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Judgment
Subba Rao, C.J.—These are connected appeals filed against the order of the Estates Abolition Tribunal made in a batch of 33 petitions he by the Appellants claiming payment of the amounts alleged to be due to them from and out of the compensation amount deposited by the Government in respect of eight estates.
These 8 estates originally formed part of the estates of Kolanka and Yeoavaram. On 6-1-1887, the then proprietor of the estates, Sri Rajah Ravu "Venkata ivwiupathi Surya Rao Bahadur executed a will, inter alia, providing for the payment of annuity of Rs. 3,000/- of maternal uncle Sri Cheliani Venkatarayanimgaru and his four brOrs. . After his death his adopted son Kumara Mahipathi, in his turn, executed a will on 15-12-1897 where unclear he accepted his father''s bequest in favour of the Chelikani brOrs. and specifically provided for paying them in perpetuity a sum of Rs. 3,000/- every year.
His widow, after his death, took the present Rajah of Kolanka in 1932 in adoption. The Chelikani brOrs. divided the annual payment between themselves and each was receiving Rs. 600/-towards his share. Some of the descendants alienated their interest in favour of third parties. The successive devolutions of the interest of the five Chelikani brOrs. in the aforesaid legacy have been summarised by the Tribunal.
It is not necessary to consider them over again as it is not disputed that the Appellants are the successors-in-interest of the Chelikani brOrs. to the said legacy. Before the Tribunal, it was contended on behalf of the Appellants that they were creditors of the estate and, therefore, they were entitled to be paid on that basis from and out of the compensation, whereas it was argued on behalf of the Respondents that the Appellants were maintenance-holders and, therefore, the Tribunal should value their interest u/s 44 (2) of the Act read with the rules framed by the Government in that behalf.
Alternatively, it was pressed upon the Tribunal that, whatever might be the character of the future annual payments, so far as the arrears were concerned, the Appellants were in the position of creditors. The Tribunal negative both the contentions advanced on behalf of the Appellants and allowed the claims of the Respondents both in regard to the arrears of maintenance and future payments on the basis they were maintenance-holders. It is not necessary to notice the other points raised before the Tribunal or the arguments advanced before them as nothing turns upon them in the appeals.
Learned Counsel appearing for the Appellant raised before us the following three points:
(1) Under the aforesaid two wills, a heritable and transferable annuity was created it favour of the Chelikani brOrs. , who had no pre-existing personal right to be maintained under personal law and, therefore, the amounts payable to them or their successors-in-interest were not amounts payable to persons who were entitled to be maintained out of the estate within the meaning of Section 44.
(2) Whatever may be the character of the future payments, so far as the arrears accrued were concerned, the Appellants are in the position of creditors and, therefore, they will be entitled to be paid on that basis.
(3) There is an obvious mistake in the calculations made in Annexure IV to the judgment.
The learned Counsel appearing for the Respondents, on the other hand, countered these arguments by stating that, under the will dated 6-1-1887, the then proprietor-of the Kolanka and Veeravaram estates made the bequest in favour of his maternal uncles, the Chelikani brOrs. , with the express object of providing for their maintenance and, if once that was conceded, the fact that the bequest was also heritable or transferable could not make the bequest any the less one made for maintenance. He proceeded to contend that, if once the bequest was for maintenance, there could not be any difference in the character of payments between arrears and future payments.
Learned Counsel appearing for both the parties cited a long catena of decisions in support of their respective contentions; but, as none of the decisions cited has a direct bearing on the question raised, it would be more convenient and useful to consider the provisions of the Act to ascertain their scope and the intendment of the Legislature. The relevant sections may now, be read:
(a) Section 3: With effect on and from the notified date and save as. otherwise erpressly provided in this Act.
(b) the entire estate (including all communal lands and porambokes; other non-ryoti lands; waste lands; pasture lands; lanka lands; forests, mines and minerals, quarries; rivers and streams; . tanks and irrigation works; fisheries and ferries), shall stand transferred to the Government and vest in them, free of all encumbrances; and the Madras Revenue Recovery Act, 1864, the Madras Irrigation case Act, 1865 and all other enactments applicable to rotary areas shall apply to the estate.
(c) All rights and interests created in or over the estate before the notified date by the principal or any other land-holder, shall as against the Government cease and determine.
Section 41: (1). The Government shall deposit in the office of the Tribunal, the compensation in respect of each estate as finally determined u/s 39, in such form and manner, and at such time or times and in one or more installments, as may be prescribed by rules made u/s 40.
