A T MENON ALIAS THEYYUNNI MENON Vs. A R MENON ALIAS RAMUNNI MENON
LAWS(KER)-1964-9-23
HIGH COURT OF KERALA
Decided on September 14,1964

A.T. MENON ALIAS THEYYUNNI MENON Appellant
VERSUS
A.R. MENON ALIAS RAMUNNI MENON. Respondents

JUDGEMENT

- (1.) The appeal arises out of a suit for partition; and the sole question for consideration is whether the plaintiff - appellant is not entitled to maintenance. The lower court has refused to award maintenance to him on its finding that he had waived his claim for the same.
(2.) In fact, there is no plea of waiver in the written statements of the contesting respondents, the 2nd defendant and the 14th defendant; nor does it appear in the written statements of any of the other defendants. Nor is there an issue regarding waiver. The lower court has however drawn the inference of waiver from the so called admissions made by the plaintiff in the witness box. He admits that though he was living away from the tarwad house, he did not send any letter demanding maintenance; that his separate income was sufficient for the maintenance of his wife, child and himself; that he was actually saving about Rs. 200/- per month; and that no member of the tarwad living outside did ever make any claim for maintenance. From the mere delay or omission to claim maintenance no inference of waiver can be drawn. Nor is the possession of separate income by a junior member a ground for refusing maintenance to him. Again, where waiver is neither pleaded, nor an issue raised thereon, waiver cannot be presumed. (Vide Ammalukutty Amma v. Ramunni Menon: AIR 1934 M 509; Panchakshara Chetty v. Pattammal: AIR 1927 M 865 and Dandamudi Ramarayudu v. Dandamudi Sitalakshmamma: AIR 1937 M 915). Therefore, the refusal of the lower court to award maintenance to the plaintiff on the finding that he waived his claim is clearly wrong. The amount claimed is also not excessive, considering the income and status of the tarwad and the number of members therein.
(3.) Objection is then taken that the plaintiff should not be awarded maintenance after his severance of status in 1950. If so, he will have to be given his share of the profits of the tarwad properties. That is evidently more than the amount of maintenance claimed; and therefore, we do not think that this contention need be seriously considered.;


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