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Kijanar Sheshappa Shetty Vs. Kijanar Devaraja Shetty - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1926Mad723; 95Ind.Cas.401; (1926)50MLJ434
AppellantKijanar Sheshappa Shetty
RespondentKijanar Devaraja Shetty
Cases ReferredMuthu Amma v. Gopalan
Excerpt:
.....mode in which the right of ownership in the tarwad property is most effectively enforced by the junior members. ananta narayana aiyar (1907) 19 mlj 590 it was held that having regard to the circumstances of the family which was a well-to-do one 'a contract by a karnavan engaging a tutor for the purpose of teaching the english language on reasonable terms as to remuneration for the members of the family is binding upon the succeeding karnavan and that the debt thus due is payable out of the assets of the family. ' if all these claims can be recognised as legal, whether they come under the strict designation of 'maintenance' or not, the claim for the allowance being based on the junior member's co-proprietorship of the joint family property, we fail to see why the marriage expenses of a..........rs. 181-9-3 on account of expenses incurred by him for performing his marriage. the plaintiff is a junior member of a family of which the 'ejman' is the defendant. the parties are jains of south kanara governed by the aliyasanthana law. in reply to the plaintiff's claim, the defendant pleaded that he is not the ejman, that the plaint property is not family property, that the marriage was not arranged or performed with his consent and that, in any event, the cjaman of an aliyasanthana family is not bound in law to contribute for the marriage expenses of a junior member. the lower courts overruled all these pleas. as regards the want of consent alleged by the ejman, it is conceded for the appellant that the lower courts should be deemed to have found that the cjaman'withheld his consent.....
Judgment:

1. We are invited in this second appeal to set aside a decree by which the Court of appeal below in concurrence with the Court of first instance gave the plaintiff a sum of Rs. 181-9-3 on account of expenses incurred by him for performing his marriage. The plaintiff is a junior member of a family of which the 'ejman' is the defendant. The parties are Jains of South Kanara governed by the Aliyasanthana Law. In reply to the plaintiff's claim, the defendant pleaded that he is not the ejman, that the plaint property is not family property, that the marriage was not arranged or performed with his consent and that, in any event, the cjaman of an Aliyasanthana family is not bound in law to contribute for the marriage expenses of a junior member. The Lower Courts overruled all these pleas. As regards the want of consent alleged by the ejman, it is conceded for the appellant that the Lower Courts should be deemed to have found that the cjaman'withheld his consent for the marriage perversely and on no justifiable grounds. In these circumstances, Mr. Sitharama Rao argues that the Lower Court's decree is contrary to law because (1) the law does not recognise the union between a man and woman following the Aliyasanthana law as a valid and binding marriage and (2) this item of expenses should not on any account be included within the rule making maintenance a proper charge on the revenue of the family. The important question lor our decision is whether the plaintiff, a junior member of an Aliyasanthana family, is entitled to claim his marriage expenses from the ejaman of the family.

