Kaur v Mistry (Civil Case No. 742 of 1951) [1952] EACA 280 (1 January 1952)

# ORIGINAL CIVIL

#### Before BOURKE, J.

# BASANT KAUR, widow of NAGINA SINGH s/o HIRA SINGH MISTRY, **Plaintiff**

$\pmb{\nu},$

### RATTAN SINGH s/o NAGINA SINGH MISTRY, Defendant

## Civil Case No. 742 of 1951

Hindu succession—Widow's claim—Marriage outside Colony.

The plaintiff, the widow of Mistry Nagina Singh, deceased, sued the defendant, who as deceased's only son inherited his father's entire estate. The plaintiff claimed by virtue of Mitakshra Hindu Law and under sections 9 and 11 of the Hindu Marriage, Divorce and Succession Ordinance, to be entitled to a monthly sum as maintenance out of her late husband's estate. An order for payment was sought and a declaration of charge to secure such payments against immoveable property was asked for. The plaintiff further claimed a decree in respect of arrears of maintenance.

The plaintiff was married to the deceased out of the Colony.

Held (13-6-52).—(1) By section 3 (1) of the Hindu Marriage, Divorce and Succession Ordinance a marriage taking place out of the Colony cannot be deemed for the purpose of<br>succession or for any other purpose to be a valid marriage. The plaintiff is in no position to establish any right of succession under section 9 of the Ordinance for section 9 is subject to the provisions of section 3.

(2) That the widow's claim was not a claim in succession and if it were the plaint is defective as the defendant should be sued in his representative capacity as administrator of the estate.

(3) By Hindu Law a widow is entitled to a right to maintenance out of her husband's estate but does not succeed to her husband's estate as an heir. The estate is inherited by the heir subject to a legal obligation to maintain the widow out of the estate.

(4) The claim of a widow is not a charge on the estate of her deceased husband. until it is fixed and charged upon the estate by decree of a Court or by agreement between the widow and the holder of the estate or by will.

Action dismissed with costs.

Cases cited: Bai Daya v. Natha (1885) 9. Bombay 279; Narbadabai v. Mahadeo (1881) 5 Bombay 99.

#### Amin and Patel for plaintiff

### D. N. Khanna for defendant.

JUDGMENT.—This is a ruling upon the preliminary submission made on behalf of the defendant that these proceedings are not competent.

The plaintiff sues as the widow of the late Mistry Nagina Singh s/o Hira Singh, who was a Hindu within section 2 of the Hindu Marriage, Divorce and Succession Ordinance, Cap. 149. It is accepted between the parties that if the plaintiff and deceased were married such marriage took place in India according to Hindu law and rites. The defendant is the only son of the said deceased and is the stepson of the plaintiff; as sole male heir he has succeeded to his father's entire estate. Admittedly a grant of letters of administration have been issued to the defendant constituting him administrator of the said estate. It is alleged that succession to the estate is governed by the Mitakshra branch of Hindu law.

$\mathbb{R}$ is also alleged and argued that, by virtue of such law and under sections 9 sand 11 of Cap, 149, the plaintiff, as such widow, is entitled to be paid a monthly sum as maintenance for life out of the estate of her late husband by the defendant sas heir in succession who is in possession of the property. An order for such payment is sought and it is also claimed that a declaration of charge to secure such payments should be made against immoveable property forming part of the estate. The plaintiff further seeks a decree in respect of arrears of such maintenance.

The contention for the defendant is that even if the plaintiff was lawfully wedded to the deceased, such marriage taking place out of the Colony, it is not a marriage that can be recognized as valid under the law of Kenya and accordingly this Court is not competent to grant relief dependent upon the plaintiff's status -as a widow. It is agreed for the plaintiff that her case must stand or fall on whether there was or was not a valid marriage that can be recognized as such by the Courts of this Colony.

