Ameer Ali, J.
1. This suit turns upon a point of law. The facts may be very shortly stated. Kundanlal Seal (F)=Baj Lakhi (W), four sons, Jadu (S), second son Jyoti (S) died 1923=Ful Kumari (S.W.), third son Deben (S) fourth son Noren (S), Kundanlal died on 1st April 1939, leaving a will dated 1st December 1929. Under this will there is a provision for W (the widow), there is no provision for S.W. (son's widow) and the property goes, according to Hindu law, to the sons (S.S.S.), the heirs. The family is governed by the Bengal School of Hindu law, and the estate of Kundanlal was self-acquired.
2. The question of law is whether S.W. is entitled to claim maintenance by S.S.S., when S.S.S. take under a will and not by inheritance. There is no conflict of law where heirs take by inheritance. The leading case in Calcutta is Siddesury v. Janardan ('01) 5 C.W.N. 549, affirmed in Siddesury v. Janardan ('02) 29 Cal. 557. The theory of the matter has been expounded in detail in the judgment of Mahmood J. in Janki v. Nand Ram ('89) 11 All. 194, see especially pp. 202, 205, 208, 211, 217 and 218. The passage at p. 218 is adopted from Dr. Gurudas Bannerji's book. As regards devisees and donees there is a conflict of authority. I give the cases in tabular form:
For. | Against.
Rangammal v. Echammal ('99) 22 Mad. 305 at p. 307, | Bai Parvati v. Tarwadi Dolatram ('014) 25 Bom. 263 a case of
the judgment of Subramaniya Iyer, certainly obiter | will. I do not remember for the moment whether the devises
and qualified by 'perhaps' Gopal Chandra v. Kadambibi| was the heir or not.
Dasi : AIR1924Cal364 , the judgment of | Bhagirathi Bai v. Dwarka Bai ('33) 20 A.I.R. 1933 Bom. 135
the appellate side delivered by Ashutosh Mukherjee, | gift to the heir, and,
J. Jeot Ram v. Mt. Lanji ('29) 16 A.I.R. 1929 All. | Sankaramurti v. Subbamma ('38) 25 A.I.R. 1938 Mad. 914,
751. The two latter caes were of gifts by the father | devisee or donee, I think in the circumstances the heir,
to his heir. | although this matter was not discussed.
3. It is on the cases in the second column that both Mr. Chaudhuri and Mr. B. C. Ghose rely. So far as I am concerned, it would be sufficient for me to follow the decision of Sir Ashutosh Mookherjee in 1924. The matter was more fully argued before him than appears in the one report. It was a case of gift. Mr. Chaudhuri sought to make a distinction between 'gift' and 'will' but if any such distinction exists, in my opinion it would be unfavourable rather than favourable to his contention. For the purposes of this judgment 'will'' and 'gift' have been treated upon the same footing, one being a transfer during life and the other being a transfer taking place at the date of death. Sir Ashutosh Mookherjee's decision is unqualified. It does not indicate any distinction between the obligations of a donee-heir and a donee-stranger. The case before me, as already indicated, is that of a donee-heir. There seem to be three positions, (1) heirship, intestate succession (no doubt as to the law), (2) donee or devisee, sub-divided into (a) heirs and (b) strangers. In order to see whether the legal liability which exists in case (1) attaches to (2)(a) and/or 2 (b), we have to examine the origin and nature of that liability. To this extent I agree with the arguments of Mr. Chaudhuri and Mr. B.C. Ghose. They contend on behalf of the sons that the liability is something peculiar to heirs; that it depends upon a certain ingredient in intestate succession, the ingredient of 'spiritual benefit' or pinda. They contend that this element, (P. for short), where there exists absolute freedom to dispose of property, is eliminated by gift or will. The following passage in the notes to Section 89, T.P. Act, by Sir Hari Singh Gour supports this view:
Property acquired by a valid testamentary disposition is not governed by the rules of the Hindu law of inheritance, and when the power of making such disposition is unrestricted, it is difficult to conceive any consistent grounds on which the devisee could be held bound by an obligation from which the testator had power to relieve him.
4. What is the origin, and nature of the liability of heirs? I concede that the matter, for a non-Hindu, is difficult. I do not admit that it is 'startling,' Sankaramurti v. Subbamma ('38) 25 A.I.R. 1938 Mad. 914. It is said in the cases that there is a 'moral' liability on (F) and that this moral liability 'ripens' or 'matures' into a legal liability of S when he succeeds as heir. First of all I take it that 'moral liability' means merely a liability recognized and enforced by religion or society, but not enforcible by the Courts.
