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TMI Blog1888 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... u out of moneys acquired by trade, and that other portions of it had been acquired by Musammat Rukku with her own moneys. The Munsif of Amroha by his decree of the 26th November 1886, dismissed the claim with costs. On appeal the Subordinate Judge of Moradabad found that the plaintiff had been married to Ghasi Ram; that Ghasi Ram had died whilst she was yet a minor; that the gauna ceremony of the plaintiff had not been performed; that the plaintiff had always lived in the house of her own father; that she bad never gone to the house of her father-in-law Khiali Ram or of Ghasi Ram, her late husband; that the plaintiff had always been supported by her own father; that Khiali Ram had never made her any allowance for maintenance; that the property in question was not ancestral property of Khiali Ram, but bad solely belonged to him, since whose death it has been held by his surviving son, Nand Ram. The Subordinate Judge, holding that according to Hindu law the plaintiff could not get her maintenance charged upon or settled out of property in which her late husband Ghasi Ram had no right, by his decree dismissed her appeal with costs and confirmed the decree of the Munsif. From that decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered as ancestral property in the hands of Nand Ram, and that no such legal obligation has arisen. Pandit Sundar Lal for the plaintiff mainly relied upon the judgment of Mr. Justice Farran in Adhibai v. Cursandas Nathu I.L.R. 11 Bom., 199 and the cases therein referred to in support of both of his contentions. 7. As we understand the term ancestral roperty, the property in question here might as regards the rights of Nand Ram and his sons or descendants if any inter se be correctly described and treated as ancestral property, but we think that so far as the plaintiff's rights if any, are concerned it would be incorrect to describe it as ancestral property in the hands of Nand Ram. It was the self and separately acquired property of Khiali Ram over which he had an absolute power of disposition and in which his sons had during his lifetime no interest other than the contingent interest of the right to take it by inheritance on his death in case he had made no disposition of it. During the lifetime of Khasi Ram and also during the lifetime of Khiali Ram the property in question was not any sense of the term as we understood it ancestral property. Nor was it in our opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendant in this case is legally bound to provide the plaintiff with maintenance out of the property which he has inherited from his father Nathu Jadowji, With the latter proposition we agree. Undoubtedly in this case, as in that before Mr. Justice Farran, the widow's husband, her father-in-law and mother-in-law the defendant, had all been members of a joint Hindu family, but of a Hindu family in which there was during the lifetime of her husband or that of her father-in-law no joint or ancestral property as we understand the term and no property in which her husband over had any right or interest except the bare contingent right of inheritance in case of the father not disposing of the property and of the husband surviving him. We fail to see bow that property which during the lifetime of the plaintiff's husband or that of her father-in-law, never was joint or ancestral property, became, so far as the plaintiff was concerned, ancestral property on the death of her father-in-law, which was subsequent to that of her husband. The plaintiff's husband never had any share, nor any vested interest in any share in the property which came to the defendant's hands; he wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es do not, so far as we understand them, go quite so far. In referring to that case Sir Barnes Peacock, C.J., in his judgment in Khetramani Dasi v. Kashinath Das 2 B.L.R., A.C., at p. 34 says. The rule laid down in Rajjomoney Dossee v. Shibehunder Mullick 2 Hyde., 103, namely, that the maintenance of a son's widow is a more moral duty on the part of her father-in-law and that the case is distinguishable from those in which an heir takes property subject to the obligation of maintaining persons who are excluded from inheritance, or those whom the deceased proprietor was morally bound to maintain, appears to me to be correct. The obligation of an heir to provide out of the estate which descends to him maintenance for certain persons whom the ancestor was legally or morally bound to maintain is a legal as well as a moral obligation, for the estate is inherited subject to the obligation of providing such maintenance. This also was apparently, so far as this particular point is concerned, merely an obiter dictum, and we infer from the passage in his judgment which we shall immediately quote that Sir Barnes Peacock had some doubt as to whether the proposition had not been too broad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sister. We are not aware that it has ever been decided that the obligation of a father to provide for the marriage expenses of his daughter is higher than a moral obligation. On this question of marriage expenses we refer to Colebrooke's Digest, Volume 2, paras. 