Judgement Appeal and cross-appeal from a decree of the High Court (March 9, 1894) affirming with variations a decree of the District Judge of Kistna (Dec. 4, 1891). 6 Law. Rep. 27 Ind. App. 151 ( 1899- 1900) Raja Yarlagadda V. Raja Yarlagadda Durga Prasada Nayudu 47 There was a second appeal and cross-appeal from a decree of even date in a suit brought by the younger brother of the plaintiff in the first appeal. All proceedings in the two suits were identical. The plaintiffs in the two suits were the respondents above, whose names briefly are Durga and Ramalingamma. They sued the appellant, the zemindar of Devarakota. The three parties to the suits are the sons of Ankinidhu, deceased. The previous litigation between the parties, raising the question whether the zemindary was partible or impartible, is sufficiently set out in their Lordships judgment. The plaint claimed—(1.) maintenance at Rs. 2000 per month; (2.) Rs. 5,31,938.14.5 for arrears of maintenance; (3.) Rs. 12,000 for expenses of marriage of his children; (4.) the provision of suitable houses, lands, utensils, furniture, and other properties. The defendant in his written statement pleaded that, since the District Courts decree in 1882 deciding that the zemindary was impartible, he and the plaintiff had been divided in estate, and that he was no longer liable to maintain him; that the claim was extravagant, and as regards some of the items inadmissible ; that the plaintiff was not entitled to any arrears of maintenance prior to a written demand made in respect thereof on March 30, 1891; that till February, 1879, the plaintiff had been maintained by the defendant, who had been willing to continue to maintain him, but the plaintiff refused to be maintained for the purpose of bringing vexatious suits. He also alleged that the most part of his claim for arrears was barred by limitation. The District Judge gave one judgment in both cases. He found that the claim for maintenance was not affected by the decree in the partition suit and was not barred by limitation. He considered that Rs. 500 per mensem was a proper sum for maintenance, and he added to this a further sum of Rs. 250 to cover the other claims which he disallowed. He found that the claim for maintenance was not affected by the decree in the partition suit and was not barred by limitation. He considered that Rs. 500 per mensem was a proper sum for maintenance, and he added to this a further sum of Rs. 250 to cover the other claims which he disallowed. He found that nothing had been paid to the plaintiff since the death of Ankinidhu, and he awarded arrears of maintenance for twelve years at Rs. 500. per month, deducting payments made, but refused interest. The whole to be a charge on the entire zemindary. The result in each case was an award for Rs. 56,000, with future maintenance at Rs. 750. The High Court agreed with the District Judge on all points except the amount of arrears and the nature of the charge on the zemindary. They said — - " The District Judge has granted arrears at the rate of Rs. 500 per mensem for twelve years prior to the institution of the suit. In this we think he was wrong. The right to maintenance is primarily a right to be maintained out of the current income of the property in the enjoyment of the party chargeable. The circumstance, however, that a person entitled to maintenance has not in fact been maintained by the person chargeable, does not necessarily give him a right of action for arrears. On proof of failure to maintain without more he cannot be said to become a creditor of the person in default. It is incumbent on him to prove that there has been a wrongful withholding of the maintenance to which he is entitled. (Jivi v. Ramji, ( 1870) Ind. L. R. 3 Bomb. 207; 6 Mad. 83.) If it were not so, it would mean that the manager of the family could, at the choice of any member preferring to reserve his claim for maintenance out of current income, be compelled to pay him from time to time sums of accumulated arrears which could only be paid out of capital. In this case it is admitted that the plaintiff has since May 1, 1875, been living apart from the defendant, and has neither asked for nor received maintenance except what he received under the order of the High Court pending the appeal to the Privy Council—that is, between December, 1887, and July, 1890. In this case it is admitted that the plaintiff has since May 1, 1875, been living apart from the defendant, and has neither asked for nor received maintenance except what he received under the order of the High Court pending the appeal to the Privy Council—that is, between December, 1887, and July, 1890. In our opinion it is clearly the plaintiffs own fault that he has not received maintenance for the whole 6 Law. Rep. 27 Ind. App. 151 ( 1899- 1900) Raja Yarlagadda V. Raja Yarlagadda Durga Prasada Nayudu 48 period of twelve years for which he claims it. In his suit brought in 1880 he made another and inconsistent claim, and therefore he has no right, now that he has failed in that litigation, to complain that a claim not made by him though conceded by the defendant was not satisfied. There has been no wrongful withholding on the part of the defendant. We must, therefore, reverse the decision of the District Judge with regard to the arrears except as regards the period above mentioned, during which payment was actually made. The allowance for that period v/as demanded and given on the footing of maintenance, and as the sum will have to be refunded by the plaintiff in execution of the decree of the Privy