This Revision Petition arises out of a maintenance order passed by the lower Court in a partition suit. The suit was brought by two minors with their mother as guardian for partition against their father being members of a joint family. The written statement admitted that the plaintiffs were 1st defendant's children and also admitted that the property was joint family property.
It is necessary in order to understand the order to see the circumstances under which it was passed. The suit was filed in July 1932 and the first issue was whether it is maintainable, the 1st defendant contending that it was not in the interests of the minors to have a partition. It is admitted that the plaintiffs left their father as long ago as 1928 with their mother and the 1st defendant's allegation is that the mother is an unchaste woman. From that date up to now the 1st defendant has made no attempt to get back the minors for himself and apparently he has married another wife. Under these circumstances when the suit had been dragging on for a year, a petition was put in under S. 151 Civil Procedure Code to direct the 1st defendant to deposit into Court Rs. 45 every month by way of maintenance for the plaintiffs and their mother. The income of the estate was there said to be Rs. 1,000 and there was no denial of the estimate. But in the counter the 1st defendant professed his willingness to take the minors and maintain them if they went to him. The order of the lower Court is very brief and I shall quote it in full:
“It is necessary that the minor plaintiffs should be maintained which is not done by their father, the first defendant. They are admittedly entitled to two-thirds share in the family properties. What are the family properties may have to be determined in the suit. But there can be no question of the father's duty to maintain his minor children irrespective of any property. I therefore fix Rs. 25 per mensem for their maintenance which shall be paid into Court from this month.”
It is against this order that this Revision Petition is filed.
Although the petition asked for maintenance for the mother also, the order does not award her any maintenance. It would appear however that in the decree she has been included. The decree is not one of the matters which I am asked to revise and it is admitted for the counter-petitioners that it is a clerical error. So far as the mother goes, she would not be entitled to maintenance in this suit. The proper course is to ask the lower Court to amend the decree so as to be in consonance with the order.
The first objection that is raised to the order under revision is that no such order could be passed until the preliminary issue as to the maintainability of the suit is determined and that if the father was mismanaging the estate the remedy was to get a Receiver appointed. With regard to the latter there was no allegation that the father was mismanaging the estate and consequently there was no ground for appointing a Receiver. The application was therefore made and ordered under S. 151 Civil Procedure Code. There is no question that if the right of the sons to partition is denied, their claim for maintenance from the family property must be admitted. The only question is as to the power of the Court to pass such an order whether before or after the determination of the first issue.
There is no express provision as far as I know which definitely empowers the Court to pass such an order even after the decision that the suit is maintainable. But the question remains whether the order is not one which could be passed ex debito justitiae. That the father is not maintaining the minors is a fact which cannot be denied. He has not been doing so for four years before the suit and has apparently taken no interest in their existence. He has allowed them to remain with their mother whom he alleged to be unchaste. Under the circumstances the Court had to consider how far he is serious in coming forward for the first time in answer to this petition and saying that he would maintain them if they would live with him.
None of the cases quoted on either side are directly in point. For the petitioner is quoted 33 L.W (short notes) 24, a decision of Jackson J. But in that case the petitioners were adults and the defendant's allegation was that the properties alleged to be joint family properties were his self-acquisitions. If that contention were correct, the petitioners would not be entitled to maintenance being majors, though they would have been entitled to it if they were minors. As regards Gopal Saran Narayan Singh v. Sita Debi (1), maintenance was refused expressly on the ground that the suit was one brought on a contract the liability under which was quite independent of the plaintiffs relationship or her right to maintenance. A perusal of a case quoted for the counter-petitioner, Ayyavu Muppanar v. Niladatchi Ammal (2), shows that it does not really touch the question in issue here. As regards 46 Bom. 435, Bhupal v. Tavanappa (3), that was a suit for maintenance itself and not a suit for partition.
On principles of natural justice the minor plaintiffs, who are admittedly entitled to maintenance should not be allowed to starve while their partition suit is going on, and I am not prepared to say that the order allowing the maintenance is not within the jurisdiction of the Court under S. 151, Civil Procedure Code. As regards the amount allowed, the allegation was that the income was Rs. 1,000 a year and there was no reply. There was therefore no further evidence needed about it, and to the petitioners who are admittedly entitled to two thirds of the family property Rs. 25 per mensem for maintenance is not therefore excessive.
It was suggested before me that the defendants had asked that the preliminary issue should be taken up first and tried. I have perused the case diary. There is nothing in it to suggest that such a thing happened. On the other hand the delay in the disposal of the case was largely due to the defendants' default. The trial was first fixed for 5th October 1933 on which date the defendants were not ready. On the next adjournment, 7th November, 1933, neither side was ready and on 15th December, 1933 it was again the defendants who were not ready. On 25th January, 1934 neither side was ready. Therefore two adjournments in this case were entirely due to the defendants not being ready.
The lower Court might no doubt have stated the reasons for the order more fully but it is not the failure to state the reasons but want of jurisdiction or the irregular exercise of it that gives the ground for revision. Even if my view of the law is wrong, I do not think this is a case in which the interests of justice demand that the order of the lower Court should be revised.
The Revision Petition is therefore dismissed with costs.
N. R. R.Petition dismissed.