1. This appeal is against the decision of the District Judge of East Tanjore in a maintenance suit by a widow against her son, the 1st defendant, and grandson, the 2nd defendant. The suit was for arrears of past maintenance, for a declaration of the amount of future maintenance and to make the defendants liable to pay certain other sums demanded by the plaintiff. The Lower Court refused the prayer for past maintenance and declared that the plaintiff was entitled to Rs. 500 a year for future maintenance, and to two sums of Rs. 400 for vratams and Rs- 500 for pilgrimage and that the defendants 'do pay' these amounts. Defendants appeal. The plaintiff has not filed any memorandum of cross-objections or cross-appeal against the disallowance of past maintenance, or the rate of future maintenance, or the cash allowances.
2. The case before us turns on the general question how far, if at all, a widow can sue for maintenance when she has or ought to have in her hands sufficient joint family property from which to maintain herself. It has been found by the Lower Court and has not been attacked here that the plaintiff, who was for a long time managing the joint family property during and after the minority of her son, the 1st defendant, had in her hands in 1910 about Rs. 8,000 worth of joint family property. The Lower Court has also found that she had by the date of the suit spent all that money, but if plaintiff is to be believed, she spent a major portion of it on purposes which would not be binding on the joint family. These are the essential facts on which the case has to be considered. On the legal inference from these facts each side takes up an extreme position. The plaintiff maintains that the fact that she had or has or ought to have joint family property in her hands is no legal bar to her right to maintenance, and that, if the defendants have any subsisting legal right to recover from her joint family property, they can only enforce that right by a separate suit. The defendants contend that the fact that she has or ought to have in her possession joint family property is a sufficient bar to her suit, whatever the amount of that joint family property may be, and that she cannot be allowed to sue until she has restored to the joint family so much of its property as she has or ought to have in her possession, the joint family property itself being the source from which her maintenance has to be met.
3. The plaintiff's claim seems to us untenable in the form advanced. The simplest way to demonstrate that is to take an extreme case where the widow suing the joint family for maintenance has the whole of the joint family property in her hands. Such maintenance is primarily a charge on the estate, and in the case put is therefore primarily a charge on the joint family property in the widow's own hands. The plaintiff's contention is that even so she is entitled to a decree for maintenance against the joint family members, which would have to be a personal decree as the joint family ex hypothesi has no joint family property out of which the claim could be met. We are clear that the Court would be stultifying itself by giving her a decree for maintenance in such circumstances, unless the decree made it clear that the maintenance payment was to come out of the joint family property in her hands, and no personal decree against the joint family members was given. Next let us assume a case in which she has herself dissipated the whole of the joint family funds. Here again a Court could not give her a personal decree against the joint family members for a maintenance amount which ought primarily to be met from the funds which she had already enjoyed to the full herself. Even if when the suit started she had joint family property in her hands, she could defeat it by getting rid of it while the suit was going on. A notice to her of demand to return the joint family property in her hands would simply be a warning to her to get rid of it as soon as possible, and, since such conduct would not ex hypothesi in any way prejudice her right to maintenance, she would obviously do so. As we have said, whether she holds joint family property on the date of. the maintenance suit or whether she had dissipated it before suit, a Court would be stultifying itself by driving the joint family members to a separate suit to recover from her to-day funds from which she is to be paid her maintenance to-morrow. We, therefore, cannot accept the plaintiff's extreme position, for which indeed no authority is quoted before us.
4. The defendant's extreme position is in part supported by two reported rulings of the Bombay High Court, Dattatraya v. Rukhmabai I.L.R. (1908) 33 B. 50 and Bai Kanku v. Bat Parvati (1890) Bom. H.C.P.J. 400, referred to in the former case. These rulings set out this principle that, where a widow suing for maintenance has, at the time the suit was brought, sufficient joint family funds to provide her with maintenance at the rate decreed, she has no cause of action and her suit must be dismissed. The defendant's contention, however, goes further, and is that, so long as the widow has or ought to have any joint family property in her hands, she cannot, unless and until she restores it to the joint family, sue for maintenance. For this extreme position the defendants quote a ruling of the Punjab Chief Court in Bhagwan Kaur v. Harnam Kaur (1914) 26 I.C. 430.
