Maintenance & welfare
GANGO PADHYAYA
(Querist) 13 June 2012
This query is : Resolved
FATHER AND MOTHER DIED
IN THE FAMILY BROTHER JOINED IN THE FATHER JOB AND HE MARRIED . WHERE ABOUT HIS REMAINING BROTHER AND SISTERS ASE NOT MARRIED SUFFERING FOR THEIR LIVELIHOOD AND THEIR MARRIAGES, THEY ARE UNABLE TO MAINTAIN FOR THEM SELVES
WHICH PETITION CAN FILE IN COURT , WHAT IS RELIEF
Devajyoti Barman
(Expert) 13 June 2012
If they have attained majority then they could do nothing.
GANGO PADHYAYA
(Querist) 13 June 2012
Is there any government organizations to give marriage life etc.,
Kiran Kumar
(Expert) 13 June 2012
marriage life?
is it the duty of the govt. to ensure marriage of a person?
ajay sethi
(Expert) 13 June 2012
buddy you have to stand on your own feet . work hard . your parents must have given you a sound education . work hard . dont bother about money at this stage . you will succeed ultimately
R.K Nanda
(Expert) 13 June 2012
Agree with experts.
GANGO PADHYAYA
(Querist) 14 June 2012
Gujarat High Court
Ahir vs Ahir on 13 October, 2010
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL No. 131 of 1983
For Approval and Signature:
HONOURABLE MR.JUSTICE K.A.PUJ
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
AHIR BHIKA KHODA - Appellant(s)
Versus
AHIR BAI VAJUBAI @ RANBAI NARAN & 2 - Defendant(s)
Appearance : MR PV HATHI for Appellant(s) : 1,
MR SURESH M SHAH for Defendant(s) : 1 - 2. RULE SERVED for Defendant(s) : 3,
CORAM : HONOURABLE MR.JUSTICE K.A.PUJ
Date: 13/10/2010
CAV JUDGMENT
1. The appellant/original defendant No.1 has filed this Second Appeal under section-100 of the Civil Procedure Code, challenging the judgment and decree passed by the learned Second Extra Assistant Judge, Rajkot in Regular Civil Appeal No.1/1982 on 29th October, 1982 partially allowing the said Appeal by partially confirming the judgment and decree passed by the learned Civil Judge(Junior Division), Jetpur in Regular Civil Suit No.295/1978.
2. This Second Appeal was admitted on 17.06.1983 and following substantial questions of law were framed for determination and consideration of this Court:-
(i) Whether the learned Assistant Judge committed a substantial error of law in interpreting and applying section 21 of the Hindu Adoption and Maintenance Act, 1956, on the facts and circumstances of the present case?
(ii) Whether the learned judge committed a substantial error of law in awarding maintenance to the respondent, Bai Valubai, daughter of deceased Naran Vira, from the properties which were in the hands of the appellant, Bhikha Khoda?
(iii)Whether the learned judge committed a substantial error of law in holding that the first respondent was a dependent of deceased Naran Vira and that she was entitled to maintenance under the Hindu Law from the property of her father and grand-father?
(iv) Whether the learned judge committed a substantial error of law in not holding that the first respondent was not entitled to claim any maintenance as she was already married and her father had died before 1956?
(v) Whether the learned judge committed a substantial error of law in not considering and holding that the suit against the appellant alone was not maintainable and that the suit suffers from non-joinder of necessary parties ?
3. The brief facts giving rise to this Second Appeal are that the plaintiff Aher Valubai alias Ranbai Naran has filed the suit against her brother's son, Aher Bhikha Khoda for maintenance from her father Naran Vira's properties for herself and her minor son Samat. Plaintiff Valubai was married and was residing with her husband at Rajkot. But her husband was murdered. Her husband has no property worth anything. In the same way, her father-in-law has also no other estate. She had no source of income to maintain herself. She has got minor son Samat. She, therefore, went to reside with her mother, defendant No.2 Sonbai, at Khirasara, and she used to do labour work to maintain herself and her son from that labour charges. She has contended in the suit that her father Naran Virabhai had good deal of properties with agricultural land, houses etc. After death of her father, the entire property fell in the hands of her brother Khoda Naran who was born due to previous wife of Naran Virabhai. Valubai was born due to remarriage of her father Naran Vira with Sonbai, present defendant No.2. Her brother Khoda Naran also died and subsequently all the properties have fallen in the hands of Bhima Khoda. The properties in the hands of defendant No.1 Bhima Khoda are described in para-5 of the plaint. According to the plaintiff Valuben, under the provisions Hindu Law, as a daughter, she is entitled to be maintained from the properties of her father Naran Vira and defendant No.1 is bound to provide for maintenance of herself and her minor son Samat. She has, therefore, prayed that she would be awarded for herself and her minor son monthly maintenance of Rs.300/-.
