Appeals Nos 1235 to 1237 of 1966
Appeals from the judgment and decree dated September 20 1963 of the Kerala High Court in Appeal Suit No 304 of 1962
Rameshwar Nath Mahinder Narain and Swaranjit Sodhi for  the appellants in CA No 1235 of 1966 and respondent No 11 in CAs
Nos 1236 and 1237 of 1966
K Javaram and R Thiagarajan for the appellants in CAs
Nos 1236 and 1237 of 1966 and respondents Nos 1 to 7 in CA No 1235 of 1966
MRK Pillai for respondent No 3 in CAs
1236and 1237 of 1966 and respondent No 9 in CA No 1235 of 1966
The Judgment of the Court was delivered by Ramaswami J
KavaIappara 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 Kavalappara 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 per mensem for plaintiff No 5 at the above rate and for plaintiffs 6 to 8 at Rs 400 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 38 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 OS No 46 of 1934 that even after the Privy Council had decided OS 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 he had been adopting the generosity of the predecessor Sthanees and paying to the junior members of the Swaroopam Rs 17000 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 per mensem for each of the plaintiffs charged on the corpus and income of the Sthanam estate
The first defendant appealed to the Kerala High Court in AS 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 court s decree
The High Court dismissed the cross objections of the plaintiffs
CA No 1235 of 1966 is brought to this Court by certificate on behalf of defendant No 1 and CAs 1236 and 1237 of 1966 are brought to this Court by certificate on behalf of plaintiffs
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 OS 991 and 992 of the year 1817 granting a decree for maintenance to two members of the Kavalppara 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 Swaroopam 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 39 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 tarwad members in disregard of the orders of Defendant who is the present Moopil Nair of Kavalppara and in opposition to the status ranks and dignities Sthanamanams and propriety of 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 efforts 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 Cherumpatte Manakkal Vasudevan Bhattathiripad and Pannasseri Adisseripad state on solemn affirmation that since it is the Moopu that manages the properties forming the assets of the Swaroopam esstate and received 16000 and old 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 reasons 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 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 Edavam 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 40 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   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 order 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 Kavalppara in spite of the attempts made through the Brahmins and other respectable persons to avoid the Moopu getting a bad name owing to a rumour getting afloat that there is dissension among the members as a result of the plaintiffs 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 41 the 1st of Chingam 14th August to the 1st of Vrichigam 14th 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 claimed in the plaint relates
I therefore direct the defendant to pay to plaintiff a sum of Rs 360 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 maintenance at the rate of 120 fanams a month and that the plaintiff and Defendant do pay and receive proportionate costs
 Exhibit B 1 is a deposition given in OS 2 of 1859 by the then Sthanee of the Kavalappara Swaroopam
The deposition is marked as exhibit 67b in OS 46 of 1934 and reads as follows The properties belong to the Sthanam only
Two Kalams lands attached to two granaries 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 This deposition shows clearly that the Sthanee in office admitted over a century ago his obligation to maintain junior members of the Swaroopam
The next piece of evidence is the deposition of the Sthanee in OS No 46 of 1934
In the present case the 1st defendant did not give evidence
He admitted that his deposition in the previous suit OS No 46 of 1934 contained a true statement of facts
The previous depositon of the 1st defendant in exhibit B 13 and reads as follows 4
The eldest lady in the Swaroopam is called Aroma Nethiyar
Some properties had been allotted for the L 1 Sup CI70 4 42 maintenance of the members in the name of Amma Nethiar  
Those properties had been allotted in ancient times in her name from the properties of the Moopil Nair
The Moopil Nair was originally a ruling chief
The grant of properties in the name of Amma Nethiyar should have been made when the Moopil Nair was a ruling chief
The present Amma Nethiyar has even now the right to manage the properties which had been so allotted
