R.P. Mookerjee, J.
1. This appeal on behalf of Defendant 1 is directed against a preliminary decree for partition passed by the Sub-ordinate Judge, Howarah.
2. The property in suit originally belonged to one Narasinga Mukherjee who died on 16th October 1985, leaving his son Abani Mohan, who is defendant 1 in the present suit and Biswanath, the son of a predeceased son Suranath Biswanth is the plaintiff and his mother Parul Bala is defendant 2. Biswanath brought the present suit for partition by metes and bounds in respect of his 8 anna share in the joint properties.
3. Various points were raised by Abani by way of defence but it is not necessary to refer to all those in the present appeal. The plaintiff's mother, Parul Bala, did not file any written statement. The learned Subordinate Judge decreed the suit declaring an 8 anna share in the suit properties in favour of the plaintiff and defendant 1 respectively. The decree further provided:
'Defendant 2 be declared to have a right of residence in the family dwelling house, and to have a charge therefore on the said properties.'
There was a further direction for the appointment of a Commissioner for partition.
4. The only point urged before us on behalf of defendant 1 who is the appellant in this Court, is that the right of defendant 2 for maintenance and for residence cannot be made a charge on the entire joint estate. It is only the allotment in favour of the plaintiff which can be charged for the maintenance and residence of his mother, defendant 2.
5. At the very outset it ought to be noted that Narasingha died in October 1935 i. e. before the Hindu Women's Right to Property Act, 1937, had been passed. The provisions of that Act have no retrospective effect and they will not be attracted in the present case. This case is to be decided on the law as it stood before 1987.
6. The interest of Parul Bala which has to be safeguarded is that for maintenance and residence. The question whether the charge for the maintenance is to be on the entire estate left by her father-in-law or on that portion of the estate which devolves after the partition on her son is to be considered.
7. The right of the mother to a share on partition is founded upon the following passage in the Dayabhaga:
'When partition is made by brothers of the whole blood after the demise of the father an equal share must be given to the mother. For the text expresses 'the mother should be made an equal sharer' (Ch. II S. 3 para 29.)'
8. There is now no doubt that the mother, though not entitled to enforce a partition so long as her sons remain united, is entitled, if a partition takes place between her sons, to receive the share of a son in property which is ancestral. This is the legal position irrespective of the question whether the parties are governed by the Dayabhaga or the Mitakshara School of Hindu Law, (Chowdhury Ganesh Dutt v. Mt. Jewach, 31 I. a. 10 at p. 15 : (31 Cal. 262 P. C.) Jogendra Chunder v. Fulkumari, 27 Cal. 77 : (4 C. W. N. 254) ).
9. The share so allotted to the mother is carved out of the portion given to her sons. Only if the mother has got more than one son that any occasion can arise for a partition amongst her sons. There is no occasion for a mother, with an only son, being allotted a separate share in lieu of maintenance.
10. In the case of a partition between sons by different mothers and when more than one mother is alive the procedure to be followed is that the property is to be divided in the first instance into as many shares as there are sons and then to take the share allotted to the sons of a particular mother as one unit and to divide that unit amongst those sons and their mother, the mother getting a share equal to that of each of her sons. The shares allotted to the step-sons is not made responsible for the maintenance of a step-mother who has got her own sons. This has been the law since the days of the supreme Court (Calley Churn Mullick v. Janova Dassee 1 Ind. Jurist (NS) 284, Damoodur v. Senabutti, 8 cal. 537 at p. 542 and Kristobhabiney v. Ashutosh, 13 Cal. 39). It is not necessary for us to discuss how far this rule under the Dayabhaga school is modified under the Mitakshara school as the case now before us is one under the Bengal School. Ramesh Chandra Mitter J., has indicated the points of difference in Damoodur v. Senabutti, (8 cal, 537) referred to above.
11. On the death of the step-mother after partition the share allotted to her out of her sons allotments reverts back to her sons and not the corpus of the entire estate. In this case also a mother gets her maintenance out of the share of her sons and on partition the maintenance becomes a charge not on the entire estate out only on that portion which comes to her sons.
12. If there are several groups of sons left by a deceased Hindu by different mothers the maintenance of all the mothers, so long as the estate remains joint, is undoubtedly upon the entire estate. But as soon as there is a partition amongst the sons each mother becomes entitled to maintenance against the share allotted to her own son or sons and she can have no claim against the share of her step-sons. Hemangini Dasi v. Kedar Nath Kundu, 16 I. A. 115 at p. 128 : (16 Cal. 768 P. C.), (see also Colebrook's Digest Book V. Chap. 5, v. 89.).
