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Judgment
Anantakrishna Aiyar, J.—This second appeal preferred by the defendant arose out of a suit for maintenance filed by his step-mother against
him, a minor. The plaintiff and the defendant''s mother are co-widows and they were married on the same day to Chinna Subba Reddi who died
on 16th April, 1918. The plaintiff filed her suit for maintenance on 12th April, 1923 and she claimed future maintenance from April, 1923, at Rs.
40 per mensem and also Rs. 120 for arrears of maintenance for January, February and March, 1923. The main plea of the defendant was that
there was a will executed by the defendant''s father under which the plaintiff was entitled to only the income from the two acres of wet land
mentioned in the will, and that in any event she had jewels to the extent of Rs. 800 and also monies to the extent of Rs. 2,000, and consequently
she was not entitled to maintenance claimed in the plaint. The District Munsi''f held that: the plaintiff was entitled to maintenance, since the question
relating to the will set up by the defendant was withdrawn by him at the time of the trial. As regards the jewels, the District Munsif found that the
plaintiff was in possession of jewels worth Rs. 800 but that no account could be taken of them in calculating the amount of maintenance awardable
to plaintiff, as they are her stridhanam and are of an unproductive character. As regards the sum of Rs. 2,000 which the defendant alleged that the
plaintiff had, the District Munsif held that the plaintiff had this amount of Rs. 2,000 at the time of her husband''s death, but that ""the same should be
taken to have been set off against her for her past maintenance, since the plaintiff did not claim maintenance from 1918 to 1923."" In the result, the
Trial Court granted the plaintiff a decree for her maintenance at the rate of Rs. 36 per mensem. The defendant thereupon preferred an appeal, and
the learned Subordinate Judge agreed with the District Munsif that the plaintiff had Rs. 2,000 with her at the time of her husband''s death. He also
reiterated the argument advanced by the learned District Munsif that the plaintiff did not claim any maintenance for the period from April, 1918 to
January, 1923 and that he would take that circumstance also in fixing the rate of maintenance. On the merits, the learned Subordinate Judge held
that the plaintiff was entitled to maintenance at the rate of Rs. 25 per mensem in respect of food and clothing and sundry amenities, Rs. 3 per
mensem for a servant and Rs. 3 per mensem for house rent. He modified the decree of the District Munsif by reducing the amount of maintenance
from Rs. 36 to Rs. 31. The defendant has preferred this second appeal
The learned advocate for the appellant argued that both the Lower Courts having found that the plaintiff had Rs. 2,000 at the time of her
husband''s death, and no claim being made in respect of the arrears due to her from 1918 to 1923, the Lower Courts were not right in ignoring the
possession of the said sum of Rs. 2,000 in fixing the rate of future maintenance. In support of his contention, the learned advocate relied on a
passage in Mayne''s Hindu Law, para. 459, which runs thus:
In calculating the amount of maintenance to be awarded to a female, her own stridhan is not to be taken into account, if it is of an unproductive
character, such as clothes and jewels. For she has a right to retain these, and also to be supported, if necessary, by her husband''s family. But if her
property produces an income, this is to be taken into consideration. For her right is to be maintained, and so far as she is already maintained out of
her own property, that right is satisfied,
The learned author proceeds to state in the next sentence as follows:
The right to maintenance is an absolute one and the consideration of her private means is primarily only a means for fixing the quantum of
maintenance to be assigned to her ; but if those means were shown to be sufficient in themselves to support her adequately in her station of life, her
right to maintenance would be wholly in abeyance, though it might revive on a change in her circumstances.
