Arnold White, C.J.
1. This is an appeal from a judgment of Sankran Nair, J., 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 of certain jewels which she claimed as her property.
2. Three points were raised on behalf of the appellants. The first was that the decree was wrong inasmuch 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,
3. I can deal with the second and third points quite shortly and I will take them first l am not prepared to hold that the learned Judge was wrong in assessing the mainteaanse at that amount. The third point was not seriously pressed by Mr. Anantakrishna Ayyar. 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 favour. I am not prepared to say he was wrong.
4. 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. To actual form of the decree is that the first, third, fourth and fifth 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 fifth 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 fifth defendant representing one branch of the family. The fourth defendant is the grandson of the common ancestor through another son and the first defendant is a son of the common ancastor. The third defendant is the grandson of the common ancestor through another son There are thus four branches of the family of which Rangiah Chetti was the common ancestor.
5. After the presentation of the plaint by the plaintiff in this case an agreement was coma 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.
6. In regard to the partition agreement the learned Judge observes that no transaction amongst defendants subsequent to the plaint can prejudicially a affect the plaintiff's claim and her claim must therefore be treated as that of a widow of a member of an undivided family. It was said on behalf of the respondent that the learned Judge might have put the case higher 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 a widow for maintenance. However it is not necessary for me to discuss that question. I prefer to deal with this case on the facts that actually arise. The case we have to deal with is a case where a 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 fast in this case after the settlement of issues, a partition is arranged between the members of the family. Mr. Anantha-krishna Ayar contanded that the proposition of the learned Judge was wrong. Ha relied upon the authority of the decision in Hemangini Dasi v. Kedarnith Kundu Chowdhry I.L.R. (1839) Calc. 758. In that case there is to be found on pages 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 anther being bound to maintain her.' The step sons are not under the same obligation.' In the course of the judgment reference is made to a passage in Dayabbaga, chapter III, Section 1 referred to at page 761 of the report. It seems perfectly clear that the decision was given with reference to Diyabhaga law and with reference to the special facts of that particular case, where there were 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 claim and that her plaint must be treated as that of a widow of a deceased member of an undivided family.
7. 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 member of that branch of the family of which he and the fifth 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 Ayyangar in the case of Jayanti Subbiah v. Alamelu Mangammc. I.L.R. (1904) Mad. 45 the observation appearing on page 48. The learned Judge there says: 'When an undivided Hindu 'family consists of two or more males related as father and sons' or otherwise and one of them dies leaving a widow, she has a 'light of maintenance against the surviving co-parcener or' co-parceners, quoad the share or interest of her deceased husband 'in the joint family property which has come by survivorship to the hands of the surviving co parcaner or co-parceners and 'though such right does not in itself form a charge upon her 'husband's shsre 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. Ananthakrishna Aiyar contended that the words 'share or interest of the deceased husband in the joint family property which has come by survivorship into the hands of the surviving co-parcener or co-parceners' were only meant to apply to surviving coparceners who derived an immediate benefit; from the fact of their being the survivors in respect of the share or interest of the deceased member of the family, That is to say to put the case concretely with reference to the facts of this case, he contended that the 'surviving co parcener' meant the fifth defendant), the other members 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 fifth defendant's share increases eo instanti by right of survivorship on the death of the only other members of his branch of the family, and that the shares of the other members of the family do not increase eo instanti.
8. But I am 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.
9. We have been referred to various text-books and authorities by the learned vakil for the respondent and I daresay he would have cited more if we had not stopped him- I may refer to a few of them I shall first take paragraph 470 in Mayne'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 family 'for debts due by it, or other charges on account of maintenance, 'marriags or ceremonies, which it would have to provide for, if it 'remained united.' Ho the obligation to maintenance is placed on exactly the same basis as an obligation to pay any other family debt.
10. Then in Bhattaehariya's ' Law relating to Hindu Joint Family', edition of 1885, at page 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.'
11. In West and Bubler on page 791, the learned authors say; 'Other liabilities, that is provisions for the maintenance or' portions of persons not entitled to shares may be distributed by' agreement amongst 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.'
12. I do not propose to cite more authorities.
13. With regard to so much of the decree as directs that the maintenance will be a charge on the house, No. 334, Mint Street, we are 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 or the income deriveable thereform. It may be that a decree would not be enforceable 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 members. 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 the appeal with costs.
14. I agree.