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TMI Blog1900 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... llant, the defendant in the lower Court, is the eldest son of Ankinidhu, late zemindar of Challapalli, who died on April 6, 1875, leaving three sons, namely, the defendant and the two plaintiffs. Not long after their father's death quarrels arose between the brothers, and in April, 1880, one of the younger brothers brought an action for partition against the present appellant in the District Court of Kistna. That Court decided that the zemindary estate was impartible, but awarded to the then plaintiff one-third of certain property, not forming part of the zemindary estate. That judgment was reversed by the High Court of Madras, but, on appeal to Her Majesty in Council, the judgment of the High Court was reversed on May 1, 1890, and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the arrears were not claimable, except a certain sum actually received by the plaintiffs under a previous order of the High Court, and they reduced the amount of arrears from ₹ 56,000 to ₹ 23,000. As to the question whether the maintenance decreed should be a charge upon the whole of the zemindary, they say: We think that the zemindar is justified in objecting to the decree as framed by the District Judge, inasmuch as it fetters him unnecessarily in the disposition of his property. It is sufficient that the decree should make the maintenance chargeable on certain villages. The defendant now appeals against the judgment of the High Court in so far as it allows any maintenance at all while, on the other hand, the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that period at all events they should receive the amount awarded to them. Among their reasons for the view that arrears of maintenance are not claimable, the learned judges of the High Court state the following: The District Judge has granted arrears at the rate of ₹ 500 per mensem for twelve years prior to the institution of the suit. In this we think he was wrong. The right to maintenance is primarily a right to be maintained out of the current income of the property in the enjoyment of the party chargeable. The circumstance, however, that a person entitled to maintenance has not in fact been maintained by the person chargeable does not necessarily give him a right of action for arrears. On proof of failure to maintain, without m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only evidence of a wrongful withholding of maintenance which, as observed by the Privy Council in Ind. L.R. 3 Bomb. 421, is the ground of liability--the Subordinate Judge has also found in this case that demands were made but not complied with since 1876. The case before this Board to which reference was made in the case last cited was decided in 1879. Three questions were raised before their Lordships, namely, whether the suit of the plaintiff, a Hindu widow, for maintenance and arrears under a will is barred by limitation on the expiration of twelve years from the testator's death, whether she had disentitled herself to maintenance by living apart from the son, and whether the suit could be maintained notwithstanding that there had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible to decide whether such prima facie proof has been rebutted. The only case which might appear to conflict with this view is that of Motilal Prannath v. Bai Kashi. Ind. L.R. 17 Bomb. 15 In that case the learned judges of the High Court of Bombay admitted that a withholding of maintenance might be proved otherwise than by a demand or refusal, and if they intended moreover to decide that non-payment of maintenance when due does not constitute prima facie proof of such withholding, their Lordships are unable to agree with the decision. In the present case it is said that the claim for maintenance is inconsistent with the claim for partition in the previous action, and in one sense this may be true, but it by no means follows that the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff to set up and prove any custom entitling him to maintenance, and that he has not done so (5.) the High Court erred in thinking that there was any admission by the defendant of his liability for maintenance; (10.) the amount of maintenance awarded is excessive. After these objections, and in view of the strained relations between the brothers ever since their father's death, it is impossible to believe that the defendant would have paid maintenance at the rate of ₹ 750 per month, or at any other rate, if it had been demanded from him in the first instance. He does not allege in his defence, nor is there any evidence, that he was in any way prejudiced by the form of the previous action. It may well be that, if he had been misl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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