Pandrang Row, J.
1. These four connected appeals arise out of two suits for maintenance filed by two widows belonging to the same composite family. Appeals Nos. 156 and 191 are by the plaintiffs in the suits and the other two appeals are by defendants 1 to 7. The suits were for maintenance including arrears of maintenance and also for recovery of jewels or their value and for provision for residence. The claim in both cases was for maintenance and arrears at the rate of Rs. 300 a month and Rs. 5,000 each in lieu of provision for residence. The value of the stridhanam jewels that were claimed was Rs. 6,700 and odd in one case and in the other Rs. 8,700. The suits were tried together and disposed of by one and the same judgment dated 12th October, 1935, the suits having been actually instituted in 1929. The Subordinate Judge of Nellore who decided both these suits gave a decree in each case for Rs. 100 a month as maintenance and arrears of maintenance and Rs. 2,500 as provision for residence and dismissed the claim for jewels or their value in both the suits. Both parties have now appealed in both suits and the contentions of the defendants, who are the appellants in two of the appeals, namely, 166 and 179, are that the maintenance and arrears of maintenance should not be more than Rs. 40 a month and that the provision for residence is excessive and they raise also two comparatively minor points relating to the alleged payment of Rs. 500 at the rate of Rs. 250 to each of the plaintiffs just before the suits were instituted and to the direction by the Court below regarding costs of the suits.
2. The point raised in the appeals by the plaintiffs, that is, the claimants for maintenance and arrears, is that they should be given at the lowest Rs. 200 a month and that a decree should have been given for jewels or their value to the extent of Rs. 3,000 in the case of Seethamma, that is, the plaintiff in O.S. No. 66 of 1931 and Rs. 4,000 in the case of Annapoornamma, the plaintiff in O.S. No. 68 of 1931. A point regarding costs has also been raised in these appeals. This direction regarding costs made by the Court below which is objected to by both the sets of appellants will be dealt with after the other points are disposed of.
3. The main question the discussion of which took up most of the time before us is the one relating to the rate of maintenance. The question has been dealt with in very great detail by the Court below, but unfortunately, in dealing with the point in great detail, the Court below lost sight of one or two important points which had to be decided as a preliminary to an examination of the details. In the first place, the Court below relied almost entirely, or at least primarily, on the abstracts of the accounts said to have been kept by the family of the parties for many years. The abstracts however did not include all the years for which accounts are available. The accounts were available from 1907 onwards. But the abstracts filed at first, namely, Ex. 65, related only to Faslis 1333 to 1343 with a break of 4 or 5 faslis here and there. In short, Ex. 65 seems to betray some signs of having been prepared ad hoc for a specific purpose, namely, to show as low a net income as possible. The other abstracts that were filed subsequently, namely, Ex. 66 and certain statements which were filed at a later stage but were not actually marked as exhibits purported to relate to a period of 11 faslis, 1333 to 1343 both inclusive. No doubt if these abstracts had been properly prepared from the family accounts and the latter were reliable they would undoubtedly be the best evidence of the family income, but unfortunately these preliminary conditions have not been satisfied in this case. Let us first see how these abstracts came to be filed into Court. They were filed at a late stage and that too on a direction given by the Court. It is clear from the evidence of the main defendant, the first defendant, that these abstracts were ready even before the written statements were put in. (See bottom of page 20 and top of page 21 of the printed record of the evidence), He says:
My clerks prepared accounts to show the net income from our properties before my written statement was prepared. I told them to do so, and they did so, from the accounts that have been filed in this case.
4. If the abstracts had been prepared before the written statements were put in there is no reason why they should not have been put in along with the written statement or in any case a definite figure given in the written statement as the family income instead of the vague statement that the net income did not exceed Rs. 10,000 a year. On the 12th October, 1934, that is to say, sometime after one of the plaintiffs had been examined, the first defendant was directed by the Court to file a statement showing the gross and net income from different kinds of lands, the first defendant being the family manager. These statements, described as abstracts, were put into Court on the 30th October, 1934, and that is so far as Ex. 65 is concerned, Ex. 66 having been put in much later. The abstract marked as Ex. 65 bears the signature only of the Advocate for the first defendant. This fact has been relied upon by the learned Subordinate Judge as if the affixing of the signature of the lawyer to the abstract gave it any evidentiary value which it did not otherwise possess or would make such an abstract relevant if it otherwise was irrelevant; indeed, the learned Subordinate Judge relied on the signature of the plaintiff's pleader to such an extent that he thought that the abstract in question was entitled to acceptance because of the pleader's signature. He says:
The plaintiff's pleader had ample opportunities of verifying for himself the accuracy of the figures furnished in Ex. 65 and Ex. 66 and I am sure he did so.
