Adiraju Venkata Lakshmamma vs Adiraju Suryanarayanamurthy

Jeevan Reddy

A question of some importance which arises for decision in this appeal can a widow claim maintenance from the persons in possession of her father-in-law''s self-acquired estate bequeathed to them under a will? The question arises this way; the suit was laid by the plaintiff (appellant) for partition or, in the alternative, for maintenance, on the allegation that the defendant, her husband''s brother is in possession of joint family property. The defendant denied the allegation. According to him, the plaintiff''s husband, who pre-deceased his father, had during his own lifetime demanded partition from his father, but which claim was immediately denied by the latter. The father had asserted that there was no joint family property or co-parcenary properly to be divided between him and the plaintiff''s husband and that, the property alleged to be joint family property is his self-acquired and separate property inspire of this, specific denial the plaintiff''s husband took no steps whatsoever for a period of more than twelve years to establish or enforce his right in the property. The defendant further contended that the suit property which was the self-acquired property of his father, has been bequeathed to him under a will. For the said reason, he contended, that the plaintiff has no right either to demand a partition or to claim maintenance. On a consideration of the oral and documentary evidence placed before him the learned II Additional Subordinate Judge, Vijayawada, held that the property was the self-acquired property of the defendant''s father in which the plaintiff''s husband had no right, share, or interest and that, the said property has been bequeathed under a will to the defendant. He also found the suit for partition to be barred by limitation. He negatived the plaintiff''s claim for maintenance on the ground that, in the circumstances, the defendant is under no legal obligation to provide maintenance to the plaintiff. Hence this appeal.

No material has been brought to my notice to depart from the findings of fact arrived it by the trial Court. I will, therefore, proceed on the footing that the suit property was the self-acquired property of the defendant''s father, which he has bequeathed under a will, to the defendant. Still the question arises, whether the plaintiff is not entitled to claim maintenance against the defendant? Since a preliminary examination of the relevant provision of the Hindu Adoptions and Maintenance Act, 1956 presented some difficulty, I requested Sri J.V. Suryanarayana Rao to assist the Court as amicus curiae, which he has done with his usual ability. I am grateful to him for the assistance.

The Hindu Adoptions and Maintenance Act, 1956 was enacted to amend and codify the law relating to adoptions and maintenance among Hindus. It came into force on 21st December, 1956. Chapter III deals with maintenance. Section 18 deals with the right of the wife to be maintained by her husband. It is not necessary for the present purpose to examine the same. Section 19, however, is relevant. It deals with the right of a widowed daughter-in-law to be maintained by her father-in-law. Section 19 reads as follows:--

Maintenance of widowed daughter-in-law.

1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law.

Provided and to the extent that she is unable to maintain herself out of her own earnings or their property or, where she has no property of her own, is unable to obtain maintenance.

a) from the estate of her husband or her father or mother, or

b) from her son or daughter, if any, or his or her estate.

2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in this possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law.

A perusal of the above Section would immediately show that while sub-section (1) emphatically creates an obligation up on the father-in-law to maintain his widowed daughter-in-law to the extent is unable to maintain herself otherwise, sub-section (2) qualifies that obligation. By virtue of sub-section (2), the daughter-in-law can enforce her right to maintenance against her father-in-law only in case where the father-in-law is in possession of coparcenary property out of which the daughter-in-law has not obtained any share. It is obvious that if the father-in-law is in possession of any coparcenary property in which the daughter in-law has not obtained a share, she would be entitled to sue for partition and separation of her share. But, it is equally open to her not to sue for partition and to sue only for maintenance. What is the nature of this obligation of the father-in-law, I will discuss later.

Section 20 provides for the maintenance of children and aged parents of a Hindu. Section 20 reads as follows:--

Maintenance of children and aged parents:

1) Subject to the provisions of this section, a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged infirm parents.

2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

Explanation:-- In this Section "parent" includes a childless stepmother.

It may be noticed that the obligation to maintain the aged or infirm parents is not qualified in any manner. Section 21 defines "dependants". It is not necessary to set out the entire Section, it is sufficient to notice that a widow ed daughter-in-law is a "dependant", as also the father.

Section 22 is of crucial importance in this case, and may be set out:

Maintenance of dependants:

1) Subject to the provision of sub-section 2, the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased.

2) Where a dependant has not obtained, by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be emitted, subject to the provisions of this Act, to maintenance from those who take the estate.

3) The liability of each of the persons who takes the estate shall be in proportion to the value of the share or part of the estate taken by him or her,

4) Notwithstanding anything contained in sub-section 2 or sub-section 3, no person who is himself or herself a dependant shall be liable to contribute to the maintenance of others, if he or she has obtained a share or part, the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act.

