1. This Second Appeal raises an interesting question of law as to whether a charge created by a decree for maintenance obtained by the wife of the manager of a joint Hindu family over the joint family property is binding on the step son of the 2nd respondent who was not a party to the suit for maintenance.

2. The facts are few and they are not in dispute. This appeal is by the plaintiff who sued for partition and possession of the suit property free of charge against the 1st defendant, his father, and the 2nd defendant, his step-mother. The 1st defendant became exparte. The 2nd defendant contested the suit contending inter alia that the charge created by her maintenance decree in O.S 196/55. Munsiff Court, over the suit property will be binding on the plaintiff and she would be entitled to have a charge on the portion of the property that would be allotted to the share of the plaintiff. The trial court dismissed the suit. The appellate Court held that the plaintiff was entitled to partition and possession of his half share in the plaint schedule property subject to the charge already created by the maintenance decree. Aggrieved by the judgment and decree of the lower appellate court, the plaintiff has filed the present second appeal. Mr. Seetharamaiah for the appellant strenuously contends that the 2nd defendant who is the step mother of the plaintiff cannot claim maintenance against the plaintiff, her step son, as therein no personal liability for him to maintain her unless a share of her husband is allotted to him, and cited I.L.R 27 Madras 45, I.L.R 16 Calcutta 758, A.I.R 1939 Madras 781, A.I.R 1944 Bombay 235, 1963 (II) An. W.R 400 and some passage from Mayne's and Trevelyan's Hindu Law in support of his plea that there can be no valid charge in respect of plaintiff's share. Mr. Raghava Rao, for the contesting respondent, contended contra.

3. The real question that arises for determination is whether a charge created by the decree for maintenance obtained by the 2nd defendant, the wife of Ist defendant, over the suit property towards her maintenance when the defendants 1 & 2 constituted members of the joint family, is binding on the plaintiff, a step son who was not a party to the maintenance suit.

4. I shall presently consider the legal position with regard to the Hindu Woman's right to maintenance and in particular from a step son and the effect of the charge over the suit property by virtue of the prior decree.

5. Sir Raymond West, in his “A Digest of the Hindu Law” at page 244, enunciates that “a widow's claim extends only to the interest of her deceased husband in the undivided property.” A passage in Hindu law by Sir Ernest John Trevelyan (Second Edition) at page 78 and 79 reads thus:—

“A widow who succeeds to no property as heir to her husband is (whether she has or has not a son) entitled to maintenance out of the whole of the property in which her husband was interested as owner or coparcener at the time of his death, or in which he would have been so interested if he had not been disabled from, inheritance or from being a coparcener, whether she have property of her own or no.

A passage in Mayne's Treatise on Hindu law and Usage (11th edition) at pages 882 reads thus:—

While a widow is entitled to maintenance from her son in her character as mother, even if he is not in possession of ancestral property, a similar right against her father-in-law is not admitted. The Smritichandrika expressly states that the obligation to maintain the widow is dependent on taking the property of the deceased. She is entitled to be maintained where her husband's separate property is taken by his male issue. Where, at the time of his death, he was a coparcener she is entitled to maintenance as against those who take her husband's share by surviorship.”

6. In Jayanti Subbiah…(Plaintiff), v. Alamelu Mangamma…(Defendant), .* . I.L.R 27 Madras 45 at 48 & 49. Bhasym Ayyangar, J., speaking for the Division Bench, ruled thus:—

“When an undivided Hindu Family consists of two or more males related as father and sons or other wise and one of them dies leaving a widow, she has a right of maintenance against the surviving co-parcerner or co-parceners, quoad the share or interest of her deceased husband in the joint family property which has come by survivorship into the hands of the surviving co-parcener or co-parceners and though such right does not in itself form a charge upon her husband's share or interest in the joint family property, yet when it becomes necessary to enforce or preserve such right effectually, it could be made a specific charge on a reasonable portion of the joint family property such portion of course not exceeding her husband's share or interst therein.”

