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Madras High Court
Sri Raja Row Venkata Mahipathy … vs Sri Raja Venkata Mahipathy Surya … on 19 March, 1915
Equivalent citations: (1915) 28 MLJ 624
Author: S Nair


JUDGMENT

Sankaran Nair, J.

1. These are appeals from the decree of the Subordinate Judge, Rajahmundry, directing the defendant the Rajah of Pittapur to pay to the plaintiff the sum of Rs. 46,250 for maintenance.

2. The Zemindary of Pittapur is an impartible estate descending by lineal primogeniture but otherwise governed by the Mitakshara law. The plaintiff’s father was adopted by the late Zamindar who died in the year 1890, having executed testamentary instruments disposing of all his properties in favour of the defendant who also claims to be the natural son of the testator. The late Rajah had previously entered into an agreement with the plaintiff’s father in 1882 whereby he had agreed to pay him Rs 1,500 per month and a lump sum of Rs. 6,000 a year. The will confirmed that arrangement. On the death of the Rajah the plaintiff’s father sued to recover the Zamindary denying that the defendant was the late Rajah’s natural son, and also, the validity of the will. But the suit was finally dismissed by the Judicial Committee on the ground that the will was valid.

3. The plaintiff claims maintenance from 1902 when he ceased to be maintained by his father. It will be noticed that the plaintiff does not admit that the defendant is a natural son of the late Rajah and that himself and the defendant are members of an undivided family.

4. The defendant contended that the plaintiff, a junior member of a family of the holder of an impartible Zamindary is not entitled to any maintenance from the holder, as the Zamindary is not joint property; that, if it is, on account of the agreement, Exhibit III and the will referred to and also on the ground that the plaintiff does not claim any maintenance as a member of his family, the suit must be dismissed.

5. The Subordinate Judge decided that the Zamindari must be treated as joint family property and the plaintiff has got therefore a legal right to be maintained out of the Zamindary. He was also of opinion that such right was independent of and not derived through the father.

6. On the second question, conceding that a Hindu father has the right to represent his descendants in obtaining a provision for himself and his posterity, the Subordinate Judge held that Exhibit III was not an arrangement which was intended to include the allowance due to the plaintiff also. He also held that even if the arrangement under Exhibit III is held to enure to the benefit of the grantee during his life-time, it was not intended to include within its scope all the descendants of the plaintiff’s father even during that limited period. As to the rate of maintenance, he held that Rs, 250 per month plus Rs, 50, for house rent would be a ” reasonable and respectable provision, and he accordingly awarded arrears of maintenance at the rate of Rs. 3,000 per annum from August 1904 when the demand was made, up to the date of suit. From this decree both parties appeal.

7. The learned pleader for, the Rajah of Pittapur intimated that though he does not propose to argue before us that the junior member of a Mitakshara family is not entitled to maintenance from an impartible Zamindary in the possession of a member of the family, in view of certain decisions of this Court he reserves his right to argue that question if this case is carried before a higher Court.

8. We agree with the Lower Court that the arrangement made by the late Raja was not a provision for the mainten ance of the plaintiff’s father and all his descendants. There is nothing to show that the grantee obtained Exhibit III as the head of his branch on behalf of himself and his decendants. There is no reference therein to the heirs or descendants of the grantee. There are no doubt cases where grants have been made making a permanent provision for the maintenance of the grantee and his descendants. See Narayana Ananga v. Madhawa Deo (1892) I.L.R. 16 M. 268 Salur Zamindar v. Pedda Pahir Raju (1881) I.L.R. 4 M. 371 and Sri Raja Rau Venkata Mahipati Surya Rau v. Sri Raja Rau Chellayammi Garu (1893) I.L.R. 17 M. 150. But in all those instances either the language was unambiguous or there existed a course of conduct that is enjoyment by a branch for a very long time, which clearly indicaed such an intention. Prima facie a provision for maintenance by way of money allowance is temporary. In this case the grantee was the presumptive heir. The plaintiff was not born at that time. No intention can therefore be presumed to make a provision for the grantee and his descendants. This point is not seriously urged in appeal.

9. The next question is whether the arrangement and the will bar the plaintiff’s claim. Even if it is not a permanent provision it was argued that the arrangement is intended to enure for the life-time of the plaintiff’s father and that during that period the plaintiff is not entitled to claim any separate maintenance as provision was also made for him in Exhibit III. It is true that when the arrangement was entered into between the plaintiff’s father and the late Raja, in fixing the amount payable to him, the fact that the plaintiff’s father had also to maintain the plaintiff and his brother who had been born before the date of that* arrangement must have been taken into consideration and the amount must have been settled accordingly. But if the plaintiff is entitled to claim maintenance from the Raja the amount would naturally vary from time to time. He would, after his marriage in 1504 require a higher amount than in 1882, the date of the agreement.

