MARAVADI Vs. PAMAKKAR

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 Yejamanathi 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 the 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 4th plaintiff and her minor children, plaintiffs Nos. 10 to 12, were living in the house of 4th plaintiff s husband, that the 5th plaintiff and her minor children, plaintiffs 13 to 15, were residing at the 5th plaintiff s husband s house, and that 8th and 9th 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 3 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 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 15/40th share of the income the plaintiffs being 15 out of a total of 40 members in the family. On appeal the District Judge dismissed the suit by a judgment which we cannot but regard as unsatisfactory. He had 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 palintiffs in their fathers or husbands houses during which they were entitled to no maintenance at all in their family house. We cannot ascertain from this record bow 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 visit to the house of a relation such as husband or father, would be disentitled to maintenance or that the Yejaman would be entitled to make proportionate reduction from the maintenance due to that member. He then says: " It appears clearly, however, that the Yejamanathi has always been willing to maintain all those who lived and worked at home, and it is clear from the evidence of P.W. 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 1st defendant does not allege were living 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 and dispose of the suit.

(3.) According to the Aliyasantana system which is very similar in its incidents to the Marumakkathayam Law (see Subbu Hcggade v. Tongu (1869) 4 M. H.C.R. 196) as no member of the family 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 Kar-navan and has the right to object to any improper administration of the property of the Tarwad and to see that it is duly conserved for the use of the Tarwad. The income belongs to all and all are entitled to participate in the benefit of it but the manager is entitled to administer the property and to use the income for the common benefit of all the members. As observed in Narayani v. Govtnda (1884) I.L.R. 7 M. 352 the Tarwad is a family of which the Karnavan is the manager, and although as asenior member he enjoys special consideration, he has no higher claim in the enjoyment of the income than any other member of the family. He has a right to expend as he pleases for the common benefit of all. The right to maintenance is an individual right. In Kunhamatha v. Kunhi Kuttir Ali (1883) I.L.R. 7 M. 233 Turner C.J. says :" Each member of a 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. See Thayu v. Shungunni (1881) I.L.R. 5 M. 71. It has been held that a suit for maintenance by a junior member of a Marumakathayam or Aliyasantanam family is one that falls under Article 127 of the Limitation Act, as a suit to enforce the right to share in joint family property-- Atchutan Nair v. Kunfunni Nair (1903) 13 M.L.J.499--and not one under Article 129, which applies to suits which are strictly for a right to maintenance where a person has owned property belonging to another. The Tarwad property cannot be sold except in cases of necessity without the consent of rhe, junior members. See Kalliyani v. Narayana (1805) I.L.K. 9 M. 266 and Raman Menon v. Raman Menon (1900) I.L.R. 24 M. 73 (P.C.). Junior members are entitled to recover on behalf of the family property improperly alienated by the manager Anantan v. Sankaran (1890) I.L.R. 14 M. 101. In other words the right to maintenance in a Malabar Tarwad is the mode in which the right of ownership is enforced.