Judgment :- Aravind Kumar, J: This is plaintiff’s writ petition against the order dated 28.5.2010 passed on O.S.No.17/2008 (Annexure-F) where under application filed by plaintiff for directing defendant No.2 to pay a monthly sum of Rs. 10,000/- p.m. towards maintenance of plaintiff has been dismissed. It is this order, which is impugned in present writ petition. 2. The facts in nutshell leading to the filing of the present writ petition are as under: 2.1 The parties are referred to as per their rank in Trial Court. Plaintiff instituted a suit in O.S.No. 17/2008 for the relief of partition for declaring that plaintiff is entitled to 1/5th share in all the suit schedule properties and for an enquiry into mesne profits under Order 20, Rule 12 of Code of Civil Procedure. On service of notice defendant Nos. 2, 3, 5 to 7 have filed written statement and denied the averments made in the plaint. 2.2 During the pendency of the suit an application has been filed by plaintiff viz., I.A.No.I under Section 151 of Code of Civil Procedure praying for a direction to defendant No. 2 to pay a monthly sum of Rs. 10,000/- p.m. towards maintenance of plaintiff. The said application came to be resisted by defendant No.2 by filing detailed statement at objections and on considering said objections, Trial Court has dismissed the application with cost of Rs. 500/-. It is this order, which is impugned in the present petition. 3. The contention of plaintiff in the application is that he is a commence graduate and his father Sri. Ramakrishnappa was a weaver by profession till his demise. It is contended that during the lifetime of his father he along with plaintiff was working under defendant Nos.2 and 3. Defendant No.2 being the eldest member of family was maintaining the business carried out by family and all expenses like food, clothing and pocket expenses were looked after by defendant No.2. It was contended that defendant No. 2 being the Khartha of Joint Hindu Family, he has been receiving substantial income from marketing of silk and has been working contrary to the interest of Joint family and has been utilizing the income generated from business to acquire both movable and immovable properties in his individual name and it is further contended that defendant No.2 is getting income of Rs. 2,50,000/- p.m. both from silk business and also by way of rents. It is contended in the affidavit supporting the application that plaintiff after getting married for the 2nd time got separated from the joint family and has been residing separately at Vinayakanagar and defendant No.2 is not assisting in the maintenance of plaintiff’s family and is appropriating the income of family business for himself by denying the legitimate share of plaintiff. On this ground he seeks for payment of a sum of Rs.10,000/- p.m. as maintenance from defendant No.2. 4. The said application has been opposed by defendant No.2 and status of joint family has been denied. The working of plaintiff and his father under 2nd defendant is also denied. It is contended that plaintiff had taken his separate share from the joint family and has left the house in the year 1989 itself. The contentions of plaintiff that immovable properties acquired by defendant No.2 are from the joint family funds has been denied by defendant No.2. It is contended that defendant No.1 is the mother of plaintiff and the power looms installed at Cubbonpet, Bangalore are self-acquired property of the mother. In fact the said power looms were also divided amongst her sons and two power looms were given to the share of plaintiff by the said defendant No.1 Smt. Thimmakka mother of Ramakrishnappa and in this regard a Palupatti was drawn in the presence of Panchayathdars and it is also agreed that plaintiff and defendant Nos.2 and 3 would jointly pay a sum of Rs.10,000/- p.m. to Smt. Yashodamma-defendant No.4 who is the wife of Sri M. Ramakrishnappa i.e., ,mother of plaintiff. The other contentions raised in the application have also been denied by defendant No.2. 5. Heard Sri. R.A. Devanand, learned Counsel appearing for the petitioner and Sri. M. Erappa Reddy, learned Counsel appearing for caveator-respondent No.2 on 30.6.2010 and it was ordered to be listed for dictating orders on 2.7.2010. In view of the fact that this Court was hearing an appeal wherein a direction has been issued by Hon’ble Apex Court to dispose of the appeal RFA No. 1966/2007, within time frame judgment could not be dictated on the date notified. However, the matter was listed from time to time and today the judgment is being dictated. 6. It is contended by Sri. However, the matter was listed from time to time and today the judgment is being dictated. 