KARINGALI THENDAMBALATH KARNAVAN Vs. KARLINGALI THENDAMBALATH GOVINDAN NAMBI

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff as a member of a Makkathayam family, of which defendant 1 is the karnavan, for the recovery of a lump sum of money as arrears of maintenance due for six years eight months at the rate of Rs. 20 per mensem. The claim was hotly contested by defendant 1 and the first Court decreed the plaintiffs suit by awarding arrears of maintenance at the rate of Rs. 16 a month. The lower appellate Court modified the first Court's decree by reducing the rate of maintenance to Rs. 12 per mensem. In this second appeal preferred by defendant 1, the main contention urged is that the lower Courts should have inferred waiver or abandonment of the right to arrears of maintenance on the part of the plaintiff from all the circumstances of this case. The claim for maintenance relates to a period of six years eight months commencing from June 1920 and the registered notice of demand was sent by the plaintiff only in January 1927. It is settled law that mere delay in the matter of claiming maintenance and the mere omission to make demands would not be sufficient to draw an inference as to waiver or abandonment. Over and above these factors it must be clearly shown in each case that there are justifiable grounds for inferring that the claim for arrears of maintenance was abandoned.

(2.) The learned Subordinate Judge observes that there is hardly any evidence worth the name to prove that the plaintiff waived his right. Several decisions have been relied on by the learned Counsel for the appellant, in which the question of waiver has been considered. As far as I can see, those decisions do not support the appellant in the contention that mere delay and omission to make demands are enough to give rise to an inference about waiver. In the present case, there is no justification for holding that the plaintiffs conduct was such as to mislead defendant 1 into the belief that the plaintiff would not set up any claim for the arrears of maintenance. There being no tangible basis for presuming that there was justification for defendant 1 to suppose an abandonment of the claim by the plaintiff, I am of opinion, that the ground of attack based on waiver must fail. The observation in the judgment of a Division Bench of this Court reported in Muthu Amma V/s. Gopalan (1913) 36 Mad 593 (at pp. 596 and 597) is to the effect, that if a man is rich and able to provide properly for his wife and children, and if no demand for maintenance is made on the tarwad for a long lime, the Court would be justified in inferring an intention to abandon the claim, but the question whether there was really a waiver should be decided on the circumstances of each case. This observation does not materially help defendant 1 in this case, in the absence of some special circumstances giving rise to an inference in favour of abandonment.

(3.) The next question for consideration is whether the rate of maintenance awarded by the lower appellate Court is liable to reduction. The net income available for maintenance as taken by the lower appellate Court would be Rs. 1,430-8-0 per annum. Though a higher amount was fixed by the first Court as the annual income of the tarwad the Subordinate Judge thought fit to proceed on the admitted annual income and arrive at a lower estimation by way of caution. Taking the members of the family as eight majors and two minors, he fixed the allowance at Rs. 12 per mensem for each member. In arriving at this rate the learned Subordinate Judge has failed to take into consideration some material circumstances. It has been held in the decision in Ekanat Thayu Kunji Amma V/s. Ekanat Shangunni Yalia Kyamal (1882) 5 Mad 71., which was followed in Kunhalikutti Haji V/s. Kunhamayan AIR 1923 Mad. 230 that the circumstance of each member in respect of his private acquisitions should be taken into account by the karnavan in fixing the maintenance allowable to that member if the income of the tarwad would not be sufficient to provide a suitable subsistence for all the members. The method of dividing the total net income by the number of members in the tarwad without due regard to the real necessities of the several members thereof would not be always a correct method. If there is income sufficient enough for providing a suitable subsistence for all the members then the fact of a particular member having other and independent means would not affect the question.