The Amount of Maintenance, and the Dependants

Sub-section (2). Where a dependant has not obtained, by testamentary or intestate succession, any share in the estate, that dependant is entitled to maintenance from those who take the estate.

Sub-section (3). The liability of each person who takes the estate is in proportion to the value of the share or part of the estate taken by him or her.

Sub-section (4). Notwithstanding sub-sections (2) and (3), no person who is himself or herself a dependant shall be liable to contribute to the maintenance of others if he or she has obtained a share the value of which is, or would if the liability were enforced become, less than what would be awarded to him or her by way of maintenance under the Act.

How the section works

The obligation runs with the estate, not with the person. An heir is liable only out of what he inherited, and only in proportion to it. An heir who inherits nothing owes nothing.

Sub-section (2) is the trigger. A dependant who did take a share by succession has no claim under this section; the claim exists for the dependant who took nothing.

Sub-section (4) is the floor. A poor heir who is himself a dependant is not made to pay maintenance to others down to below what he would himself have been awarded. It is a sensible provision and it is easy to state.

Section 23: the amount

Sub-section (1). It is in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded, and in doing so the court shall have due regard to the considerations in sub-section (2) or (3) as the case may be, so far as they are applicable.

That opening is worth quoting. The court may award nothing. There is no minimum and no formula, and the factors are considerations rather than a calculation.

Sub-section (2): a wife, children, or aged or infirm parents

Five factors:

(a) the position and status of the parties; (b) the reasonable wants of the claimant; (c) if the claimant is living separately, whether the claimant is justified in doing so; (d) the value of the claimant's property and any income from it, from her own earnings or from any other source; and (e) the number of persons entitled to maintenance under the Act.

Factor (c) is the link back to section 18(2): a wife living apart on one of the grounds there is justified, and one living apart without a ground is not.

Factor (a) is the one that decides quantum in practice. Position and status, not subsistence, so a wife is entitled to be maintained at a standard answering to the family's own.

Sub-section (3): a dependant

Seven factors:

(a) the net value of the estate after providing for the payment of the deceased's debts; (b) the provision, if any, made under a will in respect of the dependant; (c) the degree of relationship between the two; (d) the reasonable wants of the dependant; (e) the past relations between the dependant and the deceased; (f) the value of the dependant's property and any income from it, from earnings or otherwise; and (g) the number of dependants entitled under the Act.

Two of those have no counterpart in sub-section (2) and are worth naming: (a) starts from the estate net of debts, which fixes the ceiling, and (e), the past relations between the dependant and the deceased, lets a court take account of a relationship that had broken down.

Sections 24 to 28: the remaining provisions

Section 24: the claimant must be a Hindu. No person shall be entitled to claim maintenance under this Chapter if he or she has ceased to be a Hindu by conversion to another religion.

That is short, absolute, and applies to every claim in Chapter III: a wife, a child, a parent or a dependant who converts loses the claim.

Section 25: the amount may be altered. The amount of maintenance, whether fixed by a decree of court or by agreement, may be altered subsequently if there is a material change in the circumstances justifying it.

Note that it reaches an amount fixed by agreement as well as by decree.

Section 26: debts have priority. Subject to section 27, debts of every description contracted or payable by the deceased shall have priority over the claims of his dependants for maintenance under the Act.

So the estate pays its creditors first, which is why section 23(3)(a) starts from the net value.

Section 27: when maintenance is a charge. A dependant's claim for maintenance under the Act shall not be a charge on the estate of the deceased or any portion thereof, unless one has been created by the will of the deceased, by a decree of court, by agreement between the dependant and the owner of the estate or portion, or otherwise.

The default is therefore no charge. A dependant is an ordinary claimant unless a charge has been created in one of the four ways.

Section 28: the effect of a transfer. Where a dependant has a right to receive maintenance out of an estate, and that estate or any part of it is transferred, the right may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right.

Section 28 is the ordinary rule about notice, applied to maintenance, and the two limbs should be stated as alternatives: notice, or no consideration. A purchaser who paid and did not know takes free.

Section 29 was the repealing section and has itself been repealed by the Repealing and Amending Act 1960.

How the Chapter fits together

A worked example

Gopal, a Hindu, dies leaving property worth thirty lakh rupees and debts of five lakh. He is survived by his widow W, his mother M, a minor son S, an unmarried daughter D, a widowed daughter WD whose husband left her nothing, and a minor illegitimate son IS. By his will he left the whole estate to his brother B, who has taken it. Nobody else took anything.

Who are the dependants? By section 21, the mother (clause ii), the widow so long as she does not remarry (iii), the minor son (iv), the unmarried daughter (v), the widowed daughter so far as she cannot obtain maintenance from her husband's estate or her children or her father-in-law (vi), and the minor illegitimate son (viii). All six are dependants.