Sub-section (1) declares that subject to the provisions of sub-section (2), the heirs of a deceased Hindu are bound to maintain the dependants of the deceased, out of the estate inherited by them from the deceased. Sub-section (2) provides that a dependant who does not obtain any share in the estate of Hindu, either under a will or by succession, shall be entitled to maintaince from those who take the estate. Sub-section (3) and (4) are not relevant for our purposes.

Another provision which requires to be noticed, is Section 28 which reads;--

Effect of transfer of property on right to maintenance.

Where a dependant has a right to receive maintenance out of an estate and such estate or any part there of is transferred the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is graruitious; but not again the transferee for consideration and without notice of the right.

An apparent incongrurity would strike any one examining the above provisions. While the widowed daughter-in-law cannot enforce her right to maintenance against her father-in-law who is not in possession of my coparcenary property out of which she has obtained a share that is to say, who is in possession of only his self-acquired or separate property, she would be entitled to enforce the same against the heirs of father in-law even though the entire property inherited by them was the self acquired, or separate property, of the father-in-law. That this incogruity is not a new phenomena would be evident from an examination of the law on this subject, obtaining proper to the Act, Indeed such an examination is essential for a proper understanding of the provisions of the Act, for, the Act is meant for and made avidly with the purpose of, both codifying an amending the existing Rules of Hindu Law relating to adoptions and maintenance.

In Ammu Bai Ammal vs. Soni Bai Ammal 1940 II, MLJ 208 (F.B.) it was held by a Full Bench of the Madras High Court that while the ancient texts of Hindu Law do not place upon a father a legal obligation to maintained his married daughter, they do indicate that he is under a moral obligation to support her it she is in want. It was merely a moral obligation, not enforceable in a Court. But, where the estate of a person passes to his heirs, the moral obligation, it was held, ripens into a legal obligation. They followed a Full Bench decision of the Allahabad High Court in Janki vs. Nand Ram 1888 ILR 11, Alla. 194 (F.B.) where it was held that a rather was under a moral, though not a legal, obligation to maintain his widowed daughter-in-law during his life time and to make provision out of his self-acquired property for her maintenance after his death and that, the moral obligation become by reason of his self-acquired property having come by inheritance into the hands of his surviving son a legal obligation, enforceable by suit against the son and against the property which he had inherited. The basis of the rule was stated to be: "the son took the estate, not for his own benefit, but for the spiritual benefit of his father." It was pointed out that the principle enunciated by the Allahabad High Court has been accepted by other High Courts, as well as by the Privy Council in Rajanikanta Pal vs. Sajant Sundaree Dasee 61, I A 29. The Full Bench observed:

......The doctrine that a moral obligation becomes a legal obligation when the estate of a person on whom the moral obligation may comes into the possession of his heirs, may be open to criticism, but it is too late in the day to indulge in it.

The Full Bench then referred to certain passages in the Commentaries on Hindu Law by Strange and Mecnagthan, where it was pointed out that the mother and the sister of a deceased Hindu are entitled to maintainance out of his estate. The Full Bench expressed its disagreement with certain decisions of the Bombay High court, including Bai Mangal vs. Rukhmini 1898 ILR 23, Bom 291 where a contrary view was taken, and then quoted the following passage from Mulla on Hindu Law, with approval:--

An heir is legally bound to provide, out of the estate which desdends to him, maintenance for those persons whom the late proprietor was legally or morally bound to maintain. The reason is that the estate is inherited subject to the obligation to provide for such maintenance.

It must be noticed that though the Madras case dealt with the right to maintenance of a daughter, the learned Judges expressly equated the daughter with a widowed daughter-in-law. In fact, if anything, a widowed daughter-in-law is in a better position, because while the daughter passes into another family on her marriage, the widowed daughter-in-law is a member of the family.

The next decision is Appavu Udayan vs. Nallammal (1948) I. M.L.J., 110 (Division Bench) where it was reiterated that a widowed daughter-in-law has a moral, but not a legal, right to maintenance from her father-in-law of his self acquired property and that on the death of the father-in-law if his self-acquired property descends by inheritance to his heirs, the moral liability of the father-in-law ripens into a legal liability of his heirs, enforceable against them to the extent of their inheritance. It was also observed that father-in-law''s moral obligation to maintain his widowed daughter-in-law arises out of the affinity between them and is not dependent upon the existence of any coparcenary or joint family property in the hands of the father-in-law, nor is it affected by the fact that the son had become divided from his father during his life time Gentle, C.J. in his opinion, referred to two principles of Hindu Law, each of which, according to him, is well established by authority, viz., (i) a widowed daughter-in-law has a moral but not a legal right to maintenance from her father-in-law, out of his self-acquired property; (ii) on the death of the father-in-law, if his self-acquired property descends by inheritance to his heirs, the moral liability of the father-in-law ripens into a legal liability of his heirs, enforceable against them by the daughter-in-law to the extent of their inheritence''. The only question, that fell for consideration before the Bench was, whether the father-in-law under such a moral obligation, and whether the said moral obligation ripened into a legal obligation against his heirs, where there has been a disruption by partition in the family of which the father-in-law and the deceased husband of the daughter-in-law were members, or whether the said two obligations are confined only as between the members of a Hindu undivided family. Both Gentle, C.J., and Rajamannar, J., in their separate opinions, clearly affirmed that the said obligations arises irrespective of the partition and disruption of the joint family of which the father-in-law and the deceased husband of the daughter-in-law were members. It was observed by Gentle, CJ:--

