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Judgment
Anantakrishna Aiyar, J.—The lands described in the plaint belonged to the last male holder Lakshmayya, who died about 20 years prior to
the suit, leaving his widow the second defendant, and a daughter Subbamma, the mother of the plaintiff and the third defendant. On Lakshmayya''s
death, the 2nd defendant inherited the property. The daughter of the 2nd defendant (the mother of the plaintiff and the 3rd defendant) died a year
after Lakshmayya''s death. The plaintiff and the 3rd defendant as the daughter''s sons of the late Lakshmayya are the nearest reversioners to the
estate of Lakshmayya. On 20th November, 1918, the 2nd defendant sold the suit properties to the 1st defendant for Rs. 1,500; the chief item of
debt incurred by the 2nd defendant to discharge which she sold the properties to the 1st defendant was thus described in the sale deed:
Rs. 885-1-8, being the debt contracted by me and by my eldest grandson Suryapragasa Rao (3rd defendant) for our family expenses and for the
Upanayanam and the marriage of Ananda Rao (the plaintiff), one of my daughter''s sons under my protection.
The plaintiff was a minor at the time of the sale, and he instituted the present suit on 22nd September, 1922, for a declaration that the sale-deed
would not in any way affect his reversionary right in the property.
Defendants 2 and 3 did not appear. The 1st defendant, the alienee, pleaded that the sale was made for legal necessity and was binding on the
plaintiff, that the plaintiff and the 3rd defendant were under the protection of the 2nd defendant, and that the plaintiff was even at the time of the suit
living with the 2nd defendant. He contended that the property was sold to him by the 2nd defendant for discharging the debts incu(sic) her for the
maintenance, education, Upanayanam, and marriage expenses of the plaintiff, and that the plaintiff equally with the 3rd defendant was estopped
from questioning the same.
Both the Lower Courts came to the conclusion that the debts incurred by the 2nd defendant for the discharge of which the properties were sold
to the 1st defendant were incurred by the 2nd defendant for the maintenance, education, Upanayanam and marriage expenses of the plaintiff, that
after the death of the plaintiff''s mother (which event took place about one year after the death of the 2nd defendant''s husband) the plaintiff and the
3rd defendant were living with the 2nd defendant and were being maintained by her. The plaintiff''s allegation, that the amounts were spent for
debts contracted by the 3rd defendant in connection with his gambling and other vices, was not proved. In these circumstances the first Court
decreed the suit in plaintiff''s favour, holding that the daughter''s son had no legal claim for maintenance, etc., from the estate left by their
man(sic)nal grandfather and that the widow was not justified in alienating the properties for meeting the Upanayanam and marriage expenses of the
plaintiff. On the appeal preferred by the 1st defendant, the learned Additional Subordinate Judge of Bapatla reversed the Munsif''s decision and
dismissed the plaintiff''s suit. As already remarked, the Lower Appellate Court also held that the substantial portion of the debts incurred by the
2nd defendant to discharge which she sold the properties to the 1st defendant, was incurred for the maintenance, Upanayanam and marriage
expenses of the plaintiff, and it agreed with the Trial Court in that respect. The Trial Court specifically remarked that the estate left by the last male
holder (20 acres of land at Battibrolu and 13 acres at Chemudubad yielded much more than was necessary for the maintenance, etc., of the 2nd
defendant. Unless therefore the widow was justified under Hindu Law in incurring debts for the maintenance, education, Upanayanam and
marriage expenses of daughter''s sons, she could not'' validly sell lands forming part of the corpus of the estate. She is, of course, complete master
of the income from the lands forming the estate and could utilise the same as she pleased and for any purpose she liked. But the question is whether
she could legally sell a portion of the estate for such purposes as are proved in this case, and whether the sale would be binding on the ultimate
reversioners.