Council, we think that plaintiff is entitled to a decree for the same sum, namely, Rs. 19,500, in the present case, to which must be added Rs. 3500 for the seven months between the date of the institution of the suit and the making of the decree, for the judge has decreed payment of the higher rate of Rs. 750 per mensem only from the latter date, and in that respect we do not alter the decree." As to the charge, while holding that the plaintiff was entitled to have his maintenance charged on the zemindary property or part of it, the Court said— "We think, however, that the zemindar is justified in objecting to the decree as framed by the District Judge, inasmuch as it fetters him unnecessarily in the disposition of his property. It is sufficient that the decree should make the maintenance chargeable on certain villages; and if the parties cannot agree-we must ask the judge to find what particular property will form sufficient security.” The main question raised before their Lordships was whether the cross-appellants were right in maintaining their claim to arrears of maintenance. Branson, for the cross-appellants, contended that the High Court ought to have awarded arrears of maintenance for twelve years before suit, deducting the amount admittedly paid by the zemindar pending the appeal to Her Majesty in the former litigation. The High Court was right so far as it held that the right to maintenance is primarily a right to be maintained out of the current income of the property. But there is no sufficient authority for the proposition that if the person chargeable neglects to pay that maintenance which is due by him there is no legal claim to the arrears. The circumstances might be such as to shew that the claim was temporarily waived. But here the evidence shewed that the right was denied, and payment wilfully and wrongfully withheld. Under such circumstances, at all events, an action for arrears lies. Reference was made to Rajah Pirthee Singh v. Ranee Raj Kower (( 1873) L. R. Ind. Ap. Supp vol. 203.) ; Vyavastha Darpana, p. 384 ; Lakshmipathi v. Kandasami (( 1892) Ind. L. R. 16 Mad. 54.); Sakvarbai v. Bhavatiji (( 1864) 1 Bomb. H. C. 194.)n; Mahalak sh-mamma v. Venk ataratnamma (( 1882) Ind. L. R. 6 Mad, 83, 84.) ; Jivi v. Ramji (Ind. L. R. 3 Bomb. 207.); Narayanrao Ramchandra Pant Ramabai (( 1879) L. R. 6 Ind. Ap. 114; S. C. Ind. L. R. 3 Bomb 415.) Raghubans Kunwar v. Bhagwant Kunwar. (( 1899) Ind. L. R. 21 Allah. 183) Mayne, for the cross-respondents, contended that the High Court was right under the special circumstances of the case in rejecting the claims for arrears for the reasons assigned in the judgment appealed from. There was no sufficient evidence that they had been wrongfully withheld. (( 1899) Ind. L. R. 21 Allah. 183) Mayne, for the cross-respondents, contended that the High Court was right under the special circumstances of the case in rejecting the claims for arrears for the reasons assigned in the judgment appealed from. There was no sufficient evidence that they had been wrongfully withheld. The evidence rather pointed to their having been intentionally waived under the circumstances of litigation and in the prosecution of an absolute title to a portion of the estate, a claim which was inconsistent with that to maintenance, which involved a charge on the estate of a third party, and a personal liability of its holder, whose title to the whole is admitted by a maintenance claim. Reference was made to Narayanrao Ramachandra Pant v. Ramabai (L. R. 6 Ind. Ap. 114.); Motilal Prannath v. Bai Kashi Ind. L.R. 3 Bomb. 207. (( 1892) Ind. L. R. 17 Bomb. 45.); Seshamma v. Subbarayadu. (( 1893) Ind. L. R. 18 Mad. 403, 405.) 6 Law. Rep. 27 Ind. App. 151 ( 1899- 1900) Raja Yarlagadda V. Raja Yarlagadda Durga Prasada Nayudu 49 The judgment of their Lordships was delivered by SIR HENRY DE VILLIERS. 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 zemindar 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. The appellant, the defendant in the lower Court, is the eldest son of Ankinidhu, late zemindar of Challapalli, who died on April 6, 1875, leaving three sons, namely, the defendant and the two plaintiffs. Not long after their fathers 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 zemindary estate was impartible, but awarded to the then plaintiff one-third of certain property, not forming part of the zemindary estate. That Court decided that the zemindary estate was impartible, but awarded to the then plaintiff one-third of certain property, not forming part of the zemindary 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 May 1, 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—(1.) maintenance at the rate of Rs. 2000 per month; (2.) Rs. 5,31,938 for arrears of maintenance ; (3.) Rs. 12,000 towards the marriage expenses of the plaintiffs children ; (4.) the provision of suitable houses, lands, utensils, and furniture for the plaintiffs; and (5.) 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 zemindary 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 zemindar 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 to the maintenance being a charge upon the whole of the zemindary estate. They held that the arrears were not claimable, except a certain sum actually received by the plain tiffs 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 zemindary, they say " We think that the zemindar is justified in objecting to the decree as framed by the District Judge, inasmuch as it fetters him unnecessarily in the disposition of his property. 