KIJANAR SHESHAPPA SHETTY Vs. KIJANAR DEVARAJA SHETTY

JUDGEMENT

(1.) We are invited in this second appeal to set aside a decree by which the Court of appeal below in concurrence with the Court of first instance gave the plaintiff a sum of Rs. 181-9-3 on account of expenses incurred by him for performing his marriage. The plaintiff is a junior member of a family of which the ejman is the defendant. The parties are Jains of South Kanara governed by the Aliyasanthana Law. In reply to the plaintiff's claim, the defendant pleaded that he is not the ejman, that the plaint property is not family property, that the marriage was not arranged or performed with his consent and that, in any event, the cjaman of an Aliyasanthana family is not bound in law to contribute for the marriage expenses of a junior member. The Lower Courts overruled all these pleas. As regards the want of consent alleged by the ejman, it is conceded for the appellant that the Lower Courts should be deemed to have found that the cjaman"withheld his consent for the marriage perversely and on no justifiable grounds. In these circumstances, Mr. Sitharama Rao argues that the Lower Court's decree is contrary to law because (1) the law does not recognise the union between a man and woman following the Aliyasanthana law as a valid and binding marriage and (2) this item of expenses should not on any account be included within the rule making maintenance a proper charge on the revenue of the family. The important question lor our decision is whether the plaintiff, a junior member of an Aliyasanthana family, is entitled to claim his marriage expenses from the ejaman of the family.

(2.) The Aliyasanthana system is very similar in its incidents to the Marumakkathayam law see Subbu Hegadi V/s. Tongu (1869) 4 MHCR 196 and Muthu Amma V/s. Gopalan (1912) ILR 36 Mad 593: 23 MLJ 496 A karnavan in Malabar is the senior male member of a group of persons, all of them tracing their descent in the female line from a common female ancestor owning joint property under the absolute control and management of the karnavan. This group forms a Marumakkathayam tarwad see Kenath Puthen Vinil Shuppu Menon V/s. Narayanan (1904) ILR 28 Mad 182 at p 188: 14 MLJ 415 The powers and rights of the karnavan, who corresponds to the ejman of the Aliyasanthana family, have been laid down in various decisions of this Court. Large and absolute though his powers be over the administration of the tarwad property and its funds, the regulation of the tarwad's internal economy, and the protection, control and supervision of the junior members, it should never be forgotten that the tarwad property in his possession is not exclusively his own, but he owns it along with the other members only as a co-proprietor. As observed in Narayani V/s. Gobinda (1884) ILR Mad 352 "although as a senior member he enjoys special consideration, he has no higher claim in the enjoyment of the income than any other member of the family." The right of ownership is of overwhelming importance to the junior members as it clothes them with very valuable rights which they can enforce against the karnavan. The status of a member of a Malabar tarwad carries with it four distinct rights, viz., (r) a right to be maintained by the karnavan, (2) a right to see that tarwad property is not alienated otherwise than in accordance with law, (3) a right to become the tarwad karnavan, when he becomes the senior male member, and (4) a right to a share if a partition were made and the tarwad broken up by common consent Moidin Kuthi V/s. Krishnan(1887) ILR 10 Mad 322 I bray an K.anhi V/s. Komamutti Koya (1892) ILR 15 Mad 801: 2 MLJ 255 and Muthu Amma V/s. Gopalan (1912) ILR 36 Mad 593: 23 MLJ 496 To these might be added another right, viz-,. a right to bar an adoption Chandu V/s. Subbu (1889) ILR 13 Mad 209 Of these rights obviously the most substantial one is the right to "maintenance," as such a right is the mode in which the right of ownership in the tarwad property is most effectively enforced by the junior members. The value of such a right in the case of persons living under a system of law which does not sanction compulsory partition, nor recognises son's claims against the father cannot be overestimated. The nature of this right has been thus described by Seshagiri Aiyar and Bake-wfcll, } J., in Ammani Amma V/s. Padmanabha Menon (1912) ILR 41 Mad 593: 35 MLJ 509 "The allowance claimed by an anandravan of a Malabar Tarwad or by a junior member of a joint Hindu family is not as a dependent upon the owner of the property, but as one who, in his own right, is entitled to participate in the income. The common law in both cases having vested the management in the senior member, the claim tor separate maintenance is an index of proprietorship and not founded upon moral or quasi-legal obligations or inability to maintain himself or herself. It is clear that the right of a member of a tarwad for an allowance is an incident of co-proprietorship in the property of the tarwad and that consequently that right cannot be denied unless circumstances show that the tarwad is not in a position to give a separate allowance." See Achutan Nair v., Kunjunni Nair ; Maradevi V/s. Pammakka (1911) ILR 36 Mad 1075: 35 MLJ 509; Kunhikrishna Menan Karnavan V/s. Kunhikav Animal (1918) 35 MLJ 499 and Gavindan Nair V/s. Kunjn N air (1919) ILR 42 Mad 686: 36 MLJ 565.

(3.) The term "maintenance," as has been pointed out, is often loosely applied. In its limited sense, as understood in Malabar, it means the expenses required for food, raiment and oil; in its more comprehensive sense, it includes what is usually called in Malayalam "rnenchilavu," which is treated as a part of maintenance see Govindan\ Nair V/s. Kunju Nair (1919) ILR 42 Mad 686: 36 MLJ 565. According to Sundara Aiyar, J., the word "menchilavu" is used to designate a part of what is required for the support of a person and is distinguished from what is strictly necessary tor food and raiment. Legally it may be taken to mean part of what would be included in the terms "maintenance" and "necessaries." Sadasiva Aiyar, J., states that "the literal meaning (of the term "menchilavu") seems to be excess expenditure. " 1 take it that it means that it is usually allowed beyond what is strictly required for food and clothing alone. Under the expression, therefore, come the sums which are required for keeping up a respectable appearance consistent with the position and dignity of the family to which a person belongs, sums required for a reasonable amount of travelling to holy places in the case of a member of an aristocratic family, etc., for slight convenience and comforts, which though they might be called luxuries when indulged in by a low class individual, would come under the head of "necessaries" in the case of persons belonging to families which cannot be classed with the lower sections of the community." See Valia Konikkal Edamkelu V/s. Lakshmi Nettyar Ammal (1913) MWN 379 In Ravanni Achan V/s. Thankunni (1919) ILR Mad 789: 37 MLJ 157 Phillips, J., described "menchilavu" as "a luxurious form of maintenance as distinguished from bare maintenance" and stated that the claim to both must be treated as based on the same footing." Cotitts Trotter. J., as he then was, and Kumaraswami Sastri, J., observe that "menchilavu" which has been translated as "maintenance" is said to be indistinguishable from maintenance of the members of a Hindu family." S.A. Nos. 2556 and 2557 of 1912. The loose application of the word, as pointed out above, is due to the fact that the English word "maintenance" is not, strictly speaking, a correct equivalent of the Maiayalam word "chilavu" of which it is generally understood to be a translation. The term means "expenses" and is comprehensive in its significance. The right to maintenance is the right to claim one's "expenses" which obviously must be of various kinds.