AI Structured Summary
Not yet generated for this judgment
Judgment
Govinda Menon, J.—I am in entire agreement with my learned brother. Since he has discussed the facts of the case in extenso I do not wish to repeat them. As it has been found that most of the properties now in dispute came into existence after Ex. B. 17, dated 1st December 1918 it is contended on behalf of the plaintiffs that the first defendant, that is the karnavan of the tar-wad, must be deemed to have acquired them from out of the nucleus afforded by the properties which belonged to the ravish on that date, whereas the contention of the first defendant in the Court below and now repeated here by his legal representatives is that there was no sufficient nucleus out of which any acquisitions could have been made by the first defendant and unless the plaintiffs are able to show that there were surplus funds in the hands of the first defendant with which such properties could be acquired, the presumption must be that the even tenor of the documents, namely, that the acquisitions belong to the first defendant must prevail. This raises the general question of law with regard to the ownership of properties standing in the name of the karnavam of a ravish. That the first defendant was the karnavan of the group by birth from the time the ravish separated from the main tar-wad at least for the purpose of living has not been questioned.
The law is stated in P. R. Sundara Iyer''s Malabar and Aliyasantana law at page 179 in the following terms:
A karnavan who is in possession of family funds for instance would be presumed to have made all his acquisition with them for the benefit of the family and in his case the presumption would be very strong.
The presumption referred to is that the properties should be deemed to be joint family properties. But if it is proved that there was no joint family property from which the disputed properties could have been acquired that fact would certainly rebut the presumption of family acquisition but it is not sufficient to show that the family funds alone cannot account for the acquisition. The learned author also states that when there is a mixing up of the family funds and separate funds the presumption is that the separate funds are merged in the family funds. This presumption does not ordinarily apply to acquisitions made by the junior members as is laid down to that effect in a series of decisions. It is stated in Mayne''s Hindu Law and Usage (11th Edn) at pages 992-993 that in such matters there cannot be a definite presumption either way but that the circumstances the particular case have to be looked at to ascertain the nature of ownership. The view taken has been that property acquired by a junior member is to be presumed to be his own separate acquisition and that it lies on the party setting up, that it is tar-wad property to prove that it was an acquisition on behalf of the tar-wad. But where properties stand in the name of the karnavan and were acquired at a time when he was the de facto karnavan there is a natural presumption that the acquisitions were for and on behalf of the tar-wad. The customary Marumakkathayam law has always been that when the karnavan in possession of tar-wad property is found to acquire other properties it must be deemed that he acquired them on behalf of the tar-wad. The same slue has been held to be applicable when an Anandravan is the manager of a branch tar-wad and is in possession of funds belonging to such branch tar-wad. See Mari Veetil Ohathu Nair v. Mari Veetil Muthu Paral Sekharan Nair 33 Mad. 250., There is no difference in this matter so far as Aliyasanthana law also is concerned : Vide the decision in Kunhanna Shetty v. Timmaju 27 M.L. J. 60. Where it was seen that a manager of an Aliyasanthana family which was undivided acquired certain properties in his name it was held in Thimmakka v. Akku 1910 M.W.N. 297, that the onus was on the person who set up private ownership that the properties were acquired in fact out of private funds. Otherwise it will be presumed to belong to the joint family.
It has been laid in Chathu Nambiar v. Sekharan Nambiar 47 M.L.J. 695., by Krishnan, J., that
in the absence of evidence to the contrary there is a presumption that property acquired by the karnavan of a tavazhi was acquired for the tavazhi and with the tavazhi funds and this presumption must prevail unless the person who avers that such property is his self-acquisition proves that fact by evidence.
A year later Phillips and Ramesam. JJ., in Soopiadath Ahmed v. Manha Mammad Kunhi 23 L.W. 574., laid down the proposition following Chathu Nambiar v. Sekharan Nambiar 47 M.L.J. 695. and Mari Veetil Chathan Nair v. Mari Veetil Muthu Perol Sekharan Nair 33 Mad. 250 that in regard to property standing in the name of a karnavan
there is a presumption that the property belongs to the tar-wad but the same presumption does not ordinarily apply to a property which stands in the name of an Anandravan.
The reason for laying down that proposition in the words of the learned Judges is
undoubtedly in regard to karnavans the presumption is very strong for they are in possession of the whole of the property of the tar wad and can deal with it as they like.