The learned Subordinate Judge relied on the decisions re-ported Chumun Lall v. Lalla Gunput Lall (1871) 16 W.R. 52 Rustam Singh v. Moti
Singh I.L.R.(1896) A. 474 and Baijnath Rai v. Mangle Prasad Narayan Sahi I.L.R.(1925) Pat. 350 in support of his view that the alienation was
binding on the reversioners. I regret, I am unable to agree with him. In Chumun Loll v. Lalla Gunput Lall (1871) 16 W.R. 52 the facts of the case
do not fully appear in the report. The only sentence relied on is that at page 53:
We fail to see how the Munsif''s grounds are imaginary, for he proceeds on grounds admitted by the Hindu Law to be grounds of necessity for
such alienations, namely, the shradh of the widow''s husband, the marriage of his daughter, the maintenance of his grandsons, and the payments of
the husband''s debts. All these grounds are acknowledged by the Hindu Law as legitimate causes for raising money by a widow, and they have
been found to be proved by the first Court.
We are now concerned only with the question of maintenance of the grandsons of the last male holder, and we are not concerned here with
other grounds of necessity mentioned by the learned Judges. No authority is quoted in support of the proposition in so far as the maintenance of
grandsons is concerned as a justifiable ground of necessity for such alienation. Unless there be something peculiar in the Bengal Law, 1 do not feel
justified in accepting that case as an authority justifying the sale in the case before me. In Rustam Singh v. Moti Singh I.L.R.(1896) A. 474 it was
held by the learned Judges as follows:
Ordinarily it is the duty of the father in a Hindu family to provide for his (laughter''s marriage; but where the father was not possessed of sufficient
means to do so, and the mother, in order to raise money to meet the expenses of the daughter''s marriage, mortgaged property of her own which,
had come to her from her father, it was held that the mortgage was made for legal necessity and was a valid mortgage.
The only relevant portion is that contained at page 475:
There can be no doubt that it was the father''s duty in this instance to get his daughter married. . . . The father was unable out of his resources to
effect the marriage of his daughter, and thereupon the mother of the girl was obliged to have recourse to the property that came from her father to
her. There is no doubt of its being the pious duty of the father to effect the marriage. He was unable to do so; so under these circumstances we
think that the money, the consideration of this mortgage, was borrowed for necessary purposes, namely, the marriage of the daughter.
It is enough for our purpose to say that the case before me is not the case of the marriage of a daughter''s daughter. As there is no discussion of
the principle of law on the point in the judgment, the same affords no help to me to dispose of the case before me, which is the case of
maintenance, Upanayanam and marriage of the daughter''s son. The case in Chudammal v. Madamuni Naidu (1909) 6 M.L.T. 158 was a case
exactly similar to the case in Rustam Singh v. Moti Singh I.L.R.(1896) A. 474 The Court remarked that it was not argued that the case in Rustam
Singh v. Moti Singh I.L.R.(1896) A. 474 was not correctly decided. That also was a case of the marriage of a daughter''s daughter which is not
the case before me. Ramcoomar Mitter v. Ichamoyidasi I.L.R.(1880) C. 36 related to the marriage of a (deceased) sons''s daughter. The
statement in the decision in Baijnath Rai v. Mangla Prosad Narayan Sahi I.L.R.(1925) Pat. 350 referred to by the respondent is to this effect:
Under the Hindu Law the liability of a woman who takes property, either by inheritance or survivorship, to maintain those whose maintenance was
a charge upon it in the bands of the last holder, is the same as that of a man who inherits or succeeds to property.
In the present case it is not stated that the maintenance of the daughter''s sons was a charge upon the. estate in the hands of the last male holder.
At that time, the daughter and the daughter''s sons were living with the daughter''s husband and not with the last male holder. No question of
dependent members"" or of ""maintenance being a charge upon the estate in the hands of the last male holder,"" therefore, arises in the present case.
At page 355 of Baijnath Rai v. Mangla Prasasd Narayan Sahi I.L.R.(1925) Pat. 350 it is mentioned that
Ramsumaree Kuer would easily come within the description of such members as were dependent on the male coparceners when they were alive.