6. It is contended by Sri. R.A. Devanand, learned Counsel appearing for petitioner that under Section 22 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as “Act” for short) which refers to maintenance of dependants entitles plaintiff to claim maintenance and plaintiff would be a dependant of the joint family. He would submit that under Section 3(b) of the Act plaintiff would be entitled to seek for maintenance including provision for food, clothing, residence, education, medical expenses and treatment. He would submit that a coparcener being major or minor is entitled for maintenance and the issues regarding entitlement for maintenance is to be adjudicated only after conducting an enquiry. The order of Trial Court rejecting the application on the ground that plaintiff would not come within the category of dependants and not entitled to maintenance is erroneous and requests the Court to set aside the order passed by Trial Court. In support of his submission, he has relied upon the judgment in the case of Cherutty Vs. Nagamparambil Ravu and another reported in AIR 1940 Madras 664 and the commentary of Mayne’s of Hindu Family at Chapter 23 Para 719 to contend that order of Trial Court requires to be set aside. The learned Counsel also seeks for further direction to Trial Court to adjudicate plaintiff’s claim on merits and accordingly, he prays for allowing of the writ petition. 7. Per contra, Sri. M. Erappa Reddy, learned Counsel appearing for caveator-respondent would support the order passed by Trial Court and submit that admittedly there is no joint family and there was a severance of status in joint family way back in the year 1989 and by virtue of severance of status of joint family three power looms had been received by plaintiff and suit for partition itself is based on incorrect facts. He would elaborate his submissions contending that plaintiff has already sought for mesne profits and in the event of plaintiff proving the averments made in the plaint and succeeding in the suit he would be entitled to mesne profits and it is submitted that this submission is made without prejudice to the claim of defendant’s claim on merits. 8. In reply Sri. 8. In reply Sri. R.A. Devanand, would submit that no opportunity has been given to plaintiff to prove about his incapacity and Trial Court could not have dismissed the application without examining the same on merits. To consider the capability or incapability of plaintiff to maintain himself the Trial Court ought to have conducted an enquiry and not dismissed the application at threshold and as such he rejterates the contentions raised in the writ petition. 9. Having heard the learned Counsel appearing for the parties the following points arise for my consideration: (i) Whether order passed by Trial Court dated 28.5.2010 deserves to be confirmed or reversed? (ii) What order? 10. The narrow point with which the contentions raised in the writ petition requires to be examined is with reference to entitlement of a person to claim maintenance under provisions of Hindu Adoption and Maintenance Act, 1956 and relevant Section which, would be required to be examined is Section 22 falling under Chapter 3, which reads as under: 22. “the heirs of deceased Hindu are bound to maintain the dependant of deceased out of the estate inherited by them from deceased. This condition found under Section 22 of the Act is a condition precedent for considering the claim to a person who contends that he is entitled for maintenance.” As to who are the dependants are enumerated under Section 21 of the Act, which reads as under: 21. Dependants defined. This condition found under Section 22 of the Act is a condition precedent for considering the claim to a person who contends that he is entitled for maintenance.” As to who are the dependants are enumerated under Section 21 of the Act, which reads as under: 21. Dependants defined. – For the purposes of this Chapter “dependants” means the following relatives of the deceased: (i) his or her father; (ii) his or her mother; (iii) his widow, so long as she does not re-marry (iv) his or her son or the son of his predeceased son or the son of predeceased son of his predeceased son, so long as he is a minor: Provided and to the extent that he is unable to obtain maintenance, in the case of a grandson from his father’s or mother’s estate, and in the case of a great – grand son, from the estate of his father or mother or father’s father or father’s mother; (v) his or her unmarried daughter, or the unmarried daughter of his predeceased son or the unmarried daughter of a predeceased son of his predeceased son, so long as she remains unmarried; Provided and to the extent that she is unable to obtain maintenance, in the case of a grand – daughter from her father’s or mother’s estate and in the case of grate-grand-daughter from the estate of her father or mother or father’s father or father’s mother. (vi) his widowed daughter: Provided and to the extent that she is unable to obtain maintenance. (a) from the estate of her husband, or (b) from her son or daughter if any, or his or her estate; or (c) from her father-in-law or his father or the estate of either of them. (vii) any widow of his son or of a son of his predeceased son, so long as she does not remarry; Provided and to the extent that she is unable to obtain maintenance from her husband’s estate, or from her son or daughter, if any, or his or her estate; or in the case of a grandson’s widow, also from her father-in-law’s estate. (viii) his or her minor illegitimate son, so long as he remains a minor; (ix) his or her illegitimate daughter, so long as she remains unmarried. 