Section 42: (1). Every person claiming the compensation so deposited or any portion thereof, including the principal or any other land-holder, members of his family claiming any portion of such compensation, whether by way of a share or by way of maintenance or otherwise, and creditors, whether their debts are secured or not, shall apply to the Tribunal within six months from the date on which the amount was so deposited or within such further time as the Tribunal may in its discretion, allow.
Section 44: (1). As a preliminary to such determination, the Tribunal shall apportion the compensation among the principal landholder and any other persons whose rights ferred to the Government u/s 3 Clause (b) or cease and determine u/s 3, Clause (c) including persons who are entitled to he maintained from the estate and its income;, as far as possible, in accordance with the value of their respective interests in the estate.
Rule 3 (1): In ease of (i) a particle estate other than that speedier in Rule 2 or (ii) an impartibly estate not nerved by Section 45, the. Tribunal shall determine the aggregate compensation payable to all the following persons considered as a single group:
(i) the persons who, immediately before the notified date, owned the estate (who are hereinafter called ''owners'');
(h) other person who, immediately before to notified date, were entitled to maintenance out of the estate and its income either under the have governing the parties or under any decree or order of a Court, award or other instrument in writing or contract or family arrangement which is binding on the owners (such other persons being hereinafter called ''maintenance-holders'').
This Act introduced a revolutionary reform in the land tenures of the State. On the date of the notification, all the estates governed by the Act have been transferred to the Government and vested in them free of all encumbrances. All rights and interests created in or over the estate by the land-holders ceased and determined as against the Government. Thereafter, the persons, whose rights are terminated, are entitled only to be paid from and out of the compensation deposited by the Government with the Tribunal.
Section 27 provides a. machinery for the ascertainment of the basic annual sum in a Zamin-dari estate. Section 37 prescribes a sliding scale for ascertaining the total compensation of the zamindari estate, among Ors. , having regard to its basic annual sum fixed u/s 27. The Director of Settlements appointed under the Act fixes the compensation on the aforesaid basis and deposits the same before the Tribunal.
It is not, and cannot be, disputed that the amount so ascertained and deposited with the Tribunal would be far less than the capitalised amount of the real annual rental of the estate. In the circumstances, the authors of the Act, while terminating the estates, realised that, by so doing, they were destroying the title of the land-holders, disappointing the hopes of their descendants and maintenance-holders and upsetting the calculations of the creditors.
To assuage the duplicities of the persons, whose interests are affected by the Act, they evolved a scheme of equitable distribution of the compensation among the persons so affected. The following illustration may bring out the difficult situation created by the Act. At a time when the income from the estate was its. 100/-the landholder provided for the sustenance of a near relation by an annual payment of Rs. 10/''-. He had a mother and a widowed sister-in-law to be maintained out of the income and they were getting Rs. 10/- each. Be and his sons were in enjoyment of the balance of Rs. 70/-.
Now, by reason of the notification the income was reduced to Rs. 30/- and compensation was deposited on that basis. In the circumstances, it is but equitable and just that the claims of the aforesaid persons, who are entitled to be paid out of the income of the estate, should also be reduced on some equitable basis in such a way that the land-holder, his heirs, maintenance-holders and other persons entitled to be paid out of the income get a share in the compensation. For that purpose, Section 44 of "the Act was enacted.
under Section 44, the Tribunal shall apportion the compensation among the principal land-holder and any other persons whoso rights or interests in the estate stand transferred to the Government u/s 3 Clause (b) or cease and determine u/s 3 clause , (c), including persons, who are entitled to be maintained from the estate and its income as far as possible, in accordance with the value of their respective interests in the estate. Under Rule 3 with which we are now concerned, the Tribunal is directed to determine the aggregate compensation payable to the following persons in two separate groups: (1) the persons who, immediately before the notified date, owned the estate (who are hereinafter called ''owners'') and (ii) other persons, who immediately before the notified date, were entitled to maintenance out of the estate and its income either under the law governing the parties or under any decree or order of a court, award or other essential conflict between a maintenance grant .and an annuity. Payments by way of maintenance also may take the form of an annuity.
We shall now proceed to consider whether the case law has placed any restricted meaning on the word "maintenance". Stanley, C. J., in -Sarabjit Par tap Bahadur Sahi v. Indrajit Partab Bahadur Sahi, 2 All LJ 720 (A), cited the following passage from Mayne''s Hindu Law.
