D. Basu, J.
1. Girindra and Nagen-dra were two brothers. Girindra's only son Mohan, predeceased him, leaving his widow -- the plaintiff-appellant Parul Bala. Girindra died issueless in 1364 B. S. (December 1958), his wife having predeceased him, leaving his nephew, defendant No. 1 and the latter's son, defendant No. 2.
2. The plaintiff came to Court with the case that defendants Nos. 1 and 2, who had managed to obtain two deeds of gifts in respect of the disputed properties on 30-1-1950 and 28-5-1957, from her father-in-law, during his life-time, are liable to maintain the plaintiff out of the disputed properties, which were the exclusive property of her father-in-law and out of which she was being maintained by her father-in-law while he was alive. She also averred that she had no separate property of her own and that she had not acquired any property from her husband or father-in-law out of which she could maintain herself. Since defendants refused to maintain her on her demand on 8-6-1958, she brought the instant suit, claiming maintenance @ Rs. 40/- per month and arrears at that rate for a year and praying for a charge upon the disputed property for her maintenance.
3. The trial Court gave a decree in favour of the plaintiff @ Rs. 20/- p. m., with a charge upon the disputed property, on the following findings:--
(i) All the property belonging to the father-in-law Girindra had been gifted away to the defendants.
(ii) Under Section 28 of the Hindu Adoptions and Maintenance Act. 1956 (hereinafter referred to as 'the Act'), the defendants, being gratuitous transferees, were bound to maintain the plaintiff out of the property of Girindra in their hands.
(iii) It was not proved that plaintiff had inherited any property from Girindra.
4. The appellate Court reversed the judgment and decree of the trial Court on the following findings:--
(1) That there was no property in the hands of Girindra out of which he was legally bound to maintain the plaintiff;
(2) That Girindra was free to alienate the disputed properties;
(3) That the plaintiff was a 'dependant' of her father-in-law under Section 21 of the Act;
(4) Section 22(1) was not applicable to the defendants who were donees and had not taken the estate of Girindra by inheritance, not being heirs of Girmdra under the law;
(5) Section 28 was applicable where the heirs of a deceased owner, who were liable to maintain a dependent out of the latter's estate, had transferred the estate and not where the owner himself had transferred his properties before his death.
(6) The appellate court was also of the opinion that the finding of the trial court that the plaintiff had not inherited any property from Girindra was not conclusive but that it was unnecessary to go into this question in view of his other finding's above-mentioned.
5. The plaintiff's suit having been dismissed by the lower appellate court this second appeal has been brought by her. Though several grounds were taken in the memorandum of appeal, the learned advocate for the appellant has, in the last resort, submitted that the success of his client depended upon the interpretation of Section 28 of the Hindu Adoptions and Maintenance Act 1956 (herein referred to as 'the Act') which, according to him, has not been properly interpreted by the court below. There is no dispute between the parties as to the applicability of the Act itself to the facts of this case.
6. Before taking up the relevant provisions of the Act, it would, in our opinion, be useful to state, in brief, the position under Hindu Law as it stood prior to the commencement of the Act, inasmuch as the Hindu Adoptions and Maintenance Act, 1956, along with its allied Acts which form 'The Hindu Code', not only introduced innovations but also codified much of the existing Hindu Law, as its long title declares.
7. The law of maintenance under the Hindu Law, prior to these statutory enactments, consisted of several broad propositions.
8. Firstly, there was a distinction between personal and proprietary liability:
(A) Where a person was personally liable, the liability was absolute, i.e., irrespective of the question whether he had any property in his hands out of which the liability could be discharged. The primary text on which this liability was based was Manu's dictum ^^ ^oq)kS p ekrk firjks* **- 'Aged parents, a virtuous wife and n infant son, must be maintained, even though doing a hundred times that which ought not to be done', (3 Dig 406). This was a legal obligation which would be enforced by the State (Savitribai v. Luxmibai, (1878) ILR 2 Bom 573 (598) (FB)).
(B) Apart from cases of such personal liability for maintenance of dependants, Hindu Law recognised other cases where the liability of a person to maintain another was dependent upon his possessing some property out of which such maintenance could be offered. Of this class let us take up the claim of a daughter-in-law against her father-in-law, with which we are concerned in this appeal.
