The question in the case is whether the heirs of a Hindu widow in whose favour the head of her husband's family has executed an agreement charging specific family property to pay her maintenance at a certain rate on a particular date in each year for the previous year, can if she dies on an intermediate date recover the proportionate amount due after the last payment till the date of her death.
The facts are not in dispute. The Plaintiffs and Defendants 2 and 3 represent one brother and the first Defendant, another brother, and the father-in-law of Mahalaxmi Hengasa was the third (eldest) brother in a joint Hindu family. On 2nd June, 1870 after the death of Mahalaxmi's husband and father-in-law, the father of Plaintiffs as the elder surviving brother and head of the family executed in her favour a registered agreement Ex. B charging some of the family properties agreeing to pay her for each year from 1st Chaitra Sudha (about 25th March) of 1870 maintenance at Rs. 68 and 21 muras of rice per year, the payments to begin on 1st Chaitra Sudha (about 25th March) 1871 and on default of punctual payment to pay interest at 12% on the money and customary interest in kind on the rice. In 1875 the Plaintiffs' and 1st Defendant's branches partitioned the family property including the properties charged for Mahalaxmi's maintenance and the deed stipulated that the 1st defendant's branch would pay their half share of the maintenance to the Plaintiffs' father who was to pay the whole maintenance over to Mahalaxmi. Mahalaxmi died on 2nd March 1917, the due date as per the agreement for payment of that year's maintenance being 23rd March 1917. Her heirs on her death were the Plaintiffs and the father of Defendants 2 and 3 who are nearer by one degree to her husband than the 1st defendant. The suit was brought by Plaintiffs as her heirs for recovery for themselves and Defendants 2 and 3 from the properties charged in the possession of 1st Defendant one half of the proportionate amount of maintenance due for the year ending 23rd March 1917 less the 21 days before Mahalaxmi's death. The lower courts have held that the whole year's maintenance fell due after Mahalaxmi's death, that the claim is not apportionable from day to day and that the Plaintiffs have no cause of action. The suit was accordingly dismissed. Hence this appeal by the Plaintiffs.
No Indian authority applicable either way has been referred to in the judgment of the Courts below or in the arguments before me. Apparently the lower courts rely as the Respondent's learned Advocate wants me to rely on the old Common law doctrine that except in the case of interest on money lent an entire contract is not apportionable either as to time or partial performance. (Story on Equity Ss. 470 to 475, 3rd English Edition). In England this doctrine was all but entirely abolished by the Apportionment Act 1870, 33 and 34 Vic. C. 45 (Chitty's Statutes 6th Edition Vol. 1 p. 393). In India the statutory provision contained in S. 36 of the Transfer of Property Act is applicable only as between transferor and transferee of the benefit of the payment and not as between the person liable for and the person entitled to the payment. S. 340 (2) of the Succession Act applies to wills only. There is no statutory provision in India applicable to the case and the question is whether the old Common law rule is to be applied to maintenance due under the Hindu Law and even if generally not to be so applied whether there being an express contract Ex. B making the maintenance payable on a certain date in the year the rule should be applied to this case.
My first observation is that primarily the law to be applied to the case is not the English Common law but the Hindu Law and if there is no specific rule in that law on the question the rule of justice equity and good conscience. S. 16, Civil Courts Act 1873. According to Hindu Law, the obligation to maintain widows is dependent on taking the property of the deceased by inheritance or survivorship. Mayne, S. 451 citing the Smriti Chandrika XI-1, S. 34. Mahalaxmi being the widow of a co-parcener whose share was taken on his death, by the other branches was entitled to be maintained by them after his death and this right was enforceable as indeed Ex. B recognises against the whole family and not only against the branch which took by survivorship his undivided share: T. Subbarayulu Chetti v. Kamalavallithayaramma(1). The right is traceable to the property out of which in her husband's lifetime she would be maintained and on which her maintenance was and remained a charge. In its origin therefore the right is one which accrues from day to day during the lifetime of the wife or widow who is entitled to be paid her necessary expenses as and when they arise. It is not one depending on any contract for whose performance a due date is previously agreed on. That being so, it is clear to me that if there were no such express contract as is found in Ex. B fixing a particular date for the payment of each year's maintenance, the Respondent's contention that Mahalaxmi could not demand maintenance for the incomeplete period of 11 and odd months during which she lived after receiving the last payment would be unfounded.
This being the nature of the right, I think, the fixing of a date for the annual payment had not and was not intended to have the effect of altering the nature of the right by cutting it down to an annual payment for every completed year of existence. The date was fixed for convenience both for those who paid and for the widow who was to receive.
I therefore think that the view of the lower courts was erroneous and that the Appellants as heirs of Mahalaxmi are entitled to the arrears till her death and interest thereon as per Ex. B till date of plaint and interest at 6% from date of plaint. The decree of the lower courts is set aside. Though it was agreed by the parties that second class Gazette rates should be adopted for valuing the rice the District Munsif has not recorded a finding what that rate is. It is therefore impossible now to pass a decree. The case will be sent back to the District Munsif with the direction to pass a decree for sale in accordance with the above. The appellant will have his costs in this Court and in the lower appellate Court. The District Munsif will provide for the costs hitherto incurred and hereafter to be incurred in his Court in the revised decree.
N.R.R
Case remanded.