1. This is an appeal by the defendant who has been directed by the decree of the lower Court to pay certain sums of money to the plaintiff, his son, towards maintenance. The plaintiff is an adult and is not under the Hindu Law ordinarily entitled to enforce payment of maintenance as a 'personal' obligation of the father. Where the father is in possession of joint family property, the adult son is entitled to be maintained from out of the income of the joint family property but it is doubtful if he can maintain a suit for maintenance against the father when he could as well sue for partition. Where the property in the father's possession is impartible the son would not, even if the impartible estate be joint family property, be entitled to sue for partition and in such cases a suit for maintenance has been permitted.
2. In the present case the plaint proceeded on the footing that the defendant was in possession of the Uttumalai Zamindari in some character other than that of separate property. The plaint also alleged that there was an immemorial and well-known custom prevalent in the Uttumalai Zamindari and all other Zamindaris according to which a person in the position of the plaintiff was entitled to maintenance. The defendant denied that the plaintiff was entitled to maintenance. He asserted that the Uttumalai Zamindari must be regarded as separate property in his hands and not as joint family property out of which the plaintiff can claim maintenance. He also denied the existence of the custom alleged in the plaint; and, in paragraph 2 of the additional statement filed on the 17th December, 1930, it was distinctly asserted:
No such custom has hitherto been recognised in judicial decisions at any rate when the impartible estate is the self-acquired property of the holder.
3. In the rejoinder filed by the plaintiff in answer to this statement no new information was vouchsafed, but it was asserted that the Uttumalai Zamin was in no sense the self-acquired property of the defendant.
4. On these allegations, issues were framed, of which it is sufficient to refer to issues 2, 3 and 4. Issue 2 raised the question whether the Uttumalai Zamindari was the joint family property of the parties or the sole property of the defendant. The lower Court rightly found that the property was the separate property of the defendant because he got it by inheritance from his sister's adopted son. This finding has not been attacked before us and it is unnecessary to say more on this issue.
5. The fourth issue was to the effect, 'Is that custom true?'. It is to be regretted that the issue was framed in a form which did not bring out the nature of the custom pleaded or required for the purposes of the case. The point really in controversy between the parties on the question of custom was whether there was a custom to pay maintenance even when the property is not held by the holder for the time being, as joint family property; if it was joint family property, the right of the first generation of descendants to maintenance, has not been disputed. This way of framing issue No. 4 has led to an obvious mistake in the treatment of the case in the lower Court as we shall presently show.
6. The third issue ran as follows:
If the second issue is found for the defendant, is plaintiff entitled to have that Zamindari taken into consideration in the fixing of the maintenance allowance to be awarded to him assuming the custom alleged by him to be true?
7. Issues 1 to 3 were heard as preliminary issues. On the third issue the learned Subordinate Judge curiously enough said that the defendant had made no distinction in his additional written statement as between Zamindaris which are held as joint family properties and Zamindaris which are self-acquisitions so far as the allegation as to the custom was concerned. He forgot that the plaint itself made very little differentiation between judicial decision and custom and the written statement accordingly followed the same lines. It is however obvious from the paragraph which we have already quoted from the additional written statement that the defendant did insist that the plaintiff was not entitled to maintenance if the Court should hold that the Zamindari in his hands was not joint family property.
8. The learned Subordinate Judge disposed of issue 3 in two sentences which we have had great difficulty in understanding. He said:
Their Lordships of the Privy Council have referred in Protap Chandra Deo v. Jagadish Chandra Deo (1927) 53 M.L.J. 30 : L.R. 54 IndAp 289 : I.L.R. 54 Cal. 955 to the expression of opinion in Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 IndAp 148 I.L.R. 41 Mad. 778 , though that expression of opinion has been stated in Baijnath Prasad Singh v. Tej Bali Singh (1921) 40 M.L.J. 387 : L.R. 48 IndAp 195 : I.L.R. 43 All. 228 to be obiter. Consequently I have to find the issue for the plaintiff.
9. The learned Counsel who appeared for the respondent before us has explained this judgment of the learned Subordinate Judge to mean that according to the observations of their Lordships in Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 IndAp 148 I.L.R. 41 Mad. 778 the son of the holder of an impartible estate has been recognized to be entitled to maintenance without the necessity of proving the custom in each case and as that decision proceeds upon the footing that in an impartible estate there are neither coparcenary rights nor any of the incidents relating to joint family property, the observations justify the award of maintenance to the son irrespective of the question whether the impartible estate in the possession of the father is joint family property or separate property. The learned Judge however recognised that Lord Dunedin himself in Baijnath Prasad Singh v. Tej Bali Singh (1921) 40 M.L.J. 387 : L.R. 48 IndAp 195 : I.L.R. 43 All. 228 stated that many of the observations in Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 IndAp 148 I.L.R. 41 Mad. 778 might have to be ragarded as obiter. But as reference has been made in Pro tap Chandra Deo v. Jagadish Chandra Deo (1927) 53 M.L.J. 30 : L.R. 54 IndAp 289 : I.L.R. 54 Cal. 955 to Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 IndAp 148 I.L.R. 41 Mad. 778 he thought he must follow the dictum in that case.
