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Kottal Kunhaltkutti Haji Vs. Milkkaravida Kottal Kunhamayan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1923)ILR46Bom567
AppellantKottal Kunhaltkutti Haji
RespondentMilkkaravida Kottal Kunhamayan and ors.
Excerpt:
malabar law - separate maintenance for junior members--allotment by karnavan--rate of maintenance--revision by court--form of a decree for maintenance against karnavan. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., - 1036 of 1918 is the better form, and the decree of the lower appellate court in this case must be amended by being made to conform with that form. , in an apparently unreported case of the madras high court, the judgment in which is set..........the lower appellate court at rather a higher rate than the district munsif. the plaintiffs are the junior members of a tarwad. the first defendant is the karnavan of the tar wad. the second defendant is the next to him for that position. the decree has been made for arrears of maintenance, at the rate which has been found by the subordinate judge to be the proper rate, personally against the karnavan in the following terms;that the first defendant personally and as karnavan of his tarwad do pay.2. this form of decree does not seem to me to be right. i see no reason for a personal decree against the karnavan which would involve the right of the junior members of this tarwad to arrest him if he did not pay forthwith, although it may be he may have none of the property in his hands.....
Judgment:

Schwabe, C.J.

1. In this case the District Munsif and the lower Appellate Court have awarded to the plaintiffs maintenance, the lower Appellate Court at rather a higher rate than the District Munsif. The plaintiffs are the junior members of a tarwad. The first defendant is the karnavan of the tar wad. The second defendant is the next to him for that position. The decree has been made for arrears of maintenance, at the rate which has been found by the Subordinate Judge to be the proper rate, personally against the karnavan in the following terms;

that the first defendant personally and as karnavan of his tarwad do pay.

2. This form of decree does not seem to me to be right. I see no reason for a personal decree against the karnavan which would involve the right of the junior members of this tarwad to arrest him if he did not pay forthwith, although it may be he may have none of the property in his hands available for immediate payment. We have had several decrees, which have come before this Court, looked up and I have found none in which that form of decree has been used. In Second Appeal No. 1036 of 1918 from the South Malabar district, the form of decree approved by this Court was

that this Court doth order and decree that the first defendant, as karnavan and manager of his tarwad and from the income of the tarwad properties and also from the properties of the tarwad, do pay the plaintiff Rs. 216 for his maintenance due for the past three years.

3. In Appeal No. 48 of 1916 from the same district, the decree approved by this Court was

that the plaintiffs do recover from them and the defendants' tarwad Rs. 1,136, being the amount, of maintenance for the plaint period, that is, six years.

4. On the whole, I think the former of those two forms, namely that approved in Second Appeal No. 1036 of 1918 is the better form, and the decree of the lower Appellate Court in this case must be amended by being made to conform with that form.

5. It is then argued that the amount of maintenance allowed in this case is wrong, because the lower Appellate Court has not applied the right principle in arriving at the proper figure and has allowed too much, and it is argued on the other side that too little has been allowed. Now, the law seems to be this as stated by Turner, C. J., and Kindessly, J., in an apparently unreported case of the Madras High Court, the judgment in which is set out clearly in Moore's Malabar Law and Custom at page 132.

The members of the tarwad are entitled to receive maintenance out of the tarwad house, when there is no room for them in that house, and if the karnavan makes an insufficient allowance, the anandravans are entitled to apply to the Court to determine what allowance is sufficient having regard to the circumstances of the family.

