V KRISHNAMACHARIAR Vs. CHELLAMAL

JUDGEMENT

(1.) The finding of the lower Court which has been especially attacked in this appeal is a finding that the defendant (appellant) mingled his earnings as Vakil with the income from the admitted joint family property and thereby must be deemed to have thrown his self acquisition into the common fund. Admittedly there was an income of at least Rs. 280 from the joint family property and this came into the defendant's hands on the death of his brother who was the husband of the first plaintiff. The main contention raised in appeal is that this income from the joint family property was insufficient for the mere maintenance of the defendant, his Wife, his mother and four children and that, therefore, he utilised other monies to provide such maintenance and it is argued that there can be no inference from that fact that he intended to make these other monies, or rather his self acquisition joint family property. This contention has been specifically negatived by the Privy Council in Rajanikanta Pal V/s. Jagamohan Pal 73 Ind. Cas. 252 : 50 C. 439 at p. 445 : A.I.R. 1923 P.C. 57 : 44 M.L.J. 561 : 32 M.L.T. 149 : 25 Bom. L.R. 683 : 37 C.L.J. 515 : (1923) M.W.N. 438 : 18 L.W. 384 : 27 C.W.N. 997 : 9 O. & A.L.R. 805 : 50 I.A. 173 (P.C.) where they say, "Indeed, the fact urged on behalf of the respondents that the joint family expenses exceeded all the property which, according to their contentions, was properly joint, in their Lordships opinion tells against the respondents instead of in their favour." That remark is equally applicable to the facts of the present case. It is contended that beyond the amount of money taken from the defendant's self-acquisition and spent on the joint family there is no inference that the rest of the self-acquisition was similarly treated. This is quite a possible state of affairs and it was open to the defendant to prove it by showing that he did not treat his two sources of income as one and that he treated his self- acquisition as a separate fund and the income from the family property as another separate fund. This he evidently did not do and he has not produced any accounts to show how he has dealt with the two funds in his hands. He says that he keeps no private accounts, but he must keep an account for his profession and even that might have been of some assistance in determining the manner in which the monies have been appropriated. He has admittedly mingled a portion of the one fund with the other thereby raising a presumption that he has treated the whole of that sum as joint family property, and that presumption must be carried furthar, in the absence of proof to the contrary, that the two funds which have been mingled were treated as bearing one characteristic, namely, that of joint family property. Many cases have been cited by the appellant, but they all embody the same principle that, where two separate funds are mixed, one being joint family property and the other separate property, the mingling makes them both joint family property. The facts of those cases are, no doubt, quite different from what we have before us, but the principle is the same all through. The lower Court's finding on this point must, therefore, be accepted.

(2.) The next question that is raised is in regard to arrears of maintenance, The first plaintiff has claimed just over eight years arrears of maintenance. She is legally entitled to do so, and in fact, Courts will not disallow the claim, unless abandonment or waiver is expressed or can be implied from the circumstances of the case. There is no plea in the present case that there has been abandonment and although it is curious that the first plaintiff should have kept quiet for so many years without suing for her maintenance, we have the evidence of P.W. No. 11 who is an uncle of the defendant that demands had been made from 1914 onwards but to avoid unpleasantness in the family no suit was filed. Finally the second plaintiff attained an age when she was about to be married and for this purpose the first plaintiff had not sufficient funds and has now come forward not only for her maintenance but also for an allowance for the marriage expenses. That is a very plausible explanation for her not suing earlier, and no waiver of her claim can be inferred from her conduct.

(3.) As regards the amount awarded, the Subordinate Judge has taken into consideration the first defendant's annual income, which he calculates at Rs. 1,000, excluding what he earns professionally and has fixed a maintenance of Rs. 30 per mensem for the mother and the daughter. Against this he has set the amount which the first plaintiff has been receiving as interest on an investment of Rs. 4,000. This sum of Rs. 4,000 is made up of Rs. 2,870 the price of the jewels Which formed her stridhanam property, and Rs. 1,700 her husband's provident fund money which he had evidently kept separate from the joint family estate. In making this deduction he has been decidedly generous to the defendant, and there is no reason to reduce the amount decreed for arrears.