7. In Hemangini Dasi v. Kedarnath Kundu Chowdhry . I.L.R 16 Calcutta, 758. the Privy Council at page 766 ruled thus:— “The right of a widow to maintenance is founded on relationship and differs from debts……… Where there are several groups of sons, the maintenance of their mother must, so long as the estate remains joint, be a charge upon the whole estate, but when a partition is made, the law appears to be that their maintenance is distributed according to relationship, the sons of each mother being bound to maintain her. The step sons are not under the same obligation.”

8. In Jonnal Lakshmidevamma v. Jonnala Veera Reddi . A.I.R 1939 Madras 781. the Full Bench of the Madras High Court while considering the question of liability in maintain a widow after the partition of the joint family has held that the obligation to maintain the widow depends upon the taking of her deceased husband's share in the family estate and hence, there can be no right in the widow to claim to be maintained out of the shares which fall to the other members.

9. Relying upon the principle enunciated by the Full Bench of the Madras High Court in Jonnala Lakshmidevamma v. Jonnala Veera Reddi, a Division Bench of the Bombay High Court, in Laxmibai v. Radhabai . A.I.R 1944 Bombay 235. held that the widow has no vested right on the shares of other members of the family subsequent to the partition except to the share of the persons who got the share of her husband.

10. In Chebbrolu Satyanarayana Murthy v. Chebbrolu Ramsubbamma . 1953 II An. W.R 400. a Division Bench of this court has held that the primary liability to maintain a wife by the husband or of the mother by her sons is a matter of personal obligation arising out of relationship between them irrespective of their possesion of ancestral or self-acquired property.

11. On the basis of the aforsaid authorities, Mr. Seetharamaiah for the appellant contends that the plaintiff being only the step son of the 2nd defendant, is not legally bound to maintain the 2nd defendant, as he has not taken or is asking for any share or interest in the properties that are to be allotted to his father who has to maintain the 2nd defendant, after the partition. I am entirely in agreement with the legal principle that a step son is not bound to maintain his step mother, as long as has not taken or is asking for the share of her husband who is alive. It is also well-settled that a son has to maintain his mother irrespective of that fact whether he inherits any property or not from his father, as he has, on the basis of relationship, the obligation to maintain his mother who has given life to him; whereas the position of a step son is altogether different, Equally so, there can be no dispute with the proposition that the obligation to maintain the Hindu Widow depends on the taking of the deceased husband's share in the family estate and to whomsoever her husband's share is alloted, than person will have to maintain her.

12. The moot point for decision is not whether a stop son is bound to maintain legally his step mother, although he has not been allotted in the partition of the family properties any portion of the property that has fallen to the share of her husband. In the instant case, the 2nd defendant has admittedly obtained a decree for maintenance and a charge on created on the joint family properties before partition of the plaintiff and the 1st defendant. Admittedly when the decree for maintenance and the charge on the joint family properties have been obtained by the wife, the 2nd defendant, the plaintiff and the 1st defendant were joint and the properties on which the charge has been created were joint. On the facts and in the circumstances, the real question that arises for determination in this appeal is whether the decree already obtained, pursuant, to which a charge has been created on the joint family properties will cease in so far as the plaintiff is concerned, subsequent to the date of partition of the joint family properties by him with his father, the 1st defendant.

13. It is relevant and necessary at this stage to consider the impact of subsequent alienation or partition of the joint family properties in respect of which a charge has already been created by a decree obtained by a Hindu woman or a widow towards her maintenance against any member of the Hindu Joint Family. I must say that the law in so far as Madras State is concerned it is fairly settled as seen from the authoritative pronouncements of the Madras High Court, which I shall presently discuss.

14. In T. Subbarayulu Chetty v. T. Kamalavalli Thayaramma . 21 M.L.J 493. a division Bench of the Madras High Court ruled that ‘a partition effected among the members of a joint Hindu Family subsequent to the institution of a maintenance suit by an undivided coparcener's widow will not affect her right to a decree charging her maintenance on the whole property of the joint family as it was on the date of the plaint”.