6. The circumstances which may be taken into consideration on such discussion before the Court are dealt with in the case of Thayu v. Shungunni I.L.R. (1882) Mad. 71. The general principle is this: prima facie the junior members living out of the tarwad house should be treated equally, but the circumstances of each particular one can be taken into consideration and it is for the karnavan to judge how much each particular one should get. He may take into consideration, no doubt, things like the health of a particular child, or the education of a particularly intelligent child, or a child with small intelligence, he can take into account the earning capacity of a junior member; apparently it has been laid down that he can also take into account the fact that a particular person has himself made a rich marriage, and there are many other things which the karnavan, in exercising his discretion, as, so to speak, the father of his family, can take into consideration. To some extent all these are things which can be controlled by the Court; if a junior member is aggrieved, he can come to the Court and apply for maintenance and ask the Court to say what allowance is sufficient. I think it is enough to say that, on any such application to the Court, very great weight indeed should be given to the decision of the karnavan and his decision in such a matter would not be lightly interfered with. In this case it is proved that certain members of the tarwad and, in particular the second defendant, have had provisions made for them by way of maintenance not by the present karnavan but by his predecessors, he having been karnavan only for a short period, and both the District Munsif and the Subordinate Judge have, to a great extent, in arriving at what they considered to be a proper maintenance for these plaintiffs, eliminated the individual arrangements which had been made by those previous karnavans in regard to the second defendant and other members of the tarwad. But they have both, in arriving at what they think the right amount, taken the generality of those members so provided for and said that that on an average works out at so much, and I think quite properly the Subordinate Judge took that into consideration as a guide provided by past karnavans as to what was the sort of maintenance this tarwad was capable of paying to its junior members. I do not find that he did anything more than look at it as a guide. It is also true that, in making that calculation for that purpose, he eliminated from consideration the amount which was going to the second defendant. He does not seem to have had before him anything about the second defendant to show why he got a considerably larger amount than other members. I do not see any reasons for saying that the figure arrived at is wrong, and certainly I find no reason for saying that it is wrong in law. What was the reasonable maintenance is a question of fact and on the facts before the Courts the figure was arrived at. I cannot find any reason to say that there was any error in law in arriving at that figure. I think it right to say something further. In this case a discussion took place in both the Courts below as to whether some property which the karnavan had got for his own maintenance before he became karnavan was to be taken into consideration, or whether the amount that he was getting and wanted as karnavan should be taken into consideration. In my judgment, he is, in respect of property which he is using for his own maintenance, in the same position as other members of this tarwad, who have got-similar property made available for their maintenance. In arriving at the amount of maintenance that should be paid, the income is, of course, to be considered and as against the income the proper expenditure to be met by the karnavans for managing this tarwad is to be taken into consideration. But the property that the karnavan is in enjoyment of himself under some arrangement by a previous karnavan is merely useful as a guide in the same way as the properties in the possession of other members of the tarwad are useful as a guide in arriving at the reasonable amount. But all those grants, the grant to the present karnavan, the grant to the second defendant and the grant to the other members of property in lieu of maintenance are subject to revision by the karnavan in a proper case. It has been laid down, and I think rightly laid down, that that revision can only take place if he proposes to substitute for the maintenance provided in this way some other proper maintenance. How this decree is to be met, how the maintenance of those junior members for the future is to be paid is a matter for the karnavan to decide, and he can, if he thinks it right, look into the position of every member of the tarwad, and he would be perfectly justified in saying that one member was getting too much and another member was getting too little and he could alter and readjust the incidence of the burden of the expenditure of this tarwad. I need hardly add that he must, in exercising any such powers, ach honestly and in the general interest of the tarwad and not of course in his own personal interest as opposed to the general interest.

7. I think that disposes of everything in this case and this appeal must be allowed to the extent of varying the order in the way suggested by me.

8. My brother points out to me that it may be too general a statement to say that a personal decree against a karnavan can never be given. I can conceive cases where it would be right that there should be a personal decree. All I meant to convey is that the ordinary decree in the first instance in the absence of special circumstances should be a decree in the form suggested by me.

9. As regards costs, on the whole, I think that respondents Nos. 1 to 9 must have their costs against the tarwad. The memorandum of objections of respondents Nos. 1 to 9 is dismissed with costs of the appellant and the memorandum of objections of the tenth respondent is dismissed without costs.

Wallace, J.

10. I agree and have nothing to add.


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