13. If a man dies leaving two widows and three sons by one and one son by the other, this other widow is not entitled to any separate property upon a partition made between her only son and his three step-brothers; she must look to her son for maintenance out of the share allotted to him on partition. Sree Mottee Jeeo-mony Dossee v. Atma Ram Ghose, a decision of the Supreme Court referred to by Sir F. Macnaghten in his considerations on Hindu law p. 62.
14. A sonless step-mother is not entitled to a share on partition between step-sons (Hemangini v. Kedar Nath, 16 I. A. 115 : 16 Cal. 758 P. C.) :
'The right of a widow to maintenance is founded on relationship, and differs from debts. On the death of the husband his heirs take the whole estate, and if a mother on a partition among her sons takes as hare it is taken in lieu of maintenance. Where there are several groups of sons, the maintenance of their mother must, so long sis the estate remains joint, be a charge upon the whole estate, but when a partition is made, the law appears to be that their maintenance is distributed according to relationship, the sons of each mother being bound to maintain her. The step-sons are not under the same obligation.'
15. Under the Mitakshara School, however, no distinction is made between a mother and a step-mother (Damoodur v. Senebutti, 8 Cal.537)
16. In the present case, however, the predeceased son left an only son Biswanath. Biswanath's mother Parulbala, therefore, is not entitled to a separate share on partition of the joint family property. The question is when a partition is effected between a son and a grandson, through a pre-deceased son, whether the widow of the pre-deceased son must have her maintenance from the share belonging to her son or out of the entire estate. There is no direct authority on this point.
17. If the right of Farulbala to maintenance is to be on the basis on the relationship between Biswanath and Parulbala, that is, between a son and a mother, there can be no question that her son must be made responsible for the maintenance of his mother.
18. On behalf of Parul Bala, however, it is urged that her rights are to be considered not as the mother of Biswanath but on the basis of her claim, as the widowed daughter-in-law on the estate of her father-in-law, Narasingha. The rule of law is that on the death of a son, during the life time of his father leaving a widow, it is the moral duty of the father-in-law to maintain the widowed daughter-in-law. This moral duty of the father-in-law matures into a legal liability of his heirs when his property descends to the latter. It is for consideration whether the moral duty of the father-in-law to maintain a widowed daughter-in-law is an absolute rule independent of the question whether the legal liability to maintain her is on somebody else or not.
19. The right to claim maintenance depends upon relationship as indicated in Hemangini v. Kedarnath, 16 I. a. 115: (16 Cal. 758 P. C.). So long as a daughter remains unmarried, the liability is on her father and if at the time of his death she still remains unmarried, the liability is on her brothers or on other persons under certain circumstances. After a daughter is given in marriage and during the life time of her husband the liability for maintenance is on the latter. If the husband dies leaving sufficient property there can be no question that it is against that property that she can prefer a claim for her maintenance. Only if the husband leaves no property or, if her own resources are not sufficient for her maintenance, that the question of enforcing her claim for a maintenance against somebody else arises. It has been held that even when no property is left by the husband, or in case the property in which her husband was a coparcener at the time of his death, is sufficient for her maintenance, she has no legal claim for maintenance either against her father-in-law or against his estate in the bands of his heirs and not even against the husband's relations. (Gangabai v. Sitaram, 1 ALL 170 (F. B.), Savitribai v. Luximibai, 2 Bom. 573 (F. B.) and Baiday v. Natha, 9 Bom. 279).
20. The moral obligation of the father-in-law to maintain the daughter-in-law was recognised in Kalu v. Kashi Bai, 7 Bom. 127, Meenakshi Ammal v. Rama, Aiyar, 37 Mad. 396: (A. I. R. (1) 1914 Mad. 587). But it is no legal obligation. An heir is legally bound to provide out of the estate, which descends to him, maintenance for those persons whom the late proprietor was either legally or morally bound to maintain. (Khetramani Dasi v. Kashinath Das, 2 Beng. L. R. (A. C.) 15 at pp. 34, 38: (10 W. R. 89 F. B.), Kamini Dassee v Chandra, Pode Mondle, 17 Cal. 373). If the husband leaves sufficient property the question of the existence of any moral obligation of the father-in-law, far less of any legal liability on his heirs, cannot arise.
