Full Judgment Text
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PETITIONER:
KAVALAPPARA KOTTARATHIL KOCHUNNI alias MOOPIL NAIR
Vs.
RESPONDENT:
KAVALAPPARA KOTTARATHIL PARVATHI NETHIARalias VIJAYAM NETH
DATE OF JUDGMENT:
21/08/1969
BENCH:
ACT:
Custom-Impartible Estate-Marumakkathayam Law-Sthanee of
Kavalappara estate paying maintenance to junior members of
family-Payment whether based on custom-Opinio necessitatis
an essential element of Custom.
HEADNOTE:
Defendant No. 1 was the Sthanee of Kavalappara estate which
was an impartible estate governed by Marumakkathayam law.
The plaintiffs claimed maintenance based on a family
custom entitling the members to maintenance out of the
entire income of the Sthanam. Past maintenance was claimed
as also future maintenance from the date of the suit.
Defendant No. 1 denied that the plaintiffs had any right
based on custom as claimed by them; according to him from
older times two kalams of the Sthanam had been set apart for
their maintenance. He claimed that the Privy Council in
suit no. 46 of 1934 had declared him absolute owner of the
Sthanam properties but despite that, out of generosity only
he had been paying to the junior members of the Swaroopam
Rs. 17.000/- annually. The trial court granted maintenance
to the plaintiffs for the period claimed at the rate of Rs.
250/- per mensem for each of the plaintiffs. Defendant No.
1 appealed to the High Court and the plaintiffs filed cross-
objections as the rate of maintenance allowed to them was
lower than they had claimed. The High Court partly allowed
the appeal negativing the plaintiffs’ claim for arrears of
maintenance, and dismissed the cross-objections of the
plaintiffs. Both the parties appealed to this Court. The
questions that fell for consideration were: (i) whether the
right to maintenance as claimed by the plaintiffs was based
on custom; (ii) whether the High Court was right in
disallowing the claim of the plaintiffs to arrears of
maintenance; (iii) whether the rate of maintenance as
ordered by the trial court and’ confirmed by the High Court
was justified.
HELD: (i) An alleged custom, in order to be valid, must
be proved by testimony to have been obeyed from
consciousness of its obligatory character. A mere
convention between family members or an arrangement by
mutual consent for peace and convenience cannot be
recognised as custom. In order that a custom should acquire
the character of law the custom must be accompanied by the
intellectual element, the opinion necessitatis. the
recognition that there is authority behind it. [45 B--C; D
E]
Rarnrao v. Yeshwantrao, I.L.R. 10 Bom. 327, applied.
In the present case the evidence sufficiently proved a
custom in Kavalappara estate by which the Sthanee was
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legally obliged to give maintenance to junior members of the
family. It was possible that the practice of paying
maintenance to junior members originated as an act of
generosity of the previous Sthanee. But it had continued
without interruption for such a length of time that it had
acquired the character of a legal right. [42]
Kochuni v. Kuttanunnt, A.I.R. 1948 (P.C.) 47, 52, explained.
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(ii) Although it had been alleged by the plaintiffs that
they had not been paid any maintenance, the High Court had’
found that maintenance had been given to the plaintiffs’
mother with whom the plaintiffs had been living. The High
Court’s refusal to grant to the plaintiffs arrears of
maintenance before the date of the, suit must, in the
circumstances, be upheld. [46 C]
(iii) The High Court in fixing the amount of maintenance
for each of the plaintiffs at Rs. 250./- per month had taken
into account all the relevant factors. It had further
directed that it was open to the parties after two years to
move the trial court for variation in the rate of
maintenance fixed on the ground of altered circumstances of
the Estate. There was no reason for interfering with the
judgment of the High Court in this matter. [46. G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1235 to
1237 of 1966:.
Appeals from the judgment and decree dated September 20,
1963 of the Kerala High Court in Appeal Suit No. 304 of
1962.
Rameshwar Nath, Mahinder Narain and Swaranjit Sodhi,
for’ the appellants (in C.A. No. 1235 of 1966) and
respondent No, 11 (in C.As. Nos. 1236 and 1237 of 1966).
K. Javaram and R. Thiagarajan, for the appellants (in
C.As.Nos. 1236 and 1237 of 1966) and respondents Nos. 1 to 7
(in C.A. No. 1235 of 1966).