121, 125, and 420, and to Tulsha v. Gopal Rai I.L.R., 6 All., 632. We are of opinion that this appeal should be allowed, the decree of the Subordinate Judge set aside, and the case remanded under s. 562 of the Code of Civil Procedure to the lower appellate Court to be disposed of on the merits according to law. We are also of opinion that the costs should abide the result. Syed Mahmood, J. 17. I am of the same opinion. The facts of this case are simple, but the question of law which they raise is important, and not free from difficulty. 18. The following table shows the relative position of the parties-- 19. The property to which the litigation relates has been found by the Courts below to be the self-acquired property of Khiali Ram, a Hindu of the Vaishya caste, whose inheritance is admittedly governed by the rules of the Mitakshara law. It has further been admitted by the learned pleaders o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cited. In that case Farran, J., relying upon some older rulings, came to the conclusion that where the property was the self-acquired property of the deceased father-in-law, the widow of a pre-deceased son could claim maintenance from her husband's brother who had succeeded to the estate of his father, that is, the widow's father-in-law. The learned Judge also held that such property must be dealt with as ancestral property in the hands of the brother-in-law and as such liable to the widow's claim for maintenance. The learned Judge further held that the widow (plaintiff) being legally entitled to claim maintenance from her brother-in-law the defendant, she was entitled to separate maintenance, and that the defendant could not insist upon her living in his house. 26. The rulling, no doubt, goes the whole length of Pandit Sundar Lal's contention; but that contention is resisted on behalf of the respondents, on two main grounds. The first is that inasmuch as the property was the self-acquired property of Khiali, neither he personally nor the estate in his hands was liable to the plaintiff's claim for maintenance. The second is that the property not being anc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Visalatchi Animal v. Annasamy Sastry 5 Mad. H.C. Rep., 150. 30. But neither of these two propositions covers the question now before us, viz., whether a widowed daughter-in-law is entitled to claim maintenance out of the self-acquired estate of her father-in-law who, dying intestate, has left the property to be inherited by his surviving son. 31. In considering this question I have felt some difficulty in consequence of the fact that even under the Benares school of the Mitakshara law, the son does not by his birth acquire any vested or even what has been called inchoate interest in his father's self-acquired property, and that a Hindu widow cannot in respect of the inheritance of such property represent her husband by any such rule as the doctrine of jus representations. The result is that (to use the words of Mr. Mayne's work on Hindu law, s. 452) she can only succeed to his property or rights, that is, to the property which was actually vested in him, either in title or in possession, at the time of his death. She must take at his death or not at all. No fresh, right can accrue to her as widow in consequence of the subsequent death of some one to whom he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age. (2) By marriage a Hindu woman ceases to belong to her parental family and becomes a member of her husband's family. (3) The head of a Hindu family is bound morally, if not legally, to provide for the maintenance of all the members of the family according to the various rules applicable to the claims of each class of members. (4) Although a father-in-law in possession only of self-acquired property is not legally compellable to maintain his son's widow, yet the Hindu law imposes a moral obligation on him to provide for her maintenance. (5) An essential element of the son's right of inheritance from his father is the spiritual benefit which in the contemplation of the Hindu law the son confers upon the soul of his deceased father. (6) Therefore the son inheriting the self-acquired property of his father takes that property subject to such moral obligations as are conducive to the spiritual benefit of his father, and that such moral obligations become legal obligations as against the son who holds his father's property by inheritance. 36. I shall deal with each of these points seriatim. 37. As to the first point, I refer to the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, co-extensive as it is with his family, whatever he its composition, as consisting of other relations and connections, including fit may be) illegitimate offspring. It extends to the outcast, if not to the adulterous wife, not to mention such as are excluded from the inheritance, whether through their fault or their misfortune; all being entitled to be maintained with food and raiment at least, under the severest sanctions. 