SRINIVASA AIYAR Vs. AMMANI AMMAL

JUDGEMENT

(1.) This appeal is against the decision of the District Judge of East Tanjore in a maintenance suit by a widow against her son, the 1 defendant, and grandson, the 2nd defendant. The suit was for arrears of past maintenance, for a declaration of the amount of future maintenance and to make the defendants liable to pay certain other sums demanded by the plaintiff. The Lower Court refused the prayer for past maintenance and declared that the plaintiff was entitled to Rs. 500 a year for future maintenance, and to two sums of Rs. 400 for vratams and Rs- 500 for pilgrimage and that the defendants "do pay" these amounts. Defendants appeal. The plaintiff has not filed any memorandum of cross-objections or cross-appeal against the disallowance of past maintenance, or the rate of future maintenance, or the cash allowances.

(2.) The case before us turns on the general question how far, if at all, a widow can sue for maintenance when she has or ought to have in her hands sufficient joint family property from which to maintain herself. It has been found by the Lower Court and has not been attacked here that the plaintiff, who was for a long time managing the joint family property during and after the minority of her son, the 1 defendant, had in her hands in 1910 about Rs. 8,000 worth of joint family property. The Lower Court has also found that she had by the date of the suit spent all that money, but if plaintiff is to be believed, she spent a major portion of it on purposes which would not be binding on the joint family. These are the essential facts on which the case has to be considered. On the legal inference from these facts each side takes up an extreme position. The plaintiff maintains that the fact that she had or has or ought to have joint family property in her hands is no legal bar to her right to maintenance, and that, if the defendants have any subsisting legal right to recover from her joint family property, they can only enforce that right by a separate suit. The defendants contend that the fact that she has or ought to have in her possession joint family property is a sufficient bar to her suit, whatever the amount of that joint family property may be, and that she cannot be allowed to sue until she has restored to the joint family so much of its property as she has or ought to have in her possession, the joint family property itself being the source from which her maintenance has to be met.

(3.) The plaintiff's claim seems to us untenable in the form advanced. The simplest way to demonstrate that is to take an extreme case where the widow suing the joint family for maintenance has the whole of the joint family property in her hands. Such maintenance is primarily a charge on the estate, and in the case put is therefore primarily a charge on the joint family property in the widow's own hands. The plaintiff's contention is that even so she is entitled to a decree for maintenance against the joint family members, which would have to be a personal decree as the joint family ex hypothesi has no joint family property out of which the claim could be met. We are clear that the Court would be stultifying itself by giving her a decree for maintenance in such circumstances, unless the decree made it clear that the maintenance payment was to come out of the joint family property in her hands, and no personal decree against the joint family members was given. Next let us assume a case in which she has herself dissipated the whole of the joint family funds. Here again a Court could not give her a personal decree against the joint family members for a maintenance amount which ought primarily to be met from the funds which she had already enjoyed to the full herself. Even if when the suit started she had joint family property in her hands, she could defeat it by getting rid of it while the suit was going on. A notice to her of demand to return the joint family property in her hands would simply be a warning to her to get rid of it as soon as possible, and, since such conduct would not ex hypothesi in any way prejudice her right to maintenance, she would obviously do so. As we have said, whether she holds joint family property on the date of. the maintenance suit or whether she had dissipated it before suit, a Court would be stultifying itself by driving the joint family members to a separate suit to recover from her to-day funds from which she is to be paid her maintenance to- morrow. We, therefore, cannot accept the plaintiff's extreme position, for which indeed no authority is quoted before us.