M.R.K. Pillai, for respondent No. 3 (.in C.As. Nos.
1236and 1237 of 1966) and respondent No. 9 (in C.A. No. 1235
of 1966).
The Judgment of the Court was delivered by
Ramaswami, J. KavaIappara estate is an impartible
estate. Succession thereto is governed by the
Marumakkathayam law, that is to say, the eldest member of
the family by female descent will succeed to the Gaddi and
hold the estate. The parties to the suit are members of the
Kavalappara Swaroopam, the 1st defendant being the Sthanee.
The 7th defendant is the mother and the 9th defendant the
elder brother of the plaintiffs. The plaintiffs claimed
maintenance based on family custom entitling the members’ to
maintenance out of the entire income of the Sthanam. Past
maintenance was claimed for each of the plaintiffs 1 to 4
for 12 years at Rs. 500/- per mensem; for plaintiff no. 5 at
the above rate and for plaintiffs 6 to 8 at Rs. 400/- per
mensem from their respective dates of birth. Future
maintenance from date of suit was also claimed at the
aforesaid rates. The suit was contested by the 1st
defendant on the ground that the plaintiffs had no
enforceable legal right to maintenance from the Sthanam
estate; that from olden times two kalams, Palachithara and
Velliyad of the Sthanam estate had been set apart for the
maintenance of the
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junior members of the Swaroopam that the plaintiffs have to
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look to those two kalams only for their maintenance "as
deposed by him in the former suit" in O.S. No. 46 of 1934;
that even after the Privy Council had decided O.S. No. 46 of
1934 declaring him to be absolute owner of the Sthanam
properties, he had been paying maintenance out of affection;
that though there was no recognised custom binding on him,
he had been adopting the generosity of the predecessor
Sthanees and paying to the junior members of the Swaroopam
Rs. 17,000/- annually and that the plaintiffs had no right
to claim income from the Sthanam estate. The trial court
granted maintenance for the period claimed until the date of
decree at the rate of Rs. 250/- per mensem for each of the
plaintiffs charged on the corpus and income of the Sthanam
estate. The first defendant appealed to the Kerala High
Court in A.S. No. 304 of 1962. The plaintiffs preferred
cross-objections. The High Court partly allowed the appeal
negativing the plaintiffs’ claim for arrears of maintenance
and modified the trial court’s decree. The High Court
dismissed the cross-object.ions of the plaintiffs. C.A. No.
1235 of 1966 is brought to this Court by certificate on
behalf of defendant no. 1 and C.As. 1236 and 1237 of 1966
are brought to this Court by certificate on behalf of
plaintiffs.
The first question to be considered is whether the
plaintiffs are entitled to maintenance out of the Sthanam
properties as a matter of family custom. It is argued on
behalf of the 1st defendant that the maintenance allowance
was previously given by the Sthanee only as an act of
generosity and not in recognition of any legal claim of
junior members of the Swaroopam. In any case it was
contended that the practice prevailing in the past was that
the income from two kalams "Pilachithara" and "Velliyad" was
given to the Amma Nethiar for the benefit of the members of
the Swaroopam and that the members of the Swaroopam could
not insist on anything more than the same as a matter of
right. In our opinion there is no justification for this
argument. There is sufficient evidence on the record of the
case to support the finding of the Subordinate Judge and the
High Court that the plaintiffs have established a customary
right of maintenance from the Sthanam properties. In the
first place there are two decisions O.S. 991 and 992 of the
year 1817 granting a decree for maintenance to two members
of the Kavalppara Sthanam (Exhibits A-57 and A-58). It was
contended for the Sthanee in those suits that separate
properties had been allotted to Amma Nethiar to maintain all
the females and minors in the Swaroopam, that only major
males in the Swaroopam can claim separate maintenance from
him and that those members who chose to live away from the
palace had no right to claim maintenance. These contentions
were not accepted by the Court which gave each of the
plaintiffs a money
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decree for maintenance both past and future. The material
portions of the two decisions are quoted below:
"On a careful consideration of all the
particulars referred to and in view of the
circumstances that the Plaintiff went separate
from the tarwad members in disregard of the
orders of Defendant who is the present Moopil
Nair of Kavalppara and in opposition to the
status, ranks and dignities (Sthanamanams)
and propriety of Sthanam and merely for their
own pleasure and that, even after the Moopu
had caused negotiations to be made through
Brahmins and other respectable persons under
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his (Moopu’s) written authority with a view to