The obligation imposed upon the head of a family to maintain its members is generally discharged either by defraying out of the common fund the expenses of those who live in the family house or by allotting to them sums of money payable periodically; sometimes however, portions of land, separate villages are assigned to particular members to be held by them for their own support Prima facie land so Granted is resumable at the death of the grantee.
Sometimes by special usage1 such grants are presumable at the pleasure of the grantor. Sometimes they are presumable on the death of the grantor by his successor. ''Where the head of the family is the owner of an impartibly estate, it is not uncommon to find an alienation, of villages made for the maintenance of a junior member and his direct male line find in such a case it does not revert to the principal estate until that line becomes extinct.
A further possibility is that the grant may have been absolute and irrevocable in full satisfaction of all claims to future maintenance. Such a grant if properly made out vests'' in the grantee not only a heritable but an alienable estate and undisturbed possession for successive generations may justify a presumption that the grant was of such a nature.
After citing the passage, the learned Chief Justice observes :
Whatever was the nature of the grants made by Fateh Sahi in favour of his younger sons, these grants were made us maintenance grants, and even if they took the form of absolute and irrevocable grants, no inference can be drawn from them in support of the Plaintiffs-Appellants'' contention.
It will be seen from the aforesaid passage that maintenance may be granted either in the shape of periodical payments or by grant of lands absolutely or to endure till the male line of the grantee becomes cetin of. Has J. in The Hon''ble Maharaja Bahadur Kesho Prasad Singh Vs. Madho Prasad Singh and Others, , pointed out that a maintenance grant was not absolutely inconsistent with a igrant to the done and his heirs. He observed at page 888 (of ILH Pat): (at p. 724 of AIR Pat):
It is all a question of construction. All that I need point out at the present stage is that a grant may be a maintenance grant though it is expressed to be for the benefit of the grantee and his heirs.
Spencer, J. in Rajah "Venkatappa Naya-nim Varu v. Rajah Thimma Nayanin Varu, 27 Mad LJ 66: AIR 1915 Mad 039 (C), stated at page 664 that "an amount provided as maintenance for a member of a family does not lose its -character as a maintenance allowance by being embodied in an instrument or decree.
In Aniruddha Mitra Vs. Official Receiver, Alipur Judge''s Court and Others, , Mukherjea J. negatived the contention that there could not be maintenance grant unless there was an antecedent obli--gation on the grantor to maintain the grantee under the personal law of the parties. Different categories of maintenance grants have come under judicial scrutiny. There were maintenancegrants, which by the terms of the grants were made heritable and saleable, See AIR 1933 67 (Privy Council) ) (E), Jogeswar Narain Deo v. Ram Chandra Dutt, ILR 23 Cal 670 .(F)
There were also grants heritable but not all enable, that is, those which were confined to the grantee and his descendants and reverted to the grantor, on the failure of male issue. See Agarsingji Raisingji Vs. Bai Naniba, (G), and Pratab Singh Shiv-singh v. Agarsinghi Rajasingji, ILR 43 Bom. 773: AIR 1918 PC 192 (H). Rama Chandra Marwari v. Mudeshwar Singh, ILR 33 Cal 1158 (I), dealt is with what was called ''Babuanagrant where under the grantee had the right to alienate the property subject only to the contingent interest of the grantor.
The aforesaid decisions indicate that, if the original grant was for. maintenance, the different kinds of terminology used or the fact that the grant was heritable and transferable or only heritable, would not make the maintenance lose its original character, though the incidents attached to the graft would vary- in accordance with the terms of those grants.
The decisions cited by the Appellants turn upon the provisions of Section 60 (i) (n), Code of Civil Procedure, or Section 6, T. P. Act. Before we notice the cases cited, it may be convenient to extract the said two provisions. Section 60 (i) CPC (CPC) says:
Provided that the following particulars shall not be liable to such attachment or sale namely: (n) right to future maintenance.
Section 6, Transfer of Properly Act:
Property of any kind may be transferred except as otherwise provided by this Act or by any other law for the time being in force.
(dd) A right to future maintenance in whatsoever manner arising, secured or determined, cannot be transferred.