11. (viii) his or her minor illegitimate son, so long as he remains a minor; (ix) his or her illegitimate daughter, so long as she remains unmarried. 11. The Trial Court while examining the claim of plaintiff has posed a question to the learned Advocate appearing for the plaintiff as to whether plaintiff being a male major adult would he be entitled to claim maintenance? It has been replied by contending that plaintiff would be entitled to maintain such claim but surprisingly no material was placed before Trial Court in support of his proposition. Thus, Trial Court has come to a conclusion that a 47-year-old male adult who claims to be member of joint family cannot claim maintenance from his father’s brother and their children and accordingly rejected the application. 12. Sri. R.A. Devanand, learned Counsel appearing for the petitioner has relied upon the commentary of Mayne’s Hindu Law as referred to hereinabove and relevant paragraph relied upon reads as under: “719. All members entitled. – The importance and extent of the right of maintenance necessarily arises from the theory of an undivided family. The head of such a family bound to maintain its members, their wives and their children, to perform their ceremonies and to defray the expenses of their marriages; in other words, those who would be entitled to share in the bulk of the property are entitled to have all their necessary expenses paid out of its income. Drawing notice of Court to this paragraph from Mayne’s Hindu Law it is contended by Sri. R.A. Devanand, that petitioner would be entitled to claim maintenance and he has to be considered as dependant since plaintiff is unable to maintain himself, though Section 21 of the Act does not define adult male Hindu as dependant. It would be necessary to extract the later portion of Para 719 of Mayne’s Hindu Law, which reads as under: 719. The right of maintenance includes persons who by reason of personal disqualification are not allowed to inherit, such as the idiot, the madman and the rest. Such persons are excluded from inheritance and a share on partition but are given, in lieu thereof, maintenance. While their male issue, if not disqualified, are entitled to inherit, the wives and daughters of disqualified persons are, till marriage, entitled to be maintained. 13. Such persons are excluded from inheritance and a share on partition but are given, in lieu thereof, maintenance. While their male issue, if not disqualified, are entitled to inherit, the wives and daughters of disqualified persons are, till marriage, entitled to be maintained. 13. The premise on which this commentary has been made by the learned author is that when the right of maintenance by a person who by reason of personal disqualification is not allowed to inherit, such as idiot, mad man and such persons having been excluded from inheritance due to these inherent dis-qualifications and share in partition is excluded to them and as such these persons should not be deprived of maintenance and in lieu of such exclusion of inheritance they are to be maintained and it is in this background the learned author has opined that they would be entitled to seek maintenance. The object underlying “maintenance” is to ensure that such of those person who are unable to maintain themselves and that such of those person who are unable to maintain themselves and thought they are entitled for a share in the joint family on admitted facts. 14. Thus two tests required to be passed in this background are: (i) A person claiming maintenance should admittedly be held to be entitled for a share in joint family; (ii) And, should be otherwise disqualified to inherit/receive the said share. Only on passing of these two tests a person would be entitled to claim maintenance and if it is held so question of quantum of maintenance he/she would be entitled to would be required to be examined and not otherwise. 15. The specific contention of defendant No.2 in the written statement as well as in the objections filed to the application is denial of existence of joint family. In the background of such contention raised by defendant No. 2. plaintiff has to establish as to what right he possess in the joint family. Even otherwise the finding of Trial Court that plaintiff would not come within the four corners of Section 21 deserves to be accepted, inasmuch as the heirs of deceased Hindu are bound to maintain only the dependants of deceased and only when they have succeeded to the estate or inherited by them from out of the property of the deceased. Even otherwise the finding of Trial Court that plaintiff would not come within the four corners of Section 21 deserves to be accepted, inasmuch as the heirs of deceased Hindu are bound to maintain only the dependants of deceased and only when they have succeeded to the estate or inherited by them from out of the property of the deceased. In the affidavit supporting application, it is not stated by plaintiff that these properties were belonging to his father or defendant has succeeded to the property of the deceased i.e., plaintiff’s father. Even otherwise said issue being contentious in view of denial by the 2nd defendant it will have to be examined after trail. 