4. Defendant No.2 Sonbai Naran has filed the written statement at Exh.23. She has fully supported the case of the plaintiff Valubai and had contended that Valubai has no source of income from her husband or from her father-in-law. Defendant No.1 Bhikha Khoda had received all the properties of Naran Vira and Khoda Naran in his share. In other words, the properties which are ancestral properties and admittedly properties of Naran Vira devolved upon Khoda Naran. After death of Naran Vira and when Khoda Naran died, the suit properties have been captured by defendant No.1 Bhikha Khoda. She has, therefore supported the plaintiffs' case that the plaintiffs are entitled to claim a maintenance from the defendant No.1.
5. Defendant No.1 contested the suit vide written statement Exh.28 contending that he had no idea when his grand-father Naran Vira expired. He had further contended that whatever properties are in his hands, they are the properties fallen to his share and the plaintiff cannot claim any maintenance from the said properties. The defendant No.1 further contended that in the properties of Khoda Naran, there are heirs also. There is no partition between the heirs of Khoda Naran. Ultimately, defendant No.1 contended that the plaintiffs have no right whatsoever to pray for maintenance from the properties mentioned in the plaint, and hence the suit deserves to be dismissed with costs.
6. The learned Trial judge after framing issues at Exh.29 and appreciating the evidence on record, came to the conclusion that the plaintiffs proved that the properties described in para-5 of the plaint were of the ownership of deceased Naran Vira and they are in possession of the defendant No.1. The learned Trial judge further concluded that the plaintiffs proved that the suit properties are ancestral properties and the plaintiffs have got right in the said properties. The learned Trial further held that the plaintiffs are entitled to claim maintenance of Rs.200/- per month from the defendant No.1. The learned Trial judge negatived the contention raised on behalf of defendant No.1 that the plaintiffs' suit is bad for non-joinder of necessary parties. The defendant No.1 failed to prove that the plaintiffs are not entitled to maintenance from him. Ultimately, the learned Trial judge decreed the plaintiffs' suit in their favour and awarded maintenance to the plaintiff at Rs.200/- per month from the date of the order.
7. Being aggrieved by the said judgment and decree of the Trial Court, the defendant No.1 preferred Regular Civil Appeal No.1/1982 before the learned Extra Assistant Judge, Rajkot, who vide his order and judgment dated 29th October, 1982, partly allowed the said Appeal. He has held that the Appeal so far as it relates against awarding maintenance to Valubai at Rs.200/- per month stood dismissed. The Appeal was partly allowed and Samat was not entitled to claim any maintenance from the property of his mother's father and to that extent the Appeal was allowed and Samat's claim for maintenance was rejected. The learned appellate judge has, therefore, held that the plaintiff Valubai was entitled to claim maintenance from the defendant No.1 for herself only at Rs.200/- per month from the date of the order passed by the learned Trial judge.