5. We have not got the same assurance. On the other hand, Mr. Umamaheswaram who appeared for the defendants before us conceded that he could not give us any assurance that the pleader had personally examined all the entries in the account books and satisfied himself personally that the abstract was correct in every particular. It is clear even otherwise judging from probabilities alone that a lawyer, a busy lawyer like Mr. Malekondayya, could not have had time to go through all the entries contained in the numerous account books relating to a period of 10 or 11 years and satisfy himself that each entry was properly classified under the proper head as income and expenditure and that the abstract was correct in every particular. On the other hand, it seems to us as if this method of putting in the abstract was deliberately resorted to with a view to give them a weight or authority which they really did not possess. The first defendant did not sign them though he referred to them in his evidence, and we shall shortly deal with his statement about these abstracts. The gumastah or gumastahs who undoubtedly must have prepared them in the first instance have not beep examined about these extracts; in short it may be said that the correctness of these abstracts has not been satisfactorily made out. Abstracts of this kind are relevant technically as 'secondary evidence' under Clause (g) of Section 65 of the Evidence Act; and what that clause provides is that the general result of numerous accounts can be proved by secondary evidence only by a person who has examined the accounts and who is skilled in the examination of such accounts. We are not satisfied that in this case either of these necessary qualifications existed; in other words, there is no clear evidence or satisfactory evidence that any person who gave evidence at the trial examined the accounts himself and gave evidence about it or that he was skilled in the examination of accounts. The only evidence given about these extracts is that of the first defendant who was examined as D.W. 1. He says at page 15 of the documents:
I have filed a statement Ex. 65 from my accounts, showing at a glance the net income from my lands for some years. It is a correct extract and true statement. The income from the 10 shrotriams (zamin villages) is given in Ex. 66, another true extract I prepared for 11 years.
6. It will thus be seen from this passage in his evidence in examination-in-chief that, except as regards Ex. 66, he does not vouch personally for the correctness of the abstract, Ex. 65 in particular, because his statement that Ex. 65 is a correct-extract and true statement is a matter of opinion which might be quite reconcilable with the fact that he never examined the accounts personally himself. Indeed, there is an admission at a later stage in his evidence (vide page 32) that Ex. 65 series were prepared by his clerk Krishnamurthi. It may be noted that this clerk though present in Court was not examined as a witness. Later on (vide page 33) he says that his gumastah prepared Ex. 66 and that he was present at the time. It is thus clear that it was not the first defendant who prepared this abstract himself but that he was merely present when his gumastah prepared it. In these circumstances it is impossible to say that anyone who really examined all the numerous accounts in this case and prepared the abstracts as the result of his examination has been examined as a witness in this case to prove that the abstracts are correct, and certainly it is not pretended that the first defendant is himself competent to prepare correct abstracts of so many accounts as are put forward-in the present suits. It is thus apparent that these abstracts have been admitted in evidence in circumstances in which they should not have been admitted; in other words, they have not been properly proved and should not have been relied upon to such an extent at any rate as the Court below has done. Apart from that we find there are obvious discrepancies which even a cursory glance at the accounts and abstracts themselves would show.
[Then his Lordship deals with the evidence.]
7. In our opinion these abstracts are not safe guides in the matter of deciding the question as to the probable family income. It is not as if we are without other guides and indeed safer guides. Basing its finding mainly on the abstracts, the Court below was of opinion that the total income was not less than Rs. 20,000 from landed property. We need not go into the evidence at very great length regarding this point because after all it does not make a great deal of difference whether the family income is Rs. 20,000 or Rs. 25,000 or even Rs. 30,000. The income in any case is sufficiently large as not to bring into operation of what one may call the rule prescribing the maximum amount that might be awarded as maintenance. Even on the basis of Rs. 20,000 the share of the deceased husbands of the plaintiffs in these suits would be about Rs. 5,000 a year or Rs. 400 a month and what they now demand is Rs. 200 a month. Unless therefore the income of the family is something less than Rs. 10,000 a year the claim of the plaintiffs' maintenance at Rs. 200 a month could be satisfied without going beyond the maximum fixed by the law as laid down by the highest authorities.
[After commenting on the general evidence his Lordship continues.]
8. On the whole, therefore, there can be no doubt that the net income of the family after making all allowances for vicissitudes of season and risk of all kinds cannot be less than Rs. 20,000 a year Indeed, it would not be unreasonable to say that the income would not be less than Rs. 25,000 a year, the family being one which pays about Rs. 10,000 Government assessment in respect of patta lands and Rs. 4,000 jodi in respect of shrotriem villages. A net income of double the Government revenue and jodi is certainly not unreasonable even when prices are lowest.
9. We do not propose to say much about the details off the question which has been argued at some length, namely, the amount of out standings and the amount of debts relating to the family.
[His Lordship reviews here the evidence.]