The decision in Baijnath Rai v. Mangla Prasad Narayau Sahi I.L.R.(1925) Pat. 350 also does not therefore really help me in deciding the
present case. In Norton''s Leading Cases on Hindu Law, Vol. I, page 48, I find it stated that
Daughters and daughters'' sons are entitled to maintenance in undivided families, under the Mitakshara Komud Chunder Roy v. Sotakant Roy,
Sutherland''s Full Bench rulings, p. 70.
On referring to Sutherland''s Full Bench rulings, page 75 at page 77, I find that: the Court decided that ""the claimant who is grand-daughter of
Issur Chunder Roy cannot inherit any share of the estate."" The claimant''s suit was dismissed, but there is an observation that ""she is entitled to
maintenance and nothing more."" It is only an obiter dictum, and even that is with reference to grand daughter and not to grand son. So the authority
quoted does not support the statement.
The learned advocate for the respondent referred to the case reported in Vuppuluri Tatayya alias Veeranna Vs. Garimalla Ramakrishmamma
and Others, where the learned Judges Benson and Krishnaswami Aiyar, JJ., upheld the gift of a very small portion of land inherited by a Hindu
daughter from her father, made at the time of performing her father''s sraddha ceremony on the occasion of a peculiarly holy event among Hindus
(the Pushkaram at Rajahmundry, occurring once in 12 years). Gifts made for similar spiritual benefit of the last male holder have been held to be
valid by the Privy Council in the case reported in 69 Ind. Cas. 36 (Privy Council) where their Lordships approved of the decision in Vuppuluri
Tatayya alias Veeranna Vs. Garimalla Ramakrishmamma and Others, . But I fail to see how those cases really help the contention raised by the
learned advocate for the respondent in the present case. On the other hand there is some authority against the contention of the respondent. In
Rajagopalachariar v. Sami Reddi (1925) 50 M.L.J. 221 Devadoss, J., held that
under Hindu Law a daughter who inherits the property of her father is not entitled to aliennte the same for the purpose of getting one of her stills
married.
At page 224, this is what the learned Judge observed:
The question, therefore, arises whether a limited owner is entitled to charge the reversion with a debt contracted for the purpose of the marriage of
her son. No authority is shown for the position that a mother could alienate the property inherited by her own father for the purpose of getting line
of her sons married. Mr. Viswanatha Aiyar''s contention is that there is a moral obligation to get her son married and therefore she is entitled to
borrow for the purpose of getting her son married. There is no obligation under the Hindu Law on the part of a mother to get any of her sons
married. The case of a daughter stands on a different footing altogether. It is one of the duties of the father to get his daughter married. . . In the
case of a mother there is no obligation at all to get any of her sons married by borrowing money on the security of the property inherited by her
from her father. In Rustam Singh v. Moti Singh I.L.R.(1896) A. 474 the alienation by the mother was held to be good on the ground that the father
was too poor to provide for the marriage of the daughter, and the mother was obliged to find the money for celebrating the marriage of the
daughter. This is quite in consonance with the principle of Hindu Law that a daughter should be married before she comes of age, and it is the duty
of the father to see that she is married. If the father is too poor to do his duty, the mother could, under the circumstances, alienate her property for
the purpose of getting the girl married- This would not support the contention of the respondent that the mother could also do the same thing for
the son.
The learned advocate for the respondent rightly pointed out that this decision of the learned Judge Devadoss, J., was reversed on appeal in
Srinwasaraghavachariar v. Rajagopalachariar (1925) 50 M.L.J. 221. The decision of the Appellate Court, however, proceeded on the ground of
estoppel on the part of the plaintiff, the reversioner. The Appellate Court did not consider the question of Hindu Law discussed by the learned
Judge. The learned advocate for the respondent referred me to certain Hindu Law texts under which poor relations and other dependant members,
whom a person used to maintain as being morally bound to do so, would, after his death, be legally entitled to the maintenance from his heirs,
provided he left sufficient property. He drew my attention to Chapter II of Sirkar''s Hindu Law, where the text of Manu and Brahaspathi are
quoted. The text of Manu is to the following effect:
The father, the mother, the Guru (an elderly relation worthy of respect), a wife, an offspring, poor dependants, a guest and a religions mendicant,
are declared to be the group of persons who are to he maintained.