Apparently, the liability is recognised because of the relationship between the father-in-law and his daughter in-law...

and that ''so far at the heirs are concerned, their liability arises out of their personal position as heirs, as such, and not by virtue of a membership of a joint Hindu family''.

The next decision to be noticed is Vadrevu Sankaramurthi and Another Vs. Vadrevu Subbamma, again a Bench decision. In this case, the father-in-law bad bequeathed his self-acquired property by a will. The question arose whether even in such a case, the legatees of the father-in-law, are under a legal obligation to maintain the widowed daughter-in-law. It was observed that the obligation of the father-in-law, where be is in possession of only self-acquired property, is only a moral one, not enforceable in a Court of law and that, there is nothing preventing him from transferring that property. The transferee in such a case would not be liable to provide maintenance to the widowed daughter-in-law. In other words, Section 39 of the Transfer of Property Act would not be applicable in such a case. The Bench then noticed the decision of the Allahabad High Court in Janki vs. Nand Ram ILR 11 Allahabad, 194 which was followed by several High Courts--but held that the principle of the said decision cannot be applied to a case where the property is bequeathed by a will. It was observed that a legatee stands in a different position than an heir. A legatee or donee may be a stranger, a Mohammedan, a Christian, or anybody. After referring to certain Bombay decisions, it was held that there is a clear distinction between the acquisition of the father''s property by inheritance, and by other means, such as a will.

It is relevant to notice that the decision in Sankaramurthy vs. Subbammal was brought to the notice of the Bench in Appavu Udayan vs. Jallammal 1948 I, MLJ. 110 but the latter Bench refused to discuss or comment upon the principle of the said decision, on the ground that was a case dealing with the liability of a legatee, and not of an heir acquiring property by inheritance.

The above three cases, in my opinion, amply enunciate the law on the subject obtaining prior to the Act, viz., (i) that a father-in-law, though in possession of only self-acquired or separate property, is under a moral obligation to maintain his widowed daughter-in-law if she is indigent or is in want. The said obligation, however, being only moral, is not enforceable in a Court of Law. (ii) But, if the father-in-law''s property descends by inheritance upon his heirs, the said moral obligation ripens into a legal obligation, and is enforceable in a Court of Law to the extent of the inheritance in the hands of the heirs (iii) But where the self-acquired property of the father-in-law devolves upon a person or persons, as the case may be, not by inheritance succession, but under a will, the legatee is under no such legal obligation; (for the purpose of the present discussion I will assume that the decision in Senkaramurthy''s case AIR 1938 Madras, 914 lays down the correct law). In the above context, if we look to the provisions of the Act, it would be clear that Section 19 and sub-section (1) of Section 22 merely reiterate the pre existing position under (i) and (ii), the only question is whether the Act has made any difference in so far as the liability of a legatee is concerned: and that question has to be answered on a construction of sub-sections (1) and (2) of Section 22.

Mr. T. Veerabhadrayya the learned counsel for the respondents, contends that sub-sections (1) and (2) of Section 22 do not provide for a departure from the pre existing law and that, a legatee is free of any liability to maintain the dependants of the father-in-law (testator), while Mr. J.V. Suryanarayana Rao''s contention is that by virtue of the wide language contained in Section 22 (2) even a legatee is liable, even though he may not have been so liable prior to the Act.

Now, the language of sub-section (2) is emphatic. It says that a dependent shall be entitled to maintenance from "those who take the estate" of the deceased. There is no reason why the words "who take the estate" should not be given their full and natural meaning, to include all persons who take the estate of the deceased in whatever manner, or by whatever mode it may be. This would naturally a legatee or a donee. It is clear that the Act wanted to make this advance upon the existing law. I am, therefore, of the opinion that even a legatee is bound to maintain the dependant of the deceased, provided that the defendant of the deceased, has not obtained any share in the estate of the deceased either under a testament or by interstate succession. There is a further proviso to the above right, which is implicit in the words "subject to the provisions of this Act" occurring in sub-section (2) which means that if the dependant is able to maintain herself otherwise, this liability would not arise. To put it definitely, the liability would be there in so far as she is unable to maintain herself, from any other income or source.