Against whom do they claim? Section 22(1) and (2): the heirs are bound to maintain the dependants out of the estate inherited from the deceased, and a dependant who has not obtained any share by testamentary or intestate succession claims from those who take the estate. B took the whole estate, so B is liable, and by section 22(3) in proportion to what he took, which here is all of it.

How much? Section 23(1) leaves it entirely to the court's discretion, which may award nothing. Section 23(3) gives seven factors, and the first fixes the ceiling: the net value of the estate after providing for the deceased's debts, that is twenty-five lakh and not thirty. The others are the provision made by the will, the degree of relationship, the reasonable wants of each dependant, the past relations between the dependant and the deceased, each dependant's own property and income, and the number of dependants.

What if a creditor and a dependant both press? Section 26: debts of every description contracted or payable by the deceased have priority over the dependants' claims, subject only to section 27.

Suppose B has already sold the land to a purchaser who paid full price and knew nothing. Section 28: the right may be enforced against a transferee with notice, or against a gratuitous transferee, but not against a transferee for consideration without notice. That purchaser takes free.

Suppose the widow converts to another religion. Section 24: no person is entitled to claim maintenance under Chapter III if he or she has ceased to be a Hindu by conversion. Her claim goes.

What it does NOT mean

Section 21 is not a list of heirs. It is a list of dependants, and almost every entry is conditional on remarriage, minority, being unmarried, or being unable to obtain maintenance from somebody nearer.

Section 22 does not create a personal liability. An heir is liable only out of the estate he inherited and only in proportion to it. An heir who inherits nothing owes nothing.

Section 22(2) is not open to every dependant. A dependant who did take a share by succession has no claim under it; the claim exists for the dependant who took nothing.

Section 23 does not guarantee an award. It is "in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded".

The two lists of factors are not the same. Sub-section (2), for a wife, children or aged or infirm parents, has five; sub-section (3), for a dependant claiming against an estate, has seven, and only the second list starts from the net estate and looks at past relations.

A dependant's claim is not a charge on the estate. Section 27 makes that the default; a charge exists only if created by will, decree, agreement or otherwise.

Section 25 is not limited to decrees. An amount fixed by agreement may equally be altered on a material change of circumstances.

Quick revision

• s.21: nine classes of dependant of the deceased: father; mother; widow while unmarried; minor son, son's son, son's son's son, the remoter ones only if they cannot obtain maintenance from a nearer estate; unmarried daughter and the corresponding granddaughters; widowed daughter who cannot obtain maintenance elsewhere; son's widow while unmarried and unable to obtain maintenance elsewhere; minor illegitimate son; and illegitimate daughter while unmarried.
• s.22: the heirs must maintain the dependants out of the estate inherited; a dependant who took no share claims from those who take; liability is in proportion to the share taken; and no dependant heir is made to pay down below what he would himself have been awarded.
• s.23(1): entirely in the court's discretion, and it may award nothing.
• s.23(2), wife, children, aged or infirm parents, five factors: position and status; reasonable wants; whether separate living is justified; the claimant's own property and income; the number of claimants.
• s.23(3), a dependant, seven factors: net estate after debts; provision by will; degree of relationship; reasonable wants; past relations; the dependant's property; the number of dependants.
• s.24: a convert loses every claim under the Chapter. s.25: the amount, whether by decree or agreement, may be altered on a material change. s.26: debts first. s.27: no charge unless created. s.28: enforceable against a transferee with notice or a gratuitous one, never against a purchaser for value without notice. s.29 is repealed.

Test yourself

1. What are the considerations for fixing the amount of maintenance for a wife, children and aged or infirm parents? Section 23(2): the position and status of the parties; the reasonable wants of the claimant; if the claimant is living separately, whether the claimant is justified in doing so; the value of the claimant's property and any income from it, from earnings or from any other source; and the number of persons entitled to maintenance under the Act.

2. How does that list differ for a dependant claiming against an estate? Section 23(3) has seven factors, and two of them have no counterpart: the net value of the estate after providing for the deceased's debts, which fixes the ceiling, and the past relations between the dependant and the deceased. The others are the provision made by will, the degree of relationship, reasonable wants, the dependant's own property and income, and the number of dependants.

3. Is a dependant's claim a charge on the estate? No, unless one has been created by the will of the deceased, by a decree of court, by agreement between the dependant and the owner of the estate, or otherwise. That is section 27.

4. Can the claim be enforced against a person who has bought the estate? Only if the transferee had notice of the right, or if the transfer was gratuitous. It cannot be enforced against a transferee for consideration and without notice. That is section 28.