SUBBAYA MANIYAGARAR Vs. KANDASWAMI

JUDGEMENT

(1.) This revision petition arises out of a maintenance order passed by the lower Court in a partition suit. The suit was brought by two minors with their mother as guardian for partition against their father being members of a joint family. The written statement admitted that the plaintiffs were defendant 1's children and also admitted that the property was joint family property. It is necessary in order to understand the order to see to the circumstances under which it was passed. The suit filed in July 1932 and issue 1 was whether it is maintainable, defendant 1 contending that it was not in the interest of the minors to have a partition. It is admitted that the plaintiffs left their father as long ago as 1928 with their mother and defendant l's allegation is that the mother is an unchaste woman. From that date up to now, defendant 1 has made no attempt to get back the-minors for himself and apparently ho has married another wife. Under these circumstances, when the suit had been dragging on for a year, a petition was. put in under Section 151, Civil P.C. to direct defendant 1 to deposit into Court Rs. 45 every month by way of maintenance for the plaintiffs, and their mother. The income of the estate was there said to be Rs. 1000 and there was no denial of the estimate. But in the counter defendant 1 professed his willingness to take the minors and maintain them if they went to him. The order of the lower Court is very brief and I shall quote it in full. It is necessary that the minor plaintiffs-should be maintained which is not done by their father, defendant 1. They are admittedly entitled to two-thirds share in the family properties. What are the family properties may have to be determined in the suit. But there can be no question o? the father's duty to maintain his minor children irrespective of any property. I therefore fix Rs. 25 per mensem for their maintenance which shall be paid into Court from, this month.

(2.) It is against this order that this revision petition is filed. Although the petition asked for maintenance for the mother also, the order does not award her any maintenance. It would appear however that in the decree she has been included. The decree is not one of tins matter which I am asked to revise and it is admitted for the counter petitioners that it is a clerical error. So far as the mother goes, she would not be entitled to maintenance in this suit. The proper course is to ask the lower Court to amend the decree so as to be in. consonance with the order.

(3.) The first objection that is raised to to the order under revision is that no such order could be passed until the preliminary issue as to the maintainability of the suit is determined and that if the father was mismanaging the estate the remedy was to get a Receiver appointed. With regard to the latter there was no allegation that the father was mismanaging the estate and consequently there was no ground for appointing a Receiver. The application was therefore made and ordered under Section 151, Civil P.C. There is no question that if the right of the sons to partition is denied, their claim for maintenance from the family property must be admitted. The only question is as to the power of the Court to pass such an order whether before or after the determination of issue 1. There is no express provision as far as I know which definitely empowers the Court to pass such, an order even after the decision that the suit is maintainable. Hut the question remains whether the order is not one which could be passed ex debito justitiae. That the father is not maintaining the minors is a fact which cannot be denied. He has not boon doing so for four years before i lie suit and has apparently taken no interest in their existence. He has allowed them to remain with their mother whom he alleged to be unchaste. Under the circumstances the Court had to consider how far he is serious in coming forward for the first time in answer to this petition and saying that ho would maintain them if they would live with him.