10. Bearing all these circumstances in mind, the general conclusion emerges that in cases of this kind, where we are not required to determine, so to say, correctly to the last pie, what the family income is, where a rough estimate is as good as any attempt to arrive at strict accuracy and indeed - where strict accuracy is hardly to be hoped for - namely, the outstandings and the debts can be set off one against the other without doing any serious injustice to either party in this litigation and this conclusion which we mentioned during the hearing of the appeal was not controverted or disputed on either side.
* * * *
11. Before determining the reasonable amount that can be given in these cases as maintenance, one point remains to be dealt with and that arises in one of these cases only, namely, the claim of Sitamma, the plaintiff in O.S. No. 66. She claimed in a separate suit certain properties as her own and she got a decree in part in her favour in the Court below and that decree is now under appeal. It is argued in these appeals that so far as Sitamma's claim for maintenance is concerned, the income which she derives from the separate property which may be ultimately decreed in her favour should be taken into consideration in determining the maintenance to be allowed to her and that this should be done even in the matter of arrears because, mesne profits, have been claimed by her and have been decreed. We cannot anticipate the ultimate decision in that suit relating to the separate property of Sitamma, and we shall therefore assume for the purpose of these appeals that Sitamma has separate property of her own which brings her an income of about Rs. 50 a month which is what is alleged by the defendants against her. In other words, we proceed on the basis that Sitamma has separate property from which she gets a monthly income of about Rs. 50. Now, the question is whether the possession of this income from separate property is. a factor to be taken into account or consideration in the determination of the maintenance to be given to her. On this point, I have had the advantage of seeing my learned brother's judgment which deals with all the relevant cases dealing with this point, and I do not propose to anticipate or repeat any portion of what he is going to say in his judgment. It is enough for me to say that I concur in his views as to the effect of the decided cases and in his final conclusion that this income from separate property is not a factor to be taken into account at all, and that the defendants' contention is not supported by any recognised principle of Hindu Law. It is obvious that the recognition of any such contention will introduce greater uncertainty into a field where already there is too much uncertainty. Because while it is no doubt very easy to say in a general way that the income from separate property should be taken into consideration, the extent and mode of taking it into consideration are left vague, and vagueness in a point like this means trouble to the parties who will have to get the question determined by one Court after another. The learned Counsel for the defendants, Mr. Umamaheswaram, felt himself compelled to admit that taking into consideration cannot mean that if the widow, for instance, be entitled legitimately to a maintenance allowance of Rs. 100 a month in this case, the rate of maintenance allotted to her should be reduced by Rs. 50 a month, that is, by the amount of the income from her separate property. Obviously he feels that such a position could not possibly be defensible, because, if the income from the widow's separate property had not been only Rs. 50 a month but Rs. 100 a month, the rate of maintenance to which the widow would be entitled would be nil which would be absolutely in the teeth of all principle for the right of a Hindu widow to maintenance from out of the property belonging to her deceased husband is absolute and not subject to any condition that she should be in need of any allowance for maintenance. The co-existence of an absolute right to get maintenance with conditions of this kind is really difficult to postulate, for, what is absolute must be unconditional, and if there are conditions, there cannot be any absolute right. It may be that though in a case of a coparcener's right to a share, the law itself fixes definitely what his share is to be, the amount of the maintenance due to a widow has to be determined by the Court having regard to the facts and circumstances of each case, but that does not make the right other than absolute. The fact that a Court has to determine the exact money value, so to say, of a right which is not determined by the law itself, cannot convert what is an absolute right into a conditional right, that is, a right that can be claimed or that can be said to exist only if certain conditions are satisfied. The only condition - if one may call it a Condition - to be satisfied in a case like this is that the person who claims maintenance must show that she is the widow of a deceased coparcener and that the family has property on which the claim for maintenance can be fastened. I do not however propose to go further into this point.
12. We therefore come to the conclusion that there is no necessity for taking into consideration the income that Sitamma would derive from her own separate property.