With reference to this argument, the learned advocate for the respondent contended that (with all respect to the learned author) the statement
should be taken with necessary qualifications in the circumstances of each particular case. No doubt in cases where the income from the joint
family property is not sufficient to maintain properly all the members who are entitled to maintenance out of the same, it would be proper that the
private properties of any particular member and the income thereof should be taken into account in fixing the amount of maintenance due to such
member having private means. But the learned advocate argued, in cases like the present where the income from the joint family property is not
only enough to provide decent maintenance for all those who are entitled to maintenance out of the same, but there is also surplus left, it is not right,
and there is no law which would compel the Court, to take into account the income from the private properties of a person when awarding her
maintenance. It would appear that in Bombay the rule enunciated by Mr. Mayne prevails. But so far as this Presidency is concerned, the learned
Judges Benson and Sundara Aiyar, JJ., in the case reported in Lingayya v. Kanakamma I.L.R.(1913) M. 153 : 28 M.L.J. 260 have not followed
the principles of law followed by the Bombay High Court. The learned Judges observed as follows:
The fact that a Hindu widow is able to maintain herself out of other property is no ground for not giving her some maintenance out of her husband''s
estate; but it is a factor to be taken into account in determining the quantum of maintenance to be decreed to her.
The decision in Ramawati Koer v. Manjhari Koer (1906) Cri.L.J. 74 to the contrary is specifically dissented from by the learned Judges of this
Court in lingayya v. Kanakamma.I.L.R.(1913) M. 153 : 28 M.L.J. 260 But it was pointed out by the learned advocate for the appellant that even
the decision in Lingayya v. Kanakamma I.L.R.(1913) M. 153 : 28 M.L.J. 260 states that it is a factor to be taken into account in determining the
quantum of maintenance to be decreed to her. It is therefore necessary to see how far the learned advocate''s contention is borne out by the
decision in Lingayya v. Kanakamma.1 For this purpose it is necessary to state the facts of that case. There, both the Lower Courts found that the
defendant was in possession of family property yielding about Rs. 100 a year. They also found that the plaintiff (widow) had private property out
of which she could get Rs. 40 or 50 a year. The Lower Courts in these circumstances awarded to the plaintiff Rs. 20 a year on the ground that the
plaintiff''s income from her own sources of Rs. 40 or Rs. 50 was not sufficient to cover her maintenance. The defend-ant preferred a second
appeal, and on his behalf it was contended that the plaintiff (widow) having been found to be in possession of private property out of which she
could get Rs. 40 or Rs. 50 a year and the defendant having been found to be in possession of the joint family property yielding only Rs. 100 a
year, the Lower Courts were wrong in awarding to the plaintiff Rs. 20 a year out of the joint family income. To that the learned Judges answered in
effect :
It is not so. The plaintiff''s right to maintenance is to he traced to the old law under which the plaintiff was even entitled to a share. The right to
maintenance is an absolute right and you cannot deprive the plaintiff of her right to maintenance in the way you suggest.
To quote the exact words of the learned judges :
His argument is that a widow who is able to maintain herself out of other property has no right to claim out of her husband''s estate anything for that
purpose. In our opinion this view cannot be supported. It is based on an entirely wrong conception of the right sought to be enforced. This is an
absolute right due to their membership in the family and does not depend on their necessity arising from their want of other means to support
themselves.
They, therefore, held that though the joint family income was not enough to maintain all the members of the family in a proper state, the plaintiff
must be held entitled to some maintenance out of her husband''s estate. The amount awarded by the Lower, Courts was Rs. 20 a year against
which there was no appeal by the plaintiff and the learned Judges dismissed the defendant''s appeal and declined to accede to the contention that
the plaintiff (widow) was in the circumstances not entitled to get maintenance at all. As I understand that judgment, it is no authority for the position
contended for by the leavned advocate for the appellant in this case that even in cases where the joint family income is sufficient and in fact more
than is sufficient for maintaining properly all the members depending upon it, when a widow claims maintenance, if in possession of her own
property which yields some income, the Courts are bound to take into consideration the income so derived by her from her own property. My
attention has not been drawn to any case in Madras which goes to this extreme extent, and I do not understand the passage quoted from Mayne''s
Hindu Law by the learned advocate for the appellant as giving support for . such an exteme contention. No doubt, the learned author does say that
m particular cases the right to maintenance would be wholly in abeyance. But this particular aspect of the question has not been considered by the
learned author, and, in any event, I am not prepared to say that any decided cases in Madras compel me not to give effect to the view that I have
expressed above.