Mr. T. Veerabhadrayya contends that because sub-section (1) opens with the words "subject to the provisions of sub-section (2)" the words "from those who take the estate" in sub-section (2) should also be confined to the heirs referred to in sub-section (1). I am unable to agree with this reasoning. Because sub-section (1) opens with the aforesaid words, I see no reason to place a restricted meaning upon the words occurring in sub-section (2). The object of the aforesaid opening words in sub-section (1) is clear, viz., the obligation of a heir exists only where the dependent has not obtained, either under a testament or by inter state succession, any share in the estate of a Hindu dying after the commencement of the Act. Again, this liability is subject to the other provisions of the Act, viz., the requirement that the dependant is not able to maintain herself from any other income or source.

Mr. Veerabhadrayya places reliance upon a Bench decision of the Calcutta High Court, reported in Parul Bala Dassi Vs. Bangshidhar Nandi and Another, . It was held in this decision that white moral obligation of the father-in-law to maintain his widowed daughter-in-law ripens into a legal obligation in the hands of the heirs of the father-in-law, no such obligation attaches to a transferee from the father-in-law, if the transfer does not attract the provisions contained in Section 28 of the Act. The reasoning given is that the father-in-law, not being bound by any legal obligation, was and is free to alienate his property and confer absolute title upon the transferee free from any such obligation to maintain. It was held that the liability which attaches to an heir cannot attach to a transferee. It was further held that the Act did not contemplate to make any departure from the pre-existing position, where under a transferee from the father-in-law was free from any such liability. I have been taken through the entire report of the decision and I find that unfortunately, sub-section (2) of Section 22 was not at all brought to the notice of, or considered by the Bench. They only referred to sub section (1) of Section 22 and failed to consider sub-section (2) altogether I am sure that, had sub-section (2) of Section 22 been brought to the notice of and considered by the Bench, it would have come to a different conclusion. In any event, since the said decision does not refer to, or consider sub-section (2) of Section 22, I am unable to agree with its conclusion. In my opinion, if the liability is confined only to the heirs, sub-section (2) would become superfluous at any rate, partly; and it is a well established rule of interpretation that an interpretation which renders a provision of the Act redundant or superfluous, shall not be adopted. In my view, sub-section (2) has a definite purpose distinct from sub-section (1) Sub section (1) refers to the obligation of the heirs inheriting the estate of the deceased, while sub-section (2) creates a similar obligation on all those persons who take the estate of the deceased, in whatever manner it may be.

Then the question would arise : What is the purpose of Section 28. Section 28 has equally a positive content, since it deals with the obligation of a transferee under a transfer inter vivos. Sub-sections (1) and (2) of Section 22 are concerned with a situation obtaining on the death of the deceased, and do not cover a case of a transfer inter vivos which, as stated already, is provided by section 28.

A Bench decision of the Punjab High Court in Gulzar Singh vs. Smt. Tej Kaur A. I. R. 1961 Punjab, 288 has been brought to my notice, where the question specifically arose whether a legatee obtaining the estate of the deceased under will, is under an obligation to maintain the dependant of the deceased. The Punjab High Court answered that question in the affirmative, holding that even a person obtaining the estate of the deceased under a will is also an heir in a larger sense and, therefore, liable.

Mr. Veerabhadrayya criticises the reasoning of this decision as too strained and unacceptable. He points out that sub-section (1) uses not only the word "heir", but also the wored "inherited by" which words are not duly considered in the decision; that, a legatee may be a Mohammaden, a Christian, or institution or an organisation, that it would be rather farfetched to call all such persons as heirs of the deceased inheriting his estate. It is not, however, necessary for me to express any opinion upon the correctness of this decision. Suffice it to note that the conclusion arrived at by it accords with the conclusion at by me, though by a different process of reasoning.

Now coming to the facts of the present case, while it is true that the plaintiff (appellant) is entitled to maintenance from the defendant under sub-section (2) of Section 22, it is evident from the record that her husband had sealed an extent of 2 acres of land on her. The income from the said land has to be taken into consideration while determining the quantum of maintenance payable by the defendant. But, as noted by the trial Court, there is no clear evidence about the income from the said extent. This requires a remand to the Court below, for ascertaining the above fact. The appeal is, accordingly, allowed and it is declared that the plaintiff (appellant) is entitled to maintenance from the defendant under and by virtue of sub-section (2) of Section 22 of the Hindu Adoptions and Maintenance Act, 1956. The matter is, however, remitted to the Court below for ascertaining the income from the land which has been settled upon the plaintiff by her husband, and for determining the amount of maintenance payable to the plaintiff, having regard to the said income and in accordance with the provisions of the Act. There shall be no order as to costs, in this appeal. The court fee paid upon the Memorandum of Appeal shall be refunded to the plaintiff (appellant).