1. This is an appeal by the plaintiff in a suit for partition of joint property. The plaintiff and the first defendant are two brothers, and this litigation was commenced by the plaintiff for division of the properties jointly held by them. Subsequently, the third defendant, the widow of another brother of the plaintiff and the first defendant, who is now dead, was joined as a defendant. The husband of this lady died during the lifetime of the father of the plaintiff, and consequently never became entitled to the properties of his father. The lady claimed that provision might be made in the decree for her maintenance. The District Judge has given effect to this contention : and the only point in controversy in this appeal is, whether provision should be made for her maintenance in the decree for partition. Three points have been raised before us; namely, first, that the added defendant has no right of maintenance as against the estate received by her brother-in-law from their father; secondly, that if she had any such right, that has been extinguished by lapse of time; and thirdly, that if she has a subsisting right, it cannot be enforced in a suit for partition.
2. As regards the first question, reliance has been placed by the plaintiff-appellant upon the decision in Bai Parvati v. Tarwadi Dolatram (1901) 25 Bom. 163. We are of opinion that the decision mentioned cannot be defended on principle. It is now well settled that a widowed daughter-in-law has no legal right to maintenance as against the self-acquired property of her father-in-law, if her husband died during the lifetime of her father-in-law. This was enunciated by a Full Bench of this Court in Khettur Monee Dossee. v. Kasheenath Doss 2 B.L.R.A.C. 15, and the position has since then been accepted without question, as will appear from the judgment of the Madras High Court in Meenakshi Animal v. Rama Aiyar (1913) 37 Mad. 396. But although the obligation of the father-in-law to maintain his widowed daughter-in-law is only moral and not legal, when he has no ancestral assets in his hands, the position of the heir who takes his estate by inheritance is different. What was a moral obligation in respect of the father ripens into a legal obligation when the estate passes into the hands of his heirs. In support of this proposition it is sufficient to refer to the cases of Janki v. Nand Ram (1889) 11 All. 194 and Siddessury Dossee v. Janardan Sarkar (1902) 29 Cal. 557. But it has been argued on behalf of the plaintiff that this principle is not applicable when the father-in-law has made a testamentary disposition of his property or has during his lifetime made a. gift of his property. This is supported by the decision in Bai Parvati v. Tarwadi Dolatram (1901) 25 Bom. 263. But we are unable to accept, the contention that the daughter-in-law is not entitled to maintenance out of the property in the hands of a donee or devisee. If the contention of the appellant were to prevail, it would be possible for the father-in-law to evade his moral obligation and to protect his estate after his death from the claim of the daughter-in-law, which, according to well established rules, at this stage ripens into a legal claim. It is on this principle that a contrary view has been maintained in the cases of Yamunabai v. Manubai (1899) 23 Bom. 608, Ranqammal v. Echammal (1899) 22 Mad. 305. These decisions, were mentioned with approval in the cases. of In the goods of Gobinda Chundra (1913) 17 C.W.N. 1141 and Indubala Dasee v. Panchumani Dasee (1915) 19 C.W.N. 1169. We hold accordingly that the plaintiff is not entitled to evade liability merely because he received the estate of his father not by inheritance but by way of gift during his lifetime. That this view is well-founded on principle is clear from the long line of cases which establish the right of the widow to maintenance out of the estate of her husband when it has passed into the hands of his heirs. It is not suggested that the position of the widowed daughter-in-law is for all purposes so identical with that of the widow who in certain events, is entitled to succeed to the estate of her husband. But we do not see why distinction should be made between the position of the widow and the widowed daughter-in-law in respect of the particular question now raised before us.
3. As regards the second point, it is argued that the claim for maintenance is barred by limitation. Reliance has been placed upon Article 129 of the second schedule to the Limitation Act which ordains that a suit to enforce a right of maintenance must be instituted within 12 years from the date when the right is denied. In the case before us it is found that many years ago the added defendant asked for maintenance from the plaintiff and she met with a prompt refusal. This, in our opinion, does not necessarily lead to the conclusion that her right has been extinguished. It may be conceded that if she were to institute a suit against the plaintiff she might find herself in a position of considerable embarrassment. Section 28 of the Limitation Act does not extinguish this right. As was pointed out by the Judicial Committee in Narayanarao Ramchandra Pant v. Ramabai (1878) 3 Bom. 415, followed in Siddessury Dossee v. Janardan Sarkar (1902) 29 Cal. 557, the cause of action for maintenance accrues from time to time according to the want and exigencies of the person entitled and the same view was taken in the cases of Kedar Nath Coondoo Chowdhry v. Hemangini Dassi (1886) 13 Cal. 336 and Siddessury Dossee v. Janardan Sarkar (1902) 29 Cal. 557. In the present case the added defendant has been maintained for many years past by the first defendant, and it has consequently been not necessary for her to tike recourse to proceedings in law. That is not a reason why provision should not be made for her maintenance in the present litigation.
4. As regards the third point, it has been contended that a provision for maintenance should not be made in a suit for partition like the present, but that the added defendant should be left to her remedy, if any, by a separate suit. It has been maintained, however, in this Court for a long series of years, as is indicated by the decisions in Comulmoney Dossee v. Ramanath Bysack (1843) Fulton 189 and Kedar Nath Goondoo Chowdhry v. Hemangini Dassi (1886) 13 Cal. 336 that when joint property is partitioned, provisions may be made for the maintenance of such female members of the family as are entitled to maintenance from the estate. This course is manifestly convenient. As a result of this litigation, properties jointly held by the plaintiff and the first defendant will cease to be joint properties, and thereafter each party will be at liberty to alienate what may be allotted to him. It is precisely at this point of time that the right of the added defendant to maintenance out of the estate originally belonging to her father-in-law should be safeguarded by the decree which effects a dissolution of the joint estate.
5. We hold accordingly that the decree made by the District Judge is in this respect substantially correct and should be affirmed. The appeal is accordingly dismissed with costs.