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Manikkath Chinnu Amma's Daughter Ammalu Kutti Amma Vs. Ramunni Menon alias R.M. Palat and Ors. (18.12.1933 - MADHC) - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1934Mad508; 150Ind.Cas.952
AppellantManikkath Chinnu Amma's Daughter Ammalu Kutti Amma
RespondentRamunni Menon alias R.M. Palat and Ors.
Cases ReferredMaradevi v. Pamakka
Excerpt:
malabar law - maintenance--claim for separate maintenance--wife living with husband--junior member leaving for practising his profession--rate of maintenance--matters to be considered--minor member's rights--'menchelavu', nature of--absence of demand, effect of--possession of private funds, effect of. - - 6. the learned judge held that a junior member claiming separate maintenance 'must show some good cause' for doing so. in the same case, justice seshagiri ayyar observed that 'a junior member may go out of the house for good and proper cause, and that the onus of proving that his departure is for such a cause is on the member leaving the house. show 'good and proper cause' for claiming maintenance when living outside the tarwad house. evidently, out of respect to the old.....anantakrishna ayyar, j.1. the 19th plaintiff and defendants nos. 1 to 26 and 37 are the descendants of ammini ammal of palat tarwad called kizhekkepat palat tarwad. she had two daughters and three sons. defendants nos. 1, 2 and 3 are her sons. the other defendants nos. 4 to 26 and 37 are the descendants of her debeased daughter lakshmikutty amma. the 27th defendant is the wife of the 1st defendant and defendants nos. 23 to 36 are the descendants of defendant no. 27; the 1st plaintiff is her second daughter and the other plaintiffs are the descendants of the 1st plaintiff. the suit was filed on october 11,1924, to recover arrears of maintenance from may 1, 1922, to september 30, 1921. the 1st plaintiff died on may 11, 1926, and the 1st defendant died when this appeal was pending in this.....
Judgment:

Anantakrishna Ayyar, J.

1. The 19th plaintiff and defendants Nos. 1 to 26 and 37 are the descendants of Ammini Ammal of Palat Tarwad called Kizhekkepat Palat Tarwad. She had two daughters and three sons. Defendants Nos. 1, 2 and 3 are her sons. The other defendants Nos. 4 to 26 and 37 are the descendants of her debeased daughter Lakshmikutty Amma. The 27th defendant is the wife of the 1st defendant and defendants Nos. 23 to 36 are the descendants of defendant No. 27; the 1st plaintiff is her second daughter and the other plaintiffs are the descendants of the 1st plaintiff. The suit was filed on October 11,1924, to recover arrears of maintenance from May 1, 1922, to September 30, 1921. The 1st plaintiff died on May 11, 1926, and the 1st defendant died when this appeal was pending in this Court. The karnavan the 1st defendant denied the plaintiffs' right to separate maintenance and set up an agreement under which the plaintiffs should be given only 365 paras of rice a year. There was dispute also regarding the exact income of the tarwad, and whether some particular items mentioned in the plaint formed part of the tarwad properties. The learned Subordinate Judge held that the plaintiffs were entitled to separate maintenance, and that the agreement set up by the 1st defendant was not proved. He decreed maintenance at Rs. 250 a year till July 1923, and at Rs. 300, a year after that period for each of the plaintiffs. He also held that the other plaintiffs were not entitled to claim the maintenance due to the deceased 1st plaintiff. The 27th defendant contended that Items Nos. 3, 4 and 17 did not belong to the tarwad of the plaintiffs but belonged to her and her descendants. The learned Subordinate Judge held on Issues Nos. 6 and 8 that Item No. 17 belonged to the tarwad, that Items Nos. 3 and 4 belonged on Kariam right to the 27th defendant and her children add that the tarwad had a charge for Rs. 3,200, and interest over Item No. 3. The 27th defendant has preferred the present appeal, contending that Item No. 17, was the absolute property of the 1st defendant and claiming the same under a gift from him. The iarnavan 1st defendant (19th respondent) having died after the appeal was filed, the present karnavan--2nd defendant (20th respondent) preferred a memorandum of objections against the decree of the lower Court; objecting to the rate of maintenance awarded and also to some other portions of the decree.

