Judgement

Appeal from a judgment and decree of the High Court (March 19. 1915) reversing a decree of the Subordinate Judge of Rajahmandri (December 11, 1911).

The respondent held the zamindari of Pittapur and other lands under the will of the late raja. It was common ground that the zamindari was by custom impartible and governed by the rule of primogeniture. The other lands which passed under the will were self-acquisitions of the late raja.

The appellants father had been adopted by the late raja in 1873, and the appellant was born in 1876. The late raja died in 1890, having, as above mentioned, made a will in favour of the respondent, who, being then an infant, was placed under the Court of Wards.

The appellants father thereupon instituted a suit against the Court of Wards to recover the late rajas estates. He alleged that the will was invalid, and that the respondent, therein referred to as the rajas natural-born son (aurasa), was a supposititious child. The Privy Council in that suit, without deciding the question of parentage, held (affirming the High Court) that the respondent was entitled to succeed under the will. The appeal is reported at L. R. 26 1. A. 83.

In 1907 the appellant instituted the present suit against the respondent claiming maintenance at Rs.1000 per month with payment of arrears ; he prayed that the maintenance should be made a charge upon the estate. By his plaint he did not admit that the respondent was the son of the late raja, but claimed that the estate had been joint family property of himself, his father, and the late raja. The respondent by his written statement altogether denied the claim, and pleaded, in the alternative; that the amount claimed was excessive, and that arrears were not recoverable.

The Subordinate Judge made a decree for maintenance and for payment of arrears. Both parties appealed, the appellant contending that the amount decreed was too small. The High Court (Sankaran Nair and Old field JJ.) allowed the present respondents appeal and dismissed the suit. The grounds of the judgments appear shortly from the judgment of their Lordships. The appeal to the High Court is reported at I. L. R. 39 M. 396.

1918. March 11, 12. Upjohn, K.C., and Dunne, K.C., for the appellant. A right to maintenance was vested in the appellant at the death of the late raja ; the devise to the respondent was in law subject to that right. The decisions of the Board prior to Sartaj Kuari v. Deoraj Kuari (L. R. 15 I. A. 51.) establish the right of the junior members of an impartible family to maintenance ; they show that the right is of the same character whether the property be partible or impartible Naragunty Lutchmee v. Vengamma Naidoo (( 1861) 9 Moo. I. A. 66.); Beer Per tab Sahee v. Rajender Pertab Sahee (( 1867) 12 Moo. I. A. 1.); Muttusawmy Jagaver v. Vencataswara (( 1868) 12 Moo. I. A. 203.); Katchekaleyana Rungappa v. Katchevijaya Rungappa (( 1869) 12 Moo. I. A. 495.); Perisawmi v. Perisawmi. (( 1878) L. R. 5 I. A. 149.) The judgment of the Board in Sartaj Kuaris Case (L. R. 15 I. A. 51.) expressly recognizes that the right to maintenance is not affected thereby. That judgment shows that it is the loss of the right to partition which gives rise to the right to maintenance; that proposition is supported by Himmatsing v. Gampatsing (( 1875) 12Bom.H.C.94,96,n.), Ramchandra v. Sakaram (( 1877) I. L. R. 2 B. 346.), and by Maynes Hindu Law, 8th ed., pars. 454, 458. Since Sartaj Kuaris Case (6) the right in the case of an impartible estate has been recognized in Rao Venkata v. Court of Wards (( 1899) L. R. 26 I. A. 83.), Yarlagadda Mallikarjuna v. Yarlagadda Durga (( 1900) L. R. 27 I. A. 151.), and Kachi Kaliyana Rengappa v. Kachi Yuva Rengappa. (( 1905) L. R. 32 I. A. 26.) The right is a right in realty, and is enforceable against the estate in the hands of a devisee Golab Koomvur v. Collector of Benares (( 1847) 4 Moo.

I. A. 246.); Janki v. Naind Ram. (( 1888) I. L. R. 11 A. 194.) This is illustrated by