13. The point is what is the rate of maintenance that can be regarded as reasonable and proper in the circumstances of these cases. The Court below has given Rs. 100 and the defendants want to reduce it to Rs. 40 while the plaintiffs want to enhance it to Rs. 200. Of course, it is impossible to satisfy both the parties in cases like these, however deeply one may go into the details of the case, or to expect both parties to accept any amount as reasonable, unless they are reasonable enough to compromise and settle the rate between themselves, and not leave it to the Court to decide what the rate should be. In these cases, there is no danger, as we have observed, of exceeding or even approaching near the limit prescribed in cases of this kind; namely, the income of the deceased husband's share which in each of these cases is one-fourth of the entire family property, and which share on any reasonable estimate would fetch an income of not less than Rs. 400 a month. It is obvious that the rate of Rs. 40 is obviously and clearly unreasonably low. There is no legal authority for the shastraic injunction on which extremely low awards of maintenance are sought to be based, namely, that the widow ought to 'eat or enjoy moderately,' that is live as abstemiously as possible. This moral precept cannot be given legal authority in order to cut down the level of comfort which otherwise a widow, to whom a fortune has been unkind, would be entitled to claim. Whatever might have been the practice in the past, there can be no doubt that the recent tendency has been to be liberal in the grant of maintenance; or to put it perhaps more accurately, not to be illiberal in the grant of maintenance to widows. This is obviously in keeping with the changed times and the changed notions of the people including notions as regards comforts reasonably-required for persons belonging to certain classes of society. These changes are reflected in the recent legislation in favour of widows in the shape of the Hindu Women's Rights to Property Act, 1937, which as Mr. Raghavachariar, the learned author of 'Hindu Law, Principles and Precedents' says, can more appropriately be called the Hindu Widows' Rights to Property Act, because the most marked change introduced in the Hindu law by that Act is the provision in favour of Hindu widows. Though that Act is not applicable to the present cases because the law governing the rig its of the parties in these cases is the law as it prevailed before the Act of 1937, nevertheless, the reference to this new legislation is not entirely pointless because that legislation only reflects the change that has unconsciously and slowly crept into Hindu society towards a more liberal treatment of Hindu widows. It is not as if the Legislature suddenly thought it necessary to ameliorate their condition but the Legislature merely gave sanction to a change which had already taken place and that change cannot be ignored by Courts in determining the rates of maintenance. In other words, to put it concretely, the changed notions as to the way in which a widow should live and what pleasures she should be permitted and so on, have to be determined, not in accordance with the old ideals which have more or less ceased to apply or to be applied to actual life, but according to the changed notions that prevail to a greater and greater extent in the present day; as is well-known one tendency observed in the country is the gradual and steady rise in the standard of living, and Hindu widows have been as much subject to this tendency as any other class of people in Hindu society. We therefore think that while the principle to be observed is to bear in mind all the circumstances of the family, courts should also bear in mind the changed conditions of society and award maintenance in such a way that the widow concerned is able to live in more or less that standard of comfort in which she would have been able to live if her husband had been alive, so long as the family can stand it, and there is no difficulty in the way of the family finding the necessary money to maintain the widow in such comfort. It cannot be said that Rs. 100 a month is sufficient for a widow of a wealthy family who is no longer content to stay in her own native village and live the Same village existence as widows in the past. It cannot be said that her desire to live in a place like Nellore is unreasonable nor that life in Nellore is not more expensive than life in a village like Kota.
14. Considering all the circumstances, we are of opinion that the rate of maintenance should be enhanced from Rs. 100 a month to Rs. 150 a month. This, however, would apply only to maintenance from the date of the suit and will not apply to the arrears claimed and allowed by the Court below which will remain at the figure Rs. 100 a month. This enhanced rate of maintenance, namely, Rs. 150 a month will, of course, be granted to both the widows; that is to say, the plaintiffs in both the suits will each get maintenance at this rate from the date of her suit.
[Then his Lordship deals with the items of property to be charged for the maintenance and the residence to be provided for the widows and the claim for the jewels.]
15. The other question of the costs in the lower Court more or less answers itself after the other points have been decided. It is now found that the plaintiffs are entitled to maintenance at least at one half of the rate which was claimed by them in the Court below. In view of the peculiar way in which information was kept back by the first defendant about the status and the property of the family even from the Court itself, it is obvious that the plaintiffs could not be expected to have made a better or nearer estimate of the income of the family than they did. It is impossible to say that a family which, as is now found, pays a Government assessment of Rs. 10,000 in respect of ryotwari lands and Rs. 4,000 for jodi in respect of shrotriem villages could not possibly be getting a net income of Rs. 50,000 a year. It was not an unreasonable estimate to make and It cannot be said that in putting forward that estimate the plaintiffs deliberately exaggerated their claim. After all, even according to the correct state of facts as now found by us the family must have an annual net income of not less than Rs. 25,000 and therefore the shares of the deceased husbands o f the plaintiffs would have been about Rs. 500 a month. Even assuming that the total income was only about Rs. 20,000 their shares would have come to Rs. 4,500. They were entitled to claim up to this limit. What exactly is the reasonably amount to be claimed as maintenance is probably more difficult for the claimant-widow to decide than it is for the Court to decide what is the reasonable amount to give, because it is more difficult for the widow to decide against herself than for the Court so to decide. Moreover the Court has to decide only after having all the materials before it. In this case, as in many other similar cases, the plaintiffs are widows with little or no exact knowledge of the extent of the property belonging to the family, and have necessarily to depend upon vague information given by people who may know something about it, and they should not. and cannot rightly be penalised for acting upon such information as they pick up in this manner. The determination of the actual amount depends on a number of circumstances, and, as these cases themselves show, two Courts can form different opinions as to what is the reasonable rate of maintenance in a given case. The Court below thought Rs. 100 was reasonable and proper whereas we are of the opinion that Rs. 150 is reasonable and proper. This itself shows that it is not reasonable to expect parties who claim maintenance to be meticulously accurate and observe all possible moderation in making their claim. So long as the claim to maintenance is genuine and true and the amount claimed is not out of all proportion to the amount that is found to be due, the widow claiming maintenance ought not to be mulcted in costs, when she has established her right to maintenance, a right to which she is entitled and which was refused unreasonably and unlawfully by the defendants. In these circumstances we are of opinion that the plaintiffs should be given their entire costs including court-fee due on the plaint in the Court below to be paid by the contesting defendants, and the contesting defendants should bear their entire costs in the Court below.