2. When the appeal came on for hearing, it was represented to us that the appellant had settled her disputes with the respondents. The appeal was accordingly withdrawn and dismissed.

3. The memorandum of objections was argued on behalf of the present karnavan, the 20th respondent.

4. The main contentions urged on appeal are;

(1) that some of the plaintiffs were not entitled to separate maintenance;

(2) that the rate awarded was excessive.

5. As regards the 1st point, it has to be stated that the 2nd plaintiff is the only son of the 1st plaintiff and the other plaintiffs are the daughters and the daughters' children of the 1st plaintiff. The daughters of the 1st plaintiff were all living with their respective husbands who are all holding high and responsible positions under the Government, and the children were also living with them. The plaintiff was practising before the Privy Council from 1919 till the end of 1922, and thereafter he was living away from the tarwad house but staying in his own estate and attending to the management of his tavazhi properties. In these circumstances, the 1st defendant raised the contention that the plaintiffs were not entitled to separate maintenance. The earlier decision of this High Court to the effect that ordinarily the right of the junior member of a Marumakkathayam Tarwad is only to be maintained in the tarwad house has been largely departed from in the later cases. As observed by Oldfield, J. in Govindan Nair v. Kunja Nayar 51 Ind.Cas.326 : 42 M. 686 : 36 M.L.J. 565 : (1919) M.W.N. 202 : 26 M.L.T. 189:

The decisions in Maravedi v. Pamakkar 14 Ind. Cas. 383 : 36 M. 203 : 11 M.L.T. 112 : (1912) M.W.N. 109, Konhi Amma v. Ammu Amma 16 Ind. Cas. 178 : 36 M. 591 : (1912) M.W.N. l233 : 24 M.L.J. 559 and Mathu Amma. v. Vellathumkara Gopalan 16 Ind. Cas. 895 : 35 M 593 : 23 M.L.J. 496 : 13 M.L.J. 120 involved a radical departure from the view taken by earlier authorities. They have, however, been acquiesced in so far, as we have been shown, for over five years; they proceeded from learned Judges, whose competence in West Coast Law commands respect and whose departure from or extension of recognised principle was deliberate.

6. The learned Judge held that a junior member claiming separate maintenance 'must show some good cause' for doing so. In the same case, Justice Seshagiri Ayyar observed that 'a junior member may go out of the house for good and proper cause, and that the onus of proving that his departure is for such a cause is on the member leaving the house.

7. In answer to a complaint made by Counsel that the effect of the ruling would be disruption of the tarwad, the learned Judge answered as follows:

The complaint that we shall be disrupting the tarwad, if the plaintiff succeed, comes too late in the day; disintegration commenced long ago.

8. Thus, the plaintiffs have to. show 'good and proper cause' for claiming maintenance when living outside the tarwad house. So far as the daughters of the 1st plaintiff are concerned, they are living with their husbands who are holding Government positions or practising the medical profession, and the same would be proper cause, as laid down in the decisions reported in Mathu Amma v. Vellathumkara Gopalan 16 Ind. Cas. 895 : 35 M 593 : 23 M.L.J. 496 : 13 M.L.J. 120. Their children living with their mothers would also, in the circumstances, be entitled to separate maintenance. In appeal objection was taken regarding plaintiffs Nos. 2 and 4. As far as the 2nd plaintiff is concerned, in our opinion, he too would be entitled to separate maintenance. A junior member leaving the tarwad house to live elsewhere to practise his profession of law should be taken to live outside the tarwad for a proper cause, and it does not matter whether such member practises his profession in a Court near the tarwad house or far away from it. It must be noted that the 2nd plaintiff does not claim anything more than what any other junior member in the tarwad would be entitled to, simply because he (the 2nd plaintiff) lived in London and practised his profession there. Nothing extra is claimed on that ground. It is no doubt true that for a portion of the period for which maintenance is claimed, he was living in India, residing in his estate a few miles away from the tarwad house. It is in evidence however that the 1st defendant the karnavan had been living away from the tarwad house, practically all along. It is admitted that he was in Coimbatore for sometime, at Calicut from about 1903 and later on at Palghat. The 1st defendant himself admitted that he was living away from the tarwad house, though he excused himself by stating that he lived away 'for reasons of his health'. He took care to add that he used to go to the tarwad house about once a week and make inquiries there and also make necessary arrangements. The 2nd defendant who was examined as P.W. No. 1 and who is the present karnavan, stated in his evidence as follows:

The local kariasthan present at the tarwad house used to give rice every morning and evening and to give any stuff, etc, morning and evening separately. If any guest or guests came, some members would have to starve to keep up appearance. Such instances have occurred. 'Admittedly the 1st defendant had expensive habits.

