KOTTAL KUNHALIKUTTY HAJI KARNAVAN AND MANAGER OF HIS PUTRAVAKASA TAVAZHI TARWARD Vs. MALIKKARAVIDA KOTTAL KUNHAMAYAN LROF 5TH PLAINTIFF

JUDGEMENT

(1.) In this case the District Munsif and the lower appellate Court have awarded to the plaintiffs maintenance, the lower appellate Court at rather a higher rate than the District Munsif. The plaintiffs are the S.A. No. 1653 of 1920. 15 November, 1922, junior members of a tarwad. The 1 defendant is the Karnavan of the tarwad: The 2nd defendant is the next to him for that position. The decree has been made for arrears of maintenance, at the rate which has been found by the Subordinate Judge to be the proper rate, personally against the Karnavan in the following terms: "that the 1 defendant personally and as Karnavan of his tarwad do pay....." This form of decree does not seem to me to be right. 1 see no reason for a personal decree against the Karnavan which would involve the right of the junior members of this tarwad to arrest him if he did not pay forthwith, although it may be he may have none of the property in his hands available for immediate payment. We have had several decrees, which have come before this Court, looked up and I have found none in which that form of decree has been used. In No. 1036 of 1918 on Second Apepal from the South Malabar District, the form of decree approved by this Court was "that this Court doth order and decree that the 1 defendant, as karnavan and manager of his tarwad and from the income of the tarwad properties and also from the properties of the tarwad, do pay the plaintiff Rs. 216 for his maintenance due for the past three years. "In No. 48 of 1916 on appeal from the same district, the decree approved by this Court was "that the plaintiffs do recover from their and the defendants tarwad Rs. 1,136 being the amount of maintenance due for the plaint period, that is 6 years. "On the whole, I think the former of those two forms, namely, that approved in Second Appeal No. 1036 of 1918 is the better form, and the decree of the lower appellate Court in this case must be amended by being made to conform with that form.

(2.) It is then argued that the amount of maintenance allowed in this case is wrong, because the lower appellate Court has not applied the right principle in arriving at the proper figure and has allowed too much, and it is argued on the other side that too little has been allowed. Now, the law seems to be this as stated by Turner, C.J. and Kindersley, J. in an apparently unreported case of the Madras High Court, the judgment in which is set out clearly in Moore's Malabar Law and Custom, at page 132: "The members of the tarwad are entitled to receive maintenance out of the tarwad house, when there is no room for them in that house, and, if the karnavan makes an insufficient allowance, the anandravans are entitled to apply to the Court to determine what allowance is sufficient, having regard to the circumstances of the family. "The circumstances which may be taken into consideration on such discussion before the Court are dealt with in the case of Thayan Kunji Ama V/s. Shangunni Valia Kymal (1881) I.L.R. 5 Mad. 71. The general principle is this: prima facie the junior members living out of the tarwad house should be treated equally but the circumstances of each particular one can be taken into consideration and it is for the karnavan to judge how much each particular one should get. He may take into consideration no doubt things like the health of a particular child or the education of a particularly intelligent child or a child with small intelligence; he can take into account the earning capacity of a junior member; apparently it has been laid down that he can also take into account the fact that a particular person has himself made a rich marriage; and there are many other things which the karnavan in exercising his discretion as, so to speak, the father of this family, can take into consideration. To some extent all these are things which can be controlled by the Court; if a junior member is aggrieved, he can come to the Court and apply for maintenance and ask the Court to say what allowance is sufficient. 1 think it is enough to say that, on any such application to the Court, very great weight indeed should be given to the decision of the karnavan, and his decision in such a matter would not be lightly interfered with. In this case it is proved that certain members of the tarwad and, in particular the 2nd defendant, have had provisions made for them by way of maintenance not by the present karnavan but by his predecessors, he having been karnavan only for a short period; and both the District Munsif and the Subordinate Judge have, to a great extent, in arriving at what they considered to be a proper maintenance for these plaintiffs, eliminated the individual arrangements which had been made by those previous karnavans in regard to the 2nd defendant and other members of the tarwad. But they have both, in arriving at what they think the right amount, taken the generality of those members so provided for and said that that on an average works out at so much; and I think, quite properly the Subordinate Judge took that into (1881) I.L.R. 5 Mad. 71 consideration as a guide provided by past karnavans as to what was the sort of maintenance this tarwad was capable of paying to its minor members. I do not find that he did anything more than look at it as a guide. It is also true that, in making that calculation for that purpose, he eliminated from consideration the amount which was going to the 2nd defendant. He does not seem to have had before him anything about the 2nd defendant to show why he got a considerably larger amount than other members. I do not see any reason for saying that the figure arrived at is wrong, and certainly I find no reason for saying that it is wrong in law. What was the reasonable maintenance is a question of fact and on the facts before the Courts, the figure was arrived at. I cannot find any reason to say that there was any error in law in arriving at that figure. I think it right to say something further. In this case a discussion took place in both the Courts below as to whether some property which the karnavan had got for his own maintenance before he became karnavan was to be taken into consideration, or whether the amount that he was getting and wanted as karnavan should be taken into consideration. In my judgment, he is, in respect of property which he is using for his own maintenance, in the same position as other members of this tarwad who have got similar property made available for their maintenance. In arriving at the amount of maintenance that should be paid, the income is, of course, to be considered and as against the income the proper expenditure to be met by the karnavan for managing this tarwad is to be taken into consideration. But the property that the karnavan is in enjoyment of himself under some arrangement by a previous karnavan is merely useful as a guide in the same way as the properties in the possession of other members of the tarwad are useful as a guide in arriving at a reasonable amount. But all those grants, the grant to the present karnavan, the grant to the 2nd defendant and the grant to the other members of property for their maintenance are subject to revision by the karnavan-in a proper case. It has been laid down, and I think rightly laid down, that that revision can only take place if he proposes to substitute for the maintenance provided in this way some other proper maintenance. How this decree is to be met, how the maintenance of those minor members for the future is to be pai4 is a matter for the karnavan to decide, and he can, if he thinks right, look into the position of every member of the tarwad; and he would be perfectly justified in saying that one member was getting too much and another member was getting too little and he could alter and re-adjust the incidence of the burden of the expenditure of this tarwad. I need hardly add that he must, in exercising any such powers, act honestly and in the general interest of the tarwad and not of course in his own personal interest as opposed to the general interest.

(3.) I think that disposes of everything in this case and this appeal must be allowed to the extent of varying the order in the way suggested by me.