As under the Hindu Law so under the Marumkkathayam and Aliyasanthana systems there is no presumption that the joint family as such owns property. A joint family is the result of relationship by birth and it is not a necessary sine quo non of a joint family, that the entity should be bound by reason of owning property in common. Therefore the mere fact that person happens to be the eldest member of a Marumakkathayam or Aliyasanthana tavazhi or tar-wad would not enable the Court to presume that all the properties standing in his name are the Joint family properties; but if there is evidence to show that at the time the individual became the senior most member of the tavazhi or tarwad he had to manage sufficient property belonging to the joint group as to leave a surplus income then it can be presumed that the subsequent acquisitions were made in a representative capacity and not in his individual capacity. This presumption therefore is restricted to cases where it can be shown that there were surplus funds left from which acquisitions could be made. Such a thing would depend upon various factors. A family with insufficient properties and a large number of members to be fed and clothed cannot be expected to leave any surplus. The karnavan may have a profession of his own and may be in a position to save some amounts as a result of his own exertions. In such a case it would be unwise or improper to draw a presumption that wherever a person is able to save by reason of his own gains by science or learning the mere fact that he is the head of the family should impress his acquisitions with the family character. In these circumstances the question of presumption will arise only where it is shown that the karanavan had properties which were sufficient to meet the daily needs of the family and to leave. a surplus. It is on this principle that the learned Judges in Soopidath Ahmed v. Manha Mammad Kunhi 23 L.W. 574, made the observations quoted above. But where there is a group of persons constituting a natural tavazhi or tar-wad all working together harmoniously and engaging themselves in the pursuit of agriculture together or where the family is a trading one and (1) all the members of the family take some part or other in the family business then even if the acquisitions were made in the name of the karnavan they should be deemed to belong to the entire group. It is not the fact of one being the senior most member of the family that is crucial in the decision regarding the nature of the properly acquired but the deciding factor is the possession of funds belonging to the family from which the acquisition is made and even in the case of Anandravans any possession of sufficient family funds out of which the acquisitions could be made raises the presumption that the acquisition has been made for the benefit of the family. See the decision in Iswaran Nambudiri v. Vishnu Nambudirt 60 M. L. J. 467 = 38 L.W. 611. Even there, the principle has been stated rather to widely when the learned Judge observes that if anything appears in the case except that a member of a joint family it in possession of property the burden of proving self acquisition lies on such persons, applies also to the property acquired by a junior member of a Malabar tar-wad. In my view this statement of law cannot be applicable to all cases In the case of an Anandravan if he is found in possession of property and there is nothing to show that he had anything to do with the family property then the presumption is quite the other way and that is that the property belongs to him. As stated already the question of presumption can arise only if there is firstly the nucleus and then the surplus out of that nucleus. It is the same principle that pervades throughout the judgment in C.V. Vythinatha Aiyar Vs. C.V. Varadaraja Aiyar and Others, , where the learned Judge, Madhavan Nair, J, states that the nucleus should be shown to be of such a character as would reasonably be expected to lead to the acquisition of the property alleged to be part of the joint family property. The only other case which requires reference in this connection is the decision by Venkataramana Rao, J. in Puthiamath Ummal Peringada Asan Kutti v. Peedi Kavilahath Mammad (1989) 1 M.L.J. 308.. On the fact of that case the conclusion arrived at was perfectly correct and justified but certain observations made by the learned Judge have been attempted to be used in such a way as was not probably intended to be understood in that manner. When the learned Judge says :
It is not enough to show that the karnavan had possession of tavazhi funds in his hands wherewith the acquisition might have been made.
With due respect the statement is made rather too broadly. The following general observations at page 313 should in my view be confined only to the facts of that particular case:
where again with consent of the members of the family an individual member including a manager is allowed to have separate trade and acquire properties, the presumption ought to be that the property acquired in the name of the individual member is separate property even though he might have monies of the joint family in his hands. It is not enough to show that he had family money in his hands wherewith the acquisition might have been made. It is not even enough to show that the family monies were utilized in the business. When members of a family allow a manager or an individual member to acquire property separately with full knowledge that he has joint family monies in his hands, it may well be that the family allowed him to use those monies but profits or property acquired there from for himself cannot be claimed as joint family property though the member may be accountable to the family for the monies so utilized. Such monies would be in fact advances or loans made by the members of the family to the individual member or the manager.
The only other case relied upon by the appellant is the decision of Wadsworth, J. in Mammillikkunhi Raman v. Vengileri Thannacheri Kunhi Karnavan Kitavu 1989 (2) M.L.J. 757-50 L.W. 676. This judgment is brief and does not lay down anything new. The learned Judge says that in the absence of evidence that the family possessed property with the income of which the new acquisition might have been made, there is no presumption that the property acquired by the manager is family property. This is only a restatement of the principles which we have already discussed.