16. Admittedly plaintiff is having a separate residence. It is also the contention of defendant Nos. 2, 3, 5, 6 and 7 in their written statement that plaintiff separated from joint family in the year 1989 itself and is residing separately after palupati was drawn on 14.9.1989 and it is also contended by them that plaintiff himself has admitted in his divorce proceedings that he has separated from joint family. In the instant case plaintiff admits that he has entered into 2nd marriage with Smt. Varalakshmi alias Smt. Bhagya Jyothi at Para 11 of the affidavit after 1st marriage ended in divorce. These facts clearly go to show plaintiff is residing independently and eking out livelihood. 16. Further, plaintiff admittedly does not come under any of the categories enumerated under Section 21 and the arguments advanced by learned Counsel appearing for the petitioner relying upon Mayne’s Hindu Law as extracted herein above would not be applicable for the reasons aforesaid. 17. Learned Counsel appearing for the petitioner has relied upon Cherutty Vs. Nagamparambil Ravu and Another’s case reported in AIR 1940 Madras 664 referred to supra, where under it is held as follows: “I find myself unable to concur in any of the conclusions of the learned Judge. It is true that there are statement in the latest edition of Mayne’s Hindu Law and Usage” 10th Edn., P.825, and in Mullah’s “Principles of Hindu Law, 8th Edn., P.582, when support the learned Judge in his opinion that a major coparcener cannot be sue for maintenance, but they are based on certain observations of the Bombay High Court which appear to me to run contrary to decision so the Privy Council. In passing I may mention that Varadachariar and Mockett JJ. In ILR (1937) Mad. 42 observed it was doubtful whether an adult son could maintain a suit for maintenance against his father when he could sue for partition, but they gave no reasons for the expression of doubt and presumably it was based on the Bombay cases. Every member of an Undivided Hindu Family is entitled to be maintained out of the family estate. In delivering the judgment of the Board, dealt with the question of the right of a coparcener to be maintained out of the common property.” The said decision came to be rendered on 29.11.1939 by the Division Bench of Madras High Court, which did not admittedly, have the benefit of examining the provision of Hindu Adoption and Maintenance Act, 1956 inasmuch as the said Act having not come into force at that relevant point of time. Hence, said judgment cannot be applied to facts of present case. 18. Under the Hindu Adoption and Maintenance Act, 1956 which is an off shoot of the Hindu Succession Act, 1956 would entitle a person to claim maintenance and such right to claim maintenance would be available only when the rights are crystallized or which would emerge and flow on account of being a member of the Joint family and being dependant of the Joint Family. The object with which Section 3(b) and Section 21 has been enacted is to ensure that neither infirm or destitute or such of those persons who are incapable of maintaining themselves inspite of they having a admitted share in the joint family property and who are a separate class persons who would be entitled to claim such share and those who can be construed as dependants and who constitute such class of persons to constitute as dependants as enumerated under Section 21 of the Act will not be left in lurch and plaintiff will not come within the said definition and as such Trial Court was justified in dismissing the application. 19. In view of the above discussion, the point formulated hereinabove is to be answered by holding that order passed by Trial Court requires to be confirmed and accordingly point No. 1 formulated herein above is answered. Re: POINT NO. 2: Though Mr. R.A. Devanand, learned Counsel appearing for petitioner would contend that costs of Rs. 19. In view of the above discussion, the point formulated hereinabove is to be answered by holding that order passed by Trial Court requires to be confirmed and accordingly point No. 1 formulated herein above is answered. Re: POINT NO. 2: Though Mr. R.A. Devanand, learned Counsel appearing for petitioner would contend that costs of Rs. 500/- ought not to have imposed while dismissing the application this Court is of considered view that cost awarded by Trial Court shall form part of final result in the suit and in the event of plaintiff not succeeding in the suit it shall be included in the costs payable by plaintiff to defendants. Accordingly, the same is hereby confirmed and writ petition is dismissed as devoid of merits. No costs.