9. P.W. No. 1 stated that the 1st defendant was unwell only after 1924. The period for which maintenance is now claimed is from May 1922 to September 1924. The conduct of the 1st defendant in leaving the tarwad house in charge of an irresponsible kariyasthan on the allegation that he did so for reasons of health does not seem to be quite proper in the circumstances, when he disputes the plaintiff's right to separate maintenance. He was a Barrister-at-Law and evidently thought it more convenient for himself to live outside the tarwad house. In the circumstances, the 2nd plaintiff lived in his own private estate during a portion of the period in question and he stated that 'if he lived in the tarwad house he will have to spend much more than he would have otherwise to do. The learned Subordinate Judge was of opinion that the reason given by the 2nd plaintiff was proper, and having regard to all the circumstances we feel ourselves unable to disturb that finding.

10. Finally, it was argued that the 4th plaintiff was not entitled to separate maintenance for the few weeks during which she lived with her mother when her husband was away in England. It was contended that when her husband was away in England, she ought to have lived in the tarwad house. We, however, agree with the Lower Court that her living, during those few weeks, with her mother and brother was proper in the circumstances. We have on the whole come to the conclusion that the plaintiffs had been living away from the tarwad house for proper cause and that they were entitled to claim separate maintenance.

11. As regards the period for which maintenance is claimed, it was strongly urged on behalf of the 2nd defendant--the present karnavan--that the plaintiffs were not entitled to separate maintenance till July 1923 when Ammani Amma died. To appreciate this argument it is necessary to state that the properties in question were acquired by Ammani Amma's husband, the late Sub-Judge Mr. K.R. Krishna Menon, who died in April 1897. In connection with the education of one of the defendants in England and a criminal case concerning some of the defendants, a debt of about Rs. 45,000 had to be incurred on behalf of the tarwad. The debt was carrying high rates of interest. The question of clearing up the debt was urgent. On January 3, 1909, a family karar was executed, to which Ammani Amma- the. 1st plaintiff--and defendants Nos. 1 to 4 were parties, 'for welfare of our tarwad and for the reduction of the tarwad debts, the karar was entered into.' It would appear that defendants Nos. 5 to 26 were living in the tarwad house at Varode and the actual food expenses of the said members were met from the income of the Varode Kalam. Ammani Amma was to be in possession of the Varode Kalam as before, but she was to be given possession of the Mankara Kalam also. She was to pay Rs. 500 a year to the 4th defendant for a period of five years from the income of the Mankara Kalam, and the remaining income of the Kalam might be spent by Ammuni Amma according to her wishes till the end of her life-time. Ayyampathi Kalam was put in possession of the 1st plaintiff as she was to advance the loan of about Rs. 45,000 at 6 per cent, to the tarwad, and her debt was to be discharged from the income of that Kalam. But she was to pay, from the collections of that Kalam at the rate of Rs. 1,000 per annum for five years to the 3rd defendant., The 1st defendant was to be in possession of the Mannarghat Kalam for meeting his own expenses. It was stated that until the debt due to the 1st plaintiff was discharged, the income of the Ayyapathi Kalam should be appropriated and applied towards the debt as mentioned above. Ammani Amma died in July. 1923, Exhibit II is the usufructuary mortgage deed executed to the 1st plaintiff on April 5, 1910. Her debt was discharged by April 1921, and she released the properties to the 1st defendant under Ex. Ill on April 8, 1921. It was argued that as immani Amma died in July 1923 and was in possession of Mankara Kalam till then, the 1st defendant was not liable to pay maintenance to the plaintiffs for any period prior to July 1923. We agree with, the learned Subordinate Judge that the object of the karar, Ex I, was to arrange for the discharge of the tarwad debt and not to interfere with the maintenance rights possessed by any member of the tarwad. Evidently, out of respect to the old lady--Ammani-Amma,--the income of the MankarajlifaZam was allowed to be enjoyed by her (subject to the conditions mentioned already) during her life time. The 1st defendant was also allowed to enjoy the income of the Mannarghat Kalam himself till the debt was discharged. The debts having been admittedly discharged in April 1921, the first defendant got possession of the Ayyampathi properties also in 1921, and he was bound to arrange for the maintenance of the members of the tarwad. It is not pretended that as a matter of fact the plaintiffs were maintained at the tarwad expense or that any payments were made to them during any portion of 1922-24 for which maintenance is now claimed. The plaintiffs made a written demand for maintenance only in November 1923--See Ex. VI. But the circumstance that a writ-en demand was made only in November 1923 would not by itself prove that the plaintiffs lost their right of maintenance for any earlier period, if, in fact, they were not maintained during that period. If the defendants' case be that the plaintiffs were in fact maintained prior to November 1923, then, the circumstance that a written demand was made only in November 1923 would be a material circumstance in the decision of such a point. As it is proved (and in fact, admitted) that the plaintiffs were not paid any maintenance in respect of the period in question, the argument of the defendant's learned Advocate loses its weight. No question of waiver has been raised in this case by the 1st defendant, nor is there any issue on the question of waiver. As observed by the Privy Council in Flarrie Edridge v. Rustomji Dhanjibhoy Setlina :