15. In Subbanna Bhatta v. Subbanna (Minor) By Mother and Next Friend Gopamma . I.L.R 30 Madras 324. it has been held that a decree for maintenance obtained against a member of an undivided family, can after his death, be executed against joint property in the hands of other members………., if the decree created a charge on the joint family property”.

16. In Somasunduram Chetty v. Unnamalai Ammal . I.L.R 43 Madras 800. it was held that a charge created on the joint family properties by a decree obtained by the widow of a member of the joint family towards her maintenance taken precedence over the right of a subsequent purchaser of the same properties in execution of a many decree binding on the family.

17. In Akki Dodda Basappa v. Akkimallamma . 1940 I, M.L.J 204. the 1st defendant, the widow of a co-parcerner who died in or about 1918 leaving her and the 2nd defendant, a son by his first wife, and his brother obtained a maintenance decree in 1929 and got a charge over the joint Family properties. Subsequently, her husband's brother, who partitioned the properties with her step son, filed a suit in the year 1935 that the charge created pursuant to the maintenance decree in favour of the widow was no longer binding on the properties allotted to his share as he has no liability to main tan hip brother's wife, as his brother's share has been allotted to his son. In those circumstances, the learned Judge Venkataramana Rao, speaking for the Bench laid down the law succinctly at page 207 thus:—

“When a member of an undivided family dies leaving him surving his widow and his sons and brothers, her right to maintenance is against the entire joint family composed of the sons and brothers of the husband. It may be that if she waits until a partition takes place she may have a lesser right, that is, instead of a right over the entire family, a right over those persons who take her husband's share. But if before a partition is effected she gets her right declared, defined and reduced to a certainly by a decree of Court, her right cannot be taken away by any subsequent partition effected among the members of the family.”

18. I am unable to agree with the contention of Mr. Seetharamaiah that the decision in Dodda Basappa v. Mallamma does not lay down the correct law, as it is contrary to the principles laid down by the Full Bench in Lakshmidevamma v. Veera Reedi. The basis and strength for this plea of Mr. Seetharamaiah is the decision of the Bombay High Court in Lakxmibai v. Radhabai which has dissented from the view of the Madras High Court in Dodda Basappa v. Mallamma and the following passage at page 782 in Lakshmidevamma v. Veera Reddi.

“If the obligation to maintain the widow depends on the taking of the deceased husband's share in the family estate, if follows that there can be no right in the widow to claim to be maintained out of the shares which fall to the other members.”

19. It is true that a Division Bench of the Bombay High Court, in Laxmibai v. Radhabai, has taken the contrary view from that of the Madras High Court in Dodda Basappa v. Mallamma. The learned Judges of the Bombay High Court relied upon the passage at page 782 in Lakshmidevamma v. Veera Reddy referred to above and applied that principle to the case of an undivided family. With great respect to the learned Judges of the Bombay High Court. I express my respectful dissent from the view expressed by their Lordships in Laxmibai v. Radhabai. Their Lordships have not noticed the very next sentence in the Full Bench decision of the Madras High Court after the passage relied upon in support of their decision, which clarifies the position thus:—

“While the family remains on divided the position is differed. The property is held jointly and of necessity the amount required for a widow's maintenance has to be paid out of the estate regarded as a whole.”