10. Exhibit III, as we have already pointed out, does not describe the plaintiff’s father either as the managing member of his branch or as the guardian of his children then in existence. In certain cases that the father represented his branch or his sons may be presumed, but this is not one of such cases. Neither the plaintiff nor his brother are referred to in the document. It may be open to the defendants to modify the agreement Exhibit III if he has to pay separate maintenance to the plaintiff. But the question cannot affect the plaintiff’s right. We disallow this contention.

11. It was then argued that the plaintiff is only entitled to maintenance from the joint family estate and as according to the plaintiff’s claim he and the defendant are not members of a joint family he is not entitled to any maintenance out of the estate in the hands of the defendant.

12. Before the decision of the Judicial Committee in Sartaj Kuari v. Deoraj Kuari (1887) I.L.R. 10 A. 272 the junior members were held entitled to maintenance on the ground that the impartible Zemindary was a joint family estate like any other partible estate in which they had co-parcenary interest, with the single exception that it could be held only by one member of the family on account, of the impartible character of the holding. Joint family property and co-parcenary property were assumed to be the same under the Mitakshara law. In Sartaj Kauri v. Deoraj Kauri (1887) I.L.R. 10 A. 272. it was held that the co-parcenary interest which is acquired, by a member of a joint family by birth under the Mitakshara law is so connected with the right to partition that it does not exist where there is no right to partition, and that community of interest therefore did not exist as partition could not be enforced. At the same time their Lordships stated, that for purposes of maintenance and succession the estate should be treated as joint family estate though there was no such interest in the property as. would entitle a member to object to an alienation by the holder for the time being. Subsequent to this decision, the question has been raised in this Court very often, whether the property is not for that reason the sole property of the Zamindar and the junior members can be said to have any interest in it so as to entitle them to any maintenance or on their succession to the Zamindary to deny their liability to pay the debts of their predecessor. The decisions upheld the rights of the junior member to maintenance. The ground of decision was that for this purpose they must be taken to be members of a joint family. In the Udayarpalayam case(1909) I.L.R. 24 M. 562 the High Court gave a decree for maintenance as the estate was found to be impartible and this decision was confirmed by the Judicial Committee though the question whether a junior member is entitled to any maintenance does not appear to have been argued before their Lordships. In all the cases decided by this Court or the Courts in India, in which the junior member’s claim for maintenance has been upheld, the right was held to exist on the ground that he was a member of a joint family. According to the plaintiff, the plaintiff and the defendants are not members of a joint family. The plaintiff is not, it is argued, therefore entitled to any maintenance out of the estate. It is argued on the other side that at the time of his birth he was the grandson of the then holder of the estate and his right to maintenance therefore cannot be defeated by an alienation subsequently made by that holder in favour of the defendant. Or in other words, it is urged that the sons of the plaintiff’s father born subsequent to the vesting of the Zamindary in the defendant may not be entitled to any maintenance out of the estate, but the plaintiff’s right subsists. If the plaintiff’s maintenance was a charge on the, estate, if he had any interest in the Zamindary before its alienation, then the plaintiff might be entitled to recover it. But the question is, if the plaintiff’s claim was only a right to recover maintenance from the holder for the time being, and his maintenance was not a charge on the estate though it may have to be paid out of the income of the estate and with reference to it, whether, then the plaintiff would be entitled to enforce it against the estate in the hands of an alienee who is not admitted by the plaintiff to belong to his family. Before the decision in Sartaj Kuari v. Deoraj Kuari (1887) I.L.R. 10 A. 272 the question could not arise. We have therefore to consider the grounds of that decision. In that case the High Court of Allahabad laid down the law in the following terms: “It must be conceded that the complete rights of ordinary co-parcenership in the other members of the family to the extent of joint enjoyment and the capacity to demand partition, are merged in or perhaps, to use a more correct term, subordinated to the title of the individual member to the incumbency of the estate, but the contingency of survivorship remains along with the rights to maintenance in a sufficiently substantial form to preserve for them a kind of dormant co-ownership” That is, the High Court decided that the right to maintenance was due to a kind of dormant co-ownership which is subordinate to the title of the individual member to hold the estate. This was the proposition which came before the Judicial Committee for consideration. Referring to the various cases in which an impartible Zamindary was treated by their Lordships in their previous decisions as common family property or joint family property, the Judicial Committee said that all such statements were only made with reference to the questions then in issue, that is the right of succession or right to maintenance, and they declared the law in these words: “This is a clear opinion that though an impartible estate may be, for some purposes, spoken of as joint family property, the co-parcenary in it which under the Mitakshara law is created by birth does not exist.’ It is quite clear that the plaintiff is not therefore a co-parceher. They further held that the property in the paternal or ancestral estate acquired by birth under the Mitakshara law is, in their Lordships’ opinion, so connected with a right to partition ” that it does not exist where there is no right to it,” Accordingly the plaintiff has not acquired any interest by birth. The right to maintenance therefore cannot be a right which arises out of the co-parcenary interest in the property or which arises out of any community of interest acquired by birth.