Waiver depends on evidence of fact, and accordingly where waiver was neither pleaded nor an issue raised thereon, the question cannot be agitated for the first time on appeal.

12. We agree with the lower Court that the defendant's contention that the plaintiffs should not be given maintenance before July 1923 should be over-ruled.

13. The remaining question relates to the amount of maintenance. Two considerations arise. It is admitted that the plaintiffs' tavazhi is possessed of properties yielding large income. It is also admitted that the 2nd plaintiff has separate properties of his own and that each of the 2nd plaintiff's sisters has been married to persons who make large savings either as Government servants or otherwise. What is the effect of possession by the plaintiffs of separate properties yielding income on their claim for separate maintenance from the tarwad, has to be considered.

14. The other question is, what was the exact income from the tarwad properties during the period in question and what amount should be awarded as maintenance to the plaintiffs?

15. As regards the first question, it is clear law that possession of separate properties by a junior member is by itself no impediment to that member claiming maintenance from the tarwad properties, if he would be otherwise entitled to do so, and that it is only when the income from the tarwad properties is not sufficient for the maintenance of all the tarwad members, that the circumstance that the plaintiffs possess separate properties would become in any way relevant. In the present case, the tarwad has got large income, more than sufficient to pay maintenance to all its members. It therefore follows that the plaintiffs' possession of separate property is immaterial in considering the amount of maintenance payable to them from the tarwad income. See P. Teyan Nair v. P. Raghavan Nair 4 M 171, Ekanat Thaya Kunji Amma v. V. Ekanat Shangunni Valia Kymal 5 M 71. In Subramanian Rajah ofElangaUoorSwa,roopam, Edapally v. Ro-hininal Vasudevan 14 Trarancore L.R. 73 at p. 77 Page of 14 Travancore L.R.--[Ed.] the Full Bench held that.

the private means of property of a junior member does not affect his right to maintenance out of the family property when the family income is sufficient to provide a suitable subsistance for all the members of the tarwad.

This is the view held all along by the Madras High Court also.