avoid the Moopu (Sthanam) falling into
disgrace (as a result of family) dissension
and in view of the fact that, in spite of the
efforts of the said persons, the plaintiff did
not return and live together (have common
residence and mess), it is only proper, as the
Defendant contends in his written statement,
that it is the Amma Nethiar who should provide
for the maintenance of the plaintiff along
with that of the lady members. The plaintiff’s
witnesses Cherumpatte Manakkal Vasudevan
Bhattathiripad and Pannasseri Adisseripad
state on solemn affirmation that, since it is
the Moopu that manages the properties forming
the assets of the Swaroopam (esstate) and
received 16,000 and old fanams being 2 per 10
from the Government if the next nephew as well
as the heir and next of kin of the Moopil Nair
were to live separate from the Moopil Nair and
demand maintenance for whatever reasons it
might be, such person ought to be paid
maintenance expenses and supported as
befitting the Sthanamanam (rank and dignity)
of such person and not necessary (sic). The
plaintiff and his mother Valiakava Nethiar
left Kavalappara on the 16th Medom 992 (26th
April 1817) and went to and stayed at
Mangalathu, Panambala Kode and Melarkode for
reasons not apparent. Under the orders of the
Defendant maintenance had been paid to
plaintiff, the said Nethiar and 20 persons
from that date, 16th of Medom (26th of April)
to the month of Edavam (May-June). Thereafter
the defendant ordered payment of maintenance
to 16 persons from 1st Mithunam (13th June)
and to 12 persons thereafter. Subsequently
the Moopu ordered that maintenance need be
paid for 8 persons only including (the
plaintiff). The written statement
(deposition) does not make any mention as
to--nor have the plaintiff’s witnesses proved
as to what expenses the sum of--claimed in the
plaint relate to. It is therefore
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decreed that the Defendant do pay plaintiff
450 fanams being the maintenance expenses for
3 months as evidenced by the plaintiff’s
witnesses after deducting 25 (? ) fanams from
the amount claimed in the plaint, that the
Defendant do also pay the plaintiff’s future
maintenance at the rate of 150 fanams a month
as mentioned above and that the plaintiff and
Defendant do pay and receive proportionate
costs."
Ext. A-58:
"On looking into the matters mentioned
above, there is nothing to show on what ground
the plaintiff had gone and lived separate from
the tarwad members of her own accord in
disregard of the order of the present
Kavalappara Moopil Nair and without
considering the status, dignity and propriety
(of the Sthanam). Even though the Defendant’s
contention in his written statement that it is
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the Amma Nethiar who should look after the
maintenance of the plaintiff in as much as the
plaintiff did not return to and stay in the
Kavalppara in spite of the attempts made
through the Brahmins and other respectable
persons to avoid the Moopu getting a bad name
owing to a rumour getting afloat that there is
dissension among the members as a result of
the plaintiffs action, is a proper only, the
court is of the opinion that, if the members
who are related to the Moopil Nair as his
direct sister and direct nephew like the 3rd
Nair and who are closely related together as
heirs to the properties live separate for any
reason whatsoever and ask for their
maintenance, the Moopil Nair ought to have
ordered payment of their maintenance, amounts
and maintained them in accordance with their
status in the Sthanam. Instead of doing this,
the Moopil Nair cannot stop the maintenance
paid to the Anandaravas who may be of bad
temperament. The plaintiff’s and defendant’s
witnesses prove that the plaintiff had been
paid for the maintenance from the Medom 992
(April-May, 1817) when she went separate until
the 30th of Karkitakam (about the 16th of
August) and that the Moopil Nair had stopped
paying for the maintenance thereafter. From
the evidence of the plaintiff’s witnesses it
has been proved that the plaintiff and the
persons staying with her would all together
require 3 fanams for maintenance expenses and
1 fanam for extra expenses for a day. It,
therefore, does not appear from the oral and
documentary evidence that they would require
anything more than--fanams for the maintenance
for the 3 months from
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the 1st of Chingam (14th August) to the 1st of
Vrichigam (14th November) the date of the
suit, calculating at 120 fanams a month. It
is not clear from the plaint as to what
expenses the sum of Rs. 150 claimed in the
plaint relates. I therefore direct the
defendant to pay to plaintiff a sum of Rs. 360
fanams after deducting 165 fanams from the
amount claimed by the plaintiff and I also
direct that the Defendant do pay to the
plaintiff the future maintenance at the rate
of 120 fanams a month and that the plaintiff
and Defendant do pay and receive proportionate
costs."
