Frederick William Gentle, C.J.
1. The material facts in this Letters Patent Appeal can be stated shortly. The plaintiff's husband and the two defendants were brothers and together with their father, they formed a joint Hindu family governed by the Mitakshara school of Hindu law. By a deed of partition, dated 31st December, 1924, the family was disrupted and each member was allotted and took a one-fourth share of the family property; after the partition each lived separately from the others. The plaintiff's husband died in 1929; the plaintiff sold the property which devolved upon her from her husband and utilised the proceeds to discharge his debts, the surplus remaining was a sum of about Rs. 85, or its equivalent. She was in indigent circumstances, her father-in-law took her into his house and maintained her out of his self-acquired property, until he died in 1943. Upon his death, the two defendants, as the heirs of their father, inherited his self-acquisitions.
2. In the suit, out of which this appeal arises, the plaintiff claimed maintenance from the defendants, on the ground that, during his life-time her father-in-law was under a moral obligation to support her, on his death that obligation ripened into a legal liability of the sons, as their father's heirs, to maintain her to the extent of the property which they had inherited from their father. The learned District Munsiff of Kulitalai decreed the suit in the plaintiff's favour and fixed the amount of maintenance; the learned Subordinate Judge of Trichinopoly allowed the defendants' appeal and dismissed the 'suit. In second appeal by the plaintiff to this Court, Kuppuswami Aiyar, J., restored the decree of the learned District Munsiff. This appeal is preferred by the defendants against the decision of Kuppuswami Aiyar, J.
3. There are two principles of Hindu law, each of which is well established by authority which indubitably apply to members of a joint Hindu family they are:
(1) A widowed daughter-in-law has a moral, but not a legal, right to main tenance from her father-in-law out of his self-acquired property.
(2) On the death of the father-in-law, if his self-acquired property descends by inheritance to his heirs, the moral liability of the father-in-law ripens into a legal liability of his heirs, enforceable against them by the daughter-in-law to the extent of their inheritance. Those principles of law are expressed in a number of decisions of several Courts in India including : Janki v. Nandram I.L.R.(1888) All. 194 accepted by a Full Bench of this Court in Ambu Bai v. Soni Bai (1940) 2 M.L.T. 298 : I.L.R. 1941 Mad. I3 Provosh Chandra Roy v. Prokash Chandra Roy 50 C.W.N. 559 and Mussamat Laxmi Bai v. Samba A.I.R. 1932 Nag. 11. Those decisions relate to Mitakshara families. The correctness of the principles of law has been affirmed by the Judicial Committee in Rajnikanta Pal v. Sajanisundaree Dasee (1933) 66 M.L.J. 148 : 1933 L.R. 61 I.A. 29 : I.L.R. 61 Cal. 221 (P.C.) where it was observed, at pages 224 and 225 of the judgment, that:The liability of Madanmohan towards the widow of his son was, no doubt, on the authorities, a moral liability, but that liability when transmitted to his sons on his death, became, in their persons, a legal liability, the measure of which, however, was restricted to the amount of the estate to which they succeeded from their father. These principles of law have been established by authoritative judgments and are applicable to a family governed, as was this family, by the Dayabhaga law. The matter is not one which can be reopened before their Lordships.
4. In all the decisions cited, the two obligations, moral and legal, are not expressed to be confined to the instance when a widowed daughter-in-law is penniless but the obligations have general application regarding the moral liability of the father-in-law and the legal liability of his heirs to maintain a widowed daughter-in-law. In argument, reference was made to the penniless state of the daughter-in-law and, it was contended, that indigence must exist and is an essential factor before liability can be established. There is no warrant for such contention in the authori-tative decisions.
5. The sole question in this appeal is whether the moral obligation of a father-in-law to maintain his widowed daughter-in-law and, upon his death, the ripening of that obligation into a legal liability of his heirs, arises when there has been a disruption by partition in the family of which the father-in-law and the deceased husband of the widowed daughter-in-law were members or whether those two obligations are confined to members of a Hindu undivided family.
6. Learned Counsel for the defendant-appellants argued that a daughter-in-law cannot have a greater right than that possessed by her husband during his lifetime; in that connection, he pointed out that, during the lifetime of the plaintiff's husband there was no moral obligation upon the father to maintain his son; consequently, it was contended, that in the present instance, there was no moral liability of the father to maintain his widowed daughter-in-law. Undoubtedly, and it was not argued to the contrary, that, in the case of a joint family possessed of no family property but, where the father has his own self-acquired property, and adult son, who is not permanently disabled from supporting himself, has no moral or legal right to be maintained by his father out of his self-acquisitions; nevertheless, upon the son's death the father has a moral liability to maintain the son's widow. In the case of an undivided family, unquestionably, a son's widow has a greater right (the father-in-law's moral obligation to her being considered as the daughter-in-law's right) than that possessed by her husband during his lifetime. No autho-rity was cited in support of the contention.
