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Judgment
Sadasiva Aiyar, J.—The karnavan and the senior Anandravan of the defendants'' tarwad are the appellants before us. The plaintiffs are a
Nair lady and her children who are members of the defendants'' tarwad. The plaintiffs sued for arrears of maintenance. The defence was that as the
plaintiffs were living away from the tarwad house, though under the protection of the 1st plaintiffs husband, they are not under the
Marumakkathayam law entitled to claim separate maintenance. The lower Appellate Court overruled this plea and hence the second appeal.
The learned District Judge has thus summarised the law : ""A junior member is entitled to maintenance in the tarwad house, or, if he or she show
good reason for living away from it, outside the tarwad house. That is the substantive rule, and various adjective reasons have been grouped round
it, such as insufficient accommodation or family quarrels. No special sanctity attaches to these reasons apart from, the rule, and as obsetved in
Maradevi v. Pammakka ILR (1911) M. 203, the list of good reasons is not yet exhausted. This latest is that to be found in Muthu Amma v.
Gopalan ILR (1912) M 593, which is pertinent to the present case and where it is ruled that a good reason of absence for a wife who claims
maintenance is living with her husband. The absurdity of attaching sanctity to old reasons, and cavilling at new would be plain if one imagined a
woman denied her maintenance under Muthu Amma v. Gopalan ILR (1912) M. 593, for making a home for her husband but obtaining it under
Peru Nair v. Ayyappan Nair I.L.R (1880) M. 282 by a subsequent quarrel with her uncle.
Dr. Pandalai, the learned Counsel for the appellants contended (a) that though a female member''s living with her husband might be a proper
reason for her living away from the tarwad house, her right to claim separate maintenance is nevertheless subject to the condition that the husband
is unable to maintain her and her children : (b) that though in North Malabar, living with the husband might be a proper reason for living away from
the tarwad house and claiming separate maintenance it was not so in South Malabar where the defendants'' tarwad is situate : (c) that the 1st
plaintiff must, by living with her husband who is well able to support her, be deemed to have waived, when she so went to live with her husband, all
claims for maintenance against her tarwad, at least during the period of her residence with her husband. (Though there are so many as 17 grounds
entered in the memorandum of second appeal, they are either repetitions of the above three contentions or relate to contentions not argued before
us).
In Maradevi v. Pammkka ILR (1911) M. 203 decided by Sundarier and Spencer, JJ., it is said ""According to the Aliyasanthana system which
is very similar in its incidents to the Marumakkathayam Law, as no member is entitled to enforce partition of the family property which belongs to
all the members, every junior member is entitled to be maintained by the karnavan. The income belongs to all and all are entitled to participate in
the benefit of it. Each member of the tarwad has a right to be maintained and suffers a personal wrong if that right is not accorded to him. The right
is not confined to cases where a member has no means of his own; because, by virtue of his ownership in the tarwad property he is entitled to
participate in its income. A suit for maintenance by a junior member of a Marumakkathayam or Aliyasanthana family falls under Article 127 of the
Limitation Act, (a suit to enforce the right to share in the joint family property) and not under Article 129, which applies to suits which are strictly
for a right to maintenance which a person has over property belonging to another. The general result of the decided cases is, in our opinion, that in
order that a member of a Marumakkathayam or Aliyasanthana tarwad may be entitled to separate maintenance, he or she should be able to allege
some-good ground for doing so. It would be unwise to hold that the decisions up to date have exhausted the list of good grounds which may be
urged. It is recognised practice in South Kanara for a woman and her minor children to live with her husband. It is a common practice in North
Malabar and it is a growing practice in South Malabar. See Parvathi v. Kamaran Nayar ILR (1888) M. 341 The interest of social improvement
would be against discouraging such a practice. There is no principle in the Marumakkathayam or Aliyasanthana Law requiring that it should be
discouraged. We are not bound to shut our eyes to the fact that families governed by this system of law are often numerous and consist of persons
related in very different degrees of kindred and no social and economical service is done by compelling them all to reside in one house when they
have good grounds for not doing so. Several cases have come to this Court which show that in the houses of Rajas and other well-to-do tarwads it
is the rule to allow separate maintenance.
In Muthu Amma v. Gopalan ILR (1912) M. 593, Sundara Aiyar, J. and myself (the judgment was pronounced by Sundara Aiyar, J., whose
authority on questions of Malabar Law is deservedly, if I may say so, very high) expressed the opinion that the desirability of living with one''s
husband is a good cause for a lady to live away from the tarwad house. ""It was argued there"" (that is, in Maradevi v. Pammakka ILR (1911) M.
