A widow has a legal right of maintenance and residence in the family house, which can be enforced against a donee or a devisee from her husband, unless an alternative arrangement, equally satisfactory, is made for her residence.

Mudholkar, J—This appeal by a deft to a suit for possession of three rooms in a house raises a nice question under the Hindu law regarding the right of a widow for whose maintenance her deceased husband has made an arrangement under a will to reside in the family house.

2. The relevant facts are these: Mariayya Swami, the husband of the applt, dedicated certain property to a Math known as Mrigendra Math under a will executed by him on 28-2-1936. According to the resps, who are the Wahivatdars of the Math, the suit property is part of the dedicated property, while, according to the applt, it is not. There is however a finding of the Ct below that the suit property was dedicated by Mariayya Swami to the Math & that finding being one of fact is not quite properly assailed before me on behalf of the applt. What was, however, contended was that the applt along with her only child, a daughter, has always lived in the three rooms which constitute the suit property & that the testator could not deprive her of her right to reside in them. The answer of the resps is that the right which the applt had against her husband -- & those who claim through him -- was regarding her maintenance & that as provision in that respect is made in the will, she has no further claim on his property.

3. In this case, it is assumed that the property was the self-acquired property of the testator. Under the Hindu law he could sell, donate or devise the whole of it by will to the complete disinherison of his heirs. On this point the authorities are unanimous. But it has been held in Sonatun Bysack v. Sm. Juggutsoondree Dassee, 1859 8 MooIndApp 66; Baboo Beer Pertab Sahee v. Rajender Perdab Sahee, 1867 12 MooIndApp 1; Jamna v. Machul Sahu ; Narbadabai v. Mahadeo Narayan; & Joytara v. Ramhari Sardar : that a Hindu can-not make a gift or will of his separate property so as to defeat his widow's right to maintenance. The ground given in some of these decisions is that a wife is, in a subordinate sense, a co-owner of the husband's property & that the husband not being an absolute owner thereof cannot defeat the widow's right to maintenance.

4. Whether the ground given is a sound one or not, the texts indeed recognise the widow's right of maintenance in an unmistakable way. Thus, according to Smriti Chandrika, ''A man may give what remains after the food & claiming of his family''. While, according to 'Narada', ''What exceeds the maintenance of the family may be given away'' & according to 'Yagnyawalkya', ''A gift made without prejudice to the family is valid.''

5. It would, I think, be legitimate to infer from these texts that a widow has a legal right of maintenance & this right can be enforced by her against a donee or a devisee from her husband. A widow, as also an unmarried daughter have likewise a right of residence in the family house & such right can be enforced against a volunteer or a person with notice of the right unless an alternative arrangement, equally satisfactory, is made for her residence. This appears from the observations of Muthusami Ayyar J. in Ramanadan v. Rangainmal & the decision in Mangala Debi v. Dinanath Bose .

6. That the right of maintenance also includes the right of residence, is clear from. what was held by a D.B. in Charandas v. Nagubai, 1929 AIR(Bom) 452. This decision is based upon the view that ''subsistence'' referred to in the texts does not mean bare subsistence but also includes shelter. With that decision I respectfully concur.

7. It would thus appear that the applt was entitled not merely to maintenance but also to be provided for her residence. As a widow she can claim to be maintained in the same degree of comfort as she was used to during the life-time of the husband Quite obviously, it would make a difference to her if she is asked to leave the house. There is no suggestion in the plaint that the resps have made or willing to make a suitable arrangement for her residence elsewhere. In the circumstances, I am of the