It was in ignorance of such allotment that my eider brother and after him myself managed those properties along with the stanam properties
I am willing to hand back the management of those properties to Amma Nethiyar
If those properties are handed back I shall no more be liable to pay the maintenance of the members
 In his written statement defendant No 1 made the following admission in para 6   
The defendant does not deny that the members of the Swaroopam are entitled to be maintained by the Moopil Nayar by virtue of custom
But that does not make him any the less a Stani nor detract from the Stanom character of the properties
 In our opinion the evidence adduced in the case sufficiently proves a custom in Kavalappara Estate by which the Sthanee was legally obliged to give maintenance to junior members of the family
It is possible that the practice of paying maintenance to junior members originated as an act of generosity of the previous Sthanee
But it has continued without interruption for such a length of time that it has acquired the character of a legal right
On behalf of defendant No 1 it was contended that the Judicial Committee had said that the payment for maintenance was an act of generosity on the part of the Sthanee and was not a legal right of the junior members
Reference was made to the following passage in the judgment in Kochunni vs Kuttanunni1 The maintenance claimed was a customary one originating in ancient times when admittedly the Muppil Nair was a Sthani in possession of Sthanam rights
There is no evidence as to how the maintenance allowance arose whether it was given in recognition of a legal claim or was only a generous provision made for the benefit of the women and younger members which the Raja was perfectly competent to do out of property 1 AIR 1948PC47at p 52 43 which he regarded exclusively as his own
The claims of generosity often prevail over a sense of ownership especially when the recipient of the bounty is a near relative in a dependent position
 In our opinion this argument proceeds on a misreading of the judgment of the Judicial Committee
The Judicial Committee has observed that the claim for maintenance was based on customary rights and was not ex gratia payment
In the course of the judgment Mr MR Jayakar states The documents material in this connection are Exs O  and P  being the decree and judgment respectively in two suits for maintenance brought in the year 1817 against the then Muppil Nair the first by the then third Nair a minor and the second by his mother
It is material to note what the issue was and what was decreed in these suits
In the pleadings of both the parties the claim for maintenance was stated to be based on customary rights
The plaintiff alleged it is the usual custom  that Nair should pay the maintenance
The defendant admitted the custom  but denied his liability to pay the maintenance on the ground that his ancestors in ancient times had already settled in accordance with the usual practice  certain lands on a lady called Amma Nethiar for the maintenance of herself and the junior members and that the maintenance claimed in the suit even if it was due which he denied should primarily come out of the lands so set aside in previous times
He also denied his liability on the ground that the minor and his mother contrary to his advice and that of the well wishers of the family had gone away to live elsewhere
The defendant denied his liability also on other grounds which it is unnecessary to consider in tiffs case
He however expressed his willingness to supplement the maintenance if the Court thought proper on particular occasions
The Judge while admitting that it was the responsibility of Amma Nethiar to maintain the plaintiffs held that as the plaintiffs stood in the very near relationship of sister and nephew to the defendant and were his next heirs it was only proper  that the defendant should grant them a periodical allowance for past and future maintenance
In the light of the pleadings set out above the admissions made therein by bolt sides about the customary nature of the maintenance and the words it was only proper  in the judgment their Lordships cannot accept this as a decision contra 44 dicting the incidents of the property in the hands of the Muppil Nair
 In any event the question as to whether the right of maintenance was given by the Sthanee in recognition of the legal claim or whether it was an ex gratia payment was not directly in issue in the previous suit
The question for determination was whether the existence of maintenance allowance was inconsistent with the Sthanam character of the properties in possession of the then Moopil Nair
On this point it was held by the Judicial Committee that the payment of the maintenance allowance for junior members was not inconsistent with the Sthanam character of the property on which it was grounded
