1. This is an appeal and memorandum of cross-objections directed against the decree and judgment of the learned Subordinate Judge of Chingleput in O. S. No. 69 of 1950,
2. The facts are: The first defendant Vara-darajulu Chetti had three sons by name Rajaman-nar Chetti, Dharmayya Chetti and Krishnan Chetti. The plaintiff was married in 1925 to Rajaman-nar Chetti when she was 11 years old and RajEt-mannar Chetti was 16 years old. This Rajamftnnar Chetti died in the first week of June 1926. Before the Karumathi of this Rajamannar Chetti, the plaintiff's father is said to have Settled the maintenance claim of his daughter by executing Ex. B-3 in pursuance of the arbitration award Ex. B-2 mediated under the muchalika Ex, B-l.
The plaintiff has always been residing with her lather, because she has not joined her husband, this being a pre-puberty marriage. In 1950 on account of the fact that her father was becoming old and was unable to support her, the plaintiff has filed this suit for maintenance claiming past and future maintenance at Rs. 250/- per month and on coming to Court she was confronted with the adjustment of her maintenance claim under Ex. B-S and the plea that the claim for maintenance was exaggerated and that the plaintiff was entitled to maintenance only at the rate of Rs. 15/- per month and that she had abandoned her claim for pas* maintenance.
The learned Subordinate Judge came to the conclusion that the adjustment is not valid and binding on the plaintiff and gave a decree for arrears of maintenance at the rate of Rs. 10/- per month and future maintenance at Rs. 60/- per month. These amounts were erected as a charge on items 1 to 6 of the plaint A Schedule property. In addition a sum of Rs. 250/- was awarded tot pilgrimage, Vrathams etc. The plaintiff was made to bear the Court-fee on the disallowed amount and was given proportionate costs. The defeated plaintiff appeals in regard to the quantum of maintenance, past and future, disallowed and the defondants appeal against the award of maintenance itself.
3. Three points which arise for consideration before us are:
1. Whether Ex. B-3 precludes the plaintiff from maintaining this suit?
2. Whether there was abandonment In respect of arrears of maintenance?
3. Whether the quantum of maintenance, pasfi and future, awarded is correct?
4. Point I.- In regard to Ex. B-3, It would operate as an adjustment of the maintenance claim! only if it is found to be fair, proper and reasonable! and in the best interests of the plaintiff, because it should be borne In mind that this plaintiff was a minor at that time and her father could at beside nothing more than a de facto guardian and the other party to Ex. B-3 was the father-in-law of the plaintiff who would be interested only in minimising as much as possible the amount of maintenance and save as much as possible of the family properties for the benefit of himself and his two other sons, defendants 2 and 3.
This Ex. B-3 along with the award of Hie arbitrators state that the jewels handed over to the plaintiff's father were worth Rs. 2500' only; The defendants want now to get over it by alleging that the Jewels were really worth Rs. 4000. There Is no reason to-accept this statement which Is made only for the purpose of snowing that a considerable sum like Rs. 4000 was given by way of adjustment of the maintenance claim.
In regard to the jewels handed over, there are two versions before us. One version is that of the plaintiff that the Jewels which were handed back to her were the Jewels given to her as Stridhanam, Jewels before the marriage by her father-in-law. On the other hand, the 'version of the defendants Is that in addition to the jewels given before marriage by the father-in-law, four items of jewels of considerable value like Oddiyanam, gold chain, vauki and Billai were given.
The learned Subordinate Judge has thoroughly scrutinised the evidence in paragraph 8 of his judgment, and has come to the conclusion, with which we entirely agree, that this version of the defendants about four additional jewels is wholly false. On the other hand, what is found is that the plaintiff was given only the Jewels which were given to her before marriage by the father-in-law's house.
5. The law regarding gifts before marriage or wedding gifts or post-nuptial gifts (1) is well settled. These gifts constitute Stridhanam, literally meaning women's property and a species of it is known by the name of saudayika. Katyayana declares:
'What a woman, either after marriage or before it, either in the mansion of her husband or of her father, receives from her lord or her parents Is called a gift from affectionate kindred (saucayika); and such a gift having by them been presented through kindness, that the woman possessing it may live well, is declared by law to be her absolute property. The absolute exclusive dominion of women over such a gift is perpetually celebrated'.
According to most writers, it is wealth received by a woman, whether as a maiden or as a married woman, In her father's or husband's house from her parents or relatives of the father and mother. There is a verse of Vyasa that defines Saudayika similarly.