16. The result is that the appeals by the plaintiffs in the suits are allowed to the extent indicated above, that is to say, the rate of maintenance is raised from Rs. 100 to Rs. 150 a month, but not in the case of arrears claimed. The value of the jewels Rs. 2,200 and Rs. 4,000 are decreed in favour of the plaintiffs, Sitamma and Annapoornamma respectively, in addition to what has been decreed in their favour by the Court below. We have already indicated the change to be made in the decree of the Court below as regards the provision for residence of both the plaintiffs. The question of costs in the Court below has been already dealt with. In the circumstances the appellants in Appeals Nos. 156 and 191 of 1936 are allowed their costs of these appeals to be paid by the contesting respondents who will bear their own costs, the appeals being allowed to the extent indicated above. The other appeals, namely, those by defendants 1 to 7 Appeals Nos. 166 and 179 of 1936, are dismissed with costs.
Abdur Rahman, J.
17. I agree with my learned brother and should like to examine the legal point which arises here for consideration with reference to decided cases relied upon by learned Counsel for the parties.
18. The question to decide is whether the private income which Seethamma has been getting from her Stridhanam (or which has been at times described as peculiar property) should be taken into account in assessing the amount of her maintenance. Learned Counsel for the appellant contends that it should be so. There is some divergence of opinion on the subject both amongst the text book writers and the decisions of the various High Courts. Strange in his Hindu Law, Vol. I at pages 171 and 172 (1830 edition) observes as follows:
Whether, in estimating her stridhana on the occasion, her clothes, ornaments, and the like, are to be taken into account, or only such articles of her property as are productive of income to her, or conducive to her subsistence, does not distinctly appear, though the restricting the account to the latter would seem to be reasonable, considering the object An opinion, that her maintenance should be independent of her peculiar property, is unsupported.
19. This was not the correct method, in my opinion, of approach to this question. It should not have been-presumed that a widow's income from her stridhanam property would have to be taken into consideration in fixing the amount of her maintenance unless some authority was found to support that view. This is particularly so when Sir Thomas Strange has himself in the second volume of his Hindu Law published the opinion of the Nellore Pundit at page 307 when the matter was referred to him, that is, the Pundit for his opinion by the Court. The answer which the Court proposed to give to the matter in issue was suggested in the following words:
On the death of a Brahmin, leaving a widow and two sons, she and they take possession of his estate, subject to her possession of stridhana, in which case she is entitled only to a half share.
20. The Pundit's comment on the answer was as hereunder:
This opinion is generally correct, but I do not understand either the authority or the reason for restricting the maintenance to the amount of half a share, in case of the existence of stridhana. The division (as it appears to me) should be made without reference to any property she may hold under the title, unless it may have been accepted by her... The widow's claim to maintenance from her husband's estate is absolute, unlimited by circumstances; but then, it is only a claim to maintenance and it is not correct to say that she is entitled to any share or division.
21. Having regard to this opinion and without referring to any text or authority which would point to a different conclusion, the presumption raised by Sir Thomas Strange in the first volume against the widow does not seem to be, if I may say so with respect to that author, justifiable. Learned Counsel for the appellant has also not been able to point to any original text in support of his contention and in the absence of any such text, I will have to examine the relevant passages from the works to which reference was made and the cases which were cited at the bar. There are certain passages in Mayne's and Mulla's Hindu Laws at pages 834 and 595 of their latest editions respectively; but having gone through them I do not find any opinion expressed by the learned authors themselves although relying on certain decisions of the various High Courts the proposition has been stated that in calculating the amount of maintenance a widow's stridhanam property must be taken into consideration unless it was of an unproductive character. Sir Dinsha Mulla has however referred to the conflict of opinion existing on the point. Sirkar in his treatise on Hindu Law after referring to the various cases on which reliance was placed by the other authors struck a discordant note at page 621 of the 6th edition, where he observed as follows:
But all this is open to the objection that the right to maintenance being a right to property, which the law confers on one person against another, and annexes it to some estate, why should any such extraneous consideration affect it in the manner set forth above, when the law does not say so?