Elsewhere Manu has declared that the aged mother and father, the chaste wife, and an infant child must be maintained even by doing hundred
misdeeds--Manu cited in Mitakshara II, p. 177. The case, therefore, of the aged mother and father, the chaste wife and infant child, stands on a
different footing from the poor dependants, a guest and a religious mendicant mentioned in the text quoted. Brahaspathi''s text is to the following
effect:
A widow inheriting her husband''s estate should honour with food and presents (for their benefit) the husband''s paternal uncle (and the like)
venerable elderly relations, daughter''s son, sister''s son and maternal uncle as well as aged and helpless persons, guests and females of the family.
In Vyavahara Maadaviyam, the text is translated as follows:
Let the widow honour the paternal uncles, preceptors, daughters'' sons, and sisters'' sons of her husband, his maternal uncles, the old and the
helpless, and the guests with food and drink.""--Settur, Vol. I, p. 339.
One is inclined to ask whether the above provisions are not merely advisory relating to moral duties, or whether they are legal duties which
could be enforced in a Court of law. The reference to guests and helpless elderly persons would seem to indicate the former. As remarked by the
Privy Council in the case reported in 2 CWN 273 (Privy Council) :
Old Hindu Law text-books and commentaries are apt to mingle religious and moral considerations, not being positive laws, with rules intended for
positive laws.
See also the remarks of the Privy Council in ""the only son adoption case,"" reported in Radha Mohun v. Hardai Bibi .
In Mayne''s Hindu Law, Section 624, the passage from the judgment of the Privy Council in the case reported in The Collector of
Masulipatam v. Cavaly Vencata Narrainapah (1861) 8 M.I.A. 529 is quoted.
For religious or charitable purposes, or those which are supposed to conduce for the spiritual welfare of her husband, she has a larger power of
disposition than that which she possesses for purely worldly purposes. To support an alienation for the last she must show necessity.
In Trevelyan''s Hindu Law it is mentioned at page 206 that
an heir is legally bound to provide, out of the estate which descends to him, maintenance of such persons as the person from whom he inherits is
legally or morally bound to support.
At pages 463 and 466, the learned author notes certain matters as proper objects for the alienation of the property by a Hindu widow, one of
which is to provide for the maintenance of dependant members of her family, whom her husband or other last full-owner (as the case may be) was
legally or morally bound to support and for their marriages or other necessary religious ceremonies, on a reasonable scale, having regard to the
amount of the property and the position of the family.
At page 205 it is pointed out that
grandsons have; not, as such, any right to be maintained by their grandfather, but apparently they have a right to be maintained out of his property if
unable to maintain themselves, and granddaughters must be so maintained until marriage.
My attention has not been drawn to any reported case in which any Court has decreed maintenance to a daughter''s son against the estate of
the maternal grandfather in the hands of his widow (maternal grandmother), i.e., widow of the last male holder. As regards the texts quoted, ""Their
tone is only preceptive, and the injunctions they contain are rather of ethican than, of legal obligation"" so far as daughter''s sons are concerned.
In the case before me there is the further circumstance that the plaintiff''s father is a pleader possessed of sufficient property to maintain the
plaintiff.
As regards the contention raised by the learned advocate for the respondent that the widow was bound to maintain ""dependant members,"" as
observed by the learned author (Sarkaf Sastri) in his Hindu Law, that principle would apply only to persons who were actually residing with the
male holder and were in fact dependant on him. In the present case, as I already remarked, it is not anybody''s case that during the lifetime of the
last male holder Lakshmayya, the plaintiff and the 3rd defendant, or even their mother Subbamma, were dependants of Lakshmayya in the sense
described above. They were all living with Subbamma''s husband in his family, and therefore that principle has no application to the present case.
