The moral obligation of a Hindu father-in-law to maintain his widowed daughter-in-law is transmitted to his heir as a legal obligation upon inheriting the father-in-law's self-acquired properties.

Judgement

P. V. B. RAO, J.:- This Second Appeal is by the defendants against the reversing judgment of the Subordinate Judge of Balangir decreeing the plaintiffs suit for maintenance.

2. Plaintiff is the widow of one late Manglu Gountia who predeceased his father Chaudhury Gountia. Defendant No.1 is the widow of the said Chaudhury Gountia and defendant No.2 is his son. It was alleged in the plaint that defendant No.2 was born to a concubine of Choudhury Gountia but point was not pressed in the lower appellate court. Defendant No.1 died during the pendency of the Second Appeal and defendant No.2 the sole appellant now is the only person entitled to all the properties of late Chaudhury Gountia.

3. It is alleged in the plaint that Choudhury Gountia died about one year prior to the suit and that he left considerable properties which were inherited by defendants. It is not stated in the plaint nor is there anything in evidence to show that these properties were ancestral properties in the hands of Chaudhury Gountia. Both parties proceeded on the common ground that they were the self-acquired properties of Choudhury Gountia.

4. Plaintiff claimed arrears of maintenance for 3 years prior to the filing of the suit and maintenance at the rate of Rs.37/8/- per month on ground that the defendants who are in possession of all the properties of her late father-in-law having inherited to the same are bound to give her the maintenance claimed.

5. The defendants contended inter alia that she took a sum of Rs.1400/- from Chaudhury Gountia her father-in-law in lieu of maintenance and executed a document in that connection, by which she gave up her right of maintenance in lieu of a lump sum of money; that the suit is not maintainable and that it is barred by res judicata and limitation.

6. The learned Munsif dismissed the plaintiffs suit but in appeal, the learned Subordinate Judge decreed the same.

7. Mr. R.N. Misra, the learned Counsel appearing for the appellants contended that the plaintiff having received Rs.1400/- as a lump sum from her father-in-law in lieu of maintenance is not entitled to any further maintenance; that the suit is barred by res judicata and limitation; and that at any rate the plaintiff is not entitled to the arrears of maintenance.

8. With regard to the first contention, the defendants failed completely to prove that plaintiff was paid Rs.1400/- in lieu of maintenance. In the written statement there is no mention of the year or date in which the plaintiff is alleged to have executed a document in favour of her father-in-law on receipt of Rs.1400/- and it was not stated that, that document was lost. The defendants have examined some witnesses to prove the alleged agreement. Even on the assumption that secondary evidence is admissible I agree with the learned Sub-Judge that the evidence of the witnesses could not be accepted for the very cogent reasons stated by him in his judgment. The reasons given by the learned Subordinate Judge for setting aside the finding of the learned Munsif on this point are very sound and in my opinion the defendants have not proved the prior agreement alleged in the written statement.

9. The next contention raised by the learned counsel for the appellants is that the suit is barred by res judicata. The plaintiff has stated in her cross-examination that about 10 years back she filed a suit for maintenance against her father-in-law. It is difficult to hold that the suit is barred by res judicata on this solitary statement of an illiterate woman elicited in cross-examination. The defendants did not file the pleadings of that case, nor the judgment. In the absence of the proof of the pleadings and the judgment, the plea of res judicata cannot be accepted.

10. The plea of limitation also cannot be accepted as there is absolutely no reliable evidence about the demand and the refusal. The same witnesses who spoke about the existence of a prior agreement also speak about this. I agree with the learned Subordinat