Norman Macleod, Kt., C.J.
1. The plaintiff sued for separate maintenance and marriage expenses as a co-parcener in an undivided Hindu family. The defendants are his father, uncle, cousin and step-brother. The plaintiff alleged that he had quarrelled with the defendants and was driven out of the joint family house in May 1917. An issue was raised: 'Is a suit of the present nature tenable'? That issue was answered in the negative and accordingly the plaintiff's suit was dismissed.
2. We might point out that it would have been better if all the issues in the case had been raised, and then, if there was a preliminary issue, it could be dealt with first. Undoubtedly, the plaintiff, owing to the decision of a Full Bench of this Court in Apaji Narhar v. Ramchandra Ravji (1891) 16 Bom. 29 cannot file a suit for partition without his father's consent. The Judge says that the plaintiff has another remedy, namely, a suit for joint possession. But that is obviously a remedy which would tend to create further difficulties and aggravate the ill-feeling which appears to exist in the family.
3. Then the learned Judge holds that a separate suit for maintenance will not lie. It is difficult to see why a member of a joint Hindu family who cannot file a suit for partition without the consent of certain members of that family, if he is driven out from the family, cannot sue for maintenance out of the family property. In Himmatsing Becharsing v. Ganpatsing (1875) 12 Bom. H.C. 94 it was held that a suit for maintenance out of the ancestral estate by a Hindu son lay against his father where the property in the hands of the latter was impartible. But the Court decided there that the right of a son to sue for maintenance where he might sue for partition was not in question. The decision of Sir Michael Westropp, C.J. and Melvill J. in Special Appeal No. 394 of 1872 was referred to in the note. The question at issue in that case was whether a son who might sue for partition could sue for maintenance. But if the son cannot sue for partition, as in this case, then, as far as he is concerned, the family estate is just as impartible as it is when the estate is impartible amongst all the co-owners. I see, therefore, no objection whatever, to allowing the plaintiff in this case to file his suit for separate maintenance. Whether he can establish his case on the evidence and obtain a decree against the defendants is another matter. That can only be decided when proper issues have been raised and evidence has been taken. The decree, therefore, dismissing the suit must be set aside, and the case must be remanded to the trial Court to be dealt with on its merits.
4. Costs in the lower Court and of the appeal to be costs in the suit.
5. The Court fees payable to Government must be re covered from the respondents.