On the facts of the case my learned brother has found that the learned Subordinate Judge was right in holding that except the Pappalathodi properties and items 102 to 104 rest of them belonged to the family for there is clear evidence of joint cultivation by all the members of the family. I need only refer to the evidence of P. W.1, 3, and 4. P. W. 1 is the second plaintiff and he says that ever since he was ten or fourteen years of age he was attending to the cultivation and that sloughing instruments were kept at the gate house of Pappalathodi, that the harvest from the lands used to be kept together and thrashed and that no differentiation was made I am prepared to accept the evidence of P. W. 1 in this respect namely that all the members of the family lived together in commensality, worked together and augmented the family properties and in such a case there can be no doubt that the acquisition was by the family. P. W. 3 who knows the parties very well says that the members to the family were always cultivators and the karnavan and the other members were all together cultivating and that the crops were all taken to Pappalathodi after harvest. P. W. 4 a Moplah states that he has seen Vadakemadam cultivation and that the defendant No. 3 was sloughing lands and attending to cultivation. Even D. W. 1 states that all the properties were jointly cultivated, harvested and thrashed and all the paddy was kept at Pappalathodi. In these circumstances it is difficult to agree with the learned Counsel for the appellant that there was no joint living or joint cultivation.
Subject to the modifications mentioned in the judgment of my learned brother both these appeals are dismissed and in the circumstances without costs.
Ramaswami, J.
These are two connected appeals arising from the decree and judgment of the learned Subordinate Judge of Ottapalam, in O.S. No. 56 of 1946.
Plaintiffs and defendants 1 to 12 are members of an undivided Marumakkathayam tar-wad and they are related as shown in the genealogical table appended below:
The first defendant is the karnavan and manager of the tar-wad. The suit is for partition and separate possession of the shares of the Anandravans plaintiffs in the tar-wad properties.
In these appeals we are confined to three sets of properties known as the Pappala Thodi properties, Korungot Kalam properties and Mozhikunnu properties, ilema 102 to 104 of the plaint schedule and three debts evidenced by Exs. B. 84, B. 47 and B. 48.
In regard to these properties the claim of the plaintiffs is that the three sets of properties are tar-wad properties, that items 102 to 104 which are in the names of the wife and children of the karnavan 1st defendant are properties purchased by the karnavan out of tar-wad funds and therefore have got to be treated as resultant trust and hence particle as tar-wad properties, and that the debts evidenced by Exs. B. 84, B. 47 and B. 48 are not binding upon the tar-wad. On the other hand the claim of the karnavan the first defendant who has since died was that the Pappala Thodi, Korungot Kalam and Mczhikunnu properties are his self acquisitions and separate properties and therefore not liable for partition, that items 102 to 104 have been purchased out of the funds of defendants 13, 14 and 16 to 19 and hence not particle and that the three debts are binding upon the tarwad.
The learned Subordinate Judge held that the Papal Thud properties were the separate properties and self acquisitions of the karnavan, that the Korungot Kalam and Mozhikunnu properties are tar-wad properties, that items 102 to 104 do not belong to the tar-wad but belong to defendants 13, 14 and 16 to 19 and the three debts evidenced by Exs. B. 84, B. 47 and B. 48 are binding on the tar-wad. Hence these two appeals by the Anandravans and Karnavan in regard to the disallowed portions of their claims.
On a review of the entire circumstances of the case we have come to the same conclusion as the learned Sub Judge. Here are our reasons.
Before dealing with facts, I wish to dwell upon one topic on which we were addressed at considerable length by the learned Advocate for the appellants, viz., the alleged incorrect presumptions of law which are said to have been applied by the learned Subordinate Judge in regard to separate property acquired by a kaivnavan.
Where a suit is brought by a member of a tar-wad for partition of property alleging that it is joint family property and a karnavan centered that it is his self acquired property the question arises upon whom the burden of proof lies.
There is no presumption that because there is a tar-wad it possesses tar-wad property or any property. When in a suit for partition a parley claimed that any particular ileum of property is tar-wad property or when in a suit on a mortgage a party contends that the property mortgaged is tar-wad property, the burden of proving that it is so rests on the parley asserting it, though circumstances may readily cause the onus to be discharged. To render the property tar-wad property, the plaintiff must prove that the tar-wad was possessed of some property with the income of which the property in question could have been acquired or from which a presumption could be drawn that all the property possessed by the tar-wad is joint family property or that it was purchased with tar-wad funds, such as the proceeds of sale of tar-wad property or by joint labor. None of these alternatives is a matter of legal presumption. It can only be brought to the cognizance of the Court in the same way as any other fact, viz., by evidence.