(a) It is to be seen that a daughter-in-law does not come within the protection of Manu's dictum ^^ ^oq)kS p ekrk firjks* **- Hence, the father-in-law had no personal or absolute liability to maintain his son's wife, whether during the son's lifetime or after his death (where he predeceased the father).
(b) A father-in-law could, however, be under a proprietary liability where he had in his hands some property in which his son was interested.
9. The text on the point is the commentary of Divanna Bhatta the Smritichadrika, XI, I, 34: 'In order to maintain the widow the elder brother or any of the other above-mentioned must have taken the property of the deceased, the duty of maintaining the widow being dependent on taking the property.'
(I) In the Mitakshara school, the problem was simple because if there was any joint family property the son became a coparcener by his birth in such property and his interest passed on to his father by survivorship, upon the son's death ((1878) ILR 2 Bom 573) (FB) and the survivor was bound to maintain the widow out of such coparcenary property (Lalti v. Gunga, (1875) 7 NWPHCR 261)).
10. If, however, there was no such coparcenary property and the father-in-law only had his separate or exclusive property, the widow could not claim any legal right to be maintained out of such separate property (Amma-kannu v. Appu, (1887) ILR 11 Mad 91) nevertheless, the father-in-law was deemed to be under a moral liability to maintain his son's widow out of his own separate or self-acquired property, on the footing that she was a female member of the family and deserved to be maintained according to her wants (Narayanrao v. Ramabai, (1879) ILR 3 Bom 415 (PC); Yamunabai v. Manubai, (1899) ILR 23 Bom 608).
11. These decisions were drawn from those texts of Manu (III, 55-59) and Yajnavalka which say that female members of the family must be honoured by those who are desirous of prosperity and bliss. These texts, however, do not speak of any legal obligation in this context ((1878) ILR 2 Bom 573 (601) (FB)).
12. II. Under the Dayabhaga law, a son did not acquire any interest in the joint family property by birth. Hence, there was no chance of the son's proprietary interest vesting in his father, on the former's death.
13. Nevertheless, the foregoing principles obtaining under the Mitakshara School, have been applied under the Dayabhaga School, by analogy (Siddessury v. Janardan, (1902) ILR 29 Cal 557 (573)). Hence, on the principle that there was a legal obligation to maintain members of the family out of the family property even though such members might not have any interest in such property,--
(a) Where there was ancestral property in the hands of a father, he was legally bound to maintain the son's widow out of such property (Khetra-mani's case, (1868) 2 Beng LR 15 (34-35) (FB)).
(b) Where there was no ancestral property in his hands, the father-in-law had no legal obligation to maintain a daughter-in-law out of his self-acquired property, but, nevertheless, he was under a moral obligation to maintain all family dependants (Dayabhaga, Ch. II, Section 23), which would obviously include a son's widow ((1902) 29 Cal 557 (572)).
14. It was, however, only a moral obligation, which the daughter-in-law could not legally enforce against the father-in-law (Khetramani v. Kashinath, (1868) 2 Beng LR 15 (34-35) (FB)) obviously, because, 'a son's widow cannot have larger legal rights against her father-in-law than her husband would have had if alive, and such husband could not have compelled his father to give him any share of his (i.e. father's separate property) property' (2 Cole-brooke's Digest (Mad. Ed., 238, Rajumani v. Sibchandra, (1897) 2 Hyde 103).
(c) But though, in the preceding case, the daughter-in-law had no legal right to maintenance against her father-in-law, where he had only separate property in his hands, if the father-in-law died leaving his separate property, the moral right of the daughter-in-law pas-sed into a legal right against the father-in-law's heir, to the extent of the property inherited (Sidheswary's case, (1902) ILR 29 Cal 557-568; Rajani v. Sajani Sundaree, (1933) ILR 61 Cal 221 (225)) = (AIR 1934 PC 29 at p. 30) on the principle that the heir was bound to discharge the moral obligations of the deceased owner. Under the Hindu Shastras, an heir took the estate primarily for the spiritual benefit of the ancestor. 'The obligation of an heir to provide out of the estate which descends to him maintenance for certain persons whom the ancestor was legally or moral-ly bound to maintain, is a legal as well as moral obligation, for the estate is inherited subject to the obligation of providing such maintenance ..... the obligation is a charge upon the estate (Khetramani's case, (1868) 2 Beng LR 15 (34) (FB)).