16. The learned Subordinate Judge finds in para. 61 of his judgment what the exact income realized from the tarwad properties were for the period prior to Ammani Amma's death in July 1923, and for the period thereafter till September 30, 1924. No serious attempt has been made to show that the income mentioned by the learned Subordinate Judge was not the actual income that was derived during the period. In fact the income of the tarwad as stated in the plaint was admitted by the defendants. But it was argued that having regard to Ex. VI the letter dated November 5, 1923, sent by the 2nd plaintiff, at the instance of the 1st plaintiff, to the 1st defendant, the plaintiffs were not entitled to more than one para of rice per day. The learned Subordinate Judge disallowed that contention of the 1st defendant and, in our opinion, rightly. No doubt the letter refers to the wish of the 1st plaintiff to have 'at least one para of rice per day for our branch.' It is in evidence that only the 1st plaintiff, one of the other plaintiffs and 2nd plaintiff, were living in Malabar at the time. The reference to 'our branch' is undoubtedly a circumstance in favour of the 1st defendant. The 2nd plaintiff stated in his evidence that only the 1st plaintiff, the 2nd plaintiff and another plaintiff who was living at the time in Malabar, were intended to be covered by the term 'our branch' in that letter; and he stated in effect that one para of rice a day was for the actual food expenses of the members of the plaintiffs' branch who happened to be there at the time: it was suggested that the plaintiffs had no paddy-yielding separate estate near at that time. After having considered Ex. VI along with the other circumstances appearing in the case, we have come to the conclusion that one para of rice per day could not possibly have been meant to be a reasonable amount for the maintenance of about 17 members of the plaintiffs' branch. Plaintiffs' witness No. 1 (the present karnavan) admitted that the 1st defendant was giving about 50 paras of rice and Rs. 40 a month for the actual food expenses of defendants Nos. 5 to 26 who were living in the tarwad house. Even at that rate, one paraol rice per day would not be a reasonable allotment for maintenance of the plaintiffs. Again, the legal claim for maintenance is not confined to the actual rice and condiments necessary for the members. What is called 'Menchelavu is also properly allowable when the tarwad income is large enough to warrant the same. Sundara Ayyar and Sada-siva Ayyar JJ. held in Kelu Achen v. Lakshmi Netujar Amma 18 Ind. Cas. 231 : (1913) M.W.N. 379, that Menchelavu is used to designate a part of what is required for the support of a person as distinguished from what is strictly necessary for food and raiment, and would differ with the status of the family, and each member is entitled to it according to the usage obtaining in Malabar. See also Kijanar Sheshappa Shetty v. Kijanar Devaraja Shetty 95 Ind. Cas. 401 : 49 M 407 : 50 M.L.J. 434 : (1926) M.W.N. 413 : A.I.R. 1926 Mad. 723 : 24 L.W. 269. Therefore, having regard to the income of 16,603 paras of paddy and Rs. 1,390 per annum derived from the tarwad property during the period in question, we have no doubt that the amount to be decreed to the plaintiff could not be restricted to one para of rice per day as contended for by the 1st defendant. It is also to be noted that the 1st defendant in his reply Ex. VI(a) did not agree to the suggestions made in Ex. VI, but only stated vaguely that he 'was always willing to do whatever the 1st plaintiff wished him to do.