Exhibit B-1 is a deposition given in O.S. 2 of 1859 by
the then Sthanee of the Kavalappara Swaroopam. The
deposition is marked as Ex. 67(b) in O.S. 46 of 1934 and
reads as follows:
"The properties belong to the Sthanam
only. Two Kalams (lands attached to two
granaries) have been set apart for the
maintenance of the members of the tarwad. And
it has been the practice that the rest of the
members maintain themselves therefrom. It has
been so separately allotted from ancient
times. When precisely, is not known. It
could be seen from the accounts that It has
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been so set apart. It is only if I
think it necessary to take back what has been
so set apart, that I should give them their
maintenance expenses .... I have not
enquired whether there were any other places
where the entire properties and the Malikhan
belonged to the Sthanam only and the tarwad
has no separate property of its own."
[The High Court has observed that this translation is not
correct and that ’kalam’ denotes a division of the estate
for purposes of collecting rents from the tenants. Again a
true translation of the first sentence in the above
quotation would be ’only the Sthanam has properties and no.t
the properties belong to the Sthanam only".]
This deposition shows clearly that the Sthanee in
office admitted over a century ago his obligation to
maintain junior members of the Swaroopam.
The next piece of evidence is the deposition of the
Sthanee in O.S. No. 46 of 1934. In the present case the 1st
defendant did not give evidence. He admitted that his
deposition in the previous suit O.S. No. 46 of 1934
contained a true statement of facts. The previous deposit;on
of the 1st defendant in Ex. B-13 and reads as follows:
"4. The eldest lady in the Swaroopam is called
Aroma Nethiyar. Some properties had been allotted
for the
L 1 Sup CI/70--4
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maintenance of the members in the name of Amma
Nethiar ..... Those properties had been
allotted in ancient times in her name from the
properties of the Moopil Nair.
5. The Moopil Nair was originally a
ruling chief. The grant of properties in the
name of Amma Nethiyar should have been made
when the Moopil Nair was a ruling chief. The
present Amma Nethiyar has even now the right
to manage the properties which had been so
allotted. It was in ignorance of such
allotment that my eider brother and after him,
myself managed those properties along with the
stanam properties. I am willing to hand back
the management of those properties to Amma
Nethiyar. If those properties are handed
back, I shall no more be liable to pay
the maintenance of the members."
In his written statement defendant no. 1 made the
following admission in para 6:
" ..... The defendant does not deny
that the members of the Swaroopam are entitled
to be maintained by the Moopil Nayar by virtue
of custom. But that does not make him any the
less a Stani nor detract from the Stanom
character of the properties."
In our opinion the evidence adduced in the case sufficiently
proves a custom in Kavalappara Estate by which the Sthanee
was legally obliged to give maintenance to junior members of
the family. It is possible that the practice of paying
maintenance to junior members originated as an act of
generosity of the previous Sthanee. But it has continued
without interruption for such a length of time that it has
acquired the character of a legal right.
On behalf of defendant no. 1 it was contended that
the Judicial Committee had said that the payment for
maintenance was an act of generosity on the part of the
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Sthanee and was not a legal right of the junior members.
Reference was made to the following passage in the judgment
in Kochunni v. Kuttanunni(1):
"The maintenance claimed was a customary
one originating in ancient times when
admittedly the Muppil Nair was a Sthani in
possession of Sthanam rights. There is no
evidence as to how the maintenance allowance
arose, whether it was given in recognition of
a legal claim or was only a generous provision
made for the benefit of the women and younger
members, which the Raja was perfectly
competent to do out of property
(1) A.I.R. 1948(P.C.).47at p. 52.
