17. Appeal partly allowed.