JUDGMENT
Vinod K. Sharma, J.
1. The defendant-appellant has come up in appeal against the judgments and decrees passed by the learned Courts below in a suit for declaration filed by the plaintiff-respondents claiming maintenance from the appellant-defendant being daughter-in-law and grand children of the defendant with a prayer to create a charge on the property of the defendant-appellant. The plaintiffs further sought a decree for permanent injunction restraining the defendant, his servants or agents from ousting the plaintiffs from house No. 226, Jujhar Nagar, Patiala illegally and by force and also sought restraint against alienation of the suit property.
2. The suit was filed by Smt. Satinder Kaur, widow of Gurmail Singh son of Nachhattar Singh along with Sugandeep Kaur, minor daughter of plaintiff No. 1 and granddaughter of appellant and Gursimrandeep Singh, minor son of the plaintiff and grandson of the defendant-appellant claiming maintenance on the plea mat there was nobody to maintain the plaintiff after the death of Shri Gurmail Singh, except the defendant. It was claimed that as the plaintiffs have no source of income, the defendant-appellant was duty bound to maintain them. It was further claimed that the defendant is owner in possession of the suit property detailed in the head-note of the plaint and that the plaintiffs are residing in the house mentioned in the plaint. It was also the case of the plaintiffs that the defendant has deserted them and thereby forced them to depend on the mercy of parents of plaintiff No. 1. It was further claimed that the defendant was a man of bad habits and was adamant to alienate the suit property with the purpose to deprive the plaintiffs of their right of maintenance and further an attempt is being made to dispossess the plaintiffs illegally and forcibly from the house, in dispute as mentioned in the plaint. It was averred that the defendant was earning more than Rs. 2 lacs per year and a sum of Rs. 10,000/- per month was claimed for their maintenance and for education and a prayer for creating a charge on the suit property was also made. It was also the case of the plaintiffs that the defendant has already sold his property and was further trying to alienate the suit property as well as the house by entering into negotiations with some persons. According to the plaintiffs, a cause of action has arisen to the plaintiffs.
3. On the notice having been served on the defendant, the suit was contested raising preliminary objections that the suit, as framed was not maintainable; that the same was under-valued and that the plaintiffs had no cause of action. On merits, the defendant admitted that plaintiff No. 1 was widow of Gurmail Singh and daughter-in-law of defendant, whereas defendant Nos. 2 and 3 are the grand children of the defendant. The death of Gurmail Singh was admitted, but other averments were denied. It was claimed that plaintiff No. 1 is a professional stamp vendor and is doing the business of selling stamps in Tehsil Patiala, and is earning sufficient income to maintain herself as well as her children. It was also the case of the defendant that Gurmail Singh was a regular deed writer and was residing with the plaintiffs since long. On his death, he left some money and property which was in possession of plaintiff No. 1. The defendant also claimed that he is an old person and has got no source of income. He claimed that he had a small income from the agricultural land. It was also claimed that the defendant was not absolute owner of the land mentioned in the plaint, rather he was a co-owner of the suit land. It was also the case of the defendant that Gurmail Singh was already separate from the defendant since long. It was denied that the defendant was of bad habits and that any attempt was being made to alienate the suit property. The claim of maintenance was also denied. It was also claimed that he generally remains ill and it was the duty of plaintiff No. 1 to maintain the defendant, who is an old person. The income of Rs. 2 lacs per year, as alleged by the plaintiffs, is denied and thus it was prayed that the suit be dismissed.
4. On pleadings of the parties, the following issues were framed:
1. Whether plaintiff is entitled for declaration as prayed for? OPP
2. Whether plaintiff is entitled for permanent injunction as prayed for? OPP
3. Whether suit is not maintainable? OPD
4. Relief.
Issue No. 1 was decided in favour of the plaintiffs holding that the claim of the plaintiffs for maintenance @ Rs. 10,000/- per month was not more than the requirement and was fully justified. It was further held that the plaintiffs were entitled to maintenance @ Rs. 10,000/- per month from the date of filing of the suit. It was further ordered that a charge be created upon the property of the defendant “qua his share in order to save the interest and rights of the plaintiffs.