Arguments by analogy should not be pressed too far. But. if one is permitted to take a somewhat analogous case, questions have arisen in
Malabar where junior members of a tarwad claim maintenance from the income of the tarwad property; and though the income from the tarwad
property is enough and more than is necessary to maintain, all the members decently, yet it was argued that if the plaintiff, a junior member, be
proved to have private property of his own which yields private income to him, the same should be taken into consideration in fixing the amount of
maintenance due to him. This Quirt repelled that argument in the case reported in P. Teyan Nair v. P. Rayavan Nair I.L.R.(1881) M. 171 where it
was held that a karnavan of a tarwad is not justified in excluding a junior member from participation of the family property, because the junior
member has other property of his own and the circumstance that the junior member has other property is not an element in the consideration of his
right to share in the enjoyment of the joint family funds which are enough and more than necessary for such purposes.
As I am of opinion that the principle applied by this Court in the case of maintenance claimed by junior members of a Malabar tarwad in
possession of private funds should be the principle that should ordinarily be applied to cases where Hindu widows claim maintenance from the
estate of their husbands or from the estate of the joint family in which their husbands had a share, I proceed to note the trend of decisions under
Malabar Marumakkathayam Law. In the case reported in P. Teyan Nair v. Ragavan Nair I.L.R.(1881) M. 171 Innes and Tarrant, JJ., held as
follows:
The circumstance that a junior member has other property is not an element in the consideration of his right to share in the enjoyment of the joint
family funds. If it were, a man''s own individual industry and exertions might be the means of depriving him of his rights in the joint property.
A similar question arose in the case reported in Thayu v. Shangunni I.L.R.(1882) M. 71 where Sir Charles Turner, Kt., Chief Justice and
Muthuswami Aiyar, J., observed at page 72 as follows:
The circumstances of each member in respect of his private acquisitions would not affect his right to subsistence where the income was sufficient to
provide a suitable subsistence for all the members of the tarwad; but where the income is insufficient for this purpose, the karnavan must, with due
regard to the interests of all, look to the private means of each.
These cases were taken to lay down the law correctly in Manikkath Ammini Animal v. Manikkath Padmanabka Menon I.L.R.(1917) M. 1075
: 35 M.L.J. 509 and Maradevi v. Pammakka I.L.R.(1911) M. 203 : 22 M.L.J. 309. I do not understand the decision in Mahesk Partap Singh v.
Dirgpal Singh I.L.R.(1899) A. 232 to lay down a different rule of law.
The question would be important in these days of social advancement when widows belonging to joint Hindu families might find themselves
able to earn a part of their maintenance by doing honourable work elsewhere. If the result of their honourable activity and laudable attempts to earn
a portion of their maintenance should work against them in claiming maintenance from their husbands'' estate, in my opinion it will be a
disadvantage both to them and to the family. The interests of social advancement (if one is entitled to have regard to the same) would be in favour
of allowing her claim as put forward in the present case. If the result of her activity in earning or saving money by laudable means be to deprive her
of her right to receive proper maintenance from the husband''s estate: which is admittedly rich, such people would have no inducement to work or
to save. On the other hand, it would be in the interests of the joint family also to encourage such earning and saving. It therefore seems to me that in
the cases where the joint family income is sufficient to allow maintenance to all members, the possession by members of separate property yielding
income or the circumstance that such members are themselves earning as a result of their activity should not be taken into account. The question
will be different when the income from the joint family estate is not enough to maintain all the members depending upon it. The law as administered
in Bombay would seem to be different. See Savitri Bai v. Luximi Bai and Sadasiw Ganoba I.L.R.(1878) B. 573 (F.B.) See also Shib Dayee v.
Doorga Pershad. (1872) 4 N.W.P. 63 If the property in her possession be property belonging to the husband or to the estate of the joint family,
then the matter might (I have not to decide that question here) stand on a different footing. But so far as Madras is concerned, I am not aware of
any decision which would prevent me from applying by analogy the principles laid down in the Madras cases referred to by me already to cases of
joint Hindu families where the income from the joint family properties is more than enough to maintain properly all members having rights to the
same.
