Indian Kanoon - Search engine for Indian Law

(2) I.L.R. 18 Bom. 679.

that under the Sastric Hindu Law a widow has a right to be maintained out of joint family property and this right would ripen into a charge if the widow takes the necessary steps for having her maintenance ascertained and specifically Charged in the joint family property and even .if no specif- ic charge i.s created, this right would be enforceable against joint family property in the hands of a volunteer or a purchaser taking it with notice of her claim. The right of the widow to be maintained is of course not a ]us in rein, since it does not give her any interest in the joint family property but it is certainly jus ad rem, i.e., a right against the joint family property. Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfac- tion of her jus ad rem, namely, the right to be main- tained out of the joint family property. It would not be a grant for the first time without any pre-existing right in the widow. The widow would 'be getting the property in virtue of her pre-existing right, the instrument giving the property being merely a document effectuating such pre- existing right and not making a grant of the property to her for the first time without any antecedent right or title. There is also another consideration which is very relevant to this issue and it is that, even if the instrument were silent as to the nature of the interest given to the widow in the property and did not, in so many terms, prescribe that she would have a limited interest, she would have no more than a limited interest in the property under the Hindu law as it stood prior to the enactment of the Act and hence a provision in the instrument prescribing that she would have only a limited interest in the property would be, to quote the words of this Court in Nirmal Chand's case (supra), "merely recording the true legal position" and that would not attract the applicability of sub-section (2) but would be governed by sub-section (1) of section 14. The conclusion is, therefore, inescapable that where proper- ty is allotted to a widow under an instrument, decree, order or award prescribes a restricted estate for her in the property and sub-section (2) of section 14 would have no application in such a case.

This shows that when a partition is effected, the Hindu Law enjoins that the wife must get an equal share with the sons, thus reinforcing the important character of the right of maintenance which a Hindu wife or widow possesses under the Hindu Law.

Similarly Gopalchandra Sarkar Sastri dealing with the nature and incidents of the Hindu widow's right to mainte- nance observes in his treatise 'Hindu Law' at p. 533 thus:

"When the husband is alive, he is per- sonally liable for the wife's maintenance, which is also a legal charge upon his proper- ty, this charge being a legal incident of her marital co-ownership in all her husband's property ......But after his death, his widow's right of maintenance becomes limited to his estate, which, when it passes to any other heir, is charged with the same ......... There cannot be any doubt that under Hindu law the wife's or widow's maintenance is a legal charge on the husband's estate; but the Courts appear to hold, in consequence of the proper materials not being placed before them, that it is not so by itself, but is merely a claim against the husband's heir, or an equitable charge on his estate; hence the husband's debts are held to have priority, unless it is made a charge on the property by a decree."

(2) A.I.R. 1966 Ker. 66.

(3) I.L.R. 1970 2 Ker. 45.

(4) [1971] M.L.J. 439.

(5) [1970] 35 Cuttak L.T. 667=A.I.R. 1970 Orissa 131. (6) [1968] 2 Andh. W.R. 455.

restricted estate their case squarely fell within the ambit of s. 14(2) of the Act and their interest would not be enlarged. Reliance was also placed on a Madras decision in Thatha Gurunadharn Chetty v. Thatha Navaneethamma (supra). It is obvious that the conclusions arrived at by the High Court are not warranted by the express principles of Hindu Sastric Law. It is true that a widow's c/aim for mainte- nance does not ripen into a full-fledged right to property, but nevertheless it is undoubtedly a right which in certain cases can amount to a right to property where it is charged. It cannot be sand that where a property is given to a widow in lieu of maintenance, it is given to her for the first time and not in lieu of a pre-existing right The claim to maintenance, as also the right to claim proper- ty in order to maintain herself, is an inherent right con- ferred by the Hindu Law and, therefore, any property given to her in lieu of maintenance is merely in recognition of the claim or right which the widow possessed from before. It cannot be said that such a right has been conferred on her for the first time by virtue of the document concerned and before the existence of the document the widow had no vestige of a claim or fight at all. Once it is established that the instrument merely recognised the pre-existing right, the widow would acquire absolute interest. Second- ly, the Explanation to s. 14(1) merely mentions the various modes by which a widow can acquire a property and the property given in lieu of maintenance is one of the modes mentioned in the Explanation. Sub-section (2) is merely a proviso to s. 14(1) and it cannot be interpreted in such a manner as to destroy the very concept of the right conferred on a Hindu woman under s. 14(1). Sub-section (2) is limit- ed only to those cases where by virtue of certain grant or disposition a right is conferred on the widow for the first time and the said right is restricted by certain conditions. In other words, even if by a grant or disposi- tion a property is conferred on a Hindu male under certain conditions, the same are binding on the male. The effect of sub-s. (2) is merely to equate male and female in respect of grant conferring a restricted estate. In these circum- stances we do not agree with the views expressed by the Orissa High Court .