'Whatever is obtained by a woman as a maiden at the time of marriage and after marriage from the house or her father or husband is termed saudayika.'
The word ''saudayika' is derived from 'sudaya' and means, according to the Dayabhaga IV.1.22, page 76, 'received from affectionate kindred'. Thft Amarekosa says that 'sudaya' means 'gifts of Yautaka and the like' and that Saudayika is merely a derivative without change of meaning. Saudayika means literally a gift made through affection. Therefore Saudayika means all gifts and bequests from relations, but not gifts and bequests from strangers and saudayika of all sorts are absolutely at a woman's own disposal. She may spend, sell, divide, or give it away at her own pleasure.
The decisions of Courts take this view; Luch-mun Chander v. Kali Churn, 19 Suth WR 292 : AIR1932Bom559 Therefore, when the absolute property, of the plaintiff was allowed to be retained by her, it cannot be considered to be joint family property given in full quit of her future maintenance. The adjustment pleaded therefore fails,
6. Point 2: It is now well settled law th'a)t the right to arrears is an absolute right, defeasible only on proof of waiver, abandonment, estoppel or limitation and that apart from these considerations a Court has no discretion either to disallow arrears totally or to cut down the period for which they are to be granted: Rangathayl v. N. M. Chettl, 21 Mad LJ 706 ; Subramania lyer v. Muthammal, 21 Mad LJ 482 (N); Pushpavalli v. Raghavayya, 23 Ind Gas 413: AIR 1914 Mad 451 (O); Panchakshara v. Pattammal : AIR1927Mad865 Srinivasa v. Lakshmi, 54 Mad LJ 530: AIR 1928 Mad 216 (Q); Godavarti Sobbanadramma v. Ooda-varti Varaha Lakshmi : AIR1934Mad401 Ve^ikatapathi v. Puttamma, 71 Mad LJ 499: AIR 1936 Mad 609 (S).
. Thus, a widow is entitled to claim arrears provided her right is not either barred by time or is not waived or impliedly abandoned. There is no case of abandonment or waiver in this case. It used to be customary amongst the communities from which this case comes for widows who had lost their husbands early In life to reside only hi their parents' house. So long as the parents continue to be affluent, it ,used to be considered derogatory to take maintenance. . This has also been the case here and it is only because the father has become old and this middle-aged plaintiff has to look for.) word to other permanent sources of income for her maintenance, that she has filed this suit in the pauper form.
Therefore, no question of abandonment and waiver could be inferred. But It is equally well settled that arrears may be fixed on a lower scale than future maintenance: 54 Mad LJ 530: AIR J 928 Mad 216 ; Venkatarathnama v. Sitarat-nam : AIR1932Mad408 and Dandmudi Ramarayudu v. Dandamudi Sitalakshmamma : AIR1937Mad915 .
This is based' on the principle that by reason] of the arrears not being claimed promptly, the opposite party would have been induced not to: make any provision for meeting out of his annual income and therefore it would not be proper to saddle him with such heavy unexpected liability as would result in the liquidation of the joint family assets. Therefore, the learned Subordinate Judge rightly held that there was no abandonment or waiver and fixed the arrears of maintenance at a lower rate than future maintenance.
7. Point 3; The final point for determination is the quantum past and future, and in regard to which two aspects have to be considered viz., the- various circumstances which have been set out by their Lordships of the Privy- Council in the well known decision of Mt. Ekradeshwarl v. Homeshwar, AIR 1929 PC 128 (V) for fixing the rate and secondly, the data for calculating the income of the Joint family. In this case the evidence regarding the circumstances for assessing maintenance as set out In AIR 1929 PC 128 (V) Is clear.
But 'unfortunately the learned Subordinate Judge has not analysed the Income producing properties, movable and immovable, belonging to this Joint family of the defendants on the date of the filing of this suit In order to enable us to fix the quantum. The evidence has been set out in vague and discursive manner and the finding is halting and inconclusive.
8. Therefore, inasmuch as we would like to have the benefit of a clear finding of the learned Sub-'ordinate Judge before assessing whether the quantum of maintenance fixed by him requires to be enhanced or not, or reduced or not we call for a finding from the learned Subordinate Judge of Chingteput on the materials on record plus such additional documentary evidence (including oral evidence to prove that documentary evidence) as might be adduced by both sides about the extent of the Joint family estate or the defendants and the income derived therefrom on the date of suit. Time six weeks. Objections, if any, one week there after.