203) ""that custom was against it. The answer given was that the custom of all members of a tarwad living together is only a social custom. Some
social custom may change without affecting the legal rights of parties. All members of a tarwad are entitled to the tarwad property and are entitled
to the benefit of t hat property. The only way in which a junior member can receive benefit out of the tarwad property is by receiving maintenance.
No decided case has been brought to our notice where it was held that a woman would not be quitting her tarwad house for a proper purpose
when she does so in order to reside with her husband. As far as we are aware, it is not considered improper. On the other hand, it is considered
honourable that a wife should live with her husband if asked to do so. The members of the tarwad also consider it honourable both to themselves
and to the lady who is asked by her husband to live with him that she should comply with his wishes. Perhaps, it should be added an exception
should be made in the case of some aristocratic families who consider their own social position so high that it would be derogatory to their ladies to
quit their tarwads to live with their husbands, at any rate in a case where the husband is not of an equally high rank. The general rule, however, is as
we have stated it. We cannot therefore regard that living with one''s husband is a good ground for a woman governed by the Marumakkathayam
Law being compelled to forfeit her right to maintenance while she lives away from the tarwad house."" In a more recent case Manikkath Ammani
Ammal v. Padmanabha Menon (1917) 35 M.L.J. 509, Seshagiri Aiyar and Bakewell, JJ. observe as follows: "" The expression ""maintenance"" is
loosely applied to this class of cases, 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 claim for separate
allowance is an indicia of proprietorship and not founded upon moral or quasi legal obligations or on inability to maintain himself or herself. The
possession of separate property should not be taken into account in considering whether a member of the tarwad was entitled to separate
allowance. (P. Teyan Nair v. P. Raghavan Nair ILR (1880) M. 171. In Achutan Nair and Another Vs. Kunjunni Nair and Another, it was
distinctly stated that the right to an allowance should be based on the right of co-ownership of property."" Then the learned Judges refererd to
Marudevi v. Pamakka ILR (1911) M. 203 Naku Amma v. Baghava Menon ILR (1912) M. 79 and Chakkra Kannan v. Kunhi Pocker I.L.R
(1915) M 317 : 29 M.L.J. 481 in support of their opinion 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 could not be denied unless the junior member lives separately for a
purpose which is not proper, his claim being of the character of a proprietary right to a share in the income.
Dr. Pandalai argued that these decisions went beyond the law as laid down in certain earlier Madras decisions which base the right to
maintenance itself not on co-proprietorship but on the fact of the residence in the tarwad family house and merely dispensed with that condition as
to residence in exceptional cases. I do not think that we should be justified in entering into a discussion at present as to whether Marudevi v.
Pamakka ILR (1912) M. 79 which elaborately discusses the earlier decisions stated the result of those decisions with meticulous accuracy.
Whether it is North Malabar or South Malabar or the district where Aliyasanthana prevails, the reasons given in the decisions for allowing separate
maintenance where proper reasons are alleged by the claimant for his not living in the tarwad house itself are all clearly applicable. If that is a
custom prevailing in South Malabar that notwithstanding this general rule based upon the broad principles of the Maru-makkathayam law, a junior
member living for the proper purpose of residing with her husband is not entitled to separate maintenance, such a special custom ought to be
proved by the party setting it up. The evidence on the defendants'' side in this case consisting mostly of statements by the karnavans or several
aristocratic families is merely to the effect that in their opinion a female member whose husband is in a position to support her ought not to claim
separate maintenance and that no person in such a position has to their knowledge claimed it. Such negative evidence given by such gentlemen is of
very little value. If several instances are given where after demands made in such cases, maintenance was refused and the claimants acquiesced in
the refusal or the claimants were unsuccessful when they brought such rejected claim''s before the courts, such evidence will no doubt prove the
alleged custom in derogation of the claim which is prima facie a perfectly legitimate claim according to the principles of the Marumakkathayam law.
(I assume of course without deciding that the custom, if established, would not be immoral or opposed to public policy.)
In the result, I think that the contentions put forward with such ability and strenuousness by the counsel on behalf of the appellants are not
sustainable and I would dismiss the second appeal with costs.
Ayling, J.
I agree and have little to add. I was at first inclined to accept the contention that the lady''s right to be maintained out of the tarwad property
while living with her husband was conditional on the latter being unable to maintain her. But it is impossible to do so in face of the decisions in P.
Teyan Nair v. Raghavan Nair ILR (1881) M 171 and Thayu v. Shungunni ILR (1881) M. 71 and the recent unreported case referred to by my
learned brother. (S.A. No. 2065 of 1915 See Manikhath Ammani Ammal v. Padmanabha Menon (1917) 35 M.L.J. 501. The only possible
defence to the suit (that of waiver) has been found against by both the lower courts, I therefore agree that the appeal must be dismissed with costs.