8. It is this order and judgment of the lower appellate court which is under challenge in the present Second Appeal.
9. Mr.P.V. Hathi, learned advocate appearing for the appellant has submitted that the Courts below have not correctly interpreted the provisions of Hindu Adoption and Maintenance Act, 1956. He has further submitted that the plaintiff was not entitled to have maintenance within the meaning of section-21(vi) of the said Act. He has further submitted that Naran Vira, father of defendant No.1 had died prior to the coming into force of Hindu Adoption and Maintenance Act, 1956 and hence the plaintiff was not entitled to maintenance from the estate of her father devolved upon the defendant No.1. He has further submitted that the plaintiff is not entitled to claim any maintenance from the defendant No.1 for herself in view of the fact that the property had devolved upon her on the death of her father in the year 1955 and the provisions of Hindu Adoption and Maintenance Act were not applicable to the present case. He has further submitted that the lower appellate court had misinterpreted and misred the true legal position emanating from the provisions of the Maintenance Act which was prospective and apply only to the estate of Hindu whose death takes place after the commencement of the Act. He has further submitted that the claim of the plaintiff as widowed daughter was not tenable as against the property which had fully vested in the defendant No.1 on and from 1955. He has further submitted that the provisions of section-21 of the Act are not applicable to the claim of the plaintiff as the plaintiff was not a widowed daughter on the date on which her father Naran Vira died in 1955. The plaintiff had not discharged the burden which lay upon her in proving that she was entitled to maintenance even as against the defendant No.1, who is grand-son of the deceased Naran in whose property the plaintiff, claims her right to maintenance. The defendant No.1 is the nephew of Bai Valubai, and therefore, she was not entitled to claim any maintenance from the property which belong to him on and from 1955. Both the Courts should have therefore rejected the claim on the ground of limitation. The suit filed by the plaintiff was clearly beyond the period of limitation and no decree could have been passed as against property of defendant No.1. The Hindu Womens Right to Property Act, 1937 was never extended to Saurashtra till 1956, and therefore, the daughter had no claim whatsoever in the property of Naran Vira as the property left by him devolved upon the defendant No.1's father as a co-parcener and since no right of maintenance was available to the plaintiff, no suit could have been entertained by the learned trial judge, and therefore, the decree passed by both the Courts below deserve to be quashed and set aside.
10. Mr. Hathi, in support of the submissions has relied on the decision of Bombay High Court in the case of Bai Mangal Vs. Bai Rukhmini, I.L.R. 23 Bom. 292
wherein it is held that in fact, all the text-writers appear to be in agreement on this point-namely, that it is only the unmarried daughters who have a legal claim for maintenance. The married daughters must seek their maintenance from the husband's family. If this provision fails, and the widowed daughter returns to live with her father or brother, there is a moral and social obligation, but not a legally enforceable right by which her maintenance can be claimed as a charge on her father's estate in the hands of his heirs.
11. Mr. Hathi, in support of the submission that Hindu Adoption and Maintenance Act is not retrospective in operation, has relied on the decision of Andhra Pradesh High Court in the case of Ammireddi Ramamoorthy(died)and others Vs. Ammireddi Sitharamamma and others, AIR 1961 Andhra Pradesh 131
wherein it is held that sections 21 and 22 of Hindu Adoption and Maintenance Act do not bear on the pre-existing rights of maintenance holders. The Act does not abridge those rights and leaves them untouched. Consequently, a right of maintenance, which a concubine had acquired against the estate of her deceased paramour prior to the Act is not nullified by the Act, since Sections 21 and 22 leave the estates of Hindus whose death occurred before the Act unaffected. Those sections apply only to estate of Hindus whose death overtakes after the commencement of the Act.
12. Mr. Hathi further relied on the decision of the Patna High Court in the case of Gulab Chand and others Vs. Sheo Karan Lall Seth and others, AIR 1964 Patna 45
wherein it is held that there cannot be any manner of doubt that the provisions of section 22 are prospective and cannot be taken advantage by the widows of persons who died before the commencement of this Act. Even otherwise, she was entitled, as the widow of a deceased coparcener, to be maintained by the joint family after the death of her husband.
13. Mr. Hathi further submitted that the learned appellate Court has wrongly placed reliance on the decision of the Madhya Pradesh High Court in the case of Sou Ramabai w/o Ambadas Vs. Meerabai d/o Narayan Rao, AIR 1967 Madhya Pradesh 86 wherein it is held that sections 21 and 22 of Hindu Adoption and Maintenance Act do not in any way abridge the pre-existing rights of maintenance holders and these provisions of the Act are prospective and apply only to the estate of the Hindus whose death takes place after the commencement of the Act. Though sister does not find any place in the list of dependants in section 21, it would not deprive the sister of getting her maintenance from her brother out of the property left by her father where she does not inherit the property from her father as an heir. The settled legal position of law is that an heir is legally bound to provide out of the estate which descends to him maintenance for those persons whom the late proprietor was legally or morally bound to maintain.