This clause was inserted by the Transfer of Property Amendment Act, 1929. These two provisions are aimed at preventing the attachment or alienation of a right to future maintenance. The decisions, therefore, bearing on these clauses were concerned only with the interpretation of the terms used therein for a limited purpose. In Altaf Begam Vs. Brij Narain (J), the question was whether the right to recover future maintenance allowance, was alienable. Sulaiman J. who delivered the judgment on behalf of the Bench, at page 285 observed:
We agree with the view expressed in the Full Bench of the Madras High Court and by Mookerjee J. that the question whether the right to recover future maintenance allowance is alienable or not depends not on whether a charge has been created for the same but on the true intention of the parties. If the intention was that the right should be restricted in its enjoyment to the owner personally, it cannot be transferred u/s 6 (d).
The decision of the Madras High Court in Subraya Sampigethaya and Others Vs. Krishna Baipadithaya, (K), is also authority for the view that, in order to ascertain whether the right was personal or the interest was intended to be restricted in its enjoyment to the owner personally, one should ascertain the intention of the'' parties and such intention should be gathered from the deed and the attendant circumstances.
The aforesaid decisions, therefore, lay down the test that if the intention of the grantor was to restrict the right to the grantee personally the said interest is not alienable and. the fact that it "was charged on the property is not a relevant consideration in ascertaining the intention. Sivaji Govinda Rao Mohitay Rao Saheb Vs. N.N.C.T.C.V. Firm and Others, (L), is a decision turning upon the construction of Section 60 (i) (n), CPC (CPC) King J. after considering the case law on the subject, observed at page 816:
Now it is clear from an analysis of these three cases that all are concerned with family relationship and the allowances in all of them were granted in recognition of some pre-existing right.
Earlier, the learned Judge cited the view of the District Judge, which he presumably accepted, in the following terms:
On the other hand the view taken by the learned District Judge is that there must first exist the right to maintenance independently of contract, a right derived from the personal law and personal relationship of the parties and only when such a right has been commuted can protection be afforded. Where the right is created for the first time by contract it is always alienable and subject to attachment. It seems to me from a study of authorities that of these two views, the latter must prevail.
The opinion expressed by the learned Judge that Section 60 (i) (n) CPC would not apply unless there was pre-existing liability was not accepted by all the Courts. Be that as it may, this case is only an authority on the interpretation of the provisions of Section 60 (1) (n), CPC (CPC) in the view of the learned Judge, Section 60 (1) (n) was intended only to protect a person, who has a right derived from the personal law and not a person who has a right for the first time created under a contract.
This limited meaning given to the words "right to future maintenance" in the context of a creditor''s right to attach the same cannot be extended or applied to a statute dealing with a different subject altogether. In Nageswar Prasad Singh v. Chhotey Lai, AIR 1914 All 91 (M), the question was whether an allowance in the nature of an annuity could not be transferred. The proceedings there arose under the Encumbered Estates Act. The applicant was required under the provisions of that Act to give a list of his property.
He mentioned in the list that he was entitled to Rs. 5,000/- a month from certain trustees appointed under the will of his mother''s father but appended a note that this property was not liable to attachment u/s 60 (i) (n), CPC (CPC) because it amounted to a right to future maintenance. The question raised, before the Court was whether the said interest was exempt from attachment u/s 60 CPC (CPC) and whether it was transferable under the provisions of Section 6 (dd), T. P. Act. The learned Judges, in holding that it was attachable and saleable made the following observations at page 93:
It was held in AIR 1942 410 (Oudh) (N), and in Ohunilal v. Jaigopal, 163 IC 103 : AIR 1936 Lah 55 (O), that the right to receive an allowance did not amount to a right to future inheritance because the right was heritable but it cannot be deduced from the fact that heritable right cannot be a right to maintenance that a right which is not heritable must necessarily be a right to maintenance. The real question is what maintenance means. I think it means the provision of reasonable food, clothing and shelter.
A right to receive an allowance is not strictly speaking a right to maintenance although an allowance may be paid in lieu of a right of maintenance. In my Judgment, if any person has a right of maintenance against Anr. he has a right to demand from that other all reasonable food, clothing and shelter. He may accept an allowance in lieu of this right so as to provide himself with these necessities but there must be a right to be maintained before an allowance can be claimed in lieu of it.
There is nothing in the will which suggests that the trustees were under an obligation merely to pay him a fixed allowance from month to month.
Then dealing with the provisions of Section 6 (dd), T. P. Act, the learned Judge proceeds to state:
The amendment to the Transfer of Property Act by the insertion of Clause (dd) in Section 6 makes it clear that the right of maintenance mentioned therein is not a right which accrues merely under some personal law but there must still be a right of maintenance if the provisions of the Sub-section are to apply. It does not appear from the will that the trustees were under any obligation to maintain Ram Chander Singh and therefore in my opinion no question of a right to future maintenance arises. The allowance was an annuity like any other and there was no reason why it should not be transferred. In the same way it does not seem to me that it can be included within the exemption provided by Clause (m) of Section 60 Code of Civil Procedure.