2. The Aliyasanthana system is very similar in its incidents to the Marumakkathayam law see Subbu Hegadi v. Tongu (1869) 4 MHCR 196 and Muthu Amma v. Gopalan : (1912)23MLJ496 A karnavan in Malabar is the senior male member of a group of persons, all of them tracing their descent in the female line from a common female ancestor owning joint property under the absolute control and management of the karnavan. This group forms a Marumakkathayam tarwad see Kenath Puthen Vinil Shuppu Menon v. Narayanan (1904) 28 Mad 182 The powers and rights of the karnavan, who corresponds to the ejman of the Aliyasanthana family, have been laid down in various decisions of this Court. Large and absolute though his powers be over the administration of the tarwad property and its funds, the regulation of the tarwad's internal economy, and the protection, control and supervision of the junior members, it should never be forgotten that the tarwad property in his possession is not exclusively his own, but he owns it along with the other members only as a co-proprietor. As observed in Narayani v. Gobinda (1884) Mad 352 'although as a senior member he enjoys special consideration, he has no higher claim in the enjoyment of the income than any other member of the family.' The right of ownership is of overwhelming importance to the junior members as it clothes them with very valuable rights which they can enforce against the karnavan. The status of a member of a Malabar tarwad carries with it four distinct rights, viz., (r) a right to be maintained by the karnavan, (2) a right to see that tarwad property is not alienated otherwise than in accordance with law, (3) a right to become the tarwad karnavan, when he becomes the senior male member, and (4) a right to a share if a partition were made and the tarwad broken up by common consent Moidin Kuthi v. Krishnan(1887) 10 Mad 322 I bray an K.anhi v. Komamutti Koya : (1892)2MLJ255 and Muthu Amma v. Gopalan : (1912)23MLJ496 To these might be added another right, viz-,. a right to bar an adoption Chandu v. Subbu (1889) 13 Mad 209 Of these rights obviously the most substantial one is the right to 'maintenance,' as such a right is the mode in which the right of ownership in the tarwad property is most effectively enforced by the junior members. The value of such a right in the case of persons living under a system of law which does not sanction compulsory partition, nor recognises son's claims against the father cannot be overestimated. The nature of this right has been thus described by Seshagiri Aiyar and Bake-wfcll, } J., in Ammani Amma v. Padmanabha Menon (1912) 35 MLJ 509 'The allowance claimed by an anandravan of a Malabar Tarwad or by a junior member of a joint Hindu family is not as a dependent upon the owner of the property, but as one who, in his own right, is entitled to participate in the income. The common law in both cases having vested the management in the senior member, the claim tor separate maintenance is an index of proprietorship and not founded upon moral or quasi-legal obligations or inability to maintain himself or herself. It is clear that the right of a member of a tarwad for an allowance is an incident of co-proprietorship in the property of the tarwad and that consequently that right cannot be denied unless circumstances show that the tarwad is not in a position to give a separate allowance.' See Achutan Nair v., Kunjunni Nair : (1903)13MLJ499 ; Maradevi v. Pammakka (1911) 35 MLJ 509; Kunhikrishna Menan Karnavan v. Kunhikav Animal (1918) 35 MLJ 499 and Gavindan Nair v. Kunjn N air (1919) Mad 686.

3. The term 'maintenance,' as has been pointed out, is often loosely applied. In its limited sense, as understood in Malabar, it means the expenses required for food, raiment and oil; in its more comprehensive sense, it includes what is usually called in Malayalam 'rnenchilavu,' which is treated as a part of maintenance see Govindan Nair v. Kunju Nair : (1919)36MLJ565 . According to Sundara Aiyar, J., the word 'menchilavu' is used to designate a part of what is required for the support of a person and is distinguished from what is strictly necessary tor food and raiment. Legally it may be taken to mean part of what would be included in the terms 'maintenance' and 'necessaries.' Sadasiva Aiyar, J., states that 'the literal meaning (of the term 'menchilavu') seems to be 'excess expenditure.' ' 1 take it that it means that it is usually allowed beyond what is strictly required for food and clothing alone. Under the expression, therefore, come the sums which are required for keeping up a respectable appearance consistent with the position and dignity of the family to which a person belongs, sums required for a reasonable amount of travelling to holy places in the case of a member of an aristocratic family, etc., for slight convenience and comforts, which though they might be called luxuries when indulged in by a low class individual, would come under the head of 'necessaries' in the case of persons belonging to families which cannot be classed with the lower sections of the community.' See Valia Konikkal Edamkelu v. Lakshmi Nettyar Ammal (1913) MWN 379 In Ravanni Achan v. Thankunni : (1919)37MLJ157 Phillips, J., described 'menchilavu' as 'a luxurious form of maintenance as distinguished from bare maintenance' and stated that ''the claim to both must be treated as based on the same footing.' Cotitts Trotter. J., as he then was, and Kumaraswami Sastri, J., observe that 'menchilavu' which has been translated as 'maintenance' is said to be indistinguishable from maintenance of the members of a Hindu family.' S.A. Nos. 2556 and 2557 of 1912. The loose application of the word, as pointed out above, is due to the fact that the English word 'maintenance' is not, strictly speaking, a correct equivalent of the Maiayalam word 'chilavu' of which it is generally understood to be a translation. The term means 'expenses' and is comprehensive in its significance. The right to maintenance is the right to claim one's 'expenses' which obviously must be of various kinds.