7. Mr. Ramanatha Aiyar, for the defendants, referred to a decision of a Bench of the Bombay High Court in Yamunabai v. Manubai I.L.R.(1899) 23 Bom. 608 where the legal obligation of the heirs of a deceased father-in-law was enforced in favour of a widowed daughter-in-law when the father and his son were members of a joint Hindu family; reliance was placed upon an observation, at page 613 of the report, that the dis-tinction of union or separation was very material. That observation was made after reference to another decision by the Bombay High Court in Savitri Bai v. Luxmibai I.L.R.(1878) 2 Bom. 573 where the relevant facts were the following: the plaintiff was the widowed daughter-in-law of one Balcrustna deceased, the defendant being his brother Sadasiv; more1 than 20 years before the suit, a partition took place in the family of which Balcrustna and Sadasiv were members, whereby the family property was sold and the proportion of the proceeds, due to Balcrustna's and Sadasiv's branch were divided in cash equally between them; the plaintiff sued Sadasiv for maintenance. At page 581 of the report it was observed that: none of Bal-crustna's share was forthcoming and he had probably expended the whole of it before his death; Sadasiv's share had also been expended and he appeared to be dependent on his salary as a clerk; Sadasiv had no paternal estate in his hands and did not inherit any property from the plaintiff's husband. It would appear, also, that Sadasiv inherited no estate from Balcrustna. In those circumstances, whilst Sadasiv was the heir of Balcrustna, since he inherited no property from him and possessed no estate of Balcrustna, there was nothing against which a legal lia-bility could' be enforced by the widowed daughter-in-law. The suit was dismissed, the reason given being that Sadasiv was separated in estate from the plaintiff's husband and from the husband's father at the time of their deaths. In those two decisions, by the Bombay High Court, there was no discussion upon the. question of the moral liability of a father-in-law to maintain his widowed daughter-in-law out of his self-acquired property nor of the legal liability of his heirs in that respect.
8. In Ambu Bai's case : AIR1940Mad804 it was held that a father is under a moral obligation to support his widowed daughter when she is in want and when her late husband's family cannot maintain her, further, applying the principle, as explained in Janki's case I.L.R.(1888) All. 194 of the ripening of a moral liability of a father-in-law into a legal lia-bility of his heirs to maintain a widowed daughter-in-law, it was also held that a father's heir, (the widow and the daughter's step-mother in Ambu Bai's case : AIR1940Mad804 ), was under a legal obligation to maintain the father's indigent daughter out of the inheritance from the father. In the present instance, it is conceded that, if there was a moral obligation of the plaintiff's father-in-law to maintain her, there is a legal obligation of the defendants, as his heirs, to continue the maintenance to the extent of their inheritance of his self-acquired property.
9. Whilst the several decisions, recognising the father-in-law's moral obligation and his heirs' legal obligation to maintain a widowed daughter-in-law, were given where there had been no disruption in a Hindu joint family, nevertheless, in none of those decisions, except in the two Bombay cases, is any distinction sought to be drawn between a widow of a husband who was a member of an undivided family and a widow of a separated husband; the undivided status of the husband's family is not given as the reason for the existence of the moral obligation of the father-in-law; but the principle of that liability is enunciated in terms of general application. Whether the family is joint or whether it is divided in status, the members of it have no right with respect to the father's self-acquired property during his life-time and, again, whether united or separated, the father's self-acquisitions descend to his heirs (his sons, if there be any) upon his death intestate. No question of right by survivorship, even with respect to undivided sons, arises regarding those self-acquisitions. The observations by ' their Lordships of the Judicial Committee in Rajnikanta Pal's case expressing the father-in-law's undoubted moral liability, make no reference to the status of his family or of that of his deceased son nor is it stated that that liability is restricted to a daughter-in-law whose late husband was joint in status with his father. Apparently, the liability is recognised because of the relationship between the father-in-law and his daughter-in-law. The property, it would seem, inherited by the heirs of the father-in-law is solely material upon the question as to the amount of maintenance which the daughter-in-law has a legal right to receive from the heirs since, it is stated by their Lord-ships, the measure of that liability is restricted to the amount of the estate to which the sons (as there expressed) succeeded from their father. Further, the Board held that the father-in-law's moral liability, when transmitted to his sons (heirs) on his death, became, in their persons, a legal liability. Clearly, so far as the heirs are concerned, their liability arises out of their personal position as heirs, as such, and not by virtue of a membership of a joint Hindu family. The principle that an heir takes the inheritance burdened with a legal liability to fulfil the moral liability of the late proprietor, is based upon the theory that he takes, not for his own benefit, but for the spiritual benefit of the late proprietor and, in so taking it, those things must be done by the heir which the deceased would have done if he had lived. That principle and that theory are unconnected with the family status of the late holder or of his heir.