At p 53 of the Report Mr Jayakar has observed Their Lordships think that in the proceedings of these two cases there is hardly anything to support the view of the High Court that the decrees in these two suits are inconsistent with the Sthanam character of the properties in the possession of the then Muppil Nair or that he did anything which could be regarded as an admission that the properties in his hands were not Sthanam properties
On the question whether and how far the existence of a maintenance allowance is inconsistent with the Sthanam character of the property on which it is grounded the following passage in Sundata Aiyar s book p 255 bottom may be noted The point of view suggested in some cases in which the question has arisen is that the members of the family have rights of maintenance in the property of the Sthanam itself that is practically assimilating these properties to impartible zemindaries before the recent cases  Besides the Sthanam in dispute in this case belonged as stated above to the second category and in such a case the existence of maintenance allowance would be perhaps not so inconsistent as in the case of a Sthanam of the third class carved out of the family property for the support and dignity of its senior member
 The question at issue before the Judicial Committee was whether the Kavalppara Estate was a Tarawad or joint family property belonging to the joint family or whether the properties appertained to the Sthanam and belonged to defendant No 1 as a Sthanee exclusively
The question as to the right of maintenance of the plaintiffs was incidentally gone into and it was ultimately held that the existence of such maintenance fight of junior members of 45 the family was not inconsistent with the Sthanam character of the properties
In our opinion the High Court
was right in its finding that the plaintiffs have established their right to maintenance from the Sthanam properties as a matter of custom
Counsel on behalf of defendant No 1 has been unable to make good his argument on this aspect of the case
An alleged custom in order to be
valid must be proved by testimony to have been obeyed from consciousness of its obligatory character
A mere convention between family members or an arrangement by mutual consent for peace and convenience cannot be recognised as custom
In Ramroa vs Yeshwantrao1 it was proved that it had been the practice in a Deshpande Vatandar s family for over a hundred and fifty years without interruption or dispute of any kind whatever to leave the performance of the services of the vatan and the bulk of the property in the hands of the eider branch and to provide the younger branches with maintenance only
It was held that such practice was due in its origin to a local or family usage and not to a mere arrangement and that it was therefore to be recognized and acted upon as a legal and valid custom
In order therefore that a custom should acquire the character of law the custom must be accompanied by the intellectual element the opinion necessitatis the conviction on the part of those who use a custom that it is obligatory and not merely optional
In other words the mark which distinguishes custom in the legal sense from mere convention is the opinion necessitatis the recognition that there is authority behind it In the modern state the custom if legally recognized has behind it the court and an apparatus of coercion
In primitive communities we do not find authority necessarily organized in the institutional sense
We must ask what is the ultimate power in the group to settle conflicts or to prescribe rules   It may be the old men the military group the priests or merely a general consensus of opinion
But the opinion necessitatis can come into existence only when the community in some way throws its force behind the particular rules
 See GW Paton Jurisprudence 3rd edn
p 164 We have shown in the present case that the plaintiffs have established their right to maintenance from the Sthanam properties not merely as an act of generosity on the part of the Sthanee but the 1 ILR 10 Bombay 327
payment of maintenance has been made by the Sthanee as a matter of legal obligation
The next question is whether the plaintiffs are entitled to arrears of maintenance
It appears that after the decision of the Privy Council declaring the ist defendant as exclusive owner of properties he has paid Rs 17000 annually to the Amma Nethiar for the maintenance of the junior members of the Swaroopam
It is not disputed by the plaintiffs that such payments were made before the institution of the present suit
Even after the institution of the suit the 1st defendant had been depositing annually Rs 25000 in court for the maintenance of the plaintiffs and other members of the Swaroopam as ordered by the trial court
It was alleged by the plaintiffs that they have not been paid any maintenance
But the High Court found that maintenance had been given to the plaintiffs  mother with whom plaintiffs had been living
For these reasons the High Court held that there was no ground for awarding arrears to maintenance before the date of suit
We see no reason for taking a view different from that of the High Court in the matter
