Sadasiva Aiyar, J.:— The karnavan and the senior anandravan of the defendant's tarwad are the appellants before us. The plaintiffs are a Nair lady and her children who are members of the defendants' tarwad. The plaintiffs sued for arrears of maintenance. The defence was that, as the plaintiffs were living away from the tarwad house, though under the protection of plaintiff 1's husband, they are not under the Marumakkatayam law entitled to claim separate maintenance. The lower appellate Court overruled this plea and hence the second appeal. The learned District Judge has thus summarized the law:
“A junior member is entitled to maintenance in the tarwad house, or, if be of she show good reason for living away from it outside the tarwad house. That is the substantive rule, and various adjective reasons have been grouped round it, such as insufficient accommodation or family quarrels. No special sanctity attaches to these reasons apart from the rule and as observed in Maravadi v. Pammakar(1) the list of good reasons is not yet exhausted. The latest is that to be found in Vellathumlcara Muthu Amma v. Vellathumlcara Gopalm(2), which is pertinent to the present case and where it is ruled that a good reason of absence for a wife who claims maintenance is living with her husband. The absurdity of attaching sanctity to old reasons, and caviling at new would be plain if one imagined a woman denied her maintenance under Vellathumkara Muthu Amma v. Yellithumkara Gopalan, for making a home for her husband, but obtaining it under Peru Nayar v. Ayyippan Nayar(3), by a subsequent quarrel with her uncle.”
2. Dr. Pandalai, the learned counsel for the appellants, contended, (a) that though a female member's living with her husband might be a proper reason for her living away from the tarwad house her right to claim separate maintenance is nevertheless subject to the condition that the husband is unable to maintain her and her children; (b) that though in North Malabar living with the husband might be a proper reason for living away from the tarwad house and claiming separate maintenance it was not so in South Malabar where the defendant's tarwad is situate; (c) that plaintiff 1 must, by living with her husband who is well able to support her be deemed to have waived when she so went to live with her husband all claims for maintenance against her tarwad, at least during the period of her residence with her husband.
3. (Though there are as many as 17 grounds entered in the memorandum of second appeal they are either repetitions of the above 3 contentions or relate to contentions not argued before us). In Maravadi v. Pammakkar decided by Sundarier and Spencer, JJ., it is said:
“According to the aliyasanthana system which is very similar in its incidents to the Marnmakkathayam law, as no member is entitled to enforce partition of the family property which belongs to all the members, every junior member is entitled to be maintained by the karnavan…. The income belongs to all and all are entitled to participate in the benefit of it…. Each member of the tarwad has a right to be maintained and suffers a personal wrong if that right is not accorded to him. The light is not confined to cases where a member has no means of his own; because by virtue of his ownership in the tarwad property he is entitled to participate in its income. A suit for maintenance by a junior member of a Marumakkatbayam or Aliyasanthana family falls under Article 127, Lim. Act, (a suit to enforce the right to share in the joint family property) and not under Article 129, which applies to suits which are strictly for a right to maintenance which a person has over property belonging to another.”
4. The general result of the decided case is, in our opinion, that in order that a member of a Marumakkathayam or Aliyasanthana tarwad maybe entitled to separate maintenance, he or she should be able to allege some good ground for doing so. It would be unwise to hold that the decisions up to date have exhausted the list of good grounds which may be urged. It is recognized practice in South Kanara for a woman and her minor children to live with her husband. It is a common practice in North Malabar and it is a growing practice in South Malabar: see Parvathi v. Kamaran Nayar(4). The interest of social improvement would be against discouraging such a practice. There is no principle in the Marumakkathayam or Aliyasanthana law requiring that it should be discouraged. We are not bound to shut our eyes to the fact that families governed by this system of law are often numerous and consist of persons related in every different degrees of kindred and no social or economical service is done by compelling them all to reside in one house where they have good grounds for not doing so. Several cases have come to this Court which show that in the houses of rajahs and other well to-do tarwads is it the rule to allow separate maintenance. In Vellathumkara Muthu Amma v. Vellathumlcara Gopalan Sundara Aiyar, J., and myself (the judgment was pronounced by Sundara Aiyar, J., whose authority on questions of Malabar law is deservedly, if I may say so, very high) expressed the opinion that the desirability of living with one's husband is a good cause for a lady to live away from the tarwad house, “it was argued there” that is in Maravadi v. Pammakkar:
“that custom was against it. The answer given was that the custom of all members of a tarwad living together is only a social custom. Some social customs may change without affecting the legal rights of parties. All members of a tarwad are entitled to the tarwad property and are entitled to the benefit of that property. The only way in which a junior member can receive benefit out of the tarwad property is by receiving maintenance. No decided case has been brought to our notice where it was held that a woman would not be quiting her tarwad house for a proper purpose when she does so in order to reside with her husband. As far as we are aware it is not considered improper. On the other band it is considered honorable that a wife should live with her husband if asked to do so. The members of the tarwad also consider it honorable both to themselves and to the lady who is asked by her husband to live with him that she should comply with his wishes. Perhaps it should be added that an exception should be made in the case of some aristocratic families who consider their own social position so high that it would be derogatory to their ladies to quit their for wads to live with their husbands, at any rate in a case where the husband is not of an equally high rank. The general rule however is, as we have stated it, we cannot therefore regard that living with one's husband is a good ground for a woman governed by the Marumakathayam law being compelled to forfeit her right to maintenance while she lives away from the tarwad house.”
