KAVALAPPARA KOTTARATHIL KOCHUNNI Vs. KAVALAPPARA KOTTARATHIL PARVATHI NETHIAR

JUDGEMENT

(1.) Kavalappara estate is an impartible estate. Succession thereto is governed by the Marumakkathayam law, that is to say, the eldest member of the family by female descent will succeed to the Gaddi and hold the estate. The parties to the suit are members of the Kavaiappara Swaroopam, the 1st defendant being the Sthanee. The 7th defendant is the mother and the 9th defendant the elder brother of the plaintiffs. The plaintiffs claimed maintenance based on family custom entitling the members to maintenance out of the entire income of the Sthanam. Past maintenance was claimed for each of the plaintiffs 1 to 4 for 12 years at Rs. 500. 00 per mensem ; for plaintiff No. 5 at the above rate and for plaintiffs 6 to 8 at Rs. 400. 00 per mensem from their respective dates of birth. Future maintenance from date of suit was also claimed at the aforesaid rates. The suit was contested by the 1st defendant on the ground that the plaintiffs had no enforceable legal right to maintenance from the Sthanam estate ; that from olden times two Kalams, Palachithara and Velliyad of the Sthanam estate had been set apart for the maintenance of the junior members of the Swaroopam ; that the plaintiffs have to look to those two Kalams only for their maintenance "as deposed by him in the former suit" in O. S. No. 46 of 1934 ; that even after the Privy council had decided 0. S. No. 46 of 1934 declaring him to be absolute owner of the Sthanam properties, he had been paying maintenance out of affection; that though there was no recognised custom binding on him, be had been adopting the generosity of the predecessor Sthanees and paying to the junior members of the Swaroopam Rs. 17,000. 00 annually and that the plaintiffs had no right to claim income from the Sthanam estate. The trial court granted maintenance for the period claimed until the date of decree at the rate of Rs. 250. 00 per mensem for each of the plaintiffs chargedon the corpus and income of the Sthanam estate. The first defendant appealed to the Kerala High court in A. S. No. 304 of 1962. The plaintiffs preferred cross-objections. The High court partly allowed the appeal negativing the plaintiffs' claim for arrears of maintenance and modified the trial courts decree. The High court dismissed the cross-objections of the plaintiffs. G. A. No. 1235 of 1966 is brought to this court by certificate on behalf of defendant No. 1 and G. A. 1236 and 1237 of 1966 are brought to this court by certificate on behalf of plaintiffs.

(2.) The first question to be considered is whether the plaintiffs are entitled to maintenance out of the Sthanam properties as a matter of family custom. It is argued on behalf of the 1st defendant that the maintenance allowance was previously given by the Sthanee only as an act of generosity and not in recognition of any legal claim of junior members of the Swaroopam In any case it was contended that the practice prevailing in the past was that the income from two Kalams "pilachithara" and "velliyad" was given to the Amma Nethiar for the benefit of the members of the Swaroopam and that the members of the Swaroopam could not insist on anything more than the same as a matter of right. In our opinion there is no justification for this argument. There is sufficient evidence on the record of the case to support the finding of the Subordinate Judge and the High court that the plaintiffs have established a customary right of maintenance from the Sthanam properties. In the first place there are two decisions O. S. 991 and 992 of the year 1817 granting a decree for maintenance to two members of the Kavalappara Sthanam (Exhibits A-57 and A-58). It was contended for the Sthanee in those suits that separate properties had been allotted to Amma Nethiar to maintain all the females and minors in the Swaroopam, that only major males in the Swarpopam can claim separate maintenance from him and that those members who chose to live away from the palace had no right to claim maintenance. These contentions were not accepted by the court which gave each of the plaintiffs a money decree for maintenance both past and future. The material portions of the two decisions are quoted below :

(3.) This deposition shows clearly that the Sthanee in office admitted over a century ago his obligation to maintain junior members of the Swaroopam.