22. Since the Hindu Women's Right to Property Act (XVIII of 1937) came into force subsequent to the dates on which the rights to get their maintenance had become vested in Sitamma and Annapoornamma the law as it stood before the Act had come into force will govern the present appeals. It cannot be denied that the widows would be entitled to maintenance as members of their deceased husbands' families. It is a right which devolved on them on account of their marriage with those who owned certain shares during their lives in the joint family property. Their husbands were during their own lives bound to maintain these ladies and the same right would continue to exist as long as they (that is the widows) do so and there is property in which their husbands had shares at the time of their deaths. The question is whether this right can be held to have ceased to exist or said to remain in abeyance if these widows happen to possess some private means of their own. There seems to be nothing on principle which would compel us to take the view that this right which came into existence at the time of their marriage and continued to subsist even after the demise of their husbands should disappear permanently or even temporarily, only because they are able to maintain themselves out of their own stridhanam property. A widow's right of maintenance is an absolute right and cannot ordinarily be taken away without a clear provision of Hindu Law. No such provision has been brought to our notice by the learned Counsel for the appellant and in the absence of such a provision or any other cogent reasons it is impossible to ignore that right. Nor are there any decisions of this Court in which the view pressed upon us on behalf of the appellant has been taken. The only Madras case to which our attention was drawn on behalf of the appellant was that of Lingayya v. Kanakamma I.L.R.(1913) 38 Mad. 153 : 28 M.L.J. 260. It might be noted here that the head note of this case is rather misleading. The learned Judges do not seem to have decided that a widow's private income was to be taken into account in determining the quantum of maintenance to be paid to her. The facts of the case were that the defendant was found to be in possession of the family property yielding an income of about Rs. 100 per annum. The widow had some private property out of which she could realise something like Rs. 40 to 50 per year. It was contended there that a widow who was able to maintain herself out of other property had no right to claim out of the husband's estate anything for that purpose. This contention was repelled as it was found by the learned Judges to be based on an entirely wrong conception of the right sought to be enforced. In disposing of that contention the learned Judges observed as follows:
The wives of the male coparceners in a Hindu family are not entitled to equal shares with the males in the family estate, nor do they take their husband's shares by representation on their death, but in place thereof they are entitled to a portion of their estate for their enjoyment during their lifetime sufficient to maintain them in comfort according to the means of the family. This is an absolute right due to their membership in the family and does not depend on their necessity arising from their want of other means to support themselves.
23. Two single Bench decisions of this Court were cited on behalf of the respondent in which Anantakrishna Aiyar, J. and Pandalai, J., sitting separately took the view that a widow's private means were not to be considered in fixing the amount of her maintenance. Those cases are reported in Kodandarami Reddi v. Chenchamma (1929) 59 M.L.J. 531 and Sundari Ammal v. Venkatarama Sastrigal (1933) 66 M.L.J. 680. It is true that the question for decision in the latter case was whether the amount of maintenance granted to the widow should not be reduced if her condition had subsequently improved by her own efforts or on account of a gift made to her by one of her relations; but I think that the principle on which that decision was based was that her private income could not be taken into consideration for the purpose of her maintenance. With these decisions I find myself in respectful agreement. Anantakrishna Aiyar, J., had in Kodandarami Reddi v. Chenchamma (1929) 59 M.L.J. 531, after considering the various decisions of different High Courts and what was stated in Mayne's Hindu Law, come to the conclusion that a widow's income from her private property should be, in fixing her maintenance, disregarded. It may not be necessary in this case to decide the question, but the observation in that case by the learned Judge to which I am, as at present advised, unable to give my assent reads as follows:
The question will be different when the income from the joint family estate is not enough to maintain all the members depending upon it.
24. It was unnecessary for Anantakrishna Aiyar, J., to say this in that case. It is unnecessary for us also to decide that question now. I have simply drawn attention to that observation on the ground that our silence may not be construed as tantamount to its approval. In a case where this question arises for decision, it will have to be examined with care.