5. In order to set but what appears to us to be the correct position, we shall take first the case where it is proved that the plaintiff is in possession of joint family property when she files her suit, that is, she herself is in possession of part of the very estate out of which her claim is to be met. In such a case it seeing to us that it is the duty of the Court to compel her to satisfy her demand, so far as it can be satisfied, first out of the property in her hands before she can come upon the rest of it in the hands of the joint family. This is the principle of the Bombay cases, but we think that the more correct decree in such a case is not to dismiss the suit but to direct that the maintenance primarily be, quantum valeat, a charge on the joint family property in her hands. If the income from that is or ought to be sufficient to give her a return equal to the maintenance amount, she is not entitled to any further relief unless unforeseen circumstances beyond her control put that property out of her possession. If the property in her hands is not sufficient and she must therefore live upon the capital, she will be entitled to come again for maintenance when that has been exhausted provided she has spent it with reasonable care and caution on the proper purpose, namely, her maintenance.
6. Does the same principle apply when she does not have joint family property in her hands on the date of suit, but when she ought to have? It seems to us that it must. Otherwise she has a direct incentive to dissipate the joint family property in order to prepare the way for her suit, a direct motive for dissipating the whole or part of the very fund out of which she is entitled to be maintained, and the Court would not support a plaintiff who comes into Court to claim from others, what she has herself assisted in putting beyond their reach. Two classes of such cases would occur, first, when the property dissipated is unascertainable or untraceable, and secondly, when it is known and ascertained and is in the hands of third parties. In the former case there seems no alternative but to dismiss the plaintiff's suit, since a charge cannot be imposed on unascertained or untraceable property, in the latter case also no charge can be imposed unless the third parties are made parties to the suit, and, when they are not, the proper decree again will be to dismiss the suit. It makes no difference to this 'general statement of principle whether the joint family property was held ex consensu in lieu of maintenance or not. The plaintiff, we may point out, has in this very case accepted this general principle by not appealing against the disallowance of past maintenance, for that disallowance was on the very ground that she had joint family property out of which she had maintained or ought to have maintained herself in the past.
7. To apply these principles to the present case, the Lower Court has found that in 1910 the plaintiff had Rs. 8,000 of joint family property. This amount at a reasonable rate of interest, say 7 1/2 per cent., a rate at which, she has in fact lent out other monies (see Ex. I-a), would give an income of Rs. 600 a year, which is considerably more than the rate of maintenance awarded by the Lower Court. Prima facie then she is not entitled to hold the joint family legally liable for her maintenance. She contests this position on two grounds: first, that that Rs. 8,000 ceased, in 1911, by virtue of a compromise in a suit, O.S. No. 69 of 1911, to be joint family property at all; secondly, that she has spent part, if not most, of it on legitimate joint family purposes. As to point 1 it is necessary to set out shortly the history of O.S. No. 69 of 1911. In O.S. No. 23 of 1910 on the file of the Sub-Court, (savaram(sic)), the 1st defendant, her son, got a decree, Ex. VIII-b of 30th September, 1911, against her setting aside as fraudulent a maintenance document, Ex. IX, dated 20th October, 1909, and declaring that he is entitled to recover from her whatever she had collected under Ex. IV, a promissory note for Rs. 10,000, dated 30th October, 1908 and whatever was still due under it from the promisor, the latter amount to be determined in a separate suit. That suit was O.S. No. 69 of 1911 and was by the 1st defendant against the promisor under Ex. IV and the present plaintiff. Ex. VII-a, an extract from the suit-register, shows that that suit was dismissed as adjusted out of Court. Neither the judgment nor the decree in that suit has been filed. They appear to be not available. The Rs. 8,000 which the plaintiff is now found to have been in possession of is the amount: recovered by her under Ex. TV. It is contended that, since the 1st defendant's claim against the plaintiff for the sum recovered by her under Ex. IV was finally settled by adjustment, it is not open to the defendants now to contend that they can recover it from the plaintiff as a kind of set-off to her claim for maintenance. Now, in the first place the plea of this adjustment as a legal bar to the defendant's contention that the plaintiff has or ought to have Rs. 8,000 joint family property in her hands was not only not taken in the Lower Court but is entirely contrary to the plaintiff's case there, for there she denied all knowledge of the suit whatever. On her case therefore apparently she had so little interest in the result of the suit--that she knew nothing about it. Her present contention, if allowed, also will have an obvious repercussion on other parties and the question would arise whether the adjustment binds