5. On issue No. 2 the claim for permanent injunction was partly allowed by the trial Court to the extent that the defendant was restrained from ousting the plaintiff No. 1 and her minor children from House No. 226 Jujhar Nagar, Patiala. However, the claim for restraint on alienation of property was rejected in view of the fact that the defendant was the true owner of the suit property.
6. Issue No. 3 was also decided in favour of the plaintiffs holding that the suit was competent. Consequently a decree for maintenance @ Rs. 10,000/- per month was passed against the defendant and in favour of the plaintiffs and the defendant was also restrained from ousting the plaintiffs from the aforesaid house.
7. The appeal was filed against the judgment and decree passed by the trial Court. The learned lower Appellate Court recorded a finding that the plaintiffs had failed to prove the co-parcenary nature of the suit property in the hands of the defendant-appellant and, therefore, it was held that the defendant-appellant being father-in-law of plaintiff No. 1 was not bound to maintain her as under the Hindu Adoptions and Maintenance Act, 1956, (for short the ‘Act’), the liability, to maintain the daughter-in-law is out of co-parcenary property. Therefore, the learned lower Appellate Court held that the maintenance granted in favour of plaintiff No. 1 by the learned trial Court could not be sustained in law and the order granting maintenance in her favour was reversed. However, the learned Lower Appellate Court came to the conclusion that under Section 21 of the Act, plaintiff Nos. 2 and 3 are taken to be the dependents for the purpose of grant of maintenance. It was also observed that as they have no source of income to maintain themselves, they could claim maintenance from their grand-father.
8. Learned lower Appellate Court took note of the fact that plaintiff No. 1 while appearing in the Court had stated that she was earning Rs. 1,000/- per month, which was inadequate to provide maintenance to plaintiff Nos. 2 and 3, who were studying in schools. The learned lower Appellate Court also came to the conclusion that in view of the land held by the defendant, his annual income from the land would be approximately Rs. 1,25,000/- per annum even if the land is leased out for one year and, therefore, in view of the principles laid down under Section 23 of the Act, the learned lower Appellate Court came to the conclusion that a sum of Rs. 3,000/- per month would be reasonable maintenance to plaintiff Nos. 2 & 3. The maintenance @ Rs. 1,500/- per month to each of the plaintiffs i.e. plaintiff Nos. 2 and 3 was granted from the date of filing of the suit. Thus, the judgment and decree passed by the learned trial Court was modified and it was held that plaintiff No. 1 was not entitled to any maintenance, whereas plaintiff Nos. 2 and 3 were entitled to maintenance @ Rs. 1,500/- per month each from the defendant-appellant. The decree for injunction restraining the appellant-defendant from dispossessing the plaintiffs from the house in their possession was also affirmed.
9. Mr. Sarjit Singh, senior Counsel, appearing on behalf of the defendant-appellant, raised the following substantial questions of law arising in the present appeal:
1. Whether finding that 12 acres of land can have income of Rs. 1,30,000/- per year is without any evidence?
2. Whether the finding that appellant is owner of 12/13 acres of land is without any evidence?
3. Whether the lower courts have misread documents, jamabandis, Ex.P-3 to Ex.P-6?
4. Whether the courts below have committed patent error of law in holding that appellant is liable to maintain grand children when their mother is alive and is able to earn?
10. At the time of motion hearing, this Court was pleased to admit this appeal on the following substantial question of law:
Whether the Courts below were correct for holding that the appellant was liable to maintain the grand children when their mother was alive and was able to earn herself.
11. Mr. Sarjit Singh, senior Counsel appearing on behalf of the appellant, challenged the findings recorded by the learned lower Appellate Court by referring to Section 20 of the Act, which reads as under:
20. Maintenance of children and aged parents:
1. Subject to the provisions of this section a Hindu is bound, during his or her life time to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
2. A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is minor.
3. The obligation of a person to maintain his or her aged or infirm parents or a daughter who is unmarried extends in so far as the parent or his unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.
Explanation – In this section “parent” includes a childless mother.