15. Such legal obligation to maintain the dependant of a deceased owner constituted a charge upon the in-herited property (Bhoyrub v. Nobo, (1866) 5 WR 111).
(d) But since a father-in-law was not legally liable to maintain his daughter-in-law out of his separate property, he was entitled to alienate it at his will ((1887) ILR 11 Mad 91 (93); Bagwanti v. Thakurmal, AIR 1926 Lah 198; Bai Parvati v. Tarwadi, (1900) ILR 25 Bom 263). the question arose as to whether the transferee of such property of the father-in-law would be liable to maintain the daughter-in-law in the same way as an heir inheriting that property would be bound.
16. The answer must be in the negative, for, the consideration upon which an heir was bound would not be applicable to a stranger purchaser. Under the pre-statute law, a widow was not entitled to impeach even alienations made by her husband who had an absolute liability to maintain her (Ramzan v. Ram Daiya, (1918) 40 All 96) = (AIR 1918 All 408).
(e) If the transferee from a father-in-law later became an heir, he could not get rid of his liability by relying upon his antecedent title by transfer, whether for consideration or otherwise.
17. But different was the case of a stranger transferee, because in his case the tie which bound the heir with the deceased owner did not subsist. In the heir's case there was a spiritual obligation to the deceased whose property which he inherited, as pointed out in Khetramani's case, ((1868) 2 Beng LR 15 (35)), thus:--
'The maintenance of a widow being a moral obligation on the late proprietor, the son who inherits takes the estate not for his own benefit, but for the spiritual benefit of the late proprietor, and he ought to perform the obligation of maintaining the widow.'
18. This principle was not peculiar to the Mitakshara School but had ample basis in the Hindu Law of the Bengal School (Kamini v. Chandra, (1889) ILR 17 Cal. 373(377)).
19. This spiritual obligation of an heir (see also Janki v. Nand Ram, (1889) ILR 11 All. 194(208) (F. B.)) who inherits another's property is a pecu-liarly Hindu Conception and this concept attaches only to inheritance and not in the case of a transfer.
(f) Even where an estate in the hands of an heir is charged with the maintenance of a predeceased son's widow because of inheritance (as distinguished from a charge by judicial decree), it was held in Bengal (Bhagabati v. Kanailal, (1872) 8 Beng LR 225. Juggernath v. Narain Kumari, (1873) 20 W. R. 126) that such charge did not constitute a 'lien on the property ..... against all the world irrespective of notice'. Hence, a bona fide purchaser for valuable consideration of the property, without notice of the existence of the widow's right to maintenance, would not be affected by such right (Mutuswamy v. Venkateswara, (1867) 12 Moo Ind App 203 (PC)).
20. The Act also makes a twofold basis of liability to maintain personal and proprietary.
(A) Section 18(1) is an instance of personal liability, according to which a husband is liable to maintain his wife, Irrespective of his having any property. Another instance is the liability, under Section 20(1), to maintain one's children and aged or infirm parents.
(B) Section 19 which speaks of the liability of a person to maintain the widow of his predeceased son, is, on the other hand, a case of proprietary liability.
21. Even though Sub-section (1) is general in terms and might suggest a personal liability of the father-in-law, the scope of this sub-section is, in fact, limited by Sub-section (2) which says that such liability shall not be enforceable 'if the father-in-law has not the means to do so from any coparcenary property in his possession.' If the word 'coparcenary' be interpreted in the wide sense of joint property, including ancestral property, Sub-section (2) may very well apply also to cases governed by the pre-statute Dayabhaga Law, as interpreted in Khetramani's case, ((1868) 2 BLR 15 (34-35) (FB)).
22. There is, of course, a second condition in Sub-section (2) of Section 19 which arises out of the change introduced by the Hindu Code under which a widow has earned the capacity of inheriting property like any other male owner. The two conditions being cumulative, we need not bother ourselves in the instant case as to whether the second condition exists, namely. whether the plaintiff has inherited any property from her husband or father-in-law, because the case has so far proceeded on the agreed footing that there was no ancestral property in the hands of the appellants' father-in-law and that the disputed properties wore his self-acquired property. Hence, the first condition is not fulfilled.