5. In a more recent case, Manikkath mmini Ammal v. Nanikkath Padmanabha Menon(5), decided in April 1917, just a year ago Seshagiri Aiyar and Bakewell, JJ., observe as follows:
“The expression ‘maintenance, is loosely applied to this class of cases. 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 claim for separate allowance is an indicia of proprietorship and not founded upon moral or quasi legal obligations or on inability to maintain himself or herself…. The possession of separate property should not be taken into account in considering whether a member of the tarwad was entitled to separate allowance. [Putanvitil Teyan Nair v. Putanvitil Ragavan Nair(6)] In Aehutan Nair v. Kunjuni Nair(7) it was distinctly stated that the right to an allowance should be based on the right of co-ownership of property.”
6. Then the learned Judges referred to Maravadi v. Pammakkar, Naku Ammu v. Eaghava Menon(8) and Chakkara Kannan v. Kitnhi Pokker(9), in support of their opinion 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 could not be denied unless the junior member lives separately for a purpose which is not proper his claim being of the character of a proprietary right to a share in the income. Dr. Pandalai argued that these decisions went beyond the law as laid down in certain earlier Madras decisions which based the right to maintenance itself not on co-proprietorship, but on the fact of the residence in the tarwad family house and merely dispensed with that condition as to residence in exceptional cases. I do not think that we should be justified in entering into a discussion at present as to whether Maravadi v. Pammakkar which elaborately discusses the earlier decisions stated the result of those decisions with meticulous accuracy. Whether it is North Malabar or South Malabar or the district where Aliyasanthana prevails, the reasons are alleged by the claimant for her separate maintenance where proper reasons are alleged by the claimant for her not living in the tarwad house itself are all clearly applicable. If there is a custom prevailing in South Malabarj that notwithstanding this general rule based upon the broad principles of the Marumakathayam law a junior member living for the proper purpose of residing with her husband is not entitled to separate maintenance, such a special custom, ought to be proved by the party setting it up.
7. The evidence on the defendant's side in this case consisting mostly of statements by the karnavans of several aristocratic families is merely to the effect that in their opinion, a female member whose husband is in a position to support her ought not to claim separate maintenance and that no person in such a position has to their knowledge, claimed it. Such negative evidence given by such gentlemen is of very little value. If several instances are given where after demands made in such cases, maintenance was refused and the claimants acquiesced in the refusal or the claimants were unsuccessful when they brought such rejected claims before the Courts, such evidence will no doubt prove the alleged custom in derogation of the claim which is prima facie a perfectly legitimate claim according to the principles of the Marumakataayam law. (I assume of course without deciding that the custom, if established, would not be immoral or opposed to public policy). In the result, I think that the contentions put forward with such ability and strenuousness by the Counsel on behalf of the appellants are not sustainable and I would dismiss the second appeal with costs.
Ayling, J.:— I agree and have little to add. I was at first inclined to accept the contention that the lady's right to be maintained out of the tarwad property while living with her husband was conditional on the latter being unable, to maintain her. But it is impossible to do so in the face of the decisions in Putanvitil Teyan Nair v. Putanvitil Ragavan Nair and Thayu v. Shunguni(10) and the recent unreported case referred to by my learned brother [Manikhath Ammini Ammal v. Manikhath Padmanabha Menon. The only possible defence to the suit (that of waiver) has been found against by both the lower Courts, I therefore agree that the appeal must be dismissed with costs.
S.N/R.K
8. Appeal dismissed.