14. Mr. Hathi further relies on the decision of this Court in the case of Daniraiji Vrajlalji Vs. Vahuji Maharaj Chandraprabha, AIR 1971 Gujarat 188 wherein it is held that neither section 4 nor section 15 of the Hindu Adoption and Maintenance Act is retrospective in its operation and, if these sections are construed in their proper perspective, it would appear that they refer only to those adoptions which have come into existence after the application of the Act.
15. Mr. Hathi further relies on the decision of the Bombay High Court in the case of Jaiwanti Mafatlal Gagalbhai Vs. Arvind Navinchandra Mafatlal and others, AIR 1968 Bombay 314 wherein it is held that it is only by virtue of the provisions contained in the Hindu Adoptions and Maintenance Act that the illegitimate daughter of a Hindu has for the first time acquired the right to claim maintenance from such Hindu during his or her life time and on his or her death against the estate of such deceased Hindu. The rights created under sections 21 and 22 are only prospective and not retrospective. It is the well settled principle of law that the statute should not, as far as possible, be interpreted so as to divest the estate already vested. Keeping in view the said principle, it cannot be said that any right is created in favour of the dependant to claim maintenance against the estate of the deceased, dying prior to the commencement of the said Act. It is further held that the opening words of sub-section(1) of section 22, namely, subject to the provisions of sub-section(2), clearly indicate that the provisions in sub-section(1)are controlled by sub-section(2). Reading these two sub-sections together an illegitimate daughter is not entitled to claim maintenance against the estate of the deceased, dying prior to the coming into operation of the said Act.
16. Mr. Hathi further relied on the decision of the Apex Court in the case of Balwant Kaur and another Vs. Chanan Singh and others, AIR 2000 Supreme Court 1908 wherein it is held that section 21(vi)and section 22(2)of Hindu Adoption and Maintenance Act 1956 deal with the right of maintenance accruing to the widowed daughter after the death of her father. As per section 21 Clause(vi), if the deceased has left behind him his widowed daughter then 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 from her father-in-law or his father or the estate of either of them, then such widowed daughter is to be treated as dependent of the deceased. Once under section 22(2) person is found to be dependent of the deceased, then such a dependent has a pre-existing right qua the estate of the deceased to get maintenance and that right, if not crystallised by way of grant of definite share in the estate of the deceased either on his intestacy or on the coming into operation of his testament in favour of the dependent, then such pre-existing right of maintenance would remain operative even after the death of the Hindu and would get attached to the estate which may get transmitted to his heirs either on his intestacy or on account of the testamentary disposition in their favour. Thus, section 22 sub-section(2) underscores pre-existing right of maintenance in favour of the dependent qua the estate of the Hindu.
17. Based on the above factual and legal position, Mr. Hathi has strongly urged that the Appeal filed by the present appellant/original defendant No.1 deserves to be allowed and the judgment and order of the lower appellate court to this extent be quashed and set aside.