25. Out of the cases decided by the High Courts it appears to be more convenient at this stage to examine an old Allahabad decision given in Shiv Dayee v. Doorga Pershad (1872) 4 N.W.P.H.C.R. 63, to which reference has been made in one or two Bombay rulings. The facts of that case were that a suit for the recovery of maintenance was instituted by Shib Dayee against her father-in-law in which it was pleaded by the latter that the. plaintiff had taken some cash and movable property belonging, to her deceased husband and of the defendant of the value of Rs. 5,000 which sufficed for her maintenance. The trial Court found the proof of the fact that Shib Dayee had taken any jewellery, etc., to the value of Rs. 5,000 wanting, but held that she possessed a sum of Rs. 1,000 awarded to her husband in an arbitration and jewels suitable to the position of the family. Holding that the income of the estate purchased by the defendant for his son, that is Shib Dayee's husband along with the interest on the Rs. 1,000 in her possession would be sufficient for her maintenance, the Subordinate Judge dismissed her claim. It will be noticed that no plea was raised on behalf of the defendant that Shib Dayee had no right to get a maintenance on account of her stridhanam property. The sum of Rs. 1,000 which was found to be in her possession was alleged to belong to her husband and if it did, there is no doubt that it had to be taken into consideration in fixing her maintenance. But it appears that some argument was advanced in appeal that she was not entitled to get any maintenance inasmuch as she was found to be in possession of some jewels and other property although unproductive of any income. This was repelled by the learned Judges with the observation:
Nor will the fact that a widow has in her possession jewels and other property unproductive of income, deprive her of or diminish her right to maintenance if they constitute her stridhanam although forming part of her husband's estate, they are suitable to the position of the family in society.
26. This does not help the appellant, but the next passage appears to be more directly in point and is liable to be construed so as to be more helpful to him. It reads:
If, on the other hand, she has property in her possession productive of income, the amount should be taken into consideration in determining the measure of her allowance for maintenance.
27. In reading this passage, I do not think that the learned Judges were referring to the widow's stridhanam property at all. In fact the property in Shib Dayee's possession which was productive of interest was the sum of Rs. 1,000 and this observation must necessarily be taken to have referred; to that property. It cannot be detached from its context or from the facts of that case and held to be expressing a principle which the learned Judges were not called upon to consider. If it referred to the Rs. 1,000 belonging to her husband, it would not help the appellant. If on the contrary it referred to some property which was not mentioned in that suit, it would be obiter and although entitled to respect, yet it would not be, in the absence of any authority, of any great help to us here.
28. The first Bombay case which was brought to our notice was that of Chandrabhaga Bai v. Kashinath Vithal (1866) 2 Bom. H.C.R. 341 or 323 (the page given in some of the references is 323 but the case is the same). It does not help the appellant as it shows that the income accruing from the widow's peculiar property was not taken into account.
29. The next Bombay decision in Gokibai v. Lakshmidas Khimji I.L.R.(1890)14 Bom. 490 does not help the appellant either. It is true that Mr. Justice Farren did observe in this case that the defendant was bound to show that the widow was possessed of property out of which she could maintain herself; but nothing was said in that judgment which would indicate whether the learned Judge was referring to the joint family property or to the widow's stridhanam property. It is obvious that if the widow could be shown to be in possession of joint family property out of which she could maintain herself she would not be entitled to maintain an action of this nature at all.
30. The decision in Dattatraya v. Rukhmabai I.L.R.(1908) 33 Bom. 50 does not support the contention raised by the appellant. The widow was in that case found to be in possession of funds belonging to her husband's, family estate which fund was sufficient to provide her maintenance for five years after the suit had been brought at the rate allowed by the lower Court. In the circumstances it was held that no cause of action had accrued to the plaintiff in 1904 when the suit was instituted. This case does not decide whether the widow had any private income of her own.
31. The last Bombay case to which reference was made was that of Gurushiddappa v. Parwatemma I.L.R. (1937) Bom. 113. The question in this case was whether the value of the widow's ornaments should be taken into consideration in awarding maintenance to her. The learned Judges who heard the case came to the conclusion that it could not be, but in recording their decision, Broomfield, J., observed:
I think it must be taken to be good law that as an ordinary rule stridhan ornaments are not to be taken into account in assessing maintenance. It need not be laid down as an invariable rule. If the widow were in possession of ornaments of great value which she would not ordinarily wear or use, and which she would be likely to dispose of, that might be a different matter. In the present case I see no reason to differ from the view taken by the trial Judge.
32. No stridhanam property of a productive character or which could be converted into property of that character was involved in that suit and the observation must be regarded to be in the nature of obiter.
33. Wasoodew, J., in writing a concurring judgment observed that a widow's right to claim maintenance out of the husband's estate was absolute and rested upon the possession of her husband's property by the person from whom the maintenance was claimed. But he happened to observe:
It seems to me difficult upon principle to say that the clothes and jewels or ornaments of the widow, whatever their value, should invariably be excluded in the calculation of her maintenance out of her husband's property.
34. It was not stated by the learned Judge what principle did he have in mind to which reference was made in this sentence. In view of the position that a widow's right to maintenance was conceded to be absolute, that is, not conditional on anything else, why should the fact of her not being in possession of her own private or peculiar property be regarded as a condition before maintenance is granted? If the right is an absolute one, her possession of stridhanam property must be regarded as, irrelevant. In spite of this observation the learned Judge agreed in excluding the ornaments from consideration although on the ground that:
It was not clear upon the record, having regard to the custom of the community to which the widow belonged, that the ornaments in her possession would not all be required to maintain the status of her family.
