A.K. Sinha, J.
1. This appeal is by the defendant against an appellate judgment and decree affirming the decree of the trial Court.
2. The respondent filed a suit for ejectment of the appellant who is his widowed sister from the suit, property on the ground of revocation of licence to use and occupy a portion of the disputed Property. The respondent's case, briefly. was that as the only son and legal heir he inherited the disputed property along with the other properties left by his father under the Dayatahaga School of Hindu Law who died intestate on 13-11-1936 to the exclusion of his widowed mother and married daughters including the present respondent who had no right of inheritance. The appellant after her husband's death with her two minor daughters was given shelter by him. in a portion of the disputed residential house left by the father. She was thus a lic-encee in respect of the portion of the house in her occupation but although she had no difficulty because of her daughters being educated and having sufficient income out of their employment she refused to vacate in spite of the revocation of licence.
3. The appellant contested the suit and set up a plea of her right of residence and maintenance out of her father's property as destitute widowed daughter. She also pleaded an alternative case, namely, that after the passing of the Hindu Succession Act 1956 her mother's right of maintenance and residence in father's property ripened into an absolute estate and after her death in 1958 she was entitled to half share of such estate left by the mother.
4. The trial Court, it appears, did not go into the alternative case but merely said that mother's right of residence was a personal right. It however rejected the other plea and decreed the plaintiff's suit on a finding that she was no better than a licencee and was liable to be e.iected. On appeal the alternative case does not appear to have been pressed at all and the first appellate Court on the other pleas took the view that although a widowed destitute daughter might be entitled to claim right of maintenance as a dependant of her father but on .the facts of this case the appellant had no such right and accordingly dismissed the appeal. The correctness of this decision is now challenged in the present appeal.
5. It appears that the appellant's alternative case claiming half share in the property left by her mother by virtue of the provisions of Hindu Succession Act 1956 has not been raised in the form now put in either of the Courts below. So. at this stage, although pressed by Mr. Mukherjee on behalf of the appellant. I cannot allow that point to be argued. The only question, therefore, left to be decided is whether the appellant has a right of residence as a destitute widowed daughter in her father's property now in the hands of the respondent On the question whether a right of maintenance accrues to the widowed daughter under the Hindu Law the consensus of iudicial opinion seems to be in favour of the view that such a right does exist. In (1890) ILR 17 Cal 373, Kamini Dassee v. Chandra Pode Mondln and in Mokshada v. Nundoolal. (1901) ILR 28 Cal 278. this Court has laid down that destitute widowed daughter is entitled to maintenance out of the property of her father in the hands of his heirs if she is unable to get any maintenance from her husband's familv. The same view has been expressed in a Full Bench decision by the Madras High Court in Ambubai Amal v. Sanibai Ammal, AIR 1940 Mad 804. that a widowed daughter is entitled to be maintained by her step-mother out of her father's estate. A contrary view, however, has been expressed by Bombay High Court in Bai Mangal v. Bai Ruk-mini. (1889) ILR 23 Bom 291.
6. The first appellate Court did not apply the principle of the Special Bench decision of this Court in Moks-hada's case (supra) firstly, on the view that the widowed daughter in the instant case was not dependent at the time when her father died and secondly, it was not her case that she had any time tried to get maintenance or residence from the family of her deceased husband. The first appellate Court also noticed the decision in Kamini Dassee's case (supra) but that case was also distinguished on facts. I think, the entire approach to the question is erroneous. The principle on which the liability of the father to maintain his destitute widowed daughter or of the heirs on whom the property devolved after his death by inheritance has been succinctly analysed and discussed in Full Bench decision of Ambubai's case. AIR 1940 Mad 804 (supra). The learned Chief Justice Leach on a review of the opinions of very high authorities on Hindu Law and also a long line of cases including the Bombay and Calcutta decisions inter alia observed as follows (at Pages 806-807, paragraph 9 of the report) :
'The decision in (1889) ILR 11 All 194, must now be accepted as embodying a rule of Hindu Law and as there is a moral obligation on a father to supporthis daughter, whether married or unmarried. I can see no valid reason for refusing to apply the rule to a widowed daughter who is penniless. The only distinction between a widowed daughter-in-law and a widowed daughter is that on her marriage the daughter passes into another family, but the moral obligation of the father to support her when in want still remains and the same reasoning which led to the rule in (1889) ILR 11 All 194, being laid down applies'.
