1. The plaintiffs and defendant are sons of the late Raja Ankinidu, zamindar of Challapalli, who died in the month of April 1875. The zamindari, as it has now been finally decided by the Privy Council, is an impartible one, and consequently the eldest, son of the late zamindar, that is the defendant, is in enjoyment. The present suits are brought against him for maintenance.
2. The main question raised by the defendant is whether the family has, in consequence of proceedings in the suit ultimately determined by the Privy Council, become a divided one.
3. A larger question was raised by the defendant's vakil with regard to the right of a younger brother of the holder of an impartible zamindari to any maintenance at the hands of the zamindar for the time being. Having regard to the pleadings and issues, this general contention, we think, cannot properly be allowed on this appeal. If it could have been successfully maintained, it ought to have been raised in the Court of First Instance. The plaintiff would then have had an opportunity of meeting it by showing that at any rate in this family it has been usual for the reigning zamindar to make provision for the other members of his family, and there are some indications that such was in fact the case. Moreover, in his written statement in the partition suit, the zamindar admitted his liability in this respect.
4. The real defence is based on the admitted fact that in 188 [0?] the plaintiffs brought a suit against the defendant for partition of the entire family Property, and, so far as the partible property was concerned, obtained a decree. It is said that the effect of a partition of any part of the property of a Hindu family is to sever the joint ownership in respect of the whole property, and that it is not legally possible for a family to divide a portion of their family Restate and yet to remain undivided in respect of the remainder. It is true that, when a partition is effected in a family either by agreement or by decree, the result generally is to bring about a complete severance of the coparcenary, and; that this consequence may follow, although in fact a portion of the property remains undivided. In the case, however, of division by consent of parties, it is clear that they may, if they choose, reserve and keep undivided part of the property. With regard to such part they must necessarily retain the status of undivided family. See Sri Raja Satrucharla Jaggannadha Razu v. Sri Raja Satrucharla Ramabhadra Razu I.L.R. 14 Mad. 240 No authority for the contrary proposition was cited by the zamindar's vakil. In the present case, with regard to the property which remains undivided, there' was on the plaintiff's side a demand that it should be divided, but that demand was in-effectual because in point of law the property was not partible. No partition has taken place either by decree or by consent, and therefore, in our judgment, the rights of the junior members of the family remain as they were before any demand was made. That is to say, they retain 'such right and interest in respect of maintenance and possible rights of succession as belong to the junior members of a raj or other impartible estate descendible to a single heir.' See Sartaj Kuari v. Deoraj Kuari I.L.R. 10 All. 285 If the plaintiff is entitled to maintenance he is, we think, entitled to have it charged on the zamindari property or part of it. See Coomara Yettapa Naikar v. Venkateswara Yettia 5 M.H.C.B. 405 In view of the liberty of disposition enjoyed by the zamindar there is no other way in which the rights of junior members can be secured. No reason was suggested why in this respect any distinction should be made between the male and female members of a family, and in the case of women there is no doubt that a decree for maintenance in their favour is generally accompanied with a direction making it chargeable on certain specified property. We think, however, that the zamindar is justified in objecting to the decree as framed by the District Judge, inasmuch as it fetters him unnecessarily in the disposition of his property. It is sufficient; that the decree should make the maintenance chargeable on certain villages, and if the parties cannot agree, we must ask the Judge to find what particular property will form sufficient security.
5. The next question is as to the rate at which maintenance should properly be allowed. It was contended on behalf of the zamindar that in estimating the rate the Court should take into account the property alleged to be in the hands of the plaintiff, and the finding of the Judge with regard to that property was impugned.
6. The zamindar's vakil relied particularly on certain letters put in by the plaintiff himself and admitted in some unaccountable way, although the writer of them was not called and was admittedly alive. The case made for the zamindar was that lanka lands of considerable value had been acquired by the plaintiff in his own name, and in June 1890, when the unfavourable judgment of the Privy Council had been heard of, transferred benami to Janakiramayya, the District Munsif. We do not think this is proved, and agree with the conclusion stated by the Judge in the 41st paragraph of his judgment. Janakiramayya's letters, some written to the zamindar's brother, Ramalinga, and some to the plaintiff's servant Suryaprakasa (11th witness), cannot fairly be construed as implying that the lands belonged, to the plaintiff or his brother. The District Judge has found that a monthly allowance of Rs. 500, with an additional Rs. 250 in lieu of any provision for a house, furniture, cattle or occasional expenses, e.g., on account of marriages, is an adequate and fair allowance. The plaintiff had asked for a much larger sum, viz., Rs. 2,000, and the defendant had named a smaller one, viz., Rs. 250. It appears from the notes that the quantum of the allowance was in a great measure left to the Judge, and considering his experience in the district, we should be slow to disturb his judgment in the matter. On the part of the plaintiff it is urged that the allowance ought to be raised at least to Rs. 1,000 per mensem, and that some provision ought to be made from the allotment to the plaintiff of a house and garden. On the other hand, it is contended for the zamindar that the allowance of Rs. 750 is excessive. We think that the District Judge has given good reasons for refusing to grant the use of a house to the plaintiff, and we are not satisfied that the money allowance he has made is either excessive or inadequate.
7. The District Judge has granted arrears at the rate of Rs. 500 per mensem for twelve years prior to the institution of the suit. In this we think he was wrong. The right to maintenance is primarily a right to be maintained out of the current income of the property in the enjoyment of the party chargeable. The circumstance however, that a person entitled to maintenance has not in fact been maintained by the person chargeable does not necessarily give him a right of action for arrears. On proof of failure to maintain without more, he cannot be said to become a creditor of the person in default. It is incumbent on him to prove that there has been a wrongful withholding of the maintenance to which he is entitled. Jivi v. Ramji I.L.R. 3 Bom. 207 and Mahalakshmamma v. Venkataratnama I.L.R. 6 Mad. 83 If it were not so, it would mean that the manager of the family, could, at the, choice of any member preferring to reserve his claim for maintenance put of current income, be compelled to pay him from time to time sums of accumulated arrears which could only be paid out of capital. In this case it is admitted that the plaintiff has, since the 1st May 1875, been living apart from the defendant, and has neither asked for nor received maintenance, except what he received under the order of the High Court pending the appeal to the Privy Council, that is, between December 1887 and July 1890.
8. In our opinion it is clearly the plaintiff's own fault that he has not received maintenance for the whole period of twelve years for which he claims it. In his suit brought in 1880 he made another and inconsistent claim, and therefore he has no right now that he has failed in that litigation to complain that a claim not made by him, though conceded by the defendant, was not satisfied. There has been no wrongful withholding on the part of the defendant. We must, therefore, reverse the decision of the District Judge with regard to the arrears, except as regards the period above mentioned, during which payment was actually made. The allowance for that period was demanded and given on the footing of maintenance, and as the sum will have to be refunded by the plaintiff in execution of the decree of the Privy Council, we think that plaintiff is entitled to a decree for the same sum, viz., Rs. 19,500 in the present case, to which must be added Rs. 3,500 for the seven months between the date of the institution of the suit and the making of the decree, for the Judge has decreed payment of the higher rate of Rs. 750 per mensem only from the latter date, and in that respect we do not alter the decree.
9. Subject to the alterations required by this judgment, the decrees are confirmed, and plaintiffs must pay proportionate costs of these appeals.
10. Their memoranda of objections are dismissed with costs. We see no reason to interfere with the decrees of the Judge on the point raised.
11. If the parties do not agree within one week from date of receipt of this order, the Judge must proceed to inquire as to the property which should be charged with the maintenance.