As regards the Madras High Court, the position appears to be almost the same. There also, while a single Judge took the same view as the Bombay High Court and held that s. 14(2) was not applicable, the Division Bench of the Court in an appeal against the order of another Single Judge took the contrary view. In S. Kachupalaya Gurukal v. Subramania Gurukkal (supra) the Court seems to draw an artificial distinction between a claim of a widow for maintenance and a pre-existing right possessed by her. According to the High Court, while a claim for maintenance simpliciter. was not a right at all, the right to get a share in the husband's property under the Hindu Women's Right to, Property Act, 1937 was a pre-existing right. The Madras High Court ap- pears to have fallen into an error by misconceiving the scope and extent of a Hindu woman's right to maintenance. Secondly, it appears to have interpreted the proviso in such a manner as to destroy the effect of the main provision, namely, s. 14(1) and the explanation thereto, for which there can be no warrant in law. The decision of Natesan, J, in Gurunadham v. Sundrarajulu Chetty (supra) which had been affirmed by this judgment also, appears to have taken the same view and had fallen into the same error. Furthermore, the view of the learned Judge that on the interpretation given and the view taken by the Bombay High Court which we have accepted, s. 14 is intended to override lawful terms in contracts, bargains, bequests or gifts etc. is not correct, because the scope and area of sub-s. (2) of s. 14 is quite separate and defined. Such a sub-section applies only to such transactions as confer new right, title. or interest on the Hindu females. In such cases the titles created under sub-s. (2) are left in tact and s. 14(1) does not interfere with the titles so created under those instruments. Thus, in short, these two, decisions suffer from the following legal infirmities: (i) the Madras High Court has not correctly or properly appreciated the nature and extent of the widow's right to. maintenance: and (ii) the distinc- tion drawn by the Court regarding the share given to the widow under the Hindu Women's Right to. Property Act allot- ted to her before the passing of the Act in lieu of mainte- nance is based on artificial grounds. In fact the Act of 1937 did not legislate anything new, but merely gave statu- tory recognition to the old Shastric Hindu Law by consoli- dating the same and clarifying the right of the widow which she already possessed in matter of succession under the, Hindu Law. This being the position, the Act of 1937 makes no difference. so far as the legal status of a widow in regard to her right to maintenance was concerned. The Act neither took away the: right of maintenance nor conferred the same; (iii) the Court appears to, have given an extended meaning to sub-s. (2) of s. 14 of the 1956 Act which has been undoubtedly enlarged so as to set at naught the express words in the Explanation to sub-s. (1) of s. 14 which ex- pressly exclude the. property given to a widow in lieu of maintenance or at a partition from the ambit of sub-s. (1). In other words, such a property, according to the Explana- tion, is a property in which the widow would have undoubted- ly a limited interest which by operation of law i.e. force of s. 14(1 ) would be enlarged into an absolute interest if the widow is in possession of the property on the date when the Act was passed; (iv) similarly the Court failed to notice that 5--436 SCI/77 sub-s. (2) of s. 14 would apply only where a new right is created for the first time by virtue of a gift, will etc. or the like executed in favour of the widow in respect of which she had no prior interest in the property at all. For instance, a daughter is given a limited interest in presence of the widow. Here the daughter not being an heir in presence of the widow (before the Hindu Succession Act came into force) she had, no fight or share in the property, and if she was allotted some property under any instrument, a new and fresh right was created in her favour for the first time which she never possessed. Such a case would be square- ly covered by s. 14(2) of the Act.