Section 9 of Cap. 149 reads as follows: —

"(1) Subject to the provisions of this or any other Ordinance for the time being in force in the Colony, the succession to the movable property in the Colony of a deceased Hindu who at his death is domiciled in the Colony and to the immovable property in the Colony of a deceased Hindu, whether domiciled in the Colony at his death or not, shall be regulated by Hindu law:

Provided that every creditor shall have the same rights and remedies against the estate of a deceased Hindu (including the right to follow assets) as he has against the estate of a deceased Christian.

(2) This section shall apply to the estate of a Hindu who died before the commencement of this Ordinance in like manner as it applies to the estate of a Hindu dying after the commencement of this Ordinance:

Provided that no part of an estate which has been distributed before the commencement of this Ordinance shall be recoverable by reason only of any alteration in the law effected by this Ordinance."

It is argued for the plaintiff that this is an action seeking to realize the rights arising by way of succession under section 9 and that for the purposes of that section a Hindu marriage taking place outside the Colony may properly be regarded as valid. But section 9 (1) is made—"subject to the provisions of this or any other Ordinance for the time being in force in the Colony. . . " and section 3 (1) of Cap. 149 provides: $-$

"The marriage in the Colony of Hindus whether domiciled in the Colony or not, who are not related to each other in any of the degrees of consanguinity or affinity prohibited by the law of the religion of either party to the marriage, shall, if the marriage is contracted in the manner customary in the Colony among persons professing the religion of either party to the marriage, be deemed for all purposes to be a valid marriage:

Provided that from and after the commencement of this Ordinance no boy under the age of eighteen years and no girl under the age of sixteen years shall be capable of contracting a valid Hindu marriage."

The marriage alleged in this case admittedly did not take place in the Colony rand so cannot be deemed for the purpose of succession or any other purpose to be a valid marriage. The plaintiff accordingly cannot be regarded as the widow of the deceased for the purpose of maintaining this action. She is in no position to establish any right of succession under section 9 for that section is subject $\angle$ to the provisions of section 3.

1 am also of opinion that the defendant's further ground of objections must be upheld, namely, that this is anyway not a claim in succession to which section 9 can apply, and were it otherwise the plaint is defective as this defendant. should be sued in his representative capacity as administrator of the estate.

Section 11 of the Ordinance provides that a Court may ascertain the Hindulaw by any means which it thinks fit. In resolving this point I think that in order to discover whether this is a claim in succession this Court is entitled to look to the Hindu law. To ascertain that law I think fit to refer to the work put before me in argument; that is, Mulla on the Principles of Hindu Law. 10th Edition, at pages 604, 613 and 622. It seems clear that the law is that a widow is entitled to a right of maintenance out of her husband's estate, but she does not succeed to the estate of her husband as an heir. An heir is legally bound to provide, out of the estate which descends to him, maintenance for those persons whom the late proprietor was legally or morally bound to maintain. The reason is that the estate is inherited subject to the obligation to providefor such maintenance. A stepson is under personal obligation to maintain his stepmother; but if he inherits his father's estate, he is bound to maintain her out of that estate, she being a person whom his father was legally bound to maintain as his wife: Bai Daya v. Natha (1885) 9 Bombay, 279; Narbadabai v. Mahadeo (1881) 5 Bombay, 99. The claim of a widow for maintenance is not a charge upon the estate of her deceased husband, until it is fixed and charged upon the estate, which may be done by decree of a Court or by agreement between the widow and the holder of the estate or by will.

The plaintiff is asserting such a right of maintenance and not, as is contended by her advocate, a right of inheritance and succession to which section 9 would apply. No share in the estate devolves to her as an heir upon intestacy; and in speaking of the regulation of the succession to the property of a deceased Hindu, I do not think that the section can be held to cover the right to maintenance and the obligation of an heir to provide maintenance out of the estatehe inherits.

In my opinion the points are well taken and I hold that these proceedings: are not competent. The action is dismissed with costs.