As regards the rate of maintenance the trial court granted decree at the rate of Rs 250 pm for every one of the plaintiffs irrespective of age
It has been found by the trial court that the net income of the Swaroopam was about Rs 2 lakhs per annum
It is admitted that the income of the Swaroopam consists mostly of rents from cultivating tenants
With the abolition of perquisites and the fixation of fair rents by recent tenancy legislation there appears to have been a reduction of the net income of the Sthanam in recent years
It also appears that the plaintiffs are the only minor members in the family and excepting the 7th defendant who is their mother the defendants are males whose children would not be members of the Swaroopam
In the Madras Estates Abolition and Conversion into Ryotwari Act 26 of 1948 compensation to members of the family entitled to maintenance out of an impartible estate is fixed at 15 of what is paid for the estate in view of these considerations the High Court held that the provision of Rs 250 pm to each of the plaintiffs was adequate
The High Court however directed that it is open to the parties after two years to move the trial court for variation in the rate of maintenance fixed on the ground of altered circumstances of the Estate
Having heard the parties we see no reason for interfering with the judgment of the High Court in this matter
In the result we dismiss all the three appeals Civil Appeals Nos 1235 1236 and 1237 of 1966
There will be no order as to costs with regard to any of the appeals
GC Appeals dismissed


Summary:
Defendant No 1 was the Sthanee of Kavalappara estate which was an impartible estate governed by Marumakkathayam law
The plaintiffs claimed maintenance based on a family custom entitling the members to maintenance out of the entire income of the Sthanam
Past maintenance was claimed as also future maintenance from the date of the suit
Defendant No 1 denied that the plaintiffs had any right based on custom as claimed by them according to him from older times two kalams of the Sthanam had been set apart for their maintenance
He claimed that the Privy Council in suit No 46 of 1934 had declared him absolute owner of the Sthanam properties but despite that out of generosity only he had been paying to the junior members of the Swaroopam Rs 17000 annually
The trial court granted maintenance to the plaintiffs for the period claimed at the rate of Rs 250 per mensem for each of the plaintiffs
Defendant No 1 appealed to the High Court and the plaintiffs filed cross objections as the rate of maintenance allowed to them was lower than they had claimed
The High Court partly allowed the appeal negativing the plaintiffs  claim for arrears of maintenance and dismissed the cross objections of the plaintiffs
Both the parties appealed to this Court
The questions that fell for consideration were i whether the right to maintenance as claimed by the plaintiffs was based on custom ii whether the High Court was right in disallowing the claim of the plaintiffs to arrears of maintenance iii whether the rate of maintenance as ordered by the trial court and  confirmed by the High Court was justified
HELD i An alleged custom in order to be valid must be proved by testimony to have been obeyed from consciousness of its obligatory character
A mere convention between family members or an arrangement by mutual consent for peace and convenience cannot be recognised as custom
In order that a custom should acquire the character of law the custom must be accompanied by the intellectual element the opinion necessitatis
the recognition that there is authority behind it
45 B C D E Rarnrao vs Yeshwantrao ILR  applied
In the present case the evidence sufficiently proved a custom in Kavalappara estate by which the Sthanee was legally obliged to give maintenance to junior members of the family
It was possible that the practice of paying maintenance to junior members originated as an act of generosity of the previous Sthanee
But it had continued without interruption for such a length of time that it had acquired the character of a legal right
42 Kochuni vs Kuttanunnt AIR 1948 PC 47 52 explained
37 ii Although it had been alleged by the plaintiffs that they had not been paid any maintenance the High Court had  found that maintenance had been given to the plaintiffs  mother with whom the plaintiffs had been living
The High Court s refusal to grant to the plaintiffs arrears of maintenance before the date of the suit must in the circumstances be upheld
46 C iii The High Court in fixing the amount of maintenance for each of the plaintiffs at Rs 250 per month had taken into account all the relevant factors
It had further directed that it was open to the parties after two years to move the trial court for variation in the rate of maintenance fixed on the ground of altered circumstances of the Estate
There was no reason for interfering with the judgment of the High Court in this matter
46 G