CHANDAYYA HEGDE Vs. KAVERI HEGADTHI

JUDGEMENT

(1.) THESE three suits are brought for maintenance against the 1 defendant who is the ejman of the Aliyasantana family to which the plaintiffs belong. Separate maintenance is claimed in all the three suits on the ground that the defendant had refused to maintain the plaintiffs. Both the Courts have found that this case is untrue and that there was to refusal by the defendant to maintain the family but both the Courts have given a decree for maintenance. The Lower Appellate Court has held that " defendant and the plaintiffs are not moving well and that a joint mess in the family house has become extremely inconvenient," and on that ground has awarded separate maintenance. The right of a member of an Aliyasantana family to maintenance in the tarwad house is undoubted and under certain circumstances he is entitled to separate maintenance outside. It has been held that when a wife goes to live with her husband or when a husband goes to live with his wife in a separate house they are entitled to separate maintenance vide Maradevi V/s. Pammakka ILR36M 203 :M MLJ 309, Kunchi V/s. Ammu (1912) ILR 36 M 591 : 24. MLJ 559, Muthu Amma V/s. Gopalan (1912) ILR 36 M.593 23 MLJ 496 and Govindan Nair V/s. Kunju Nair (1919) ILR 42 M686. But it is not suggested in these cases that any of the members has gone to reside separately for any proper purpose. One Seshappa, the head of the branch which brings the Suit No. 133 of 1920 did apparently leave the tarwad house for a year or two but he admits that he returned there when he found that both his branch and the other two branches were being treated alike. It is not suggested that any of the other members has gone away to live separately, except temporarily and from time to time. It is now urged for respondents that they are entitled to separate maintenance because of the quarrels that have taken place in the family. There have been suits between the ejman and some members of the family and also one suit between two branches of the family, but there is no evidence to show that these disputes have been of such a nature as to make it impossible or dangerous for the members to continue to live together in the same house and take meals together. The Lower Appellate Court has merely found that their living together was extremely inconvenient. It has been pointed out in Kunchi V/s. Ammu (1912) ILR 36 M 591 : 34 MLJ 559 that the right to separate maintenance cannot be put on the mere ground that there is no such complete harmony in the house as to ensure the happiness of the claimant. Mere inconvenience therefore is not sufficient to warrant separate maintenance. It may be observed that the Lower Appellate Court does add to these reasons the following:" I therefore agree with the Lower Court in holding that the plaintiffs are entitled to claim separate maintenance, " and he must be deemed to have adopted the District Munsif's reasoning. When we look at the findings of the District Munsif we see nothing more definite than the finding of the Subordinate Judge. The District Munsif elaborately discusses the evidence and finds the plaintiffs are not debarred from claiming maintenance, but the mere fact that they are not debarred in suitable circumstances from so claiming is no evidence that such suitable circumstances do exist and that point he has not considered, his main ground being that the defendant had refused to permit the plaintiffs to " freely participate in the family income. " Defendant had acted up to the terms of a family karar which defined the rights of the parties and it was not incumbent on him to distribute any spare money that he had in his pocket among all the other members or even among some of them. Similarly the District Munsif seems to think that when some members resided away for a portion of the year with their husbands or wives, as the case might be, they were entitled to claim from the ejman a sum equivalent to their maintenance during the period of absence. Such a right has certainly never been recognised by the Courts and the District Munsif gives no authority for his opinion. Even, therefore, if we take the findings of the District Munsif together with those of the Subordinate Judge, no adequate reasons have been given for awarding separate maintenance in these suits. In view of these findings it is unnecessary for me to say anything about the rate of maintenance; but I would point out that the Subordinate Judge has given very inadequate reasons for rejecting the actual income shown in the leases and accepting in preference some vague estimate of what the yield would have been and the price that it would have fetched. He has also divided the income into exactly equal shares for each person and allotted it accordingly, not taking into account the right of the karnavan to something more and the right of those members who continued to live jointly in the family house to enjoy the same mode of living as they formerly enjoyed subject only to the rights of those who have separated from the family.

(2.) SECOND Appeal No. 1416 of 1923 has been compromised as between the defendant and all the plaintiffs except the 3rd. There will be a decree in accordance with that compromise and also be a decree dismissing the suits with costs throughout, the costs in S.A. No. 1416 being met by the 3 plaintiff alone.