10. The moral burden of a father-in-law relates to his own self-acquisitions, with which he can deal as he likes, whether his family be joint or divided. He can dispose of that property by gifts or by will, unfettered by the status of the family, whatever it be, and, if he dies intestate, it descends to his heirs; even when the family is joint and the proprietor is survived by sons, upon intestacy that property devolves upon the sons by inheritance and not by surivorship. In Rajnikanta Pal's case1 and in the decisions of the Indian Courts which are in accord with it, the approach to the question of the moral liability is made by way of the relationship between the father-in-law and his daughter-in-law; consideration is not given to any other aspect. Since the liability relates solely to the father-in-law's self-acquisitions, there is no reason for its application to be dependent upon the existence or non-existence of a joint status. The principle of the father-in-law's morallia-bility as held in Rajnikanta Pal's case is applicable to a family governed by the Daya-bhaga school of law and is not confined to members of a Mitakshara family. According to the former law, the foundation of a co-parcenary is first laid on the death of the father; while he is alive there is no co-parcenary, in the strict sense, between him and his sons; the sons do not acquire any interest in ancestral property at birth, but, until his death, the father is the sole and absolute owner of it. and can manage it in any manner he likes; upon his death, his sons inherit both the ancestral property and the father's self-acquisitions as his heirs. In those circumstances, in a Dayabhaga family, the father's moral obligation to his widowed daughter-in-law cannot in any way be dependent upon or influenced by the question as to the united or divided status of his family. Their Lordships of the Judicial Committee do not suggest that the principle of liability is different in the two schools of Hindu law. In my view the father-in-law's moral obligation to maintain his widowed daughter-in-law arises out of the affinity between them; it is not dependent upon and is irrespective of the family status which existed between the father and the son. If the decisions in Yamunabai's case I.L.R.(1899) 23 Bom. 608 and Savitribai's case I.L.R. (1878) 2 Bom. 573 are at variance with the opinion which I have ventured to express, then, with respect, I am unable to agree with them.
11. The plaintiff is the widow of a son of the defendants' late father. If there had been no partition between the members of her husband's family, it is unquestioned that her father-in-law would have been under a moral liability to maintain her out of his self-acquired property and, upon his death and the inheritance by the defendants of the property, that that moral liability would have ripened into a legal liability enforceable by the plaintiff against them to the extent of the property which they inherited from their father. In my opinion, the incident of partition between the members of the family of the father-in-law and of the defendants affects; neither the father-in-law's moral liability nor the defendants' legal liability to support the plaintiff. The father-in-law had a moral liability for maintenance which arose solely out of his relationship to the plaintiff. The moral liability being established, as abovementioned, it is conceded it ripened on his death into a legal liability of the defendants.
12. It is to be observed that the father-in-law accepted responsibility for the plaintiff's maintenance, from the time of the death of her husband in 1929, throughout the remainder of his life, until he died in 1943. In that connection it is instructive to refer to a decision by a Bench of this Court in Ammakannu v. Appu I.L.R.(1887) Mad. 91 where, at page 93, it is observed that:
If the former' (father-in-law) 'who acquired the property and who was competent to alienate it at his pleasure, subjected it to her' (daughter-in-law) 'maintenance, either by express declaration or by conduct, the heir could only take it subject to the appointment made by the person who acquired the property.
13. In the present instance the, plaintiff's father-in-law, by his conduct in supporting the plaintiff out of his self-acquisitions from the commencement of her widowhood until his death, manifested that he subjected that property to her maintenance.
14. It was not contended that the amount of the plaintiff's maintenance as fixed by the learned District Munsiff, is either incorrect or is unjustified by the amount of the defendants' inheritance from their father.
15. In Vadrevu Sankaramurthi v. Vadrevu Subbamma : AIR1938Mad914 whilst the moral obligation of a father-in-law and the legal obligation of his heirs to maintain a widowed daughter-in-law were not questioned, it was held that a daughter-in-law had no legal right to maintenance against the devisee or donee of a father-in-law's self-acquired property when it descends by deed or will or gift and not by inheritance. The cir-cumstances in that case do not arise in the present instance and discussion of that decision is unnecessary.
16. In my opinion, for the reasons given, the decision of Kuppuswami Aiyar, J., restoring the decree of the learned District Munsiff, was correct and this appeal should be dismissed with costs.
17. I have had the opportunity to peruse the judgment delivered by my Lord the Chief Justice. I agree with it entirely and wish to add a few words only.