4. By the enforcement of this right which, as already mentioned, is given to a member of a Malabar tarwad or an Aliyasanthana family by reason of the proprietary interest possessed by the member in the family property, the junior members have been able to secure legal recognition of their claims not only for the cost: of the 'bare necessaries of life,' but also for the expenses legitimately incurred for 'medical treatment' Kelu Achan' v. Umala Achan (1912) 17 IC 704, and also for arrears of 'menchilavu' (for instance, expenses 'for clothes oil, soup, tea, coffee and confectionary) Ravanni Achan v. Thank/mm : (1919)37MLJ157 ; see also Valia Konikkal Edamkelu v. Lakshmi Nettyar Ammal (1913) MWN 379 assuming that there are adequate funds at the disposal of the family. The decision in Krishnan v. Govinda Monon : (1898)8MLJ294 recognising the obligation of the karnavan to educate the junior member, declared that it was not incumbent on him as part of his duties to 'give the junior members education through the medium of the English language or on western lines.' Such a claim if made now would, for its decision, as suggested in the judgment itself, depend upon the question whether such a education 'has not become essential.' In Neelakanta Thuruvambu v. Ananta Narayana Aiyar (1907) 19 MLJ 590 it was held that having regard to the circumstances of the family which was a well-to-do one 'a contract by a karnavan engaging a tutor for the purpose of teaching the English language on reasonable terms as to remuneration for the members of the family is binding upon the succeeding karnavan and that the debt thus due is payable out of the assets of the family.' If all these claims can be recognised as legal, whether they come under the strict designation of 'maintenance' or not, the claim for the allowance being based on the junior member's co-proprietorship of the joint family property, we fail to see why the marriage expenses of a junior member of a tarwad or Aliyasanthana family should not also be defrayed by the karnavan or ejaman, provided that the family has adequate funds; and the karnavan or ejman has no valid and proper objections to the marriage.

5. The junior members of an Aliyasantana family or a Malabar tanvad are not expected to live in a perpetual state of celibacy, and it is not denied that marriage is a necessary in cident in the normal life of individuals in Kanara and Malabar as in other parts of the country. It has been held in Srinivasa Aiyangar v. Thiruvcikatathaiengar (1912) 25 MLJ 644 and Gopalan v. Venkalaraghavadu (1915) 29 MLJ 710 that the marriage of a male governed by Mitakshara Law is a necessary burden upon the family. We have been pressed with the argument that as under the Aliyasanthana law union of man and woman is, 'in truth, not a marriage but a state of concubinage into which the woman enters of her choice and is at liberty to change when and as often as she pleases.' See Subbn Hagadi v. Tongu (1869) 4 MHCR 196 There can be no legal obligation on an ejman or a karnavan to clef ray the expenses of the so-called marriage. In our opinion, this argument has absolutely no bearing on the decision of this question. The prevailing system of marriage is a well-recognised and time honoured social institution sanctified by the long usages of the society to which the parties belong. The fact th?t the Courts have refused to consider it as a valid marriage in law is no reason why the family, if it can afford the means, should refuse to defray the expenses for the marriage of a junior member. In our opinion, the marriage expenses of a junior member of a Malabar Tarwad or Aliyasanthana family form a part of his 'right to maintenance.'

6. The cases referred to above do not by any means exhaust the variety of expenses for meeting which an anandravan can make a valid claim against the karnavan of the tarwad. It has been held in Subbu Sheltitki v. Krishnacharya (1910) 21 MLJ 159 though guardedly, that in certain circumstances a karnavan is entitled to raise money on the security of the family property for the defence of the members of the family charged with 'rioting' if the money could not otherwise be procured. The exact legal basis for the liability of the tarwad property is not stated in the judgment; but the observations of Miller and Krishnaswami Aiyar, JJ., in S.A. No. 359 of 1906 an earlier case that 'there is some evidence that some money was borrowed for expenses of the defence of a member of the family who was prosecuted in a criminal case but the nature of the criminal case does not enable us to say that the defence was for a family purpose,' would suggest that the question to be decided would be whether the expenditure is for a family purpose though the judgment does not show the exact bearing of the nature of the criminal case on the question of family purpose. In a still earlier case, i.e., S.A. No. 28 of 1888,without referring to the nature of the criminal charge and its connection with the question of family purpose) the available papers do not show what the charge was), Sir Arthur Collins, C.J. and Parker, J., held that 'the Lower Court rightly decided that the money borrowed for the purpose of defraying the expenses incurred in a criminal charge against the karnavan and two senior anandravans was a debt incurred for the tarwad purpose and binds the tarwad.' In our opinion, the cases discussed above are but illustrations of the rule that the junior member of a Malabar tarwad or Aliyasanthana family is entitled to claim from the karnavan or ejman for his maintenance all his 'necessary expenses' the justification for such a demand being his undoubted co-ownership of the tarwad property. Such expenses when defrayed by him would be expenses incurred by the karnavan for tarwad purposes and would bind the tarwad. What expenses are necessary may, in disputed cases, be safely left to the decision of Courts. The principle is thus stated by Sundara Aiyar, J., in his treatise on Malabar Law: 'The rule of law is that the anandravan should be allowed for his maintenance what is reasonable and proper having regard to his needs and having regard to the position, affluence and status of the family. What is reasonable and proper will depend upon the circumstances and the times and would be a pure question of fact.' There is nothing in the conclusion we have reached, contrary to the principle of the Malabar or Aliyasanthana law.