40. This passage is supported by the test upon which the learned author has relied; but I am anxious to quote a passage from more recent authority (Dr. Gurudas Banerjee's Tagore Law Lectures, 1878, p. 210):-- We have hitherto been considering the claim of a widow for maintenance against the person inheriting her husband's estate. The question next arises how far she is entitled to be maintained by the heir when her husband leaves no property, and how far she can claim maintenance from other relatives. The Hindu sages emphatically enjoin upon every person the duty of maintaining the dependent members of his family. The following are a few of the many texts on the subject:--Manu:--'The ample support of those who are entitled to mainten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to regard what was said there as to the moral obligation of the father-in-law as mere obiter dicta. 44. In dealing with the fifth point, I wish to begin by adopting the language of a well-know Hindu lawyer, Mr. Sarvadhikari, in his work on Hindu inheritance (Tagore Law Lectures, 1880, p. 12), where after referring to the Roman system of inheritance, the learned author summarizes the principle of the Hindu law as to the right of inheritance:-- The Hindu system went further, and laid it down as an imperative rule, that the right to inherit a dead man's property is exactly co-extensive with the duty of performing his obsequies. The devolution of property depends upon the competence to perform the obsequial rites of the deceased. They cannot be separated. He who is entitled to celebrate these rites is also entitled to inherit the property; and he who gets the property must perform the funeral rites of the last owner. If there are no relatives who are legally competent to perform them, the law of succession does not apply, and the property escheats to the crown. The king takes the property as an heir, and, as such, is also bound to discharge all the obligations of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... described by Mr. Sarvadhikari (Hindu Law of Inheritance, pp. 647-8): Propinquity according to the Mitakshara, is the ruling principle of the law, of inheritance. This propinquity is consanguineous according to Visvesvara Bhatta and Balom Bhatta, the two eminent commentators of the Mitakshara; and it is measured, says Mitra Misra, the great expounder of the doctrines of the Benares school, by the spiritual benefits conferred on the deceased proprietor. Spiritual benefits, Bays the author of the Viramitrodaya, furnish the great test of consanguineous propinquity. Spiritual benefit, he adds, cannot create the heritable right, it is true; but it determines, with precision, the preferable right of gotrajas and other heirs, where there is more than one claimant to the heritage. 48. But whatever may be the difference between the various schools of the Hindu law as to heirs in (competition with each other for inheritance, there can be no doubt that there is no difference as to the principle upon which the son's right of inheriting his father's property is concerned. The principle really rests on the religious doctrine inculcated by Manu (Chap. IX, ss. 137-38): By a son, a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts. I may, however, cite a passage from Naradiya Dharmasastra or the Institutes of Narada in Dr. Jolly's translation (Chap. III, s. 25) as being pertinent to the present case:-- Of the successor to the estate, the guardian of the widow, and the son, he who takes the assets becomes liable for the debts; the son if there be no guardian of the widow, nor successor to the estate; and the person who took the widow if there be no successor to the estate, nor son. 52. I think I may safely say here that in this text as also in other similar original texts of the Hindu law, the word debt is to be understood in a broad sense so as to include all classes of obligations, such as moral obligations in respect of maintaining widow daughters-in-law, and expenses of the manage of unmarried daughters I do not consider it necessary for the purposes of this case to enter into a discussion as to the exact nature and extent of the son's liability to pay his father's debts. The question has been settled by the ruling of the Privy Council in Girdharee Lall v. Kantoo Lall L.R. 1 I.A., 321 and other subsequent rulings. I may, however, say that the general effect of the ratio a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r husband. 54. There being thus no legal obligation upon the father to provide a husband for his daughter, or to pay her marriage expenses, I proceed to show that the obligation which was only a moral or religious obligation resting upon the father, becomes a legally enforceable obligation as against the son who has inherited the property of his father, even though such property is only self-acquired property of the father. In other words, what was a mere moral obligation on the father matures itself into a legal obligation against the brother. I think I may at once say that there is an unusual paucity of case law on the subject of Hindu marriage, and I agree in the view of the learned author of the Hindu Law of Marriage (Tagore Law Lectures, 1878, pp. 32-3) when he states that the scantiness of the case law is due to the devotional character of the Hindu population, and I may add probably also to the fact that the law-abiding tendencies of the Hindus of the better classes have precluded brothers from disputing the right of unmarried sisters to obtain their marriage expenses out of the paternal estate when in the hands of the brothers by inheritance. Indeed, the only reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney Dossee v. Shibchunder Mullick 2 Hyde, 103 and by Peacock, C.J., in the case of Khetramani Dasi v. Kashinath Das 2 B.L.R., A.C., 15, both of which dicta have been quoted and followed by Farran, J., in the judgment which he delivered in Adhibai v. Cursandas Nathu I.L.R., 11 Bom., 199. 