17. The further question, as regards the exact amount to be decreed to the plaintiffs for maintenance, gave us some trouble. We agree with the defendants' contention that the junior members could not claim that the whole of the income of the tarwad should be distributed among the members for their maintenance. Extraordinary expenses have to be incurred by the tarwad occasionally or at specified intervals. In respect of kanom properties held by the tarwad, renewals have to be effected, generally at the end of 12 yeara, which means extra expense that year. Kettu Kalyanams have to be celebrated at intervals of about 12 or 15 years, which also involve large expenditure. On the death of the old members of the tarwad according to the usage certain ceremonies have to be performed, which in the cased of rich tarwads means heavy expense. In the present case, it is in evidence that in connection with the death of Ammani A mm a, five or six thousand rupees had to be spent for the fifteenth day ceremonies after her death--See P.W. No. 1 and Ex. M. Substantial repair to the tarwad house may have to be undertaken occasionally. Payment of tarwad debts and litigation expenses are relevant matters to be considered. Therefore, in practice, a prudent karnavan sets apart a portion of the annual income of the tarwad to meet the above and similar expenses. If the whole of the net income of a year be divided among the members for their maintenance, debts will have to be incurred when such occasions arise. On the other hand, it would not, in our opinion, be proper to deduct from a particular year's income the whole of the extraordinary expenses incurred that year and to allot maintenance to the members only out of the balance income of that year, in which case, it might so happen that hardly any amount remains to be distributed towards maintenance with the result that members may have to starve for a time. That position has to be avoided, if possible. It has been decided that the karnavan is not entitled to appropriate for himself any definite portion of the income, just as 50 per cent. The High Court decided as early as in Narayani v. Govinda 7 M 352 that there was no warrant, for the suggestion that one moiety of the net income of the tarwad should be awarded to the karnavan for his maintenance and other expenses. No doubt the karnavan being in possession of the income of the tarwad, usually treats himself more liberally than any other member. In theory, the karnavan's right in the tarwad property as a co-owner does not differ from the similar right of a junior member. But at the same time, the karnaian has to maintain the prestige of the tarwad, he has to receive the tarwad guests, and otherwise provide for various contingencies in the usual course of management of the tarwad affairs. In this case, in allotting maintenance, the karnavan has in effect been allowed about 3000 paras of paddy a year. The allowance of 50 paras of rice and Rs. 40 a month made to defendants Nos. 5 to 26 living in the tarwad house has also been deducted; and it is only the balance of the net income that has been roughly divided among all the members of the tarwad. The learned Subordinate Judge has not awarded the exact amount that would be found on such calculation and division but has also made a further reduction. The 3rd defendant suggested that a sum of Rs. 1,5l0 a year would be a fair allotment to the plaintiffs. None of the defendants other than the 1st defendant raised any dispute as regards the period for which the plaintiffs would be entitled to maintenance. It was also stated that though the release deed Ex. III was executed in April 1921 and the 1st defendant was in possession of the properties from April 1921, yet by some mistake maintenance was claimed only from May 1922, instead of from May 1921. The mistake if any would have been rectified, but has not been. We are not dealing with the rate of maintenance to be allowed for the future, but we are dealing only with the actual amount to be allowed for a definite period prior to the suit. The actual incomes collected during the period are in evidence, and have been ascertained, and in fact there was no dispute as regards the figures representing the income. We also note that the tavazhi of defendants Nos. 4 to 26 has also been decreed maintenance at the same rate-- substantially--for the period in question, in the subsequent suit instituted by them, as seen from the connected appeal posted before us. The recent Act XXII of 1933 gives members right to claim partition when the common ancestrees is dead - see Chap. VI. Having regard to all the circumstances we do not think that we should interfere with the finding of the learned Subordinate Judge as regards the amount to be allowed for past maintenance in this case.

18. It was suggested that a minor member should be allowed only one-half of the amount allowed to a major (adult) member. No doubt, in some cases, Courts have followed a rough and ready method like that. But as observed by Seshagiri Ayyar and Napier, JJ., in S.A. No. 1543 of 1916:

It would work injustice to lay down a hard and fast rule that all minors whatever be their age and whatever be the amount of maintenance allowed should only get half of what is allowed to adults.

19. It is likely that in rich tarwads other expenses might have to be incurred in connection with the minors. At page 144 of Malabar and Alyasantana Law by Justice Sundara Iyer, it is stated that there is no justification for such an artificial rule. Having regard to the circumstances of the present case, we are not inclined to interfere with the allotment made by the learned. Subordinate Judge treating majors and minors alike, for the purpose.

20. We may mention, that in respect of items Nos. 3 and 4 a sum of Rs. 2,300 had been advanced by the karnavan from the tarwad funds. But it is in evidence that in addition to the ordinary income of the tarwad, other monies also were available at the time. We do not think that the said amount should be deducted from the income of the tarwad during the period for the purpose of fixing maintenance to the plaintffs.

21. In the face of the finding recorded by the lower Court that the '1st defendant has misappropriated tarwad income,' and not added to the resources of the tarwad, the personal decree against the 1st defendant was not inappropriate. As pointed out in Vasudevan Nambi v. Govindan Nambi 142 Ind. Cas. 735 : (1832) M.W.N. 1203 : 37 L.W. 354 : 1 A.I.R. 1931 Mad. 265 : Ind. Rul. (1933) Mad. 248 in the absence of proof of malversation or misappropriation by him, a karnavan must not be made personally liable for arrears of maintenance decreed to the junior members.' In the present case, the same has been proved and the personal decree is not open to any objection. At the same time, the junior members should not be prejudiced by the wrongful acts of the karnavan. But the plaintiffs would also in this case be entitled to a decree against the income of the tarwad properties and also, if necessary, to proceed against the corpus of the tarwad property. The lower Court's decree is right in that respect also.

22. The memorandum of objections is dismissed with costs of respondents Nos. 1 to 18.

Cornish, J.