21. Neither any text nor any authority has been placed before us in support of the proposition that the maintenance of a daughter-in-law who has either inherited sufficient property from her husband or has got a son herself who is possessed of property is to be made a charge on the entire estate left by her father in law. The principles underlying the law of maintenance under the Dayabhaga School of Hindu Law clearly fix the liability on different persons dependent on different sets of circumstances. The responsibility of the father-in-law to maintain a widowed daughter-in-law is contingent upon the fact that his son has left no sufficient separate property for her maintenance. The liability of a son to maintain his mother cannot be got rid of or modified by introducing the rule which makes a father-in-law under certain circumstances liable for the maintenance of a daughter-in-law. The primary responsibility depends on the relationship between the mother and the son. There can be no question of certain other relations being also made liable or responsible for the same. It is not merely the presence of certain relations but it may some times be the capacity of such relations to maintain which will have to be considered.
22. When, therefore, a person dies during the life time of his father leaving a widow and a son, such widowed daughter-in-law and the grandson become entitled under the Dayabhaga School of law to maintenance from the father of the predeceased son. This is so as under the Dayabhaga School of law as the son at the time of his death had no right to any share of the ancestral property in the hands of his father. Under the Mitakshara School of law, the position may be different, as even after the death of his father the son continues to be a member of the co-parcenary and the latter is entitled, as of right, to participate in the income of the co-parcenary property and the widowed daughter, in-law is, of right, entitled to maintenance out of the co parcenary estate.
23. Under the Dayabhaga School of law, it is the duty of the father to maintain the daughter so long as she is unmarried. The duty of the husband is to maintain his wife and after his death it is the duty of the son to maintain the mother. The son cannot shirk his liability because of the fact (sic) his mother had become a widow during the life time of his grandfather.
24. The charge for maintenance for Parul Bala must, therefore, when the ancestral estate is being partitioned, be placed on the share allotted to her son Biswanath and not the entire estate left by Narasingha. The direction given in ordering portion of the judgment by the Trial Court must, therefore, be set aside.
25. The appeal is accordingly allowed in part. The judgment and decree passed by lower Court be varied to this extent only that defendant 2 Parul Bala be declared to have the right of maintenance from Biswanath and the right of residence in the family dwelling house in the portion allotted to Biswanath and to have a charge on the allotment made in favour of the plaintiff Biswanath. There will be no order for costs in this Court.
P.N. Mitra, J.
26. This case, in my opinion, is governed by the principle laid down in Hemangini v. Kedar, 16 I. A 115: (16 Cal. 758 P. C.). When Suranath died during the life-time of his father Nara Singha, the latter came under a moral obligation to maintain his widowed daughter-in-law Parulbala. On Nara Singha's death his estate devolved on his son Abani Mohan and his grandson Biswanath and the moral obligation which had rested on Nara Singha to maintain Parulbala matured into a legal liability of his heirs when his estate devolved on them. This liability could be enforced against the entire estate of Nara Singha in their hands so long as the estate remained undivided amongst them. When, however, they proceed to partition the estate amongst them, the principle laid down in the case of Hemangini v. Kedar, 16 I. A. 115: (16 Cal. 758 P. C.) comes into play. In that case the question was whether on a partition taking place between her son and stepsons of property inherited by them from her husband, a co widow's maintenance was to remain a charge on the entire estate of his husband or was to be a charge only on the portion allotted to her son, and it was held that it would be a charge only on the latter. The principle is that the two groups of sons become separate families on the partition, and each mother is a member of the family comprising her own son or sons and must thenceforth look to her own family for bar maintenance. No distinction can on principle be drawn, in my opinion, between the case of property inherited by sons by different mothers and the case of property inherited by a son and a grandson by a pre-deceased son. A pre deceased son's widow, whose maintenance became a charge on the entire estate of the father-in-law on his death and whose son stands in the shoes of his father and inherits the share which his father, it then alive, would have inherited, cannot stand in a higher position than a co-widow having a son. Parulbala, in my opinion stands in the same position as Hemangini did in the case referred to above. Just as Hemangini had on the partition to look to her son's share for her maintenance, so Parulbala on the partition must look to Biswanath's share for her maintenance. And the right of residence must stand on the same footing as the right to maintenance. For these reasons I agree with the decree proposed by my learned brother.