The court can create a charge regarding maintenance on the property of the deceased in the possession of the defendants by a decree of the court, as provided in Section 27 of the Hindu Adoptions and Maintenance Act, 1956.

P.C.Pandit, J.

1. After the death of her husband Rulia, Shrimati Bachni brought a suit for maintenance against her son, Chuhra and her daughter, Shrimati Bhago. She demanded maintenance @ Rs.60/-per month. She also claimed Rs.720/-on account of arrears of maintenance for 1959. A further prayer was made that she should be given possession of half of the estate left by her husband.

2. The suit was contested by the daughter only. The son, however, admitted her claim.

3. After trial, the learned Subordinate Judge, Nawanshahar, passed the following order:-

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"As a result of my findings, I grant the plaintiff a decree fixing her future monthly maintenance at Rs.50/-from the date of the application, i.e., 2nd February, 1960, and also a decree for Rs.600/-as arrears of maintenance against the defendants. Plaintiff is also granted a decree for possession of one half of the suit property in lieu of her maintenance which shall be a charge on the suit property till her life or remarriage. The defendants shall pay the costs of the suit to the plaintiff. They shall also pay the court-fees prescribed on the plaint."

4. Against this decision, the present appeal has been filed by the daughter Shrimati Bhago and the claim therein is confined only to one relief, namely, that the trial Judge could not have granted a decree for possession of half of the property left by Rulia and further that the amount of maintenance could not be made a charge on the entire suit property.

5. Learned counsel for the appellant, in the first place, contended that the trial Judge was in error in creating a charge on the suit property in lieu of the maintenance granted to Shrimati Bachni. For this purpose, he placed his reliance on Section 27 of the Hindu Adoptions and Maintenance Act, 1956. The said section reads:-

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"A dependants claim for maintenance under this Act shall not be a charge on the estate of the deceased or any portion thereof, unless one has been created by the will of the deceased, by a decree of court, by agreement between the dependent and the owner of the estate or portion, or otherwise."

6. Indisputably Shrimati Bachni was a dependent. From the language of this section, it is clear that a claim for maintenance could be made a charge on the estate of the deceased by a decree of the Court. Therefore, the trial Judge could create a charge regarding the maintenance on the property of Rulia deceased in the possession of the defendants.

7. Learned counsel then submitted that, in any case, the trial Judge could not have decreed the suit for possession of half of the property left by Rulia.

8. There is merit in this contention, because our attention was not invited by the learned counsel for the respondent to any provision in the above mentioned Act under which a decree for possession could be granted to the dependent with regard to his or her claim for maintenance.

9. That being so, this appeal is partly accepted and the decree for possession granted to Shrimati Bachni is set aside. The rest of the decree shall stand. In the circumstances of this case, however, the parties will bear their own costs in this Court.

Gopal Singh, J.

10 I agree.