35. There is, it is true, a distinction made in some of the text books, which have already been referred to, between the productive and unproductive character of a widow's stridhanam property but this does not seem to be based on any principle, if we1 bear in mind that it is a right of the widow to be maintained out of her husband's estate or what was once her husband's estate and it is the duty of those on whom her husband's estate has devolved to maintain the widow out of that property in the same degree of comfort to which she was used during her husband's lifetime. It is immaterial if she had any private means of her own or could have them by selling some of the jewellery which would not be required by her after her husband's death. Had the husband remained alive, it would have been his duty to maintain his wife out of his own estate irrespective of her stridhanam or private means and there appears to be no reason why the latter should be regarded to be any factor in fixing the maintenance after his death. The right of maintenance was conferred on the widow under the Hindu Law in lieu of her husband's share in the joint family property and cannot be taken away by the fact that she has some property of her own either productive or non-productive of income.
36. This exhausts all the Bombay cases cited at the bar. The next decision to which reference was made at the bar was that of Bahuria Saraswati Kuer v. Bahuria Sheoratan Kuer I.L.R.(1933)12 Pat. 869. Wort, J., in delivering his judgment at page 874 observed as follows:
The point really is somewhat academic, having come to the conclusion, as I have done, that the plaintiff's claim was based under the general Hindu Law, and that being so, the amount to which she is entitled would be a sum in accordance with her position in life and, as the Privy Council has pointed out, in accordance with the condition of the estate.
37. No exception could be taken to this statement, but the learned Judge at page 175 happened to observe:
There is no doubt that under the general Hindu Law a widow claiming maintenance claims it on the basis, as I have said, of her position in life and the position of the estate having regard also to her means.
38. The last words in the preceding sentence do not occur in any of the decisions by their Lordships of the Privy Council. The statement made by the learned Judge himself on the previous page and which has been quoted above does not contain any such qualification. No authority was cited by the learned Judge for the view that a widow's means had to be taken into consideration and apparently the point was not considered by him in its legal aspect. Moreover the private income which the widow was getting in that case by way of an allowance from her brother was disregarded as it was held not to be an income which could be taken into consideration by the Court. This case is certainly no authority for the proposition that in calculating the amount of maintenance her stridhanam must be taken into account.
39. The last case to which reference was made was an old Calcutta case in Ramawati Koer v. Manjhari Koer (1906) 4 C.L.J. 74. Relying on Gokibai v. Lakshmidas Khimji I.L.R.(1890)14 Bom. 490, the case which has been already considered by me in an earlier portion of this judgment, and on the Privy Council decision in Narayanarao Ramchandra Pant v. Ramabai (1879) L.R. 6 IndAp 14 : I.L.R. 3 Bom. 415 , the learned Judges came to the conclusion that so long as an applicant for maintenance had private means for her own support she could not claim maintenance from her husband's family. I have already tried to show that Gokibai v. Lakshmidas Khimji I.L.R.(1890)14 Bom. 490 does not support that proposition. As for the second case decided by their Lordships of the Judicial Committee, a reference to that case would show that their Lordships did not hold in that case that the right of a widow to maintenance was, 'according to the wants and exigencies of the widow.' The last words were certainly used by their Lordships of the Judicial Committee but they were used when they were considering a question of limitation and not a question of Hindu law. Referring to the Limitation Act they observed as follows:
The language of the Act is not very clear; and by two subsequent statutes of limitation the events from which the time of limitation is to run in the case of maintenance are wholly different. By common lazy the right to maintenance is one accruing from time to time according to the wants and exigencies of the widow, and a statute of Limitation might do much harm if it should force widows to claim their strict rights, and commence litigation which, but for the purpose of keeping alive their claim, would not he, necessary or desirable.
40. This would show that their Lordships of the Privy Council were trying to express that the cause of action for a widow to maintain her action is of a recurring nature and the period of limitation would only start from time to time according to the wants and exigencies of the widow. They were not considering whether the widow's private means had to be taken into account before a decree for maintenance was passed in her favour. In the absence of any other authority, the decision in Ramawati Koer v. Manjhari Koer (1906) 4 C.L.J. 74 could not be supported. It was expressly dissented from in Lingayya v. Kanakamma (1913) 28 M.L.J. 260 : I.L.R. 38 Mad. 153.
41. A review of these cases would show that but for certain obiter dicta in some of the judgments it has not been decided in any case, except in the Calcutta case just referred to, that the widow's private means have to be calculated in fixing the amount of her maintenance. On principle as we have already stated above there seems to be no reason why a widow's stridhanam property or private income should be taken into consideration, if her right to maintenance is absolute and the duty of persons who are in possession of her husband's estate unqualified and unconditional.