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TMI Blog1928 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant was entitled to one-third share from the plaintiff. Similarly he fixed ₹ 2,000 for each of the marriages of the remaining two girls to be married and the plaintiff's one-third share was charged on his share of the property. There was an appeal by the defendant and also a memorandum of cross-objections by the plaintiff. Among the points for determination stated by the Subordinate Judge are Point 3, namely: Whether the plaintiff is liable to contribute to the marriage expenses of the daughters of the second wife of the appellant. 3. and Point 4, namely: What were the expenses incurred in marrying the daughter of the appellant who was married after suit. 4. On the 4th point, he found that the expenses of the marriage might reasonably be fixed at ₹ 2,000; but on the 3rd point he held, relying on Ramalinga Annavi v. Narayana Annavi that the plaintiff was not liable to contribute out of his share towards the marriage expenses of the 1st defendant's daughters married after the date of the suit or to be married. Though the decision in Ramalinga Annavi v. Narayana Annavi relates to the marriage of a male coparcener, he thought that the principle appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.L.R. (1884) A. 632 and Vaikuntani Ammangar v. Kallapiran Aiyangair: (1900)10MLJ111 where it is observed: That the expenses are to be borne by the family property just in the same way as the cost of maintenance there seems no doubt upon the authorities (see Tulsha v. Gopal Rai I.L.R. (1884) A. 632 West and Buhler, 754; Mayne's Hindu Law, Sections 81, 408.) The common practice of providing in partition decrees for the marriage expenses of daughters can hardly be accounted for except on the hypothesis that such expenses are properly chargeable on the family property. 7. The dictum is not only valuable as an authority on the question of law but also as showing a practice to the knowledge of the learned Judges. Other cases are Bapayya v. Rukhamma (1909) 19 M.L.J. 666 Bai Mongol v. Bai Rukhmini I.L.R. (1898) B. 291, which is a case of maintenance of widowed daughters, but incidentally refers to the text relating to the maintenance of unmarried daughters, Gangu v. Chandra Bhaga Bai I.L.R. (1907) B 75 referring to unmarried daughters of disqualified persons and Nandan Prasad v. Ajudhia Prasad I.L.R. (1910) A. 325. These cases arose after the death of the father and are not dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or had ancestral property. The cases were discussed on the footing of the general obligation of a father to maintain or marry his daughter, and it was held that the father was not under an obligation to marry his daughter. On the other hand, it may be said that at least among Brahmins and Vaisyas with whom pre-puberty marriage is compulsory as a religious injunction, the father is legally bound to marry his daughter. But whatever may be the true view as to the liability of a father to marry his daughter considered by himself and by reason of the parental relation and apart from the posses-s' on of the joint family property, so far as the possession of the joint family property is concerned, there is no doubt that the father is bound to marry his daughter and that not because of a religious injunction about pre-puberty marriage but because of a better reason, namely, the daughter's right to be married is really the historical remnant of a larger right. It is therefore futile to confuse the two obligations, namely, the obligation of the father as a mere parent apart from property and the obligation of the father by reason of the possession of the joint family property. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estate' when used in Hindu Law books does not mean the father's self-acquisition alone but merely means the estate which the son can inherit or obtain through his' relation as such son to his father. In. Venkatarazu v. Kotayya Second Appeal No. 360 of 1911. I have attempted to show that according to the Shastras, sons had no right in the property which belonged to their father till both their father and mother were dead. 11. Lower down he refers to Mitakshara relying on a text of Gautama inferring the son's rights by birth in the (self-acquired and ancestral) properties of the father. The observations continue up to page 570 on the proper interpretation of Mitakshara. I generally agree with these remarks. I do not think that it can be said that Section 1 refers to the self-acquired property of the father in the modern and technical sense of, that term and that Section 5 refers to the ancestral property of the father. The object of Section 1 was to narrate the four periods of partition of a father's property, that is, the property which was held by the father whether it was self-acquired or ancestral; it refers to a case where the father was holding the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of a brother. How does this right arise? It cannot be said that the sons only were sharers in the property during the father's lifetime and that the daughters had no share, but after the father's death new sharers are introduced and that the sons' share is diminished. At this stage I may refer to some discussion which took place during the course of the argument as to what is meant by one-fourth share of the daughters. The text of Manu quoted at page 294 of Colebrooke's Digest, Vol. II, shows that three-fourths of the whole is taken by the brothers and one-fourth is taken by the sisters, though it is expressed in a round about form, let each give a fourth part of his own distinct share. The text of Katyayana quoted at page 297 is to the same effect: For unmarried daughters a fourth share is ordained, and three shares for sons. But placitum 5. of Section 7 of Chap. I of Mitakshara speaks about a fourth part of a brother's share which of course works out to a different fraction. The Smrithi Chandrika and other commentaries give their own explanation as to what is meant by this one-fourth share sometimes saying that it is not a definite share, but means marri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers after her father's death. I therefore infer that the right of the daughter for marriage expenses and for maintenance is a right over the joint family property of the father and the brothers and though during the father's lifetime she cannot enforce such right in the form of a partition because of placi-tum 14 of the Mitakshara, still if the father is willing