23. I am of the same opinion. I think that the karar Ex. I was intended to have effect until the tarwad debt was paid off. The debt was cleared in April 1921, but apparently the karnaian, 1st defendant, did not resame possession of the property committed to Ammani Amma under the karar until after that lady's death in July 1923. First defendant said that he refrained from taking possession of the property out of respect for Ammani Amma. However that may be, I think it can make no difference to 1st defendant's liability to give maintenance to the plaintiffs for the period between the clearance of the debt and Ammuni Amma's death, provided that they had not received maintenance out of the tarwad during that interval. But if is not defendant's case that maintenance has been so supplied to the plaintiffs. The main objection relates to the claim of the plaintiffs to receive maintenance while they were living away from the tarwad house. Plaintiffs Nos. 3 to 7 are married ladies living with their husband, and plaintiffs Nos. 8 to 19 are their children who have naturally been living with their parents.

24. In Maradevi v. Pamakkar 14 Ind. Cas. 383 : 36 M. 203 : 11 M.L.T. 112 : (1912) M.W.N. 109 it is stated that the general result of the decided cases is that in order that a member of a tarwad may be entitled to separate maintenance he or she should be able to allege some good cause for leaving the tarwad house. It is also stated that if a member lives away from the tarwad house for an improper purpose, this would be a valid ground for refusing separate maintenance. But the learned Judges further say.

What purposes are proper and what improper may be safely left to the decision of the Courts.

25. It would seem to be decided that it is justifiable and proper for a married lady to quit the tarwad house for the purpose of living with her husband, and that she will be entitled to separate maintenance from the tarwad: Mathu Amma v. Vellathumkara Gopalan 16 Ind. Cas. 895 : 35 M 593 : 23 M.L.J. 496 : 13 M.L.J. 120. I think it must follow that it is eminently desirable and proper that the children of the marriage should reside with and under the care of their mother and father and that they too for the same reason will be enticed to be separately maintained. I think that 4th plaintiff was justified in living with her mother for the comparatively short period while her husband was in England.

26. With regard to the 2nd plaintiff it is in evidence that for part of the period in question, from May 1922 till December 1922, he was in England following the profession of a barrister, and that from thence forward he was living in his own house at Ottapalam, which is some 2 miles away from the tarwad house, managing his estate there. He is a gentleman of leisure and of ample means. In these circumstances it is objected that separate maintenance should, not be allowed to him. It must, I think, be allowed that absence from the tarwad house to enable the member to pursue his particular profession or calling is a proper cause for living away from the tarwad house. To hold otherwise would be to put a premium on idleness and to destroy the incentive to members of a tarwad to enter a profession for the purpose of getting on in the world and earning their own livelihood. But the position of the 2nd plaintiff after his return from England is somewhat different. Undoubtedly it was more agreeable to him to live in his own house instead of the tarwad house. In Kunhiamma v. Ammu Amma 16 Ind. Cas. 178 : 36 M. 591 : (1912) M.W.N. l233 : 24 M.L.J. 559 it is said that it would be a very inconvenient rule to lay down that a junior member might leave the tarwad house' because he or she did not feel quite comfortable there. But in Maradevi v. Pamakka 14 Ind. Cas. 383 : 36 M. 203 : 11 M.L.T. 112 : (1912) M.W.N. 109 it is said that the cases show that where there is substantial inconvenience in living in the family house, and where the karnaian's conduct has afforded a valid excuse for a member to live away, separate maintenance may be awarded. The 1st defendant, the karnavan, was admittedly an absentee from the tarwad house, residing in Coimbatore and Calicut for carrying on his practice as a barrister, and lately in Palghat for the better convenience of medical treatment. The domestic economy of the tarwad house was left to the management of a kariasthqin, and the consequence was much discomfort to the members of the household. The Subordinate Judge has appropriately described the subsistence given to the resident members as a bare maintenance. So strictly were they rationed that it is in evidence that if unexpected guests should arrive at the house the members of the household had to go hungry. And the 2nd plaintiff has deposed that he found in more expensive to stay in the tarwad house than to live outside it, on account of the deficiencies which he had to make good out of his own pocket. There was not even an adequate staff of domestic servants. Such being the conditions of existence in the tarwad house I think it must be held that the 2nd plaintiff was justified in living away from it;

27. As regards the amount of maintenance that should be decreed to the plaintiffs, I have nothing to add to what has been said by my learned brother.


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