So, on the principles laid down as above the question is not whether the widowed daughter was destitute during the father's lifetime or as such destitute she used to be maintained by the father but the question is whether she has right to be maintained by her father if she could not get any maintenance from her husband's family.
The right to be so maintained would remain even if the widowed daughter would become a destitute after her father's death. This is, so to say a liability attached to the estate of the father and the heirs who inherit the estate take the property subject to this liability, so that the widowed daughter who is un-able to get any maintenance from her husband's family even after her father's death would. I think, be entitled to claim maintenance out of the estate in the hands of ber father's heirs. In fact, in Ambubai's case the husband of the daughter died two years after the death of her father and this aspect of the matter was fully considered with reference to Calcutta decision in Mokhoda Dossee's case. (1901.) ILR 28 Cal 278. In this case, in the Court of first instance, Amir Ali. J. while holding that widowed daughter is not entitled to maintenance out of the estate of the father in the hands of his heirs observed inter alia :
'There may be cases however where a father maintains the daughter and the daughter's husband in his own house, and does so upto the end of his life. Under those circumstances the fact of his mar-rving her to a person not possessed of means to maintain his wife would cast upon him the moral obligation of maintaining both her and her husband, and in the case of a widowed daughter of maintaining her and her children. If that moral obligation rested upon him in his lifetime, upon his death the moral obligation would in my opinion become a legal obligation on the part of those taking his property, ( (1900) ILR 27 Cal 555)'.
But the learned Chief Justice has pointed out that though on appeal the decision was approved the reservation as indicated above was not discussed.
It therefore, follows that a widowed daughter to sustain her claim for maintenance out of the estate of the fatherin the hands of his heirs need not be a destitute nor need be actually maintained by the father during his lifetime. All that she is required to prove to get such maintenance is that at the material time she is a destitute and she could not get any maintenance from her husband's family. Such being the position in law, the first appellate Court failed to decide the case on a proper appreciation of the principles indicated in both the Calcutta decisions. In this view of the matter I could have disposed of the appeal but the appellate Court has further found on facts that it was not the appellant's case that she had any time tried to get maintenance or residence from the family of her deceased husband and that being so, her claim of right of residence on the death of her husband in 1948 in the house inherited by her brother could not have been sustained but this view taken by the first appellate Court is not correct. For. the appellant's case .all along has been that she became a destitute as even her husband during his lifetime could not maintain her.
But whether or not after her husband's death she tried to get maintenance from the family of her husband is a matter of evidence. The appellate Court, it appears, did not consider that aspect of the matter, namely, as to whether there is any evidence to hold that she tried to get maintenance or residence from her husband's family. So. this question ought to be decided properly on evidence. The decision therefore, made by the appellate Court below cannot be sustained as valid. Before I part with this case it would be relevant to point out that at some stage in its judgment the appellate Court thought that there was difference between rights of residence and maintenance but the trial Court held, I think rightly, that the right of maintenance would include the right of residence and the present controversy is only with regard to the right of residence and not maintenance.
7. Accordingly, this appeal is allowed. The judgment and decree of the appellate Court below are set aside. The matter is now remitted back to the appellate Court for a fresh decision. The parties will be entitled to adduce additional evidence limited to the point as to whether she tried to get maintenance including residence from the family of her deceased husband at any time after her husband's death and the appellate Court on the evidence already on record and also on the additional evidence that may be given as indicated above and on other relevant materials on record shall dispose of the appeal in accordance with law and in the light of the observations made above.
8. There will be no order as to costs.