10. When the case came on before another Judge for the trial of the other issues in the case, the learned Counsel for the defendant asked for a separate trial and finding in respect of Issue No. 4. But the then Judge felt himself precluded from dealing with the question because of what he considered to be the implication of the finding already recorded by his predecessor on the third issue. He was good enough, however, in justice to the defendant, as he says, to refer to some of the contentions raised before him, but refrained from giving a finding on the point. Feeling himself precluded from dealing with the question of the plaintiff's right to maintenance, the new Subordinate Judge practically confined himself to the question of the amount of maintenance and other incidental matters.
11. In the course of the argument before us, Mr. Somayya has drawn our attention to the relevant decisions of the Judicial Committee and of all the Courts in India. More than one recent judgment of their Lordships has attempted to state with precision the result of the cases relating to impartible estates; it is therefore not necessary for us to refer to earlier decisions. Taken out of its context, the observation in Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 IndAp 148 I.L.R. 41 Mad. 778 is no doubt capable of being understood in the way that the learned Subordinate Judge understood it. But a perusal of the whole judgment and a consideration of their Lordships' later judgments will show that that view is not correct.
12. It is unnecessary for the purposes of this case to discuss the exact basis of the decision in Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 IndAp 148 I.L.R. 41 Mad. 778 because in the later decisions in Baijnath Prasad Singh v. Tej Bali Singh (1921) 40 M.L.J. 387 : L.R. 48 IndAp 195 : I.L.R. 43 All. 228 and Collector of Gorakhpur v. Ram Sundar Mal (1934) 67 M.L.J. 274 : L.R. 61 IndAp 286 : A.I.R. 56 All. 468 , their Lordships have themselves attempted to state the position with the necessary qualifications. It is sufficient to refer to the observation in Collector of Gorakhpur v. Ram Sundar Mal (1934) 67 M.L.J. 274 : L.R. 61 IndAp 286 : A.I.R. 56 All. 468 that it has been clearly shown:
That there is now no reason why the earlier judgments of the Board should not be followed, such as, for instance, the Chellapalli case, Yarlagadda Mallikarjuna v. Yarlagadda Durga Prasada (1900) 10 M.L.J. 294 : L.R. 27 IndAp 151 : I.L.R. 24 Mad. 147 , which regarded their right to maintenance, however limited, out of an impartible estate as being based upon the joint ownership of the junior members of the family.
13. We may also add that the observation in Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 IndAp 148 I.L.R. 41 Mad. 778 that has been relied on by the learned Subordinate Judge and by the learned Counsel for the respondent before us does not itself purport to declare the right to maintenance but merely refers to the basis on which the right recognised in the earlier cases in respect of maintenance might be based, the suggestion being that custom rather than joint family right might be regarded as the basis. It was obviously not the effect or the intention of the sentence to recognise the right to maintenance in cases where no such right has been recognised in the earlier cases. Mr. Somayya admitted before u that in none of the earlier cases relating to impartible Zamindaris has the Court recognised a right in an adult son to claim maintenance from the impartible Zamindari in the hands of the father even when it was not joint family property.
14. We may refer in this connection to an observation in Sir D.F. Mulla's book, 8th Edn. at page 611 where a sentence from Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 IndAp 148 I.L.R. 41 Mad. 778 is reproduced without the context in which it occurs. As it stands, the statement in the book is capable of being misread as supporting a general right to maintenance in favour of the son irrespective of the question whether the impartible estate in the father's hands is joint family property or not. In Commissioner of Income-tax v. Zamindar of Chemudu (1934) 67 M.L.J. 306 : I.L.R. 57 Mad. 1023 a Full Bench of this Court affirmed the principle that the right to maintenance which the son of the holder of an impartible Zamindari possesses is only an incident attaching to its character as joint family property.
15. The observations in Nilmony Singh Deo v. Hingoo hall Singh Deo I.L.R (1879) 5 Cal. 256 are likewise capable of being misunderstood if the context is ignored. The antethesis drawn in that judgment was between claims by the younger sons against their elder brother on the one hand and claims by the descendants of the younger brother against their uncle. The son's claim against the father was not then before the Court. It is obvious that when one of three brothers inherits an impartible estate from the father, it would be an estate where the younger brothers had lost their right of succession only by reason of its impartibility. In such circumstances the Court thought that the younger sons would be entitled to maintenance without proof of special custom, but they added that as regards members belonging to a lower generation there must be definite proof of custom.
16. We may refer in passing to the way in which the matter has been dealt with in a recent enactment of the Madras Legislature. In Madras Act XII of 1934 which attempted to declare the law as it has been understood even prior to the decision in Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 IndAp 148 I.L.R. 41 Mad. 778 and in conformity with the latest pronouncements of their Lordships as regards the true character of impartible estates, the second section which pro-pose's to add Section 9 to the Impartible Estates Act of 1904 is limited to cases where the estate has for the purpose of succession to be regarded as the property of the joint family. There is accordingly no warrant for Mr. Somayya's suggestion that there is a kind of consciousness in this presidency that a Zamindar's son should be entitled to maintenance from his father irrespective of the question whether in the father's hands the Zamindari is joint family property or not. It is not suggested that the evidence in this case establishes any custom to that effect. The decision of the lower Court in favour of the plaintiff is accordingly unsustainable.
17. Mr. Somayya suggested two other grounds in favour of the plaintiff's claim, on
18. The offer in the written statement is more in the nature of a voluntary undertaking and does not amount to any admission of a legal right; that undertaking is coupled with onditions which no Court of law can enforce, namely, that the plaintiff should behave in a particular way and be amenable to the defendant. No decree could be founded on such an offer.
19. The appeal must accordingly be allowed and the suit dismissed with costs both here and in the Court below.