13. The property is, however, joint family property in the sense of the younger brother’s taking ” such rights and interests in respect of maintenance and possible rights of succession as belong to a junior member of a raja or other impartible estate descendible to a single heir.” If the impartible Zamindary is joint family property for purposes of maintenance, is not the right of maintenance which has been upheld by the decision of this Court evidence of community of interest? Their Lordships held otherwise. This appears to be clear from a reference to the Hunsapore case and the Dayabhaga law. Referring the case of Baboo Beer Pertab Sahee v. Maharajah Rajendar Pertab Sahee (1869) 12 M.I.A.L. their Lordships said that though the estate was governed by Mitakshara law and had descended by family usage and custom according to the rule of primogeniture subject to the burden of making allowances to the junior members of the family for maintenance, yet, the right to get maintenance was not evidence of any community of interest which the members of the family acquired by birth. With reference to the Dayabbaga law, they say : ” In Bengal there is joint family property, but where property is held by the father as its head, his issue have no legal claim upon him or the property except for their maintenance. He can dispose of it as he pleases and they cannot demand a partition. The sons have no ownership while the father is alive and free from defect. Upon his death, the property in the sons arises and with it a right to partition. Dayabaga Chapter I.” This shows that in the opinion of their Lordships property may be called joint family property, though the junior members may have no ownership in the same at all during the life-time of the holder for the time being. Their Lordships also point out that the father may alienate the property. The purchaser takes it without any obligation to maintain the sons. That their Lordships use the term Joint Family property in a peculiar sense, not in the ordinary acceptation of those words is not a reason for disregarding their opinion. That opinion was necessary to support the conclusion therein arrived at. A junior member of the family of the holder of an impartible Zamindary is therefore entitled to maintenance only as in a Dayabhaga family on account of his relationship and not on account of any interest in the property. The plaintiff does not advance any claim based on relationship. He refuses to admit any relationship. His claim cannot be sustained on that ground. As there was no community of interest, the property is not burdened with his claim in the hands of a donee. In this view the plaintiff’s claim fails. We reverse the decree and dismiss the suit with costs throughout.

Oldfiled, J.

14. I have had the advantage of reading my learned brother’s judgment and have nothing to add to it as regards Exhibit III and the effect on plaintiff’s claim of any settlement with his father. There remains the wider question whether that claim is sustainable by him in virtue of his posision as a junior member of the Pittapur family.

15. As set out in my learned brother’s judgment, plaintiff has for motives, which are easily intelligible, refused to rely on any relationship between himself and defendant, the present Zamindar. Defendant must therefore for the purpose of the case be regarded as an alienee of the estate, who acquired it after plaintiff’s birth. The questions in general terms are therefore whether (1) a junior member of a family has a right to maintenance from an impartible estate held by its head (2) that right is acquired at birth and runs with the estate after its transfer to a stranger.

16. The learned pleader for defendant reserved his right to argue the first of these questions elsewhere, if necessary, and confined himself to the second. I understand him by taking that course to have conceded provisionally that the junior member’s right existed, but to have admitted nothing as to sits nature or basis, which could involve its binding the estate in the hands of an alienee. Plaintiff supported his claim as founded in one. way only, on the validity of a proposition, which he contended for as settled law: That members of a joint family, whose property is impartible, are entitled to maintenance from that property, in whosoever hands, during their lives, because they cannot claim shares in it on division. It is not suggested that this proposition can be supported by any text. It, must then be justified either as endorsed by authority or on general principles.

