MARADEVI AND THIRTEEN ORS Vs. PAMMAKKA

JUDGEMENT

(1.) The suit in this case is one for arrears of maintenance instituted by 15 members of a family in South Canara governed by the Aliyasantana system of law, against its manager or ejmanthi, the defendant. The plaint alleges that the defendant left the family house of the parties and went away to reside elsewhere about five years before the date of suit, and that she neglected to look after the maintenance of the plaintiffs, junior members of the family. The defendant denied that she quitted the family house and contended that several of the plaintiffs were living away from the house. She alleges she has no objection whatever to maintain the plaintiffs if they all come and live in the family house. She denies the plaintiffs right to separate maintenance when not living in the house. Her case is that the fourth plaintiff and her minor children, plaintiffs Nos. 10 to 12, were living in the house of the fourth plaintiff s husband, that the fifth plaintiff and her minor children (plaintiffs Nos. 13 to 15) were residing at the fifth plaintiff s husband s house and that the eighth and ninth plaintiffs were living in the house of their father. It is not stated that the plaintiffs Nos, 1 to 3, 6 and 7 were living elsewhere.

(2.) The District Munsif found that the defendant was not living in the family house but in another house of her own about three miles away from the former and he held that the defendant had failed to maintain any of the plaintiffs during the period for which maintenance is claimed. He also found that the plaintiffs Nos. 4, 5 and 8 to 15 had not been proved to have been living away from the family house though some of them might be visiting at the houses of their husbands or fathers. He awarded plaintiffs a 15/40ths share of the income, the plaintiffs being 15 out of a total of 40 members in the family.

(3.) On appeal, the District Judge dismissed the suit by a judgment which we cannot but regard as unsatisfactory. He has not found whether the defendant went away from the family house to reside elsewhere or not. He objects to the Munsif s decree awarding to the plaintiffs a numerically proportionate share of the family income. He is no doubt right in doing so. He says that the District Munsif s decree "further takes no account of the considerable time spent by the various plaintiffs in their fathers or husbands houses during which they Were entitled to no maintenance at all in their family house. I cannot ascertain from this record how much, if any maintenance is really due to them," But he does not find what time, if any, each of the plaintiffs was away from the family house. He has assumed that a member going on a visit to the house of a relation, such as husband or father, would be disentitled to maintenance or that the yejman would be entitled to make a proportionate reduction from the maintenance due to that member. He then says: "It appears clear, however, that the ejmanthi has always been willing to maintain all those who lived and worked at home, and it is clear from the evidence of prosecution witness No. 4, who tried to hold a panchayat about the matter, that plaintiffs real purpose is to live away from home in their husbands and fathers and wives houses and do no work at home and yet draw their full share of maintenance from there. This they cannot do." Here again he has assumed, without discussing the question, that a person not doing work in the family house is not entitled to maintenance even when he is willing to live there, for he has not decreed any maintenance to the plaintiffs Nos. 1 to 3 and 6 and 7 who the first defendant does not allege were living anywhere away from the family house. It is clear that we must set aside this judgment and remand the appeal for rehearing and fresh disposal. But as the Judge has enunciated several questionable propositions of Aliyasantana law, we consider it our duty in order to avoid a further remand, to express our view of the law which should govern the disposal of the suit.