5. The point for enquiry is : how does the 'moral' liability of (F) 'ripen' into a 'legal' liability of S.S.S.? For my part, I would avoid the phrase 'ripens.' The process suggested is one of gradual and natural change. I prefer 'transformed' (Gurudas Bannerjee): Janki v. Nand Ram ('89) 11 All. 194 at p. 218. The question is, what transforms it, or is it really a liability of (F), transformed; or is it a liability of S.S.S., newly arisen? The phrasing of the cases seems to suggest a moral liability of (F), a moral liability of S.S.S., and then by a process either of addition, combination or reproduction the emergence of a legal liability. For me, this is either too mathematical, too chemical or too biological. I have exercised my mind such as it is, to try and discover the answer to this question, why, if there is only a moral liability on (F), should there be a legal liability on S.S.S.? I confess the cases do not seem to help. As I understand the matter, if at all, the reason for any obligation at all being put upon the heirs, is as follows : It is the duty of Hindu heirs to provide for the bodily, and mental or spiritual needs of their immediate, and nearer ancestors; to relieve them from bodily and mental discomfort, to protect their souls from the consequences of sin, e.g., the leaving of outstanding debts, and the leaving of dependants unprovided for, to protect them from the importunities of those who have been injured by neglect.
6. The question still remains, why should it be a moral duty on the father, and a legal duty on the son, that is to say, a duty enforcible in the Courts 1 First of all, I take it that under the indigenous Hindu system, the pure Hindu system, of which I hear so much from Dr. Roy, there would be no rigid distinction between moral duty and legal duty, as there is in modern society. Bearing this in mind the explanation that occurs to me is as follows : The father (F) can perform the duty. As long as he lives there is the expectation that he will. He can perform it to the very moment of his death. It is assumed that he will. If he dies without performing it, he has committed a sin ; he has left something undone which he should have done. Once he dies, the thing has happened it cannot be remedied by him. Is it for this reason that the Court is ready to compel those to relieve the father from the consequences of sin whose status as heirs fits them, and whose possession of the property enables them, to do so? Does not the Court say to the son, the sapinda, whoever he be, here is your duty under the Hindu system, here is the means of performing it, which you have got from your father ; now go and put it right? That is the only explanation that appeals to me of this change from moral to legal duty, or as I would rather put it, the accrual of a legal duty, after the moral duty has failed to be performed.
7. If that view is at all near the mark, I can 'conceive of grounds' upon which a will or gift to the heirs should not be deemed to eliminate (P) the 'spiritual element'; of reasons for holding that a son or heir because he gets under a will or gift, is not relieved from the duty of relieving his father from the consequences of failing to perform his (the father's) moral duties. I see, therefore, no reason to differ from the decision of Sir Ashutosh Mookerjee, taking it as a decision that a gift or devise to an heir, does not prevent the legal liability from arising in the same manner as it arises in the case of intestate succession. I need go no further than that.
8. There remains the question of gift or devise to strangers. Mr. Ghose and Mr. Chowdhury both contended that the two positions must be dealt with upon the same footing. As indicated, I am not so sure. The matter of strangers is, however, much more difficult. This is what impressed the learned Judges in deciding the last Madras case. I also do concede that if strangers are to be affected the liability must be visualised as something which attaches to the property rather than to the person or capacity of the devisee or donee--something in the nature of charge or implied trust affecting transferees. The analogy of a Hindu widow at once occurs to one, and the question arises whether the moral right of the Hindu daughter-in-law should upon the death of the father be deemed to be of the same or of analogous quality to that of a Hindu widow at the same moment. In such case the principle, if not the actual provisions of Section 39, T.P. Act, would apply. It does seem to me that some such view was in the mind of Sir Ashutosh Mookherjee when deciding the case in Gopal Chandra v. Kadambini Dasi : AIR1924Cal364 . It is further to be noted that Sir Dinshaw Mulla treats these obligations for maintenance as 'liabilities' dependant upon possession of property. It does not therefore seem to me so 'startling,' or, I forget the actual word used by Mr. Ghose, so preposterous to conceive of a state of law whereby volunteers or persons taking with notice should be affected by the claim to maintenance of a Hindu daughter-in-law. On this question I am not called upon to express any final view. It is a matter which no doubt will receive the attention of those who are now in the process of codifying this branch of the Hindu law.
9. My ruling is to the effect that the legal liability upon a Hindu heir for the maintenance of the daughter-in-law in a family governed by the Daya-bhaga School exists whether the heir takes upon intestacy or by will or by gift. I decide the issue in favour of the plaintiff with costs. I suggest that the matter of the quantum of maintenance should stand over with liberty to bring it on two days notice by letter. I certify that the case is fit for the employment of two counsel.