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which he regarded exclusively as his own. The
claims of generosity often prevail over a
sense of ownership, especially when the
recipient of the bounty is a near relative in
a dependent position."
In our opinion this argument proceeds on a misreading of the
judgment of the Judicial Committee. The Judicial Committee
has observed that the claim for maintenance was based on
customary rights and was not ex gratia payment. In the
course of the judgment Mr. M.R. Jayakar states:
"The documents material in this
connection are Exs. ’O’ and ’P’ being the
decree and judgment respectively in two suits
for maintenance brought in the year 1817
against the then Muppil Nair, the first by the
then third Nair, a minor, and the second by
his mother. It is material to note what the
issue was and what was decreed in these suits.
In the pleadings of both the parties the claim
for maintenance was stated to be based on
customary rights. The plaintiff alleged it is
’the usual custom’ that Nair should pay the
maintenance. The defendant admitted ’the
custom’ but denied his liability to pay the
maintenance on the ground that his ancestors
in ancient times had already settled in
accordance with the ’usual practice’ certain
lands on a lady called Amma Nethiar for the
maintenance of herself and the junior members,
and that the maintenance claimed in the suit,
even if it was due, which he denied, should
primarily come out of the lands so set aside
in previous times. He also denied his
liability on the ground that the minor and his
mother, contrary to his advice and that of the
well wishers of the family had gone away to
live elsewhere. The defendant denied his
liability also on other grounds which it is
unnecessary to consider in tiffs case. He,
however, expressed his willingness to
supplement the maintenance, if the Court
thought proper, on particular occasions. The
Judge, while admitting that it was the
responsibility of Amma Nethiar to maintain the
plaintiffs, held that as the plaintiffs stood
in the very near relationship of sister and
nephew to the defendant and were his next
heirs it was ’only proper’ that the defendant
should grant them a periodical allowance for
past and future maintenance. In the light of
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the pleadings set out above, the admissions
made therein by bolt sides about the customary
nature of the maintenance and the words it was
’only proper’ in the judgment, their Lordships
cannot accept this as a decision contra-
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dicting the incidents of the property in the hands of the
Muppil Nair."
In any event the question as to whether the right of
maintenance was given by the Sthanee in recognition of the
legal claim or whether it was an ex gratia payment was not
directly in issue in the previous suit. The question for
determination was whether the existence of maintenance
allowance was inconsistent with the Sthanam character of the
properties in possession of the then Moopil Nair. On this
point it was held by the Judicial Committee that the payment
of the maintenance allowance for junior members was not
inconsistent with the Sthanam character of the property on
which it was grounded. At p. 53 of the Report Mr. Jayakar
has observed;
"Their Lordships think that in the
proceedings of these two cases there is hardly
anything to support the view of the High Court
that the decrees in these two suits are
inconsistent with the Sthanam character of the
properties in the possession of the then
Muppil Nair or that he did anything which
could be regarded as an admission that the
properties in his hands were not Sthanam
properties. On the question whether and how
far the existence of a maintenance allowance
is inconsistent with the Sthanam character of
the property, on which it is grounded, the
following passage in Sundata Aiyar’s book (p.
255, bottom) may be noted:
"The point of view suggested in some
cases in which the question has arisen is that
the members of the family have rights of
maintenance in the property of the Sthanam
itself: that is practically assimilating these
properties to impartible zemindaries before
the recent cases.’
Besides, the Sthanam in dispute in this case
belonged, as stated above, to the second
category, and in such a case the existence of
maintenance allowance would be perhaps not so
inconsistent as in the case of a Sthanam of
the third class, carved out of the family
property for the support and dignity of its
senior member."
The question at issue before the Judicial Committee was
whether the Kavalppara Estate was a Tarawad or joint family
property belonging to the joint family or whether the
properties appertained to the Sthanam and belonged to
defendant no. 1 as a Sthanee exclusively. The question as to
the right of maintenance of the plaintiffs was incidentally
gone into and it was ultimately held that the existence of
such maintenance fight of junior members of
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the family was not inconsistent with the Sthanam character
of the properties.
