Decided on July 11,1900



Henry Devilliers, J - (1.) These are appeals and cross-appeals against a decision of the High Court of Madras which modified a decision of the District Court of Kistna. Two separate suits for maintenance had been brought in the lower Court against the zamindar of Challapalli by his two younger brothers, respectively; but all the proceedings in the two cases were identical and the observations of their Lordships upon the one case will be equally applicable to the other.
(2.) The appellant, the defendant in the lower Court, is the eldest son of Anakinidi, late zamindar of Challapalli, who died on the 6 of April 1875, leaving three sons, viz., 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 zamindari estate was impartible, but awarded to the then plaintiff one-third of certain property not forming part of she zamindari 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 the 1 May 1890 and that of the District Court was restored. In April 1891 the two younger brothers instituted the present suits for maintenance. The plaints claimed (i) maintenance at the rate of Rs. 2,000 per month; (ii) Rs. 5,31,938 for arrears of maintenance; (iii) Rs. 12,000 towards the marriage expenses of the plaintiffs children; (iv) the provision of suitable houses, land, utensils and furniture for the plaintiffs; and (v) an order declaring that the arrears and future maintenance constitute a charge upon the Challapalli estate or such portion thereof as may seem proper to the Court. The District Court by its judgment decreed future maintenance at the rate of Rs. 750 per month and arrears of maintenance for twelve years at the rate of Rs. 500 per month, the whole to be a charge upon the zamindari estate. The District Judge found that the claim for maintenance was not affected by the decree in the partition suit and was not barred by limitation. In regard to the claim for arrears of maintenance, he held that although no demand had been made, maintenance had been practically withheld and could be recovered for a period of twelve years immediately preceding the institution of the suit. Against this judgment the zamindar appealed while the plaintiffs filed objections. The Judges of the High Court agreed with the lower Court upon all points except as to arrears of maintenance, and as be the maintenance being a charge upon the whole of the zamindari estate. They held 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 Rs. 56,000 to Rs. 23, 000. As to the question whether the maintenance decreed should be a charge upon the whole of the zamindari they say: "We think that the zamindar is justified in objecting to the decree as framed by the District Judge inasmuch as it letters 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 plaintiffs respectively cross-appeal against that part of the judgment which refuses further specific relief and reduces the amount of the arrears of maintenance.
(3.) Their Lordships fully agree with the High Court that the family of the parties to the present action has not become a divided one in consequence of the proceedings in the previous suit to which reference has already boon made. It is true that in that suit a decree was made for the partition of a portion of the family property, but it was a very inconsiderable portion and had no relation whatever to the zamindari estate. As to the zamindari estate, this Board held that it was impartible and the consequence is that the plaintiffs, as the younger brothers of the zamindar, retain such right and interest in respect of maintenance as belong to the junior members of a raj or other impartible estate descendible to a single heir [Rani Sartaj Kuari v. Rani Deoraj Kuari (1887) L.R. 15 I.A. 61 : I.L.R. 10 All. 272 at p. 285. In regard to the amount of maintenance the Judges of the High Court very properly refused to disturb the finding" of the District Judge whose experience in the district they fully recognise.;

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