56,000 to Rs. 23,000. As to the question whether the maintenance decreed should be a charge upon the whole of the zemindary, they say " We think that the zemindar is justified in objecting to the decree as framed by the District Judge, inasmuch as it fetters 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. 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 been 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 zemindary estate. As to the zemindary estate, this Board held that it was impartible, and the consequence is that the plaintiffs, as the younger brothers of the zemindar, 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. (See Sartaj Kuari v. Deoraj Kuari, ( 1887) L. R. 15 Ind. Ap 51, 62; S. C. Ind L. R. 10 Allah 285.) In regard to the amount of maintenance, the judges of the High Court 6 Law. Rep. 27 Ind. App. 151 ( 1899- 1900) Raja Yarlagadda V. Raja Yarlagadda Durga Prasada Nayudu 50 very properly refused to disturb the finding of the District Judge, whose experience in the district they fully recognise. The only question upon which there has been any serious argument before their Lordships is whether the arrears of maintenance awarded by the lower Court ought to have been reduced by the High Court. The plaintiffs no longer object to the arrears being limited to the period of twelve years, but they claim that for that period at all events they should receive the amount awarded to them. The plaintiffs no longer object to the arrears being limited to the period of twelve years, but they claim that for that period at all events they should receive the amount awarded to them. Among their reasons for the view that arrears of maintenance are not claimable, the learned judges of the High Court state the following " The District Judge has granted arrears at the rate of Rs. 500 per mensem for twelve years prior to the institution of the suit. In this we think he was wrong. The right to maintenance is primarily a right to be maintained out of the current income of the property in the enjoyment of the party chargeable. The circum-« stance, however, that a person entitled to maintenance has not in fact been maintained by the person chargeable does not necessarily give him a right of action for arrears. On proof of failure to maintain, without more, he cannot be said to become a creditor of the person in default. It is incumbent on him to prove that there has been a wrongful withholding of the maintenance to which he is entitled." In support of these views the learned judges refer to two cases Jivi v. Ramji (Ind. L. R. 3 Bomb. 207.) and Sri Maniyam Mahalakshmamma v. Sri Maniyam Venkataratnamma (Ind. L. R. 6 Mad. 83.); but these cases by no means support the conclusions at which the High Court has arrived. The first of them, decided by the High Court of Bombay in 1879, was a case in which a Hindu widow sued her late husbands undivided brother for four years arrears of maintenance. The High Court, reversing the judgment of the District Court, held that the widow had a legal right, irrespective of demand and refusal, to maintenance, and may recover arrears for any period not excluded by the law of limitation. The question raised in the second case, which was decided by the High Court of Madras in 1882, was whether a Hindu widow entitled to maintenance can have the payment thereof secured by a charge on part of the inheritance in the hands of the heir. The question was decided in the affirmative, and the learned judges in the course of their judgment made the following remarks (Ind. L. R. 6 Mud. The question was decided in the affirmative, and the learned judges in the course of their judgment made the following remarks (Ind. L. R. 6 Mud. 84.) " It is argued that the claim to past maintenance ought to have been disallowed, but we are unable to assent to this view.....Although no previous express demand is necessary to sustain a claim to past maintenance, and it is only evidence of a wrongful withholding of maintenance which, as observed by the Privy Council in Ind. L. R. 3 Bomb. 421, is the ground of liability—the Subordinate Judge has also found in this case that demands were made but not complied with since 1876." The case before this Board to which reference was made in the case last cited was decided in 1879. Three questions were raised before their Lordships, namely, whether the suit of the plaintiff, a Hindu widow, for maintenance and arrears under a will is barred by limitation on the expiration of twelve years from the testators death, whether she had disentitled herself to maintenance by living apart from the son, and whether the suit could be maintained notwithstanding that there had been no demand and refusal of the maintenance. Their Lordships answered the two first questions in the negative, and as to the third question they made the following observations "It was said that no action could be maintained because a demand and refusal had not been proved. There is no evidence that a specific demand was made for the maintenance, but the Subordinate Judge has found, and the High Court have not disagreed with him, that the maintenance was refused; and taking all the circumstances of this family into consideration, their Lordships do not doubt that there was a withholding of this maintenance by the son under circumstances which would amount to a refusal of it." Among the circumstances thus taken into consideration was the antecedent litigation which shewed the state of hostility between the members of the family and accounted for the withholding of the maintenance. The case is no authority for