For the above reasons, I am inclined to hold that, in cases where a joint Hindu family possesses properties, the income from which is not only
enough but more than enough for the purpose of paying maintenance to all the members depending upon the same, the fact that one is in
possession of private funds which also yield an income should not be taken into account for such purposes. In the present case the plaintiff and the
defendant''s mother are co-widows. The only member of the family is the defendant who is a minor. There are also two young girls, sisters of the
defendant, who have to be married in due course. The lower appellate Court in paragraph 6 of its judgment has taken that matter into
consideration. It says in paragraph 5 that the family is quite in affluent circumstances and that the net'' income of the family may reasonably be
estimated to be Rs. 3,000 per annum. Having regard to all the circumstances, I think it was open to lower appellate Court to entirely disregard the
possession of the plaintiff of the sum of Rs. 2,000 which represented her private property. If I am right in this view, the argument pressed upon me
by the learned advocate for the appellant fails. It must be stated that the sum of Rs. 2,000 is plaintiff''s own moneys, and not moneys belonging to
the joint family.
Mr. Somayya, the learned advocate for the respondent, supported the finding of the lower appellate Court by another argument, namely even
if it be held that the plaintiff had Rs. 2,000 at the time of her husband''s death, as the plaintiff had to support herself from 1918 to 1922 even
calculating maintenance at the rate now decreed, there would be only about Rs. 400 left in the hands of the plaintiff. That is a small amount, and as
both the Lower Courts have said in their judgment that they have taken that point also into consideration in fixing the maintenance, there is no
ground for interference by this Court in the second appeal. On the whole, I have come to the conclusion that the award of maintenance of Rs. 31
per'' mensem by the lower appellate Court is not open to attack on any legal ground in second appeal. That being so, the main ground of the
appellant fails and the second appeal is dismissed with costs.
The plaintiff has filed a memorandum of objections in respect of (1) the rate of maintenance, and (2) costs. As regards the former, I am not in a
position to say that any legal error has been committed by the lower appellate Court in fixing the amount of maintenance. That being so, the
memorandum of objections, so far as this item is concerned, fails.
As regards costs, though the plaintiff had claimed maintenance at the rate of Rs. 40 per month and though the District Munsif allowed only Rs.
36, the District Munsif did not allow any costs to the defendant in respect of the difference disallowed by him, but directed that the defendant
should pay the plaintiff''s costs in respect of so much of the claim as was decreed to her. On appeal, the learned Subordinate Judge decreased the
rate of maintenance from Rs. 36 to Rs. 31. The learned Subordinate Judge, however, modified the decree of the first Court with reference to
costs. The order as to costs passed by the lower appellate Court was that the plaintiff should pay the defendant''s costs on the portion of her claim
disallowed in both the Lower Courts and that the defendant should pay plaintiff the costs in both the Lower Courts in respect of so much of her
claim as was allowed. I think that this is not the proper order as to costs that should have been passed in this case. It is not possible to foretell or
predict accurately the amount of maintenance that a person will be entitled to, in the opinion of the Court. What the Courts have to look into in
such circumstances is to see whether there was any prima facie excessive or exaggerated claim made in the plaint : In this case the plaintiff claimed
Rs. 40 and the lower appellate Court has decreed at Rs. 31 per mensem. The difference is not much, and I could not surely say that the claim was
exaggerated to such an extent that the plaintiff should be directed to pay the defendant''s costs on the portion disallowed. In this respect, I follow
the decision of this Court in the case reported in Rangathayi Ammal Vs. Neli Munusawmy Chetty, where the rule as to costs to be followed'' in
maintenance suits was discussed by the learned Judges. I modify the decree of the lower appellate Court in respect of costs, and pass the following
order : -In both the Lower Courts the plaintiff''s costs on the amount allowed to her shall be paid by the defendant. The defendant will bear his
own costs on the excess portion disallowed. In second appeal, the appellant will pay the respondent costs. I make no order as to costs in the
memorandum of objections, which I have allowed in part.