- (1.) Kavalappara 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 Kavaiappara 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. 00 per mensem ; for plaintiff No. 5 at the above rate and for plaintiffs 6 to 8 at Rs. 400. 00 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 junior members of the Swaroopam ; that the plaintiffs have to 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 0. 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, be had been adopting the generosity of the predecessor Sthanees and paying to the junior members of the Swaroopam Rs. 17,000. 00 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. 00 per mensem for each of the plaintiffs chargedon 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 courts decree. The High court dismissed the cross-objections of the plaintiffs. G. A. No. 1235 of 1966 is brought to this court by certificate on behalf of defendant No. 1 and G. A. 1236 and 1237 of 1966 are brought to this court by certificate on behalf of plaintiffs.
(2.) 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 Kavalappara 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 Swarpopam 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 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 toward members in disregard of the orders of defendant who is the present Moopil Nair of Kavalappara and in opposition to the status, ranks and dignities (Sthanamanams and propriety of the 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 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 effort 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 Gherumpatte Manakkal Vasudevan Bhatta-thiripad and Pannasseri Adisseripad state on solemn affirmation that, since it is the Moopu that manages the properties forming the assets of the Swaroopam (estate) and received 16,000. 00 and odd 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 reason 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 564 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 Edavarn (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 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 (7) 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 orders 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 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 Kavalappara inspite of the attempts made through the Brahmins and other respectable persons to avoid the Moopu getting a bad name owing to a rumor getting afloat that there is dissension among the members as a result of the plaintiff's 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 the 1st of Chingam (14th August) to 1st of Vrichigam (14 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. 00 claimed in the plaint relates. I therefore direct the defendant to pay to plaintiff a sum of Rs. 360. 00 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 565 maintenance at the rate of 120 fanams a month : and that the plaintiff and defendant do pay and receive proportionate costs. " Exhibit E-l 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 (i) in O. S. No. 46 of 1934 and reads as follows : "The properties. belong to the Sthanam only. Two Kalams (lands attached to two granarie) 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 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 not "the properties belong to the Sthanam only". )
(3.) This deposition shows clearly that the Sthanee in office admitted over a century ago his obligation to maintain junior members of the Swaroopam.;