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TMI Blog1939 (11) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... ard by Wadsworth, J., who concurred in the decision of the Subordinate Judge. The appellants' parents accepted the decision of the District Munsif and therefore are not parties to this appeal. 2. The parties are Tiyyas of South Malabar and it is common ground that the questions arising in the appeal have to be decided according to the ordinary rules of Hindu law. Wadsworth, J., was of the opinion that a major coparcener can never sue for maintenance. When maintenance is denied him his only remedy, he said, is to sue for partition. With regard to a minor coparcener the learned Judge was of the opinion that a suit for maintenance might be filed, provided that he asked in the alternative for a decree for partition. It was for the Court to decide whether the appropriate relief was a decree for maintenance or a decree for partition. The learned Judge considered that the daughter of a coparcener, like her father, can never maintain a suit for maintenance against the manager of the family. He said that her only remedy is to bring a suit against her father and claim maintenance out of his properties, joint and separate. Having obtained a decree she would be in a position to sell her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayappa Cheiti v. Natarajan (1931) 61 M.L.J. 522 : L.R. 58 IndAp 402 : I.L.R. 55 Mad. 1 . The question there was whether an illegitimate son of a Sudra was entitled as a member of the family to maintenance out of the joint family property in the hands of the collaterals with whom his father was joint. Sir Dinshaw Mullah in delivering the judgment of the Board, pointed out: That the illegitimate son of a Sudra by a continuous concubine is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son; and that where the father has left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but he is entitled as a member of the family to maintenance out of that property. 6. It is here emphasised that the share of inheritance is not given in substitution of a right to maintenance. As there is1 a right to maintenance there must be an appropriate remedy when that right is denied. To say that the member of a joint family to whom maintenance has been denied shall cause the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21) I.L.R. 46 Bom. 435 had reference to a family owning a partible estate. The plaintiff was a minor member of the family, but his father was alive and therefore under the Hindu law as administered in the Bombay Presidency he could not file a suit for partition without the consent of his father. It was held that in such circumstances he was entitled to sue for maintenance because he was in the same position as if the estate were impartible. As the Bombay decisions proceed on the basis that the right to maintenance is given in lieu of a right to share a position which has never been accepted in this Presidency they cannot be accepted as correctly stating the law in Madras. 8. If a major coparcener is entitled to sue for maintenance, and I hold that he is, the right cannot be denied to a minor coparcener and there appears to me to be no support at all for the view that if he does happen to sue for maintenance he must couple with the prayer for that relief a prayer for partition. 9. The statement that a daughter cannot sue the manager of the family, but must proceed against her own father is also unsupported by authority. On the contrary, there is the Full Bench decision of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Ayyangar, J. 12. I am of the same opinion but shall add a few words on certain aspects of the question argued before us. The judgment of Wadsworth, J., when analysed seems to be based upon two propositions : (i) that the right of a member to maintenance out of the joint family assets is only to be recognised where he has no right to enforce partition, and (ii) that the right of an unmarried minor daughter in a joint family to be maintained till marriage is enforceable only against the father and not against the joint family as a whole. The soundness of these propositions is open to question, as there seems to be nothing either in the texts or in the principles of Hindu law to lend support to either of them. 13. The learned Judge has referred in support of his decision to the statement of law contained in Mayne and in Mullah (see Mayne's Hindu Law, 10th Edition, page 826; Mullah's 8th Edition, page 582). While recognizing that these statements reflect the view taken in Bombay he accepted them as equally applicable to Madras, as the proposition is found stated in general terms and no Madras authority to the contrary was cited before him. He did not notice the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sakharam Vagh v. Sakharam Gopal Vagh (1877) I.L.R. 2 Bom. 346 was a case in which the father was found to be in possession of impartible property, but not of any property in which the son could claim a share. Melvill, J., observed that as a general rule perhaps, a Hindu is not bound to support a grown up son, but held that the liability existed when the family estate is impartible. Pinhey, J., agreed, but doubted whether it is good Hindu law to say that an adult son in an undivided Hindu family, who is suffering from no disability recognised by that law, can claim a separate maintenance from his father. In the later decision of the Bombay High Court, Bhupal v. Tavanappa (1921) I.L.R. 46 Bom. 435, the son sued for separate maintenance, as a coparcener in a family consisting of the father, uncle, cousin and step-brother, and owning joint family property which was partible. He could not however on the view of the law as accepted in that Presidency, enforce a partition against a father when the father was joint in estate with his own ancestor or his collaterals and against his consent. Right to partition not existing, the son was held, on the principle of the earlier decisions, entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is de facto accomplished these same persons (junior members) have a right to maintenance. 19. The meaning of this statement is sufficiently explicit. The junior members are entitled to maintenance until partition out of the common property where that property is ordinary partible property. The right will cease the moment a partition takes place, for thereafter there is no common property. It will continue to subsist so long as partition does not take place, and in the case of impartible property it is incapable of being terminated. The effect of the texts on the subject is correctly stated in Mayne's Hindu Law, page 821, in the following passage: The head of the undivided family is bound to maintain its members, their wives and their children; to perform their ceremonies and defray the expenses of their marriages. 20. Membership in the family, and the existence of joint property are the only conditions to which the right is subject. The third head of claim is based on the text of Yagnavalkya, which imposes a personal disqualification by reason of some defect, such as blindness, impotency, etc. (Yagnavalkya, II, 140-142.) The defect operates to exclude the sufferer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following observations: On the consideration of the texts and the cases on the subject their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, as in the present case, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but he is entitled as a member of the family to maintenance out of that property. (The italics are mine.) 22. In the Full Bench decision of this Court in Subbayya v. Anantaramayya (1928) 57 M.L.J. 826 : I.L.R. 53 Mad. 84 (F.B.), the basis of the right of a daughter to maintenance out of the family property was examined, and it was again clearly laid down that the obligation was not personal to the father who was along with others a member of the family but that the obligation lay upon the family as a whole, that is to say, against the family property. The texts and the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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