61. The effect of these authorities can be best represented in the words of Dr. Gurudas Banerjee, (who, I am glad, has recently received a well-merited seat on the Bench of the Calcutta High Court) in his Hindu Law of Marriage (Tagore Law lectures, 1878, p. 214), where the learned author, referring to Sir Barnes Peacock's judgment in Khetramani Dasi v. Kashinath Das 2 B.L.R.A.C., points out that an important general rule has been laid down regarding a person's liability to provide maintenance for others. That rule is this, that the heir of a person taking his estate is legally bound to maintain all those whom the late proprietor was either legally or morally bound to maintain; for the heir takes the estate of the ancestor for his spiritual benefit. Thus in this instance, what was a mere moral obligation in the ancestor, becomes transformed into, a legal obligation in his heir. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les which ordain the basis of the rule of justice, equity, and good conscience upon which we, as Judges of a Court which exercises the combined jurisdiction of a Court of law and a Court of equity, must act in cases where there is no specific legislative provision in the statute law, or the original tests of an ancient system of jurisprudence, which we are bound to administer, do not furnish an express authority in specific terms. In regarding the matter in this light, I am fortified by the example of Norman, C.J., in Khetramani Dasi v. Kashinath Das 2 B.L.R., A.C. 15 where that learned Judge clearly indicated that in considering such questions, considerations of natural law, equity and good conscience were not to be lost sight of. And in regarding the matter in the same light here, I cannot refrain from pointing out that whilst in fact marriages are almost enjoined by the Hindu law, especially in the case of females, it is far from being certain that the re-marriage of Hindu widows is permitted by the Hindu law texts. To use the words of Manu, the marriage of a widow is not even named in the laws concerning marriage (Manu, Chapter IX, ss. 64, 65), and the sacred writer goes on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld appear harsh and unsympathetic. The life of a Hindu female is one of seclusion; outside the sanana her knowledge is as limited as that of a tender child; culture training or education she has absolutely none. If her rights are invaded by the male members of the family, she is utterly helpless; and she falls under the influence of persons whose motives for lending her a help are the furthest from those of philanthropy or disinterested good will. Females belonging to the respectable classes are incapable of earning their own livelihood; if the family property is transferred by the male relations, what can these females do to keep their rights of maintenance secure? 66. I asked Mr. Madho Prasad, in the course of the argument, to suggest what answer his client Nand Ram would give to these questions. Would he propose that the girl widow Janki should marry a second husband, thus incapacitating herself for conferring any of those spiritual benefits upon his brother and her deceased husband, which the ecclesiastical ceremonials of the Hindu law and religion inculcate and ordain? Would he propose that this widowed girl should claim maintenance from her parental family, of which s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and considering that the obligation of the father-in-law or other near relation to give her food and raiment if she resides in his house, is not only enjoined by precepts, but is also confirmed by invariable usage, it is hoped that should this question ever arise, it will be decided in favour of the widow. 69. These passages have been quoted by me not as governing the-exact question now before us, but as indicating that the tendency of the Hindu jurisprudence, as understood by Hindu lawyers themselves, is in keeping with the conclusions at which I have arrived in this case. And because this judgment has grown to such length, I am anxious to guard myself against being understood to go behind the rulings which have negatived the widowed daughter-in-laws legal right to claim maintenance from her father-in-law who is in possession only of self-acquired property. Nor am I to he understood as laying down any rule as to the question whether or not the self-acquired property of a father-in-law in the hands of a surviving son is to he dealt with as ancestral property in the sense in which that expression is understood in the Hindu law. What I do lay down is that Khiali was found b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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