Judgement

Appeal (No. 91 of 1931) from a decree of the High Court (August 12, 1930) which reversed, so far as material to the present appeal, a decree of the Subordinate Judge of Dacca (November 28, 1927).

The plaintiff-respondent was the widow of Jadu Nath, who died in 1906. He was one of three sons of Madan Mohan, the family being undivided and governed by the Bengal school of Hindu law. Madan Mohan died in 1913. He was survived by his son Rajani Kanta Pal (the appellant), and by his son Murali, who died in 1926 and was represented by his executor, the appellant ; neither son had issue. In 1904 Jadu Nath had been formally adopted by his paternal uncle, Jaga Mohan, a registered deed of adoption being signed by Madan Mohan, Jaga Mohan, and Jadu Nath. At that time Jadu Nath was of age and married to the respondent, and she was with child.

In 1925 the respondent instituted the present suit claiming maintenance from Jaga Mohan, or alternatively from the appellant and his brother (since deceased), the alternative claim being made in case the adoption was held to be invalid. The receiver in a partition suit, which had been brought in or about 1910 by Jaga Mohan against Madan Mohan, was joined as a defendant. The plaintiff had been residing with Madan Mohan and after his death with his sons, but had left the family residence alleging ill-treatment; at the time of the suit she was residing with her father. She also claimed to recover certain ornaments.

The trial judge held that the adoption was invalid, and that the claim against Jaga Mohan therefore failed. He was of opinion that the plaintiff was entitled to be maintained by her brothers-in-law. He found, however, that she had not been ill-treated in the family residence and that her brothers-in-law were willing to maintain her in the family residence, and that therefore she was not entitled to a separate maintenance allowance, Accordingly he dismissed the claim for maintenance ; he made a decree in respect of the ornaments.

The plaintiff appealed to the High Court in forma pauperis. The present appellant, for himself and as executor of his brother, filed cross-objections against the finding that the adoption was invalid, and against there being any liability upon him to maintain the plaintiff.

At the hearing of the appeal the validity of the adoption was not pressed, and it was conceded that having regard to the judgment of the Board in Ekradeshwari Bahuasin v. Homeshwar Singh (( 1929)

L. R. 56 I. A. 182.), the fact that plaintiff had left the family residence, not for unchaste purposes, did not preclude her from claiming a maintenance allowance.

The High Court (Mukerji and Mitter JJ.) rejected a contention that the invalid adoption, deliberately entered into by the plaintiffs husband when sui juris, resulted in a forfeiture of the right to maintenance claimed. Applying the principles laid down by the Privy Council in the case mentioned above as to the amount of maintenance to be awarded to a widow, the learned judges made a decree against the present appellant for the payment of 80 rupees per month, to be a charge upon his fathers estate. The judgment is reported at I. L. R. 58 C. 745.

1933. Nov. 16. Wallach for the appellant. The Dayabhaga wholly denies that a Hindu has by birth an interest in the ancestral family property, a doctrine which is the cornerstone of the Mitakshara joint family system and the rights thereunder Maynes Hindu Law, par. 37 ; Mullas Hindu Law, ss. 273, 543. In Khetramoni Dasi v. Kasinath Das (( 1868) 2 Ben. L. R. (A..C. J.) 15.) a full Bench of the Calcutta High Court held that there is no legal obligation to maintain the widow of a deceased son but only a moral obligation in appropriate circumstances. It is true that it was there laid down that after the fathers death the moral obligation became a legal liability attaching to the inheritance ; that view was expressed obiter, but it has been applied in Kamini Dossee v. Chandra Pode Mondle (( 1889)I. L. R.