Ameer Ali, J.
1. The plaintiff is the daughter of one Dharmo Dass, who died in the year 1852 or 1853. Besides the plaintiff, who was an infant at the time of his death, he left him surviving a widow named Bidhumukhi, and two brothers, Radhanath and Jatadhari. Subsequently upon a partition one-third of the joint, estate was allotted to Bidhumukhi as the heiress of her husband. Jatadhari died, it appears, before Bidhumukhi. Bidhumukhi died on the 20th of October 1891, and under a decree in a suit brought by Radhanath Haldar against the plaintiff he obtained possession of Dharmo Das' share which had devolved upon Bidhumukhi. The decree contained a declaration that it was without prejudice to any rights the plaintiff had to maintenance. The plaintiff Mokhoda was married to a man named Digambur Dutt, son of Dino Nath Dutt. Digambur died in his father's lifetime. The plaintiff had by him several daughters, and a son Jogendra. Unfortunately for her that son died during the life time of her mother, and the result was, as I have pointed out, that upon the death of Bidhumukhi the property was held to have passed to the brother of Dharmo Das and not to her, she being a sonless widowed daughter. She now brings this suit against the sons and grandsons of Radhanath Haldar, who has died since the decree, for maintenance out of the share which was of Dharmo Das in his lifetime. I should have thought that the people who took the property of Dharmo Das would have the generosity to make some provision for her, but in this country at, times there is great liberality and kindliness of feeling; at other times equally great meanness; and the defendants have taken their stand on the Hindu Law; and it is by that law that I must decide this case. Whether it is harsh or otherwise it is not for me to determine.
2. This is the first case of its kind on this side of India. The only direct authority on the question requiring my determination is the case Bai Mangal v. Bai Rukmini (1898) L.R., 23 Bom., 291, decided in the Bombay High Court which is against the plaintiff. Before dealing with the legal rights of the parties, it is necessary I should state some of the facts on which the question of law turns. The plaintiff states she was married by her uncles and that after her marriage she occasionally lived at her husband's place and occasionally in her ancestral house which is at Sulkea. But as her evidence proceeded it appeared that after the partition her mother Bidhdumukhi left Sulkea, and took up her abode at Jorasanko in her brother's house, and it is probable, as the plaintiff states, that, whilst her husband was alive, she lived occasionally with her mother, and it is more than probable that after her husband's death she lived altogether with her mother,
3. Dino Nath Dutt, her father-in-law, was, upon the evidence, a man in fairly good circumstances, and possessed of some property which has come into the hands of one of his grandsons, Tulsi Das, who gave his testimony in this case. I have no doubt that Mokhoda is in destitute circumstances; she is living now in a house belonging to her deceased son-in-law Purna Chunder Daw, who has provided by his will that its rent should be paid out of his estate. The evidence regarding her other means shows that she is at present maintaining herself by borrowing. It was attempted by Mr. Bonnerjee to prove that a will was left by Dino Nath Dutt, under which Mokhoda Dassee was to get Rs. 5 a month for her maintenance, in case she resided in the family dwelling-house, but did not choose to mess with the family.
4. This attempt was made for the purpose of showing that the plaintiff could! not be said to be in destitute circumstances. I was of opinion then, and am of that opinion still, that evidence is irrelevant. The question, which I have to try, is the present indigence of the plaintiff, and the fact that she may possibly be entitled to get something monthly under a will, which has never been propounded, is not relevant to the inquiry before me. Another contention raised on behalf of the defendant was that this case is not within the jurisdiction of this Court, but ought to have been instituted in the Mofussil. I held against that contention, and I now proceed to give my reasons.
5. The plaintiff's cause of action is based on a variety of circumstances; those circumstances constituted the cause of action giving her the right to sue. Her right is founded upon the fact that her father left various properties partly within and partly outside Calcutta, and that inasmuch as he left certain property which came into the hands of the defendants, she, as an indigent sonless widowed daughter, was entitled to maintenance. Her allegations, and the facts upon which she bases her right to sue, bring the suit strictly, as I understand it, within the meaning of Clause 12 of the Charter. I hold that the Court has jurisdiction to try the action.
6. I now proceed to discuss the law bearing on the subject. As I understand the Hindu Law, the right of a woman to succeed to property is founded upon distinct textual authority. The Hindu Law, like most of the older systems, regulates the devolution of property upon the basis of a spiritual benefit likely to be conferred upon the last owner. It excludes from inheritance or rather disqualifies from inheriting males who are not in a position to confer a spiritual benefit upon the deceased proprietor; and with the exception of one school the other schools of law generally exclude females from inheritance on the same ground. Under the Dayabhaga alone women are entitled to succeed under certain circumstances. Putting aside the case of a widow, the law declares that in case the owner dies without leaving any male issue, the unmarried daughter who is most likely to give birth to a son, or a married daughter, whose husband is alive and who is not past child-bearing, or a daughter with sons, should take the property. I am not prepared to agree with the contention of the learned Counsel for the plaintiff, who argued this case with great ability, that the position of a sonless widowed daughter is the same as that of a disqualified owner or disqualified heir. As I understand the Hindu Law, the position of a male who has been disqualified from inheriting by any defect inherent in himself is totally different from the disqualification attached to a female, who does not possess the requisite condition for taking the property. Her right is dependent upon the fact that she has male issue or is likely to have male issue, who can perform those spiritual services considered so necessary in the Hindu system.