the proposition that in order to recover arrears of maintenance it is necessary to prove a demand for each years maintenance as it became payable. The case is no authority for the proposition that in order to recover arrears of maintenance it is necessary to prove a demand for each years maintenance as it became payable. On the contrary, the fair deduction from this and other cases cited is that, while the learned judges of the High Court were right in holding that non-payment of maintenance to a person entitled thereto does not necessarily give him a right of action 6 Law. Rep. 27 Ind. App. 151 ( 1899- 1900) Raja Yarlagadda V. Raja Yarlagadda Durga Prasada Nayudu 51 for arrears, it constitutes prima facie proof of wrongful withholding. It is only upon a full consideration of all the circumstances of each particular case that it is possible to decide whether such prima facie proof has been rebutted. The only case which might appear to conflict with this view is that of Motilal Prannath v. Bai Kashi. (Ind. L. R. 17 Bomb. 45.) In that case the learned judges of the High Court of Bombay admitted that a withholding of maintenance might be proved otherwise than by a demand or refusal, and if they intended moreover to decide that non-payment of maintenance when due does not constitute prima facie proof of such withholding, their Lordships are unable to agree with the decision. In the present case it is said that the claim for maintenance is inconsistent with the claim for partition in the previous action, and in one sense this may be true, but it by no means follows that the right to arrears of maintenance was forfeited in consequence. It is not alleged that the plaintiff did not act in perfectly good faith in instituting his suit for partition, and the fact that there was considerable diversity of opinion in the different Courts which had successively to decide the case shews that the plaintiffs claim for partition was not wholly baseless. So long as that action was pending the plaintiff could not well claim maintenance except as a provisional means of support pending the appeal to Her Majesty in Council. The defendant, on the other hand, if he had been willing to allow full maintenance in lieu of a partition, might have made an unconditional offer of a reasonable amount of maintenance, or he might have set aside a certain sum for the purpose. The defendant, on the other hand, if he had been willing to allow full maintenance in lieu of a partition, might have made an unconditional offer of a reasonable amount of maintenance, or he might have set aside a certain sum for the purpose. It is true that, in an affidavit, he made a vague admission of his liability, but he never went any further. It is reasonably clear from the proceedings in the present suit that he would not have been willing to provide maintenance at the rate of Rs. 750 per month, if that sum had been demanded in the previous suit instead of a decree for partition. One of the express grounds stated by him for his appeal in the present suit to the High Court was, that " even granting that the plaintiff is entitled to maintenance, the rate of maintenance awarded to him is excessive." And among his grounds of appeal to Her Majesty in Council are the following " (4.) the High Court failed to notice that it is for the plaintiff to set up and prove any custom entitling him to maintenance, and that he has not done so; (5.) the High Court erred in thinking that there was any admission by the defendant of his liability for maintenance; (10.) the amount of maintenance awarded is excessive." After these objections, and in view of the strained relations between the brothers ever since their fathers death, it is impossible to believe that the defendant would have paid maintenance at the rate of Rs. 750 per month, or at any other rate, if it had been demanded from him in the first instance. He does not allege in his defence, nor is there any evidence, that he was in any way prejudiced by the form of the previous action. It may well be that, if he had been misled into the belief that the claim for maintenance was abandoned and had in consequence not set aside any portion of his annual income to meet such a claim, he would have had a good defence to the present action. It may well be that, if he had been misled into the belief that the claim for maintenance was abandoned and had in consequence not set aside any portion of his annual income to meet such a claim, he would have had a good defence to the present action. But, without some such ground of defence, it is impossible to hold that the younger brothers of the defendant have forfeited an undoubted right merely because they were in the first instance advised to institute a wrong suit, and did not claim their maintenance as it fell due. The District Court, therefore, properly held that the younger brothers were entitled to recover arrears for any period not excluded by the law of limitation. The result is that, in the opinion of their Lordships, the defendants appeals should be dismissed, and the plaintiffs cross-appeals allowed to this extent, that the judgment of the District Court for arrears be restored and the defendant ordered to pay the plaintiffs costs of appeal to the High Court, and their Lordships will humbly advise Her Majesty accordingly. The costs of these appeals will also be paid by the defendant, but the registrar will be directed not to include in such costs any expenses occasioned by the printing of irrelevant or unnecessary matter in the bulky record presented to their Lordships.