18. The only question which falls to be considered in this case is whether a Hindu father is under a moral obligation to maintain the widow of a deceased divided sort out of his separate or self-acquired property; for it is not disputed, and it is well established, that if the father is under a moral obligation, then, on his death, his heirs who take his property would he under a legal obligation to maintain her.
19. It is conceded that in an undivided Hindu family governed by the Mitakshara law though there be no joint or ancestral property, when the father is possessed of separate and self-acquired property and his son dies, undivided from him the father is under a moral, though not legal, obligation to maintain the widow of the deceased son. But it was contended by the appellants that there is no such moral obligation if the son had been separated from the father before his death.
20. It is no doubt true that practically every decision on the point deals with a case in which the son had died undivided from the father. It must, at the same time, be observed that in none of the decisions has it been laid down that it is an essential condition that the son should have died undivided, except in the two cases of the Bombay High Court in Savitribai v. Luxmibai and Sadasiv Ganoba I.L.R.(1878) 2 Bom. 573 and Yamunabai v. Manubai I.L.R.(1899) 23 Bom. 608.
21. In my opinion there is abundant authority in the ancient Hindu law texts on which the moral obligation of the father-in-law to maintain a widowed daughter-in-law can be founded. Manu says:
The support of the group of persons who should be maintained is the approved means of attaining heaven, but hell is the man's portion if they suffer; therefore he should carefully maintain them.'(Cited in Dayabhaga, ii, 23).
22. He goes on to describe the group of persons so to be maintained:
The father, the mother, the Guru, a wife, an offspring, poor dependents a guest and a religious mendicant are declared to be the group of persons who are to be maintained.(Cited in Sri Krishna's Commentary on the Dayabhaga).
23. It is admitted that a widowed daughter-in-law in an undivided family would be a dependent of the father-in-law but it is urged that if the son had become separated from the father, she would no longer be such a dependent. This, in my opinion, is taking too narrow a view of the injunction of Manu and top unrealistic a view of the effect of partition. The following remarks of West and Buhler in their digest of Hindu Law (third edition) are apposite in this connection. In discussing the question whether the right to maintenance can be asserted by a widow of a separated member, the learned authors say as follows:
As to the first of these questions it is to be observed that a partition does not effect such a total severance amongst the members of a Hindu family that they stand thenceforth in the relation of mere strangers to each other. They may reunite again : they have mutual rights of succession in which fuller blood relationship between severed brethren counterbalances the effect of reunion between those of the half blood; the obstacles to marriage still subsist between their families; in obsequies, mourning and the ceremonial impurity arising from death, they are still relatives as they were before the partition.(Page 231).
24. The learned authors refer to a passage from Narada that:
When the husband is dead his kin are the guardians of his childless widow; in disposing of her, in protecting and maintaining her, they have full power.(XIII, 27, 28).
25. Dr. Jolly cites from Kamalakara, who in his Vivadatandava says that:
It is incumbent on the sons and grandsons to maintain indigent widows and daughters-in-law, though no wealth of the father may be in existence.
26. According to him:
In reality the claim of the female family members to maintenance does not become extinct either through the absence of assets, or in the somewhat analogous case of a separation of the co-parceners having taken place.
27. At page 136, the learned author says:
Where the co-parceners choose to remain united, all their female relations may claim a maintenance, nothing more. The same rule, according to some writers, obtains even where they separate.
28. It is I think sufficient to refer to Sarasvati Vilasa, a work considered as authoritative in South India where it is laid down that the father-in-law should allot an annual maintenance or a share in land to the daughter-in-law according to his pleasure (verse 522). Verse 531 expressly indicates that there is no distinction in principle between the wives of divided and undivided men; for it says:
Thus it should be understood that all the texts which enjoin the giving of maintenance to women apply to the case of wives of undivided men and women of divided men.
29. No doubt as pointed out by Banerjee, J., in Kaminee Dassee v. Chandra Pode Mondle and Co. I.L.R.(1889) Cal. 373 and by Das, J., in Provash Chandra Roy v. Prokash Chandra Roy 50 C.W.N. 559 it may be a question of fact in some cases whether the particular person concerned is or is not a dependent of the family to maintain whom the father of the family is under a moral obligation. Leach, C.J., points out in Ambu Bai v. Soni Bai : AIR1940Mad804 :
The texts carry the moral obligation far beyond the limit which could be accepted in modern times.
30. But it has been uniformly held that a widowed daughter-in-law is one of the dependent persons in respect of whom the father is under such moral obligation. And none of the texts cited in Savitribai v. Luxmibai and Sadasiv Ganoba I.L.R.(1878) 2 Bom. 573 and Yamuna Bai v. Manu Bai I.L.R.(1899) 23 Bom. 608 negatives such a moral obligation in a case in which the son died divided from the father. I agree with my Lord the Chief Justice that this appeal should be dismissed.