on the 2nd defendant, who says he partitioned from his father on 19th December, 1910, before the date of this adjustment; such questions have never been put in issue or contested. The case which the defendants were called upon to meet in the Lower Court was that the Rs. 8,000 was joint family property in her hands except a sum of Rs. 3,000 which was the proceeds of the sale of the plaintiff's daughter's jewels, and the only point at issue there was whether this Rs. 3,000 really was plaintiff's daughter's private property or part of the joint family property. The decision was that the whole Rs. 8,000 was joint family money in the plaintiff's hands, and that was the ground on which the Lower Court disallowed past maintenance, a decision which the plaintiff has accepted. We are of opinion, therefore, that it is not open to the plaintiff to abandon here entirely her position in the Lower Court and contend that the Rs. 8,000 ceased by virtue of the adjustment in O.S. No. 69 of 1911 to be joint family property in her hands. Each side has given oral evidence about this adjustment, plaintiff denying all knowledge whatever about the suit and the 1st defendant saying that she took the Rs. 8,000 in lieu of maintenance. Neither of these two witnesses is reliable; but on this part of this case we need say no more than that, if the retention of Rs. 8,000 by the plaintiff had no relation whatever to her maintenance, it is extraordinary that for 18 years she has never attempted to come down on the joint family for her maintenance, and that she does so at the very moment when on her plea that Rs. 8,000 has come to an end. The contention put forward in her plaint that she had to borrow money for her maintenance she contradicted in her evidence. It may also be pointed out that even on her own case, she did not realise the whole Rs. 8,000 before the date of the adjustment in O.S. No. 69 of 1911, since Rs. 3,000 she lent under Ex. I-a, she says she got after the death of her daughter's husband. That must be in 1913. The question for decision on this part of the case is not whether this joint family property can now be recovered for the joint family by a suit against the plaintiff, but whether the plaintiff was holding in her, hands joint family property. Plaintiff's case in the Lower Court was that she was and we have no doubt that she was, to the extent of Rs. 8,000.
8. The second point then is whether she has made out her plea that it was spent for purposes binding on the joint family. The District Judge seems to think it enough if the plaintiff proves that she had spent it, irrespective of whether the purpose of the expenditure was binding on the joint family or not, and that the onus of proving what the plaintiff did with it lies on the defendant. This is obviously wrong. The plaintiff alone knows what she did with the money and must give some account. Even on the view he took the District Judge has not been able to account for the whole sum and has to fall back upon vague statements that the plaintiff must have spent for ceremonies or for maintenance. One item which he allows to her credit is the costs of the suit which the 1st defendant, on behalf of the joint family, had to file against her to get rid of the fraudulent maintenance deed, Ex. IX. Obviously these costs cannot be justifiedly debited to the joint family account. Most of the purposes for which the plaintiff says she spent the Rs. 8,000 are not binding on the joint family and it is not contested here that they are. The only expenditure which was ostensibly for joint family purposes was Rs. 1,000 to repair the family house in which the plaintiff resides and Rs. 150 to construct a well there. Even here we have only the plaintiff's word, and that is far from reliable as to the amount spent, although the defendants on the other hand might have called evidence to show that that amount had not been so spent. But even if we allow that out of the Rs. 8,000 held by her Rs. 1,150 was spent on legitimate purposes binding on the joint family, she ought still to' have a capital sum of Rs. 6,850 in her hands, which at 7 1/2 per cent, will give an income of about Rs. 513 a year, more than the Rs. 500 considered by the Lower Court to be a proper rate of maintenance. It appears clear, therefore, that the plaintiff has had or ought still to have in her hands a sufficient portion of joint family property to give her the Lower Court's rate of maintenance, and even if she has dissipated it, that does not, for the reasons we have already given, afford her a legal claim on the balance of joint family property in the hands of the defendants. As the amount which ought to be with her available for her maintenance has, on her own showing, been mostly dissipated to third parties and is not now with her and therefore cannot be made in this suit the subject of a charge, we have no alternative but to dismiss her suit.
9. As to the amount decreed by the Lower Court, namely, Rs. 500, it is unnecessary to discuss it here, but we are inclined to regard it as decidedly generous. We must, however, express our surprise that the Lower Court was able to fix on such a figure without discussing the income of the joint family or recording any finding thereon.
10. As to the claim for vratams and pilgrimage, as we have held that plaintiff ought to have had with her sufficient funds to meet this extra expenditure also, we are not prepared to uphold this claim. We, therefore, reverse the decree of the Lower Court and dismiss the plaintiff's suit with costs here and below.