The learned Judges, therefore, accepted the view that there should be an obligation to maintain on the part of the owner before there could be a right to future maintenance. This case also turned upon the provisions of Section 60, CPC (CPC) and Section 6, T. P. Act, which were enacted for a limited purpose.
Mukherjea J. in Aniruddha Mitra Vs. Official Receiver, Alipur Judge''s Court and Others, (D), considered the distinction between maintenance and annuity. There a person, who had a right to. receive monthly maintenance allowance which was provided by his father in a will, mortgaged that right. He was later adjudicated, insolvent. The Official Receiver started proceedings undetf Section 53 for declaration that the mortgages were illegal. The Court decided in favour of the mortgagee. Dealing with that question, Mukherjea J. summarised the effect of the other decisions considered by him as follows at page 243:
The result is that where the allowance is given as a matter of favour out of the bounty of the grantor or is the result of a contractual agreement between the parties, the provision of Section 6 (dd), T. P. Act, would not apply.
But the learned Judge dissented from that view by stating that this would be attaching a very much restricted meaning to the plain words of the section and that the policy of the law is to interdict alienation of what is intended to be given for the personal enjoyment of the grantee. The learned Judge definitely expressed his view in the following terms:
But we cannot say that there could not be a maintenance grant unless there was an antecedent obligation on the grantor to maintain the grantee under the personal law of the parties. Whatever doubts might have existed on this point are now removed by the clear words of Section 6 (dd) of the T. P. Act.
Dealing with the distinction between a maintenance allowance and an annuity, the learned Judge observed that it is true that there is a distinction between a maintenance allowance and an annuity and whether an allowance is the one or the other. may depend upon the facts of each case. On the facts of that case, the leaned Judges held that the sum of Its. 700/- a month given to the Appellant was a maintenance grant.
This decision, therefore, did ''set accept the'' Madras view that there should be a pre-existing liability under personal Ir. Before to future maintenance could, axons. To person. The distinction made imimaintonance allowance would before when a question u/s 60. CPC (CPC) (dd), T. P. Act, arises for the prohibit is against attach ninety or alienation in so provisions could not necessarily apply it divagate able grant.
From the aforesaid dispassion, the following principle emerges. Attach of a property may be under a person oblation ion to pay maintenance to Anr. or he a an in his bounty agree to pay maintenance to mother. This right to maintenance may be evoked to a document creating a charge over the property or of creating a personal obligation en ''-ho ever. The right may be confined to the ''invite or the grantee or may be mad heritable or both heritable and transferable.
Whatever may be the terminology used, if the object of the grant was to provide for the maintenance of the grantee, the fact, that the right to receive periodical payment from out of the income of the estate is made heritable or even transferable, cannot make the grant, any the less a grant for maintenance. Section 60 (i) (n) CPC (CPC), and Section 6 (dd), T. P. Act renames for a limited purpose. They were intended to protect maintenance-holders against them sees and to see that they are not deprived of their livelihood.
For that purpose, a right to future maintenance is made neither attachable nor assignable. These provisions cannot obviously apply to cases where heritable and transferable interests such as annuities are created in favour of third parties. The decisions .on the interpretation of the provisions enacted for a limited purpose cannot be invoked In construing the provisions of Madras Act XXVI of 1948 which, it cannot be disputed, introduced a revolutionary change in the law of the land. So far as that Act is concerned, the question is only whether the object of the grant was to provide maintenance for the grantee from and out of the income of the estate.
The fact that the right is transferable or heritable cannot affect the question so far as the land-holder is concerned, for the heir or the alienee as the case may be, only gets into the shoes of the alienor and he would continue to draw the maintenance amount from and out of the income of the estate. The main principle, therefore, is that all persons, who have an interest in the estate, should be compensated and the provisions of the Act should be so construed, without doing violence to the language used, as to achieve the broad purpose underlying the Act, namely, the equitable distribution of the compensation among all such persons.
We have already pointed out that the comprehensive intendment of Section 44 and. ft. 3 made there under takes in every person entitled to be paid maintenance out of the estate or its, income irrespective of the fact that the said right was heritable or transferable.
