Posted On by &filed under High Court, Madras High Court.

Madras High Court
Yandru Veeranna And Anr. vs Yandru Sitamma And Anr. on 27 August, 1926
Equivalent citations: AIR 1927 Mad 83
Author: Devadoss


Devadoss, J.

1. The first point raised in this Second Appeal is that the share of the son of the plaintiff alone is chargeable with plaintiff’s maintenance and the shares of her stepsons are not so chargeable as there was a bona fide division after the death of the defendant’s father, and reliance is placed upon Hemangini Dasi v. Kundu Chowdry [1889] 16 Cal. 758 for the contention. That case was under the Dayabaga Law and so far as our High Court is concerned we have a series of decisions to the effect that the share of all the sons is liable for the maintenance of the mother. If the sons divide the family property after the death of the father they must make provision for the maintenance of the mother and for the maintenance of any widows of the family. If they do not do so the question is not whether there was a bona fide division of the property or not but what provision should be made for the maintenance of the mother and the widows in the family. The whole of the family proparty would be liable for the maintenance of the mother and the other widows. Therefore there is nothing in this contention.

2. Then the next contention is that Defendants 2 and 3, who are the stepsons of the plaintiff, should be held liable to pay 2/3rds of the maintenance decreed to the plaintiff and their property should be charged only with 2/3rds of the maintenance. This again is not a tenable position; for all the family property is liable for the maintenance of the plaintiff.

3. The next contention is that only the ancestral property of the appellants (Defendants 2 and 3) should be charged with the maintenance of the plaintiff and not their self-acquisition. This point ought to have been raised specifically before the trial Court and an issue ought to have been taken there so that the plaintiff might meet the case put forward by the defendants. They did not take the trouble to raise an issue on the point and in the appellate Court they filed an affidavit and asked permission to raise it. I do not think they can be allowed to do so in the appellate Court, it being a question of fact. In the result the Second Appeal fails and is dismissed with costs of the 1st respondent.

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