23. Section 19 being out of the way, the next provision of the Act which we have to consider is Section 22(1). This provision codifies that principle of pre-statute Hindu Law under which the moral obligation of a person such as a father-in-law reopened into a legal obligation into the hands of the heirs of such property by reason of their inheriting the property of a person who was morally bound to maintain the widow in question.
24. The only other section is Section 28 upon which, we have stated at the outset, depends the result of this appeal. This section says--
'Where a dependant ..... right.'
This section substantially reproduces the provision in Section 39 of the Transfer of Property Act and may, therefore, be appreciated with reference to that section as interpreted by the Courts, remembering that Section 28 of the Act before us uses the word 'dependant' In place of the expression 'a third person'. This section lays down the conditions under which the transferee of a property may be liable to maintain a third person out of such property. But for the statute, he would not have had any such obligation unless the maintenance had been charged on the property by a judicial order or otherwise (Sorolah v. Bhu-bun (1888) ILR 15 Cal 292 (307); Kuloda v. Jageshwar, (1900) ILR 27 Cal 194), These conditions are--
(a) The claimant for maintenance must be a 'dependant' as denned in Section 21 of the Act;
(b) She must have the right to receive maintenance out of the disputed property;
(c) The transfer must be gratuitous,
(d) Even if the transfer was for consideration the transferee would be liable if he had notice of the right of the claimant to receive maintenance out of that property.
25. There is no controversy upon the first condition because of Section 21(vii). The respondents are also gratuitous transferees. But the trouble arises as to the applicability of the second condition and. in our opinion, the conten-tion of Mr. Ghosh, for the respondents, must succeed. The expression 'right to receive maintenance out of an estate1 has not been defined in the Act, but its meaning has to be ascertained from a reading of Section 21(1) which speaks of the liability of an heir 'to maintain the dependants of the deceased out of the estate inherited by them from the deceased.'
26. We have seen that under the pre-statute Hindu Law, even where the father-in-law had no legal obligation to maintain his widowed daughter-in-law because he had no joint property in his hands, he had a moral obligation which ripened into a legal obligation in the hands of his heir because a person who had inherited another man's property was legally bound to discharge the latter's moral obligations according to the Shastras as interpreted by the Courts (Rajani v. Sajani, (1933) 38 Cal WN 262 (264)) = (AIR 1934 PC 29 at p. 30). It is this legal obligation of the heir which has been codified in Section 22(1), as we have already said. Supposing now, such heir, in order to escape his liability to maintain another out of the property, alienates such property. Should such alienee be bound by the transferor's obligation to maintain? The answer to that question is given in Section 28 in the affirmative, provided the conditions specified therein are satis-fied.
27. But this section does not and cannot apply where his separate property was transferred by the father-in-law himself, because not being bound by any legal obligation he was free to alienate his property and confer absolute title to the transferee free from any obligation to maintain. The law on this point under the Act is not different from what it was before the Act. The liability of an heir could not, thus, be imposed on a transferee from the father-in-law himself, as in the instant case, and the words 'such estate ..... is transferred' must be interpreted to refer to a transfer by the deceased owner himself. Such a widow had, under the pre-statute law, no right against a transferee from her husband himself (ILR 40 All 96) = (AIR 191E All 408). Obviously, her position could not be better against an alienee from her father-in-law. There is nothing in the Act to suggest that the position of the son's widow has improved in this respect under the Act.
28. There was, of course, some controversy under the pre-statute law as to the position of a donee or legatee from the deceased owner where the donee or legatee was otherwise an heir to such owner (vide Jot Ram v. Mt. Lavji, AIR 1929 All 751. Fool Coomari v. Debondra, AIR 1942 Cal 474. Gopal v. Kadambini, AIR 1924 Cal 364). But no such question arises in the instant case inasmuch as the plaintiff herself ex-cludes the defendant respondents from being heirs of the plaintiff's father-in-law, according to Section 8 of the Hindu Succession Act.
29. In the result, this appeal fails and is dismissed. But we make no order as to costs. We must, in time express our approbation of the well-considered judgment of the court of appeal below.
M.M. Dutt, J.
30. I agree.