In our opinion the High Court. was right in its finding
that the plaintiffs have established their right to
maintenance from the Sthanam properties as a matter of
custom. Counsel on behalf of defendant no. 1 has been unable
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to make good his argument on this aspect of the case.
An alleged custom, in order to be. valid, must be proved
by testimony to have been obeyed from consciousness of its
obligatory character. A mere convention between family
members or an arrangement by mutual consent for peace and
convenience cannot be recognised as custom. In Ramroa v.
Yeshwantrao(1) it was proved that it had been the practice
in a Deshpande Vatandar’s family for over a hundred and
fifty years, without interruption or dispute of any kind
whatever, to leave the performance of the services of the
vatan and the bulk of the property in the hands of the eider
branch and to provide the younger branches with maintenance
only. It was held that such practice was due in its origin
to a local or family usage and not to a mere arrangement and
that it was therefore to be recognized and acted upon as a
legal and valid custom. In order, therefore, that a custom
should acquire the character of law the custom must be
accompanied by the intellectual element, the opinion
necessitatis "the conviction on the part of those who use a
custom that it is obligatory and not merely optional". In
other words the mark which distinguishes custom in the legal
sense from mere convention is the opinion necessitatis, the
recognition that there is authority behind it.
"In the modern state the custom, if
legally recognized has behind it the court and
an apparatus of coercion. In primitive
communities we do not find authority
necessarily organized in the institutional
sense. We must ask, ’what is the ultimate
power in the group to settle conflicts or to
prescribe rules ?’ It may be the old men, the
military group, the priests, or merely a
general consensus of opinion. But the opinion
necessitatis can come into existence only when
the community in some way throws its force
behind the particular rules."
(See G.W. Paton--Jurisprudence--3rd edn. p. 164)
We have shown in the present case that the plaintiffs have
established their right to maintenance from the Sthanam
properties not merely as an act of generosity on the part of
the Sthanee but the
(1) I.L.R. 10 Bombay 327.
payment of maintenance has been made by the Sthanee as a
matter of legal obligation.
The next question is whether the plaintiffs are entitled
to arrears of maintenance. It appears that after the
decision of the Privy Council declaring the ist defendant as
exclusive owner of properties he has paid Rs. 17,000
annually to the Amma Nethiar for the maintenance of the
junior members of the Swaroopam. It is not disputed by the
plaintiffs that such payments were made before the
institution of the present suit. Even after the institution
of the suit the 1st defendant had been depositing annually
Rs. 25,000 in court for the maintenance of the plaintiffs
and other members of the Swaroopam as ordered by the trial
court. It was alleged by the plaintiffs that they have not
been paid any maintenance. But the High Court found that
maintenance had been given to the plaintiffs’ mother with
whom plaintiffs had been living. For these reasons the High
Court held that there was no ground for awarding arrears to
maintenance before the date of suit. We see no reason for
taking a view different from that of the High Court in the
matter.
As regards the rate of maintenance the trial court
granted decree at the rate of Rs. 250/- p.m. for every one
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of the plaintiffs irrespective of age. It has been found by
the trial court that the net income of the Swaroopam was
about Rs. 2 lakhs per annum. It is admitted that the income
of the Swaroopam consists mostly of rents from cultivating
tenants. With the abolition of perquisites and the fixation
of fair rents by recent tenancy legislation there appears to
have been a reduction of the net income of the Sthanam in
recent years. It also appears that the plaintiffs are the
only minor members in the family and excepting the 7th
defendant who is their mother the defendants are males whose
children would not be members of the Swaroopam. In the
Madras Estates (Abolition and Conversion into Ryotwari) Act
26 of 1948 compensation to members of the family entitled to
maintenance out of an impartible estate is fixed at 1/5 of
what is paid for the estate in view of these considerations
the High Court held that the provision of Rs. 250/- p.m. to
each of the plaintiffs was adequate. The High Court,
however, directed that it is open to the parties after two
years to move the trial court for variation in the rate of
maintenance fixed on the ground of altered circumstances of
the Estate. Having heard the parties we see no reason for
interfering with the judgment of the High Court in this
matter.
In the result we dismiss all the three appeals (Civil
Appeals-Nos. 1235, 1236 and 1237 of 1966). There will be no
order as to costs with regard to any of the appeals.
G.C. Appeals
dismissed.
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