Bitola Kunwari vs Girand Singh and Another

Deoki Nandan, J.—This is a widow''s second appeal in a suit for maintenance against her deceased husband''s brothers that has been dismissed by both the courts below.

There is no dispute about the facts. One Subedar Singh had three sons, Girand Singh, Bharat Singh and Vikram Singh. The plaintiff is Vikram Singh''s widow. Her husband died in the month of Jeth of Sambat 2010 some 15 months after her marriage leaving him surviving Subedar Singh, Girand Singh and Bharat Singh. It is not clear whether Vikram Singh left any property. At any rate it is not alleged that the plaintiff inherited any property from Vikram Singh. - She was maintained by her father-in-law Subedar Singh after her husband''s death. Unfortunately the father-in-law also died, according to the plaint allegation, in February, 1958, and Girand Singh and Bharat Singh equally divided the land between themselves and did not give anything for the plaintiff''s maintenance after the Rabi crop of 1959. The suit was filed in forma pauperis on 14th March, 1970 claiming Rupees 60/- per month as maintenance. The trial court dismissed the suit on the ground that the plaintiff was being maintained by her father. The lower appellate court maintained the dismissal of the suit but on the ground that her father-in-law did not have any coparcenary property when her husband died.

Mr. O.P. Misra, learned Counsel for the appellant urged that the plan-tiff appellant had not claimed maintenance from her father-in-low but had claimed it after his death from her husband''s brothers. The question whether the father-in-law had any means to provide maintenance from any coparcenary properly, which is a condition prescribed by Sub-section (2) of Section 19 of the Hindu Adoptions and Maintenance Act, 1956, did not, therefore, arise. According to the learned Counsel the plaintiff was a dependant of her father-in-law within the meaning of Clause (vii) of Section 21 and on his death she was entitled to maintenance from his heirs out of the property inherited from him u/s 22 of the said Act and her right to maintenance under the said provision was not subject to any inability to obtain maintenance from her father or his estate.

Having heard learned Counsel for the parties, I find considerable force in the contentions raised by Mr. O.P. Misra.

Section 18 provides for maintenance of a wife, by her husband. Section 19 provides for maintenance of the widowed daughter-in-law in the following terms:

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 other 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 his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law. Section 21 defines dependants, and the relevant Clause (vii) runs as follows:--

Dependants defined-- For the purposes, of this Chapter "dependants" means the following relatives of the deceased

(vii) any widow of his son or of a son of his predeceased son, so long as she does not remarry; provided and to the extent that she is unable to obtain maintenance from her husband''s estate or from her son or daughter, if any, or his or her estate; or in the case of a grandson''s widow, also from her father-in-law''s estate.

Section 22 provides as follows:

22 Maintenance of dependants (1) 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.

(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 entitled, subject; to the provisions of this Act, to maintenance from those who take the estate.

(3) The liability of each of the persons who take 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, becomes less than what would be awarded to him or her by way of maintenance under this Act.

The obligation u/s 19 is enforceable against the father-in-law after the death of a woman''s husband. Since the suit was filed after the death of her father-in-law, and not is his lifetime against him, but against his sons, Section 19 did not come into play at all, and the question whether the plaintiff''s father-in-law had any coparcenary property in his possession and whether he had the means to maintain the plaintiff therefrom did not arise. The dismissal of the plaintiff''s suit by the lower appellate court on that basis was, therefore, erroneous.

It was, however, urged by the learned Counsel for the defendant-respondents that the plaintiff herself was an heir to her father-in-law when he died in January/February, 1958 under the second proviso to Clause (a) of Section 171 of the U.P. Zamindari Abolition and Land Reforms Act. The argument seems to be based in a misconception inasmuch as the second proviso to Clause (a) of Section 171 of the U.P. Zamindari Abolition and Land Reforms Act was introduced by substitution of Section 171, by Section 40 of U.P. Act No. 37 of 1958 which came into force on 7th November, 1958. The plaintiff was thus not an heirs to her father-in-law when he died in January or February, 1958.

Under Clause (vii) of Section 21 the widow of a person''s son is dependant, so long as she did not remarry, to the extent that she is unable to obtain maintenance from her husband''s estate, or from her son or daughter, if any, or his or her estate. It has not been provided that she should also be one unable to obtain maintenance from her father or her father''s estate. The plaintiff was accordingly a dependant of her father-in-law. u/s 22 the heirs of the plaintiff''s father-in-law were bound to maintain her out of the estate inherited by them from him. It is undisputed that they did inherit agricultural land from him. They were thus bound to maintain the plaintiff. As to the amount of maintenance the amount claimed being Rs. 60/- per month only, a detailed enquiry into the quantum of maintenance seems to be unnecessary because the amount is hardly sufficient to even keep the body and soul of a human together in India today. It has not been suggested that the defendants are not in a position to pay that amount.

I accordingly allow the appeal and set aside the decree under appeal. The plaintiff''s suit is decreed for recovery of Rs. 60/- per month as maintenance from the date of the suit so long as she is alive and does not remarry. The amount of maintenance shall be a charge on the agricultural land inherited by the defendants from their father Subedar Singh, particulars of which are given at the foot of the plaint. The plaintiff shall be entitled to her costs throughout from the defendant-respondents, A copy of the decree shall be sent to the Collector concerned, for recovery of the court-fees payable in the trial court, if any.