18. Mr. Suresh M. Shah, learned advocate appearing for respondent No.1/original plaintiff has on the other hand supported the judgment and decree passed by the lower courts and submitted that since concurrent findings are given by the courts below, this Court while exercising its appellate jurisdiction under section-100 of the Civil Procedure Code in the present Second Appeal, should not disturb the same. He has submitted that under the provisions of Hindu Law, a father is bound to maintain his unmarried daughters and on the death of the father, they are entitled to be maintained out of his estate. He has further submitted that a widowed daughter who is without means and whose husband and his family is unable to support her, is entitled to be maintained by her father or mother or out of their estate. He has further submitted that it is also a settled principle of law that though sister does not find any place in the list of dependant in section 21, it would not deprive the sister of getting her maintenance from her brother out of the property left by her father where she has not inherited the property from her father. He has further submitted that there is no dispute about the fact in the present case that the plaintiff No.1 has not got any property from her deceased father Naran Vira and she is a widow and she did not possess any property from her deceased husband. There is also no dispute about the fact that the property of deceased father Naran Vira came in the hands of Khoda Naran, the brother of the plaintiff No.1 and after the death of Khoda Naran, the suit property is held by the defendant No.1 i.e. Bhima Khoda. He has further submitted that under the provisions of section 8 of the Hindu Succession Act, 1956, property of male Hindu dying intestate shall devolve according to the Schedule. As per class-I, daughter and as per class-II, brother and sister and sister's son are entitled to get share from the property left by a Hindu male dying intestate. Therefore, the provisions of Hindu Succession Act, 1956 give right to female. In the present case, the plaintiffs have not prayed for decree for partition but they have prayed for decree of their maintenance. He has further submitted that under section 21(vi)of Hindu Adoption and Maintenance Act, the plaintiff No.1 as widowed daughter became dependent and entitled to the maintenance from the property of the deceased father Naran Vira and the defendant No.1 is bound to maintain her as she has no independent source of income.
19. Mr. Shah further submitted that there is no question of retrospective application of the Act. The plaintiff is not claiming any amount of maintenance prior to the enforcement of the Act. She claims her maintenance only after the Act come into force. For this purpose, he relies on the decision of the Apex Court in the case of Dilip Vs. Mohd. Azizul Haq & Another, 2000(2) Scale 347 wherein the court was concerning with the applicability of the provisions of section 13-A of Rent Control Order, 1949. The Court held that the provisions came into force when the appeal was pending. Therefore, though the provision is prospective in force, has retrospective effect. This provision merely provides for a limitation to be imposed for the future which in no way affects anything done by a party in the past and statutes providing for new remedies for enforcement of an existing right will apply to future as well as past causes of action. The reason being that the said statutes do not affect existing rights and in the present case, the insistence is upon obtaining of permission of the controller to enforce a decree for eviction and it is, therefore, not retrospective in effect at all, since it has only retroactive force. The Court further held that the problem concerning retrospectivity concerning enactments depends on events occurring over a period. If the enactment comes into force during a period it only operates on those events occurring then. We must bear in mind that the presumption against retroactive legislation does not necessarily apply to an enactment merely because a part of the requisites for its action is drawn from time antecedent to its passing. The fact that as from a future date tax is charged on a source of income which has been arranged or provided for before the date of the imposition of the tax does not mean that a tax is retroactively imposed.
20. Mr. Shah further relied on the decision of the Apex Court in the case of Smt. Sitabai and another Vs. Ramchandra, AIR 1970 Supreme Court 343, wherein it is held that under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and the property of a joint family does not cease to belong to a joint family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property may possess. The property which was the joint family property of the Hindu undivided family does not cease to be so because of the temporary reduction of the coparcenary unit to a single individual. The character of the property, i.e. that it was the joint property of a Hindu undivided family remains the same. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as joint property of the undivided family.
21. Following the above decision of the Apex Court, this Court in the case of Bai Chanchal Guardian of Minor Rameshchandra Pranshanker Vs. Manishanker Madhavram Heirs of Deceased, 12 GLR 576, took the view that the proviso(c) of section 12 of the Hindu Adoption and Maintenance Act, 1956, does not bar the adopted child from divesting the sole surviving coparcener of the joint property and from claiming a share therein.
22. Based on the legal position, Mr. Shah submitted that both the Courts below have taken the correct view in the matter and the same being in accordance with settled position of law, the Appeal should be dismissed with costs.
23. Having heard learned counsels appearing for the parties and having considered their rival submissions in light of the findings recorded and conclusion drawn by the Courts below looking to the statutory provisions contained in the Hindu Adoption and Maintenance Act, 1956 and the decided case-law on the subject, the Court is of the view that the Courts below have not correctly interpreted the provisions of Section 21 and 22 of the Hindu Adoption Act, and has committed an error in arriving at the conclusion drawn by them, that the present appellant is liable to provide maintenance of Rs.200/- p.m. to the defendant No.1 from the estate derived by him, looking to the provisions contained in Section 21(vi) of the Act. The Courts below have completely ignored the provisions contained in Section 22(2) of the Act.
