Mokhada Dassee vs Nundo Lall Haldar And Ors. on 8 February, 1901

Calcutta High Court
Mokhada Dassee vs Nundo Lall Haldar And Ors. on 8 February, 1901
Equivalent citations: (1901) ILR 28 Cal 278
Author: Maclean
Bench: F M Maclean, Kt., K.C.I.E., Prinsep, Hill


Maclean, C.J.

1. The point we have to decide upon this appeal is, whether or not an indigent daughter, who is a sonless widow, is entitled to maintenance out of her father’s estate which has descended, to his heir. The suit is one by a sonless widow against the heir of her deceased father, who as such heir acquired his property, for a declaration in effect that she is entitled to separate maintenance during her natural life out of her late father’s estate.

2. Except as to the indigency of the plaintiff, there is, virtually, no dispute of fact in the case, and no dispute that, at the time when the succession opened out, the plaintiff was a sonless widow.

3. The facts as to the pedigree and relating to the other historical portion of the case have been admittedly stated with accuracy by the Court below, and there appears to be no necessity to recapitulate them.

4. Upon the evidence I think it is at least doubtful whether the plaintiff is in the destitute condition she describes, but I will assume, for the purposes of my decision, that she is in such circumstances. In this connection, it is important to observe that Toolsy Das Dutt, who is now apparently the head of her late father-in-law’s family, has offered her a home and food and raiment, and that a similar offer was made, during the trial of the case in the Court below, by the defendant Nando Lall Haldar, who, I understand, is her. first cousin on her father’s side and the present head of her late father’s family. These offers have been refused by the plaintiff, and it is reasonably apparent that what she really wants is not only separate maintenance for herself, but in effect maintenance for herself and her three grandchildren who are living with her. The question is, whether she is entitled to such separate maintenance out of the estate of her late father which has descended upon and is now in the possession of his heir.

5. We have listened to a very learned and interesting argument from the counsel for the appellant, the Court below having dismissed the suit without costs; but I scarcely think it is necessary to pursue that argument in detail, or to deal in detail with various texts and authorities which have been cited to us, as I think that the case is virtually concluded by authority. It may be taken, no doubt in accordance with the view expressed by the Privy Council in the case of Raja Pirthee Singh v. Rani Rajkooer (1873) 12 B.L.R. 238 : 20 W.R. 21 that a person situated as is the present plaintiff is not bound to live in the house of her father-in-law, but that is a very different proposition from that for which the plaintiff is now contending. The authorities appear to me to establish that when a Hindu maiden marries, she becomes, if I may use the expression, incorporated into her husband’s family, and that it is to that family she must, in the first instance, look for her maintenance on becoming a widow, and that any way she cannot be regarded as entitled to demand successfully maintenance from her father’s heir, who has succeeded to his estate, unless and until it can be satisfactorily shown that she is unable to obtain maintenance from the family into which she has married. It is perhaps not clear, in fact there is distinct authority the other way–see Bai Mangal v. Bai Rukhmini (1898) I.L.R. 23 Bom. 291–whether even in such an eventuality she can succeed as against her late father’s estate, but the facts of this case do not make it necessary for us to decide that particular point. In the case now before us, the plaintiff has failed to show her inability to obtain maintenance from her husband’s family, and having failed to show this, I do not appreciate how, under the Hindu Law of the Bengal -School, she can successfully claim maintenance out of her deceased father’s estate; and even as against her father’s estate I do not think that when an offer has been made by his heir to provide her with a borne and food and raiment, she can successfully “maintain that she is entitled to separate maintenance apart from his house, and, apparently, in a house of her own. It seems to me that the present case is more than covered by the case of Bai Mangal v. Bai Rukh-mini (1898) I.L.R. 23 Bom. 291. Although the judgment there was delivered by a Judge of great knowledge and experience in Hindu Law, it may be a matter for consideration hereafter whether, having regard to the dicta of Peacock, C.J., in the case of Khetramani Dasi v. Kashinath Das (1868) 2 B.L.R.A. 58; I.L.R. Mr. Justice Ranade has not gone a little too far in saying that there is no legally enforceable right by which a widowed daughter’s maintenance can be claimed as a charge on her father’s estate in the hands of his heirs. But as I have already observed it is unnecessary in the circumstances of this case to decide that question to-day. I may add that I see no reason why upon this particular point we should say that there is any distinction between the law on this side of India and that on the Bombay side.

6. On these grounds, it seems to me that the view taken by the learned Judge in the Court below is right, and that the appeal must be dismissed with costs.

7. As regards the cross-objections I see no reason why the plaintiff should be exempted from the payment of the costs of the suit, and the cross-objections must succeed to this extent. The suit must be dismissed with costs.

Prinsep, J.

8. I am of the same opinion.

Hill, J.

9. I am also of the same opinion.

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