Again there is the significant statement made by the District Munsif in paragraph 8 of his judgment, vis., that ""the plaintiff''s father is a pleader
practising in this Court and it is admitted that he has sufficient property to maintain his sons."" in these circumstances I do not think that any legal
grounds are shown justifying the second defendant in selling a portion of the lands belonging to the estate to the 1st defendant, to meet the
expenses of the plaintiff''s maintenance, Upanayanam and marriage. The cases that decide that an indigent daughter, though married, is entitled to
be maintained from her father''s estate in case her husband''s estate is not able to maintain her are not really relevant to the point.
The daughter''s son is not a member of the last male holder''s family; he belongs to the family of the daughter''s husband. Nor could the
daughter''s son in the present case be said to be a dependant member of the last male holder''s family. Therefore the last male holder was not
bound to maintain the daughter''s son, and on his death his estate in the hands of his widow is not liable for the maintenance, etc., of the daughter''s
sons. The Patna High Court in the case reported in Mussamat Narainbati Kumri v. Ramdhari Singh (1916) 1 Pal. L.J. 81 decided that
Outside Bengal, expenses for the marriage of a daughter''s daughter whose father''s father is alive and in a position to arrange for the marriage, do
not constitute such a legal necessity as will bind the estate left by a maternal grandfather.
The widow could not by her own voluntary act in bringing the daughter''s son--the plaintiff--to her own house, contend that he is a dependant
member and then claim to alienate part of the estate for expenses incurred in connection with him. We have here no purpose connected with the
husband''s spiritual welfare; nor, having regard to the circumstances of the plaintiff in relation to his father''s wealth and position have we to
consider any moral claim on the last holder''s estate, which could lie said to have assumed the form of legal obligation attached to the estate when
the estate descended from the last male holder to the 2nd defendant.
The 2nd defendant was naturally anxious, after the death of her only daughter, to have the daughter''s sons (plaintiff and the 3rd defendant) live
with her. One can understand her conduct in that respect. One can understand also her anxiety to start her daughter''s son well in life by giving him
proper education, etc. But I am bound to administer the law as I find it. Under Hindu Law, as at present administered, I do not feel justified in
upholding the right claimed on behalf of a Hindu widow to alienate a portion of the estate for the purpose of the maintenance, education,
Upanayanam and marriage of her daughter''s son, when his father is admitted to have sufficient property to do so himself.
The result is one which I should like to avoid, if possible. The daughter''s sons are the reversioners to this estate, and would be entitled to
possession on the death of the 2nd defendant. The plaintiff is living with the 2nd defendant even now. The debts were incurred for the benefit of the
plaintiff. The plaintiff''s elder brother, the 3rd defendant, has signed the agreement which preceded the sale and is the writer of the sale-deed in
favour of the 1st defendant. The 3rd defendant is surely bound by the sale-deed. If the plaintiff had not been a minor at the time, most probably he
too would have joined in the agreement and the sale; but his minority at the time has practically furnished him with a ground for impugning the sale-
deed, though, as already remarked, he was the person benefited by the same. The grandsons may often find the estate of their grandfather more
useful to them for purposes connected with their education, etc., and they may not be fully benefited when the estate conies to them when they are
old. But those are not matters by which I should be guided when 1 am called upon to apply principles of Hindu Law as administered by Courts. I
am, therefore, driven to the conclusion that the alienation in question is not binding on the plaintiff.
Some arguments were advanced by the learned advocate for the respondent about the details of some of the debts mentioned in the sale-deed.
I, however, accept the findings of both the Lower Courts that the debts were substantially incurred for the purposes mentioned by me.
I reverse the decision of the Lower Appellate Court and restore that of the District Munsif. The declaration will be granted that the alienation
by the 2nd defendant in favour of the 1st defendant evidenced by Ex. IV, dated 20th November, 1918, would not be binding on the plaintiff and
other reversioners of the 2nd defendant''s husband, late Lakshmayya, besides the 3rd defendant and other persons claiming under him. As regards
the 3rd defendant and persons claiming under him, the same will be binding. In the particular circumstances, I award no costs to the plaintiff in any
of the Courts; but I direct the parties to bear their own costs in all the Courts.