7. We are fortified in our conclusion that the junior member is entitled to claim his marriage expenses by the decision in Parvathi v. Kamaran (1883) 6 Mad 341 It was held in that case that in North Malabar the male members of a Nayar tarwad are by custom entitled to receive from the karnavan an allowance for the maintenance of their consorts and children while living in the tarwad house. In the present case the junior member does not pitch his demand so high. He claims only the expenses incurred for the performance of his marriage. It is well known that the Aliyasanthana people in South Kanara have advanced further towards the paternal family than have the Marumakkathayam people in Malabar. It is the recognised practice in South Kanara for the woman and her minor children to live with her husband see Subbu Hajadi v. Tongu (1869) 4 mhcr 196 It is a common practice in North Malabar and a growing practice in South Malabar see Parvathi v. Kamaran (1883) 6 Mad 341 and Muthn Amma v. Gopalan (1912) Mad 593. As this decision is based upon the custom in North Malabar which exists in an intensified form in Kanara, it follows that a junior member under the Aliyasanthana system also would be entitled to claim such expenses. If so, his right to claim the expenses of his marriage should be undoubted and, as we have shown there is nothing in the principle of Aliyasanthana law against the recognition of such a right.

8. We are asked not to place much reliance on the decision in Parvathi v. Kamaran (1883) 6 Mad 341 as its authority is alleged to be somewhat shaken by the observations of the learned Judges, who decided the case reported in Pavanni Achan v. Than-kunni : (1919)37MLJ157 In that case Phillips and Napier, JJ., held that an anandravan of a Malabar tarwad is not entitled to claim maintenance from his tarwad for his wife, who belongs to another tarwad, and much less is he entitled to claim for her any 'menchilavu.' The learned Judges think that to allow such a claim put forward by the anandravan would be to uphold the claim of the wife for maintenance from her husband's tarwad and then they refer to Parvati v. Kamaran (1883) 6 Mad 341 and point out that even in that case the proposition contended for was described as inconsistent with the principle of Marumakkathayam law. With due deference, it seems to us that the true significance of the claim advanced on anandravan's behalf has not been correctly appreciated by the learned Judges. By asking for an allowance for the maintenance of his wife the junior male member of a Malabar tarwad is not asking the Court to hold that his wife has a right to recover maintenance from his tarwad. In so doing, he is only asking the Court to give effect to his right to recover from the karnavan expenses for his own maintenance of which 'bhaiyachilavu' (wife's expenses) as it is called in Malabar is a necessary part. As observed in Muthn Amma v. Gopalan : (1912)23MLJ496 by Sundara Aiyar and Sadasiva Aiyar, JJ., Parvathi v. Kamaran (1883) AD 341 held that a male member of a Marumakkathayam tarwad is entitled to an allowance for his consort and children living with him, that is, in computing the amount to which he is entitled for his 'own maintenance, the fact that he has to maintain a wife and children should be taken into account. The claim of a junior member of a Malabar tarwad to receive from the karnavan an allowance for the maintenance of his wife and children, though described as inconsistent with the principle of Marumakkathayam law, was still allowed in that case as the custom was found to support such a claim. In our opinion, the effect of the decision in Parvati v. Kamaran (1883) 6 Mad 341 cannot be minimised by the observation 'that the finding in that case (as regards custom) based on the evidence of two witnesses was not objected to.' This case has been referred to apparently with approval in Marudevi v. Pammakka (1911) 23 MLJ 309 and explained as shown above in Muthu Amma v. Gopalan : (1912)23MLJ496 and has always been looked upon by the community following these systems of law as enunciating a well-known and correct principle of customary law. In this connection it may be interesting to note the following observations occurring in the Malabar Marriage Commission Report as regards this custom. 'But so well established is the custom that the High Court has held that the maintenance of the 'wives' and children of the junior members (residing with their 'husbands' in the husband's tarwad) is a charge which the karnavan of the junior members is, bound to meet. The High Court allows that the ruling would seem inconsistent with the principles of Marumakkatha-yam law, but the answers to the interrogatories and the evidence taken by the commission show that the ruling is realty and truly in accordance with existing usage,' The italics are are ours

9. For the above reasons, we hold that the Lower Court's decree awarding the plaintiff the expenses for his marriage is correct. It has not been argued before us that the amount is excessive. This second appeal is dismissed with costs.


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