to exercise his discretion in favour of the daughter by giving something towards her marriage expenses, the joint family property is liable towards such expenses. I have taken pains to trace the early history of the law and draw the above inference simply for the purpose of showing that the right to get expenses out of the joint family property is not a right derived from the parental obligation of the father to maintain a child but an independent obligation arising out of the joint family property law. The next question that arises is--after partition, on whom does the obligation fall? Mr. Raghava Rao says on the father only, because it is an obligation peculiar to the father by reason of his parental position. We have seen that the obligation existing before the death of the father is not the obligation derived f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligation which has not yet been incurred but which is to be incurred after partition. But the reply to this argument is that the obligation has been incurred before the partition by the birth of the daughters. It is not a case of obligation which is to be incurred after the partition. Only it is to be completed and materialised at the actual time of the marriage which may be after partition, but this does not mean that the obligation does not arise before the partition. This is easily seen when we remember that the obligation is not merely an obligation to maintain but the present remnant of what was formerly an interest in the property. I therefore hold that the obligation of a joint family does not after partition fall on the father only but on all the members of the family. 13. The idea I attempted to express in the last paragraph, namely, that the obligation to marry a girl is binding upon her father or his descendants but not upon his collaterals or his ascendants is also implied in the following dicta. In Narayana v. Ramalinga I.L.R. (1915) M. 587. Sankaran Nair, J., says: Nor is it necessary for us to decide, as we have been pressed to do, that if provision for future ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the father which is both legal and moral. 17. My general conclusion as to the liability of the joint family including the father and sons is also supported by Strange's Hindu Law, Vol. I, page 170. Medhatithi who is a famous commentator on Manu after quoting Manit 9, Section 118, proceeds to comment on it. At page 53 of the Hindu Law by Ghose, Vol. II, he refers to the text of Narada, What is left of the father's property after discharging the father's debts (shall be divided by the brothers). Then he says, By payment of debts, the duty of marrying a daughter is also intended. This shows that my likening the obligation to marry a daughter with debts is not fanciful but is sectioned by a commentator. Mr. Raghava Rao contends that Medhatithi is only a commentator on Manu, an ancient Smrithi writer, and has not got the same weight as Mitakshara; but Mitakshara itself is a commentary on the ancient Smrithi of Yajnavalkya. I do not mean to say that when Medhatithi and Mitakshara are in conflict, Medhatithi should override Mitakshara in this. Presidency. In the present case there is no such conflict. I have drawn my conclusion from the consideration of Mitakshara i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A and B can be affected by some action between A and B. I have already dealt with the apparent anomaly (for it is only apparent) that rights against a joint family of certain members may after partition subsist only against some of the members and not against all the members. That is because the obligation is peculiar to one branch and through it only to the whole family. Apart from that, there is no reason why the daughter's rights should be put an end to by partition altogether. It is conceded before us that, after the father's death, brothers, who are liable to the marriage expenses of their sisters, cannot put an end to her right by dividing the property between themselves. I do not see how there should be a different result during the father's lifetime. Similar cases occur in the case of the right to maintenance of widows of predeceased members of the family. Here again the right to maintenance is not put an end to by partition, though, with reference to the relationship of the widow to the members of the family, her claim may after partition subsist only against some branches and not against the whole family. Anyhow in this respect it is clear that the position of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt with it and awarded profits. By a slip, the amount of mesne profits was omitted in the decree; but the plaintiff is certainly entitled to the profits. We call upon the Subordinate Judge to hear objections of both parties as to the quantum of profits for that year and report his finding to the High Court within two months. Though the appellant has not appealed in this matter, 1 think he is also entitled to be heard on the question of the proper amount. There is no need for him to appeal, because there is no decree against him. That is no reason why his objections ought not to be heard. Seven days will be allowed for objections. 20. Another objection raised by the respondent is that item 21 was wrongly disallowed by the Subordinate Judge. The question is one of fact and we cannot go into the correctness of the Subordinate Judge's judgment. It may, however, be pointed out that he relies on the evidence of P.W. 3, which shows that the sum was paid to the payee and not to the 1st defendant. This objection must be disallowed. 21. Both parties will bear their own costs both in the Second Appeal and in the memorandum of objections in this Court. The order of the Lower Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able upon family assets. But if he dies before partition his liability must be undertaken by the coparcenary, and provision made for it on partition. 24. If the appellant's view is correct, one would expect every female member who in the old days would have had an actual share still to have a right of maintenance chargeable on the family property. To take three generations, calling them father, son, and grand-son, the daughter and the grand-daughter would both have their right of maintenance against the family property. Hut it seems to be conceded that the family would not be held liable for a grand-daughter's marriage expenses, that being an obligation which falls after partition upon the son's share. Therefore if the daughter's right is to be traced to her original but obsolete share, there would seem to be a flaw in the logic of the argument so long as the grand-daughter is allowed no such right. Unless it is to be assumed that these provisions in Hindu Law are arbitrary or fortuitous, some logical basis must l)e found other than this original right to share. One may start with the primary conception that a father must maintain his children, a proposition whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fellow-member is dead, these cases will not help us to decide. 