Now adverting to the aforesaid wills of 1887 and 1897, what were the circumstances "under which the bequest was made in favour of the Chelikani brOrs. and what was their interest there in The income from the Kolanka and Veeravaram estates was about Rs. 1,60,0007- a year. The then proprietor had no children. He gave authority to his wife to take a boy in adoption. He directed his wife to maintain his mother and. if she did not agree to live under her protection, to give bar a sum of Rs. 400/- every month during her life-time towards her expenses.
To his brother''s wife, his widow had to give maintenance as he was giving before. As regards the maternal uncles, after the expiry of the lease of a village given to them, for their family maintenance, she was directed to give Rs. 3.000/- every year, la view of the fact that they were affectionate towards him, the said amount was given to them to be enjoyed permanently from seen to grandson from and out of the estate and was charged thereon. To his grandfather''s brother he had given a village absolutely for the purpose of enabling him to be maintained out of it.
The document of the year 1897 practically adonts the'' same terminology in regard to the maintenance of the Chel''kani brOrs. . It is, therefore, clear from the document that the proprietor who had large income, in his bounty provided for the maintenance of his five maternal uncles and their descendants. For the purpose of maintenance, ho conferred a heritable right on them to recover a sum of Rs. 3,000/- from out of the estate and its income. On the question whether the interest created under this document is heritable only or both heritable and transferable it is not necessary to express one view.
Bait the fact remains that whatever incidents attached to the grant, it was expressly made for maintenance. If the maternal uncles or their disenchants transferred the interest to a third party, it cannot destroy the object of the grant. The aliened recovers the amount getting into the shoes of the alien or entitled to maintenance under the document. If that was the import of the document, the interest created there under is clearly covered by the provisions of R. 3 00.
Under the aforesaid ''instrument in writing'', the Ohelikani brOrs. and their sueeessors in-interest were "entitled to be maintained out of the estate and its income" and therefore, the Tribunal was right in treating them as maintenance-holders for the purpose of equitable distribution on the compensation amount. This legal position, without doing vohence to the language, would enable the Tribunal to equitably distribute the Compensation among the persons entitled to get income from and out of the estate.
The present case itself would illustrate how the construction sought to be put upon the provisions of the Act by the Appellants'' advocate would work great hardship on the owners. The income from the estate was Rs. 1,60,000/- per year. Under the Rent Reduction Act, it was reduced to Rs. 90,000/-. Under the provisions of the Act, the compensation payable in regard to the entire estate would be Rs. 3.00,000/-. Taking Rs. 3,00.000/-as 20 years capitalised value of the income, the income from the same would be Rs. 15,000/-.
The aforesaid documents disclose that the land-holder had to pay other legatees and the present land-holders necessarily will have other maintenance-holders and other creditors. If successors in-interest of the Chelikani brOrs. have to be paid Rs. 60,000/- out of the compensation capitalizing their maintenance amount at 20 years'' purchase in addition to the arrears payable to them, there would hardly be any amount left to the land-holders after they meet their other commitments.
To avoid this anomaly, the Legislature rightly provided for the equitable distribution of the compensation to all persons such as owners, sharers and other maintenance-holders i. e., all the persons who have an interest in the estate or its income. There is also a sound principle behind this. When subordinate interests are carved out of the parent estate and when the l rant estate dwindles in value, the subordinate interests are proportionately made to abate. We therefore, agree with the Tribunal in their construction of the relevant provisions of the Act.
The next question is whether the same principle would apply to the arrears of maintenance. It is contended that, to the extent of the arrears of maintenance, the Appellants should be classed as creditors. Once it is hold that the amount payable to the Appellants under the wills was to wards maintenance, there is no justification under the provisions of the Act and. the rules made there under to make a distinction between arrears of maintenance and future maintenance.
Section 44 directs the apportionment of the compensation between persons entitled to be maintained from the estate and its income and Ors. . Rule 3 directs the ascertainment of the aggregate compensation payable to the maintenance holders. Rules 3 (3) (a) and (b) provide for the determination of the amount of the compensation payable to the maintenance holders and the apportionment of the same among1 them on an equitable basis.
As past maintenance payable out of the estate cannot and does not, lose its character as maintenance under the aforesaid provisions, the Tribunal has jurisdiction and duty to allocate the compensation in regard, to the arrears also on an equitable basis.
Though the learned Counsel for the Appellants contended that some calculations made by the Tribunal were wrote he was not able to establish that fact before us.
No other question was raised in the appeals.
The appeals, therefore, fail and are dismissed with costs of set in each appeal.