20. The above passage would clearly show that the principle of law laid down by the Full Bench to the effect that there can be no right in the widow to claim to be maintained out of the shares which fail to the other members, has to be confined only to the case of the divided members of the joint family and that principle will not apply to a pase where admittedly the joint family was in existence. The general observations of the Supreme Court in Amalgamated Coalfields, Ltd. v. The Japada Sabha, Chindwara . A.I.R 1964 S.C 1013. that “constructive res-judicata was an artificial form of resjudicata enacted by Section 11 of the Code of Civil Procedure, and it should not be generally applied to writ petitions filed under Article 32 or Article 226,” as observed by Chief Justice Gajendragadkar in Devilal Modi v. Sales Tax Officer . 1965-I Supreme Court Journal 579. “must be read in the light of the important fact that the order which was challenged in the second writ petition was in relation to a different period and not for the same period as was earlier petition.” Hence, any general observations made by the Courts in particular case must be read in the light of the facts and circumstances of that case and the same cannot have universal application irrespective of the facts and circumstances of the case. The principle enunciated by the Full Bench of the Madras High Court in Lakshmidevamma v. Veera Reddi has no application to the fact of the present case as we are now dealing with the case of a widow who secured a charge on the joint family properties when the joint family was in existence. I am unable to agree with Mr. Seetharamaiah that there is any conflict between the Full Bench Decision in Lakshmidevamma v. Veera Reddy and the subsequent Division Bench decision in Dodda Basappa v. Mallamma. From the aforesaid discussion, the following principles of law emerge:—

(1) Where one of the members of an undivided Hindu family dies leaving a widow and other co-parceners, the widow shall have a right of maintenance against the surviving co-parcener or co-parceaers for the share or interest of her deceased husband in the joint family property which was in his hands.

(2) The obligation to maintain a widow depends upon the taking of the deceased husband's share in the family estate and she will have no right to claim maintenance out of the shares that fall to the other members.

(3) The right of a Hindu woman or widow to maintenance is founded on relationship.

(4) Where there are serval groups of sons, the maintenance of their mother must, so long as the estate remains joint, be a charge upon the whole estate, but when a partition is made, their maintenance is distributed according to relationship, the sons of each mother being bound to maintain her.

(5) A step son has no statutory obligation to maintain his step mother unless any portion or share of his father in the joint family property is allotted, devolved or taken by him, whereas in the case of a son, natural or adopted, and a husband, the primary liability to maintain his mother or wife as the case may be is a matter of personal obligation arising out of relationship, irrespective of their possession of ancestral or self-acquired property.

(6) A maintenance holder can obtain a decree for maintenance against a member of the undivided family and create a charge over the joint property when their family was joint.

(7) When once her right to maintenance has been declared, defined and reduced to a certainty by a decree of court, such rights cannot be taken away by any subsequent alienation of such property by or partition of such property effected amongst the members of that family.

(8) The heart of matter is that the charge secured in lieu of maintenance by a Hindu woman or the widow on the joint family properties is not defeated by any subsequent alienation or partition of those properties but it is liable to be enforced in respect of such properties in whosoever hands they may be.

(9) Any person including the step son of a maintenance holder, who was a member of the Hindu joint family at the time of the institution of the maintenance suit and the creation of a charge to wards the decree obtained by her on the joint family property cannot question her right over such properties, in case such properties or any portion of the same are allotted to him in a subsequent partition or devolved on him.

(10) The charge created on those properties prior to the division of the family will be subsisting and continue till the life time of the maintenance holder and the rights of any third party, if any, in such properties will be only subject to the charge created in her favour.

21. In the present case, when the maintenance decree has been obtained by the 2nd defendant against the 1st defendant, her husband the family consisting of the 1st defendant and his son the plaintiff was joint and the charge created on the family property at that time was perfectly valid and justifiable. Any subsequent alienation of the charged property by the joint family to any third party even for valid consideration would be only subject to the charge which was created and subsisting on the date of alienation. Subsequent partition of the family property would not affect the rights of the maintenance holder which have been declared, defined and reduced to a certainty by a decree of civil court. In the circumstances and for the reasons stated above, I have no hesitation to hold that there is no merit in the contention of the appellant. Applying the aforesaid principles, I must hold that the plaintiff-appellant in this case cannot sustain his claim to have his share declared in the suit property without any charge that has been created already in favour of the step mother by the maintenance decree, when admittedly the plaintiff and his father were joint.

22. In the result, this appeal fails and is dismissed with costs. No leave.