Charles A. Turner, Kt., C.J. and Kindersley, J.
1. The appellant urges two objections to the decree of the Lower Appellate Court, firstly; that the Judge in estimating the amount, which the appellant should receive as maintenance from the tarwad, has deducted a sum allowed by the Court of First Instance as maintenance for the lady who is regarded as his wife and for his offspring by her.
2. Although it would seem inconsistent with the principles of the Maruma-katayam law that the tarwad should contribute to the maintenance of the ladies with whom the male members cohabit and of the issue of such cohabitation, these ladies and their issue being members of another tarwad, and entitled to claim maintenance from their own tarwad, unless they voluntarily remove from the house of their tarwad, it is urged in this Court that it is the practice of the country in North Malabar for females to reside during the whole year in the tarwad of the male with whom they cohabit, and that, during such residence, they are maintained at the expense of the tarwad in which they reside. A passage has been cited from Buchanan which supports this assertion so far as regards the residence of the ladies. It is also stated that in other claims for maintenance, which have been allowed in the tarwad to which the parties belong, male members have received allowances for the maintenance of such ladies and their children.
3. We shall, therefore, remit for trial the issue whether by custom the expense of maintaining the ladies with whom the male members of the tarwad cohabit, and of maintaining the issue of such unions when visiting the tarwad home is allowed as a proper charge on the revenues of the tarwad.
4. The appellant also complains that the District Judge omitted to find whether the amounts collected by him were expended for the purpose of the tarwad. If they were so expended, he is not chargeable with them. We allow that the judgment of the District Judge is defective in omitting to determine this issue.
5. It will, therefore, also be remitted.
6. The District Judge is directed to try the foregoing issues upon the evidence already recorded, and upon such further evidence, as the parties may adduce, and to return his finding thereon together with the evidence, to this Court within six weeks from the date of receiving this order, when ten days will be allowed for filing objections.
7. In compliance with the above order, the District Judge submitted the following finding:
1st Issue.--' Whether by custom the expense of maintaining the ladies with whom the male members of the tarwad cohabit, and of maintaining the issue of such unions when visiting the tarwad house is allowed as a proper charge on the revenues of that tarwad?
' On this issue, the evidence adduced that of Varikara Vadaka Vittil Kamaran Nayar and Ponmiler Koroth Krishnan Nambiar, unobjected to by first defendant certainly shows that the charge for maintenance spoken of is a proper charge on the revenues of the husband's tarwad.'
' 2nd, Issue.--' Whether the amounts collected by him, second appellant, were expended for the purposes of the tarwad?'
' From the evidence adduced by the second appellant himself, supported as it is by that of the fourth, fifth, and sixth witnesses in original suit, there can be no doubt the amount collected by second appellant was expended in a proper tarwad purpose, viz., in the maintenance of plaintiff's in Suit No. 615 of 1879 on the Kavai Munsif's file, and in the maintenance of plaintiffs in Original Suit 26 of 1878 on the file of the Subordinate Court.
8. Upon the return of this finding the Court delivered the following
9. Accepting the finding, we reverse so much of the decree of the Lower Appellate Court as reversed, in part, the decree of the Subordinate Judge, and affirm the decree of the Subordinate Judge in its entirety.
10. The appellants will recover from the respondent the costs of this appeal.