Section 21 defines dependants. It is an exhaustive definition. Certain relatives of the deceased are considered to be dependants. Widowed daughter is the dependant of the deceased provided and to the extent that she is unable to obtain maintenance (a) from the estate of her husband, or (b)from her son or daughter if any, or his or her estate, or (c)from her father-in-law or his father or the estate of either of them. The respondent No.1 is admittedly a widowed daughter. She could not get any maintenance from the estate of her husband as he had not left any property. She had a son but she could not get any maintenance from her son as at the relevant time, he was minor and even maintenance was claimed for her minor son from the estate of her father. Her father-in-law could not provide any maintenance and no estate was left by her father-in-law from which any maintenance could be claimed. There is no dispute about the fact that the father of the respondent No.1 had left sufficient estate behind him. She had not received any share from the property of her father, Naran Vira. On death of her father, property was devolved upon her brother Khoda Naran and on his death, the property was devolved upon his son, Bhikha Khoda. She has, therefore, filed suit against her nephew, Bhikha Khoda, claiming maintenance from the estate of her father, now held by her nephew. As per the provisions of Section 21(vi) of the Act, she is entitled the claim maintenance. But the question arose for this Court's consideration is as to whether the provisions of this Act are applicable to the case on hand. The Act came into force on 21.12.1956 and the father of the respondent No.1 expired prior to 1956. An issue was therefore raised on behalf of the appellant that the Act applied prospectively and not retrospectively.
24. To consider this controversy between the parties, it is necessary to have a close look to the provisions of Section 22 of the Act. Section 22 of the Act deals with maintenance of dependants. Sub-section(1) of section 22 states that 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. As per sub-section(1), the present appellant is bound to provide maintenance to the respondent No.1, from the estate inherited by him. But this provision is subject to the provisions of sub-section(2). Sub-section(2)states that 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. There is no dispute about the fact that the respondent No.1 has not obtained, by testamentary or intestate succession, any share in the estate of her father. It is, however, required to take cognisance of the fact that she could claim maintenance only if her father would have died after the commencement of this Act. Admittedly, her father died before the commencement of the Act. In such a situation, whether maintenance of Rs.200/- awarded by the Courts below is held to be justified. This very issue arose before the Bombay High Court in the case of Jaiwanti Mafatlal Gagalbhai (Supra).
In this case, the Court clearly held that it is only by virtue of the provisions contained in the Hindu Adoptions and Maintenance Act that the illegitimate daughter of a Hindu has for the first time acquired the right to claim maintenance from such Hindu during his or her life time and on his or her death against the estate of such deceased Hindu. Similarly, u/s. 21(vi) of the Act, the widowed daughter, has for the first time acquired the right to claim maintenance from the heirs of the deceased father against the estate left by him. The Court further took the view that the rights created under Sections 20, 21 and 22 are only prospective and not retrospective. There is settled principle of law that the statute should not, as far as possible, be interpreted so as to divest the estate already vested. Keeping this principle in mind, the Court took the view that it cannot be said that any right is created in favour of the dependant to claim maintenance, dying prior to the commencement of the said Act. The Court further held that, the opening words of sub-section(1) of Section 22, namely, subject to the provisions of sub-section(2), clearly indicate that the provisions in sub-section(1) are controlled by sub-section(2). Reading these two sub-sections together a widowed daughter is not entitled to claim maintenance against the estate of the deceased father, dying prior to the coming into operation of the said Act.
