The Hindu Womens Rights to Property Act, 1937 did not take away the right of maintenance of the widow under the ordinary Hindu law.

GANAPATIA PILLAI, J.:- The plaintiffs are the appellants. The first plaintiff is the widow of one Govindaswami Mudaliar and the second plaintiff is his daughter. This Govindaswami Mudaliar left a son by his first wife and he is the respondent to the appeal and defendant to the suit. Govindaswami Mudaliar died on 21-11-1953. He and his son Narayanaswami (respondent) were members of a joint Hindu family which owned the properties mentioned in the plaint. The suit was brought for partition and possession of a half share in the family properties as the share due to the first plaintiff who claimed her husbands share under the Hindu Womens Rights to Property Act, 1937. On behalf of the second plaintiff a maintenance provision of Rs.20 per month and marriage expenses of Rs.2000 were asked for.

2. The respondent resisted the suit on the strength of a settlement deed dated 17-12-1953 executed by him in favour of the first appellant which, according to him, was the result of a panchayat arrangement. It was pleaded by the respondent that this deed was registered at the instance of the first appellant and was in full settlement of all her claims against her husbands joint family properties. Other defences were raised with reference to the cash dealings, moveables and jewels mentioned in the plaint as joint family properties which it may not be necessary for Us to refer to in any detail.

3. The learned Principal Subordinate Judge found that the settlement deed dated 17-12-1953 was binding upon the plaintiffs and not liable to be set aside and consequently he held that the suit for partition was not maintainable and dismissed it.

4. Mr. Ramaswami Aiyangar, learned counsel for the appellants raised a question of law apart from the attack upon the settlement deed Ex.B.5. His argument was that the Hindu Womens Rights to Property Act, 1937 had taken away the right to claim maintenance by widows or coparceners and consequently the only right to which the first plaintiff was entitled was a right to claim the share due to her under the Act of 1937. In support of this argument he relied upon the principle that maintenance was allowed to members of joint families under the Hindu law only in recognition of the fact that they were excluded from taking a share at the partition of joint family properties. Statements contained in the text books on Hindu law - Maynes Hindu Law, tenth Edn. by Srinivasa Aiyangar, page 828 and Golapchandra Sarkar Sastris Hindu law - to this effect were relied upon. He also relied upon Sarojinidevi v. T. Sri Kristna, ILR (1945) Mad 61 : (AIR 1944 Mad 401), where a Bench of this court had recognised the force of this reason for granting maintenance to execluded members of joint families. There Wadsworth and Patanjali Sastri JJ. had to consider the question of the rights of a widow in the Madras State. The question for their decision was thus stated by them:

"The question accordingly arises whether, notwithstanding the right to a share in the non-agricultural properties of the family allowed to her under the Hindu Womens Rights to Property Act, 1937, the widow of a deceased coparcener is still entitled to any right of maintenance as under the ordinary Hindu law".

5. In answering this question in the affirmative the learned Judges considered that the right of maintenance to a Hindu widow under the ordinary Hindu law was only a compensation for her exclusion from inheritance and as this ground would no longer be available after the passing of the Hindu Womens Rights to Property Act, 1937 she would not be entitled to maintenance after the passing of the Act.

6. Before examining the soundness of this view we may point out that the observation was obiter since on the date when the claim was made in that case the widow was not entitled to claim, a share in the agricultural properties of the joint family which right she acquired only by legislation in 1947. Even otherwise the question what right a widow could claim in the joint fam