12. The contention of the learned Counsel for the appellant was that under Section 20 of the Act a child can only claim maintenance from father or mother during the minority and, therefore, it was not open to plaintiff Nos. 2 and 3 to claim maintenance from the grand father especially when it was proved on record that their mother-plaintiff No. 1 was alive and was earning by working as stamp vendor.
13. It was also the contention of the learned Counsel for the appellant that the Act has given statutory recognition to the normal obligation of Hindu male or female for claiming maintenance and, therefore, any claim which does not fall under the statute cannot be forced on a person and, therefore, it was argued that the substantial question, as claimed, deserves to be answered in favour of the appellant and consequently, the judgments and decrees passed by the learned Courts below are liable to be set aside.
14. Mr. G.S. Punia, learned Counsel appearing on behalf of the respondents, however, contended that under Section 21 of the Act, the grand-children are ought to be treated as the dependents of the defendant being grand-father, and, therefore, would be entitled to claim maintenance if they are unable to maintain themselves. The contention of the learned Counsel for the respondents, therefore, was that once it was proved on record that the income of plaintiff No. 1 mother of plaintiffs Nos. 2 and 3, was inadequate, then the liability of maintenance was on the defendant-appellant being their grand-father.
15. It was also contended by the learned Counsel for the respondents that the property in the hands of the defendant-appellant qua plaintiff Nos. 2 and 3 is required to be held as ancestral property.
16. Learned Counsel for the respondents further argued by placing reliance on the judgment of this Court in the case of Jal Kaur v. Pala Singh that the liability of the grand father to support his grand children exists independently of the existence of any ancestral property. He made a special reference to the observations made by the Division Bench of this Court in the aforesaid judgment, which read as under:
But this apart, the liability to support a son’s daughter would, in my opinion, exist independently of the existence of any ancestral property, and indeed nothing was urged against this position on behalf of the respondents. In view of the foregoing discussion in my opinion, the entire income of the 6 ghumaons of land is liable to be utilised for the maintenance of Smt. Jal Kaur and Surjit Kaur; the 44 ghumaons of self-acquired land being there for the maintenance of Pala Singh.
However, this contention of the learned Counsel for the respondents was controverted by the learned senior Counsel appearing on behalf of the appellant on the plea that the dependents would be entitled to claim maintenance in terms of Section 22 of the said Act. The contention of the learned senior Counsel, therefore, was that unless and until it is proved on record that any estate is inherited by a person from the person, who was otherwise liable to maintain the claimants, it would not be open to grant maintenance as the case set up by plaintiff Nos. 2 and 3 did not fall under Section 22 of the Act as no estate from Gurmail Singh has been inherited by the defendant-appellant.
17. On a consideration of the matter, I find no force in the contention raised by the learned Counsel for the appellant. Firstly, for the reason that the Division Bench of this Court in Jal Kaur’s case (supra) has been pleased to observe that the liability of the grand father to maintain the grand children exists independently of existence of any ancestral property. The observations made by the Division Bench are actually based on the fact that a grand father has a moral obligation to maintain the grand children when their father is not alive and they are unable to maintain themselves. Thus the moral obligation becomes a legal obligation as was held by the Hon’ble Madras High Court in the case of Ambu Bai v. Soni Bai A.I.R. 1940 Madras 804, which was followed by this Court in the case of Balbir Kaur and Ors. v. Harinder Kaur and Ors. , wherein it has been held as under:
12. The right or maintenance 01 a Hindu female flows rrom the social and temporal relationship between the husband and the wife. The right in case of a widow is a pre-existing right, which existed under the Shastric Hindu law long before the passing of the Hindu Women’s Rights to Property Act, 1937 or the Hindu Married Women’s Rights to Separate Residence and Maintenance Act, 1946 or the Hindu Adoptions and Maintenance Act, 1956. These Acts merely recognized the position as was existing under the Shastric Hindu law and gave it a statutory backing. The right of maintenance and residence of a widowed daughter-in-law against her father-in-law also existed under the Shastric Hindu law and the same has been recognized by various judicial pronouncements and the statute