7. But then arises the broad question raised by Mr. Mitter, and raised very moderately and discussed with considerable ingenuity, whether or not a daughter, in indigent circumstances and not able to get any maintenance from the father-in-law's family, is entitled to look for her maintenance from the share that was of her father's. This brings me to the consideration of the question as to the status of a married daughter in a Hindu family. Again, speaking with reserve, so far as I understand the Hindu Law, marriage, ordinarily speaking, detaches the status of a Hindu girl from the parental family, and attaches it, if I may so use the expression, to the family of the husband or of the husband's father, and it will be seen from the text that this view is not unsupported by the law. So long as the daughter is unmarried, there is a distinct obligation on the father to maintain her, an obligation of a moral character so far as the father is concerned, which ripens into a legal obligation the moment the property comes into the hands of somebody else, and, if the daughter is unmarried, the law declares her entitled to a certain proportion of the estate for her maintenance. Once married, the obligation which rested upon the father or the father's family seems to cease, and that is not peculiar to the Hindu Law. But, as I said before, this is ordinarily the case. There may be cases, however, where a father maintains the daughter and the daughter's husband in his own house, and does so up to the end of his life. Under those circumstances the fact of his marrying 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.
8. On this point I would quote the words of Mr. Justice Banerjee in Kamini Dassee v. Chandra Pode Mondle (1889) I.L.R., 17 Cal., 373, which was the case of a daughter-in-law. That learned Judge says: 'In each case it will have to be determined whether having regard to the relationship, the means and various other circumstances of the party claiming maintenance, the late proprietor was, according to the principles of Hindu Law and to the usages and practices of the Hindu people, morally bound to maintain that party.' These words indicate exactly the various circumstances which have to be taken into consideration in dealing with each particular case. Speaking with respect I am inclined to think the case in the Bombay High Court went too far. I will explain my reasons later on. I propose first to refer shortly to the authorities on which the learned Counsel for the plaintiff relied. His contention was principally based upon the words of Mr. Mayne at the end of para. 408, where it is said as follows: 'After marriage, her (meaning the daughter's) maintenance is a charge upon her husband's family, but, if they are unable to support her, she must be provided for by the family of her father.'
9. Mr. Justice Ranade in the Bombay High Court has examined Mr. Mayne's statement of the law and he considers that it is not borne out by the authorities referred to by the learned author. I have also examined those authorities and am inclined to agree with Mr. Justice Ranade that the text which speaks of the maintenance of widowed sonless daughters and other people in the same position seems to be of a monetary character rather than laying down any general legal obligation. Unless therefore I can find that Mokhoda Dassee continued after her marriage to be a member of her father's family so as to cast upon him a moral obligation of maintaining her, the law, in my opinion, would preclude her from asking for maintenance out of her father's share.
10. Mr. Justice Ranade, after examining all the authorities, has broadly laid down in page 295 the law as he understood it. 'In fact,' he says all the text writers appear to be in agreement on this point, namely, that it is only the unmarried daughters who have a legal claim for maintenance. The married daughters must seek their maintenance from the husband's family. If this, provision fails, and the widowed daughter returns to live with her father or brother, there is a moral and social obligation, but not a legally enforceable right by which her maintenance can be claimed as a charge on her father's estate in the hands of his heirs.' As I said before I am inclined to add a qualification to this enunciation of the law. In my opinion the right would depend upon the fact whether the widowed sonless daughter was at the time of her father's death maintained by him as a dependent member of his family with others whom he was legally or morally bound to maintain.
11. I am sorry upon the evidence I cannot come to that conclusion. The husband does not appear to have lived in the house of Mokhoda's father. Digambur was possessed of sufficient means, and there is no reason to suppose that after Mokhoda's marriage, Bidhumukhi, or the paternal relatives of the plaintiff, undertook the obligation of supporting her. She may have come to the house of her mother and resided there for long periods, but that does not, in my opinion, alter the position or obligation of the husband's family. Tulsi Das is willing to maintain her, if she goes back to the family house. Whether that offer was bond fide or not is a different question. There is the offer on his part and I cannot lose sight of that fact.
12. Again, I find no authority laying down that when a widowed sonless daughter is in indigent circumstances, she is entitled to separate maintenance, without any further cause.
13. For all these reasons, however much I may pity the plaintiff, I feel bound to dismiss her suit. Considering, however, this is the first case of its kind on this side of India and considering also the surrounding circumstances, I think I ought not to give any costs.