28. There does not seem to be a single case directly in point. The respondent relies upon the summary of law in Rama Rao v. Rajah of Pittapur (1918) L.R. 45 LA. 148: I.L.R. 41 M. 778: 3S M.L.J. 392 which, I think, supports his case as far as it goes, but of course is not a direct decision upon the point. The members of an ordinary joint family governed by the Mitakshara law are placed in categories. First there are the persons with the inchoate right to raise an action of partition, who, so long as they remain joint are entitled to have their necessary expenses paid out of the family income, a right of maintenance which begins where coparcenary begins and ceases where coparcenary ceases. It was not suggested that daughters in these days belong to that class, which is confined to the male members of the coparcenary. Then come the maintenance holders who cannot succeed as co-owners. Firstly idiots, lunatics, and so on, who suffer from a personal disability. Daughters cannot come into that category, because the children of such persons get the full right of coparcenary. Lastly there is the class of persons whose righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim to maintenance against her father's property; and by virtue of this right she can claim a share when her father is dead and she is still a member of the coparcenary. The only way in which an unmarried daughter can cease to be a member of the family would seem to be by her father becoming a divided member and herself also being treated as divided in his branch. If that is so, even according to Sarkar's commentary, in the present case the daughter of the already divided father would have no right to a share. 30. That the right to maintenance after the death of the natural supporter is derived through him, and is not an independent right to a share of the family assets is borne out by an obiter dictum of Kumaraswami Sastri, T., in Natarajan v. Muthiah Chetty (1926) M.W.N. 73. persons who by reason of certain circumstances are not entitled to a share in the estate are entitled to maintenance by those to whom the estate has passed by survivorship. The liability to maintain is on the coparceners by virtue of the fact that they take the estate of their deceased relations. 31. And even if one goes back to the earliest texts, the right to maintenance seems to be a right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m not prepared to disturb it. In respect to the other matters raised on appeal I entirely agree with Mr. Justice Ramesam, and have nothing to add. Only if my view on the main question had prevailed I should have allowed respondent his costs. H.D.C. Reilly, J. 35. I do not think it is necessary for me to discuss at length the main question in this appeal, which has been dealt with in the judgments already pronounced. It is admitted that, while a Hindu family remains undivided, the expense of marrying all the daughters of the family, whichever member of the family is their father, falls upon the family funds. It is contended for the plaintiff that the explanation of that is that the expense naturally and properly falls upon each girl's father but, while he is undivided from the rest of the family, his personal obligation must be met from the family funds. That explanation appears to me to conflict with the conception of a joint family. As soon as a joint family widens beyond the descendants of one living head it becomes clear that the right of each member born into the family arises by birth into the family not by descent from one member of the family rather than another. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sister's share in such circumstances indicates the idea that her right was her own by birth in consonance with the joint-family system and not merely a right as daughter of a deceased coparcener, whose death had benefited the surviving coparceners. 36. Then is there any binding authority which drives us to treat the daughter of a coparcener not as a member of the joint family with a claim for her marriage expenses on the family funds to be distributed as such on a partition in her father's life, but as having a claim only on her father and on his share in such a partition? What the plaintiff relies on is Chap. I, VII, 14 of the Mitakshara. But, if that passage refers to partition in the father's life at all, which appears to me open to some doubt, it may well mean no more than that at such a partition she must be content: with the provision he thinks fit to make. As the passage says there is no special precept respecting this case --in contrast with the special precept that in a partition after her father's death she is to have a fourth. The statement in Mayne, Section 482, that, when a partition is made in the father's 1ife, he is bound to maintain his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ughter is divided from his father, he becomes at once the head of a new branch joint family even if he has not yet begotten or adopted a son: it is on that joint family and its property that his daughter's claim must fall. But, when sons divide from their father, their sisters do not remain members of a joint family with their father, either a remnant of the old joint family or a new joint family which comes into being on the partition; the old joint family, so far as the generation of the sons and their sisters is concerned, has gone, and, though the father may beget new children and so become the head of a new joint family, his daughters living at the time of the partition are not members. of that joint family. If that is the correct view, then the fact that on a partition between a father and his sons the maintenance and marriage expenses of the sons' daughters fall on the respective sons' branches alone, as do the expenses of the sons' sons, and not on all who were coparceners in the old joint family, is not inconsistent with similar claims of the sons' sisters falling on all who were coparceners of old joint family. If one of several sons alone divides from ..... 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