25. Before the lower Appellate Court, reliance was placed on the decision of the Madhya Pradesh High Court in the case of Sou Ramabai w/o Ambadas Vs. Meerabai d/o Narayan Rao (Supra). However, this decision only states that sections 21 and 22 of the Act do not in any way abridge the pre-existing rights of maintenance holders. If there is any pre-existing right to claim maintenance, this Act shall not take away the said right. Barring this, even the Madhya Pradesh High Court reiterated that the provisions of this Act are prospective and apply only to the estate of Hindus whose death takes place after the commencement of the Act. Before the Apex Court, this very issue arose in the case of Balwant Kaur and another Vs. Chanan Singh and others (Supra). The Court has explained the right of maintenance accruing to the widowed daughter after the death of her father. The Court has also referred to the right of widowed daughter under proviso(a) to Section 19(1) for maintenance against her father during his life time. In this case, the deceased executed a Will dated 21.08.1959 and he died on 11.10.1960. Thus, both the events occurred after the Hindu Succession Act as well as Hindu Adoptions and Maintenance Act came into force. The Apex Court observed that Section 21(vi) and Section 22(2) of Hindu Adoptions and Maintenance Act, 1956 deal with the right of maintenance accruing to the widowed daughter after the death of her father. Once u/s. 22(2) person is found to be dependant of the deceased, then such a dependant has a pre-existing right qua the estate of the deceased to get maintenance and that right, if not crystalised by way of grant of definite share in the estate of the deceased either on his intestacy or on the coming into operation of his testament in favour of dependant, then such pre-existing right of maintenance would remain operative even after the death of the Hindu and would get attached to the estate which may get transmitted to his heirs either on his intestacy or on account of the testamentary disposition in their favour. Thus, section 22, sub-section(2) underscores pre-existing right of maintenance in favour of the dependant qua the estate of the Hindu. The Court, therefore clarified as to why the legislature has deliberately not used the words 'estate of her father' in the proviso(a) to section 19(1). If the words 'estate of' is read before the words 'father' in section 19(1)(a), section 22(2) read with section 21(vi) would become otiose. The proviso (a) to section 19(1) creates a personal right in favour of the widowed daughter against her father during his life time. Any property given in lieu thereof, during his life time or to go her after the father's life-time would certainly fall under section 14(1) of the Hindu Succession Act, 1956, that being in lieu of a pre-existing right during the father's life time. In the case on hand, since the father died prior to the date on which the Act came into force, it cannot be said that there was any pre-existing right in favour of the respondent No.1.
26. The reliance placed by Mr. Shah on the judgment of the Apex Court in the case of Dilip Vs. Mohd. Azizul Haq & Another (Supra) does not take his case any further. It is true that the presumption against retrospective legislation does not necessarily apply to an enactment merely because a part of the requisites for its action is drawn from time antecedent to its passing. But, here into present case, Section 22(2) controls the applicability of Section 22(1) which creates an obligation on the heirs of the deceased Hindu to maintain the dependants of the deceased out of the estate inherited by them from the deceased. Since the deceased died prior to the commencement of this Act, there was no such obligation to maintain the dependants of the deceased from the estate left by the deceased and devolved upon the heirs. There was an absolute vesting or devolvement of the estate, unattached by or unencumbered with any obligation. Despite this provision, if the claim for maintenance is made and entertained, it would amount to retrospective application of the provision, which is not permissible.
27. In view of the above discussion, this Court holds that the learned Assistant Judge committed a substantial error of law in interpreting and applying Section 21 of the Hindu Adoptions and Maintenance Act, 1956. The learned judge also committed an error in awarding maintenance to the respondent No.1 from the properties which were in hands of the appellant Bhikha Khoda. The Court further takes the view that in view of the provisions of Section 22(2) of the Act, despite the respondent No.1 is dependant of the deceased father, she is not entitled to maintenance from the estate inherited by the appellant. Answer to the question No.4 is already covered by the previous answers. Considering the view taken by the Court and further considering the fact that no arguments were canvassed in relation to question No.5, the same need not be answered.
28. After deciding the substantial questions of law arose before the Court, in favour of the appellant and against the respondent No.1, looking to the facts and circumstances of the present case, more particularly, the meagre sum of maintenance of Rs.200/-p.m., the value of this amount in the present day context, the respondent No.1 getting this amount since 1982 onwards and her advanced age of more than 80 years, the Court does not want to deprive her from this entitlement at the fag end of her life and this would not cause any additional burden on the appellant if this payment is directed to be continued till she is alive, on moral grounds, if not on legal grounds. Order accordingly.
29. Subject to the above observation and direction, this Second Appeal is accordingly disposed off.
(K.A. Puj, J.)
Shonee Kapoor
(Expert) 16 June 2012
Stand for your own good.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