i.e. Hindu Adoptions and Maintenance Act. In Gopal Chandra Pal v. Kadambini Dasi A.I.R. 1924 Calcutta 364, a Division Bench of the Calcutta High Court held that though a widowed daughter-in-law has no legal right to maintenance as against the self-acquired property of her father-in-law but if her husband died during the life time of her father-in-law then the father-in-law is under moral obligation to maintain his widowed daughter-in-law; even though he has no ancestral assets in his hands. The position of the heirs, who took the estate of the father-in-law by inheritance is different. What is moral obligation in respect of the father ripens into a legal obligation when the estate passes into the hands of his heirs. This principle is applicable even when the father-in-law has made a testamentary disposition of his property or has during his life time made a gift of his property. In that case, even the donee or alienee are legally bound to maintain the widowed daughter-in-law. This principle was also adopted by the Allahabad High Court in Jeot Ram Chaudhari v. Mt. Lauji A.I.R. 1929 Allahabad 751, wherein it was held that father-in-law is under a moral obligation to maintain a widow of pre-deceased son and this moral liability becomes a moral obligation in the hands of his surviving sons who inherit father’s estate and no distinction should be drawn in this respect between property which is inherited from the father-in-law and property which is gifted by him. Thus, if father-in-law gifts a portion of self-acquired property to one of his sons, daughter-in-law is entitled to maintenance out of such property. In Ambu Bai v. Soni Bai A.I.R. 1940 Madras 804, the Full Bench of Madras High Court observed as unden:
The doctrine that a moral obligation becomes a legal obligation when the estate of a person on whom the moral obligation lay comes into possession of his heirs may be open to criticism but it is too late in the day to indulge in it and the court must confine itself to the question whether the principle should extend beyond the case of widowed daughter-in-law.
Recently, the Full Bench of Andhra Pradesh High Court in T.A. Lakshmi Narasamba v. T. Sundaramma A.I.R. 1981 Andhra Pradesh 88, while dis-agreeing with the view of the Bombay High Court has held as under:
We are unable to agree with the reasoning of the Bombay High Court. The Bombay High Court mainly proceeded on the ground that the father in-law has absolute power over his self-acquired property to deal with the same. He has a power to exercise will or gift and deprive the daughter-in-law of the maintenance. When the absolute owner has exercised that power and transferred the property under gift or will, the question of enforcing her right against the transferees would not arise at all. The Bombay High Court put in on the ground that the property acquired by valid testamentary disposition is not governed by the rules of the Hindu, Law of inheritance and when the power of making such disposition is unrestricted, it is difficult to conceive any consistent ground on which the devisee could be held bound by an obligation from which the testator had power to relieve him and by the bequest had actually relieved him. With great respect, we are not able to agree with this view. The learned Judges therefore have not taken into consideration the duty of the Hindu heirs to provide for her bodily, and mental or spiritual needs of their immediate and nearer ancestors, and also the fact that there was no rigid distinction between the moral duty and legal duty as there is in the modern society. They have also not considered the concept of duty to be performed by the head of the family and that if he died without performing that duty he had committed sin and that the sons have to discharge that obligation to relieve him from that sin. The Madras High Court in Sankaramurthy v. Subbamma A.I.R. 1963 Madras 914 followed the view of the Bombay High Court expressed in Yamunabai v. Manubai (1899) I.L.R. 23 Bombay 608; Bhagirathbai v. Thakur Mal A.I.R. 1926 Lah. 193, but with great respect we are not in agreement with this view.
In the result, we are in agreement with the view expressed in Rangammal v. Echammal (1899) I.L.R. 22 Madras 305; Gopal Chandrapal v. Kadimbini Das A.I.R. 1924 Cal. 364 and Foolcomari Dasi Debendra Nath A.I.R. 1942 Cal. 474 wherein it was held that the legal liability upon a Hindu heir to prove maintenance to daughter-in-law exists irrespective of the fact whether the heir takes the property by intestacy or under a will or gift.
18. In view of the position explained above, the substantial question of law is answered as under by holding:
that the grand father is liable to maintain grand-children if they are unable to maintain themselves and the income of mother/father is inadequate for their maintenance.
19. In view of what has been stated and discussed above, there is not merit in this appeal, which is, accordingly, dismissed.