17. Firstly as to authority there is no case dealing with a claim against an alienee. Nor in fact is there any, in which the claim against the head of a family was contested directly as founded on principle and the legal rights of junior members of the family in its property were discussed fully for this purpose. For in Maharana Shri Fatesangji v. Kuvar Harisangii (1894) I.L.R. 20 B. 181 though liability was disputed generally, attention appears to have been confined to the question of the special law applicable to the parties, and the general issue was dealt with shortly by reference to Muthusami v. Venkateswara 2 M.I.A. 203 and Himmatsing v. Ganapatsing (1873) 12 B.H.C.R. 124. In the first of these decisions the Privy Council was dealing with the case of an illegitimate son and remitted it for determination as to his right against the Zamindary property; the High Court thereon (Coomara Yettappa Naikar v. Venkateswara Yettia) 5 M.H.C.R. 405 treated that right as established by Chuoturya v. Sahub 7 M.I.A. 18 which simply recognised the right to maintenance of an illegitimate son; Naragunty v. Vengama 9 M.I.A. 66 which referred to the right only incidentally and Stree Yanumula Venkayamah v. Boochia (1870) 13 M.I.A. 383 to which further reference will be made. In the other decision referred to by the Bombay High Court, the plaintiff’s claim was no doubt allowed on a ground similar to that relied on here, but without comprehensive discussion on reference to the law, as now understood. In later cases and in this Presidency the right to maintenance has either not been denied on principle, the dispute being confined to its amount or its existence has been referred to merely incidentally to the discussion of the other characteristics of impartible estates, in particular their alienability. The Udayarpoliem case (1901) I.L.R. 24 M. 562; I.L.R. 28 M. 508 is an instance of the former description; and Zamindar of Karvetnagar v. Trustee of Tirumalai Tirupati etc., Devastanams (1908) I.L.R. 32 M. 429 10 of the latter; and the Hunsapore case (1867) 12 M.I.A. 1 of both. In these circumstances, although the proposition put forward by plaintiff may occasionally have, been more or less explicitly stated, it is not possible to hold that it has been sanctioned at any time by authority, Those occasional statements of it occur, it is to be observed, only in the judgments to the High Courts, the Privy Council having never committed itself to any more explicit statement than that contained in Stree Rajah Yanumula Venkayamah v. Stree Rajah Yanumula Boochia Vankondora (1868) 12 M.I.A. 333 at 339 where it is said regarding the character of an admitted grant that “these grants by way of maintenance are in the ordinary course of what is done by a person in the enjoyment of a Raj or impartible estate, in favour of the junior members of the family; who but for the impartiality of the Estate would be coparceners with him.” This clearly involves no decision that such grants originate in any principle of law and, an important point, not in custom or even benevolence, the last sentence merely supplying an explanation for them equally consistent with any of these origins. But is it possible that Judges in this country have been led to some extent; by this passage to make the more definite statements, on which plaintiff relies, and to credit the law in their obiter dicta with a symmetry, which authority has never recognized directly.

18. My learned brother has observed that the conception of impartible property and its incidents was altered by the decision in Sartaj Kuari v. Deoraj Kuari (1888) I.L.R. 10 A. 272 and I may add in this Presidency by the decision in the Pittapur case (1898) L.R. 25 I.A. 83. I concur with him in his conclusion that the right to maintenance does not arise from any co-parcenary interest in the property or any community of interest acquired by birth. As plaintiff’s proposition is in my opinion inadequately supported by authority prior to these decisions and as its correctness is negatived by them, it is unnecessary to discuss its merits at length. The contention is however in effect firstly that, because a junior member of a Mitakshara family cannot, when the property is impartible, derive advantage from his membership in the ordinary way, he is on that account entitled to derive it in another, not ordinarily authorised by Hindu law. It is next that he can do so by way of receipt of a maintenance, although the case in which a right to maintenance is recognised by the texts, are those of illegitimacy or other disqualification personal to the claimant and in no way depend on the nature of the property, Both positions seem to me open to question and I should in the absence of direct authority hesitate to adopt them.

19. In these circumstances plaintiff, having failed to show that he acquired a right to maintenance from the impartible estate by birth, must fail. I observe that his claim has been based on his membership of a Mitakshara family and his consequent acquisition of a right in its impartible property and could be dealt with only on that basis. It has not therefore been open to us to consider his claim as based on custom, either as regards the Pittapur Estate or impartible estates in general in this Presidency, although, if it had been put forward on the latter basis, the instance of recognition of the right to maintenance afforded by the reported decisions might have been important evidence in his favour. In the result, I concur in my learned brother’s judgment, dismissing the suit with costs.


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