When a nucleus of tar-wad property is proved or admitted, a presumption arises that the whole of the property of the tar-wad is joint including any acquisition by the karnavan. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired, in order to give rise to the presumption, the nucleus must be such that with its help the properly claimed to be joint could have been acquired. Such being the presumption, if the karnavan claims any portion of the property as his separate property the burden lies upon him to show that it was acquired by him in circumstances which would constitute it his separate property. He can do this by showing that the income of the existing tar-wad property was employed otherwise and secondly by correlating the acquisitions with his own self earnings and also by proving that these earnings were not blended with the tar-wad estate and remained his self acquired property. On account of the fiduciary position which he occupies, Courts will lay upon him a heavier burden than in the case of any other member of the tar-wad and in fact in the case of an Anandravan the presumption would be in favor of the acquired property being his self acquisition. This larger quantum of proof satisfying both the negative and positive aspects of acquisition out of karnavan''s own exertions and without any detriment to the tar-wad, i.e. without the aid of the tar-wad property is, based upon S. 111 of the Indian Evidence Act- It will be remembered that the position of a karnavan is fiduciary in respect of the junior members who are known as Anandravans and he is the protector of the tar-ward''s interest and the guardian of its minor members and therefore he is bound to scrupulously account for the acquisitions not having been made to the detriment of the tar-wad.
These principles are deductible from the following line of decisions of this Court.
The case-law on the subject as it stood up to 1916 has been summarised in P. R. Sundara Aiyar''s Malabar and Aliyasantana Law. 1922 Edn. paragraph 100 as follows:
As under the Hindu law, so under the Marumakkatayam and Aliyasanthana systems joint holding is the rule and Individual holding the exception and it is for the individual member who sets up separate title to make it out. Mari Veetil Ckatu Nari v. Mari Veetil Sekhram Nari 33 Mad. 250, Virarayan v. Valia Rani 3 Mad. 141., Govinda Panikar v. Nani 36 Mad. 904 (Foot Note), Thimmakka v. Parameshri 1910 M.W.N. 297-7 I.C.146,; Dharnu Shitty v. Dejamma 5 L.W. 259.. The strength of the presumption would no doubt vary according to circumstances: A karnavan who is to possession of family funds for instance, would be presumed to have made all his acquisitions with them for the benefit of the family and in his case the presumption would be very strong Kallati Kunju Manon v. Palat Erracha Menon (1864) 2 M.H.C.R. 62,, Kunhanna Shetti v. Timmaju 27 M.L.J. 60.. The discussion as to a nucleus and the burden of proving its existence or the contrary is common to the ordinary Hindu Law and these systems. If it is proved that there was no family property from which the property in question could have been acquired, that undoubtedly would rebut the presumption of family acquisition but it is not sufficient to show that the family funds atone cannot account for the acquisition [Thimmak.ka v. Parameshri (1910) M. W.N. 297.]. For it must be borne in mind that when there is a mixing up of the family funds and separate funds the presumption is that the latter is merged in the former. As under the Hindu Law, an inconsiderable contribution from the family funds may not affect the nature of the acquisition. It could not in those circumstances be said that the family property was instrumental to the acquisition; Strange Vol. I, page 218; Lakshman Mayaram v. Jamnabai 6 Bom. 225. As said in Books of Hiddu Law "things of ordinary value may be given up for they are mere chaff" (da minimis non curat lex); for instance in the practice of agriculture, it is said, taking a rope for his plough out of the common stock would not invalidate his pretensions to an exclusive right. Nor would the fact that the money is raised on the credit due to the relation of the manager to the family property be a reason for holding that the property acquired is family property. It would be otherwise if the property is raised by pledging the family property. A member of the family making improvements on the family property or raising crops on the family property cannot of coarse claim them: Kaman v. Tenju 5 Mad. 1., and Vishnu Nambudiri v. Akkamma 34 Mad. 196.. They will be regarded as accretions to the family property : it would be otherwise if the lands were held on lease from the family; acquisitions out of maintenance allowances or out of the income of the family allotted for that purpose should be similarly treated as self-acquisitions The case may vary if it is only an improvement of the family property in his possession for maintenance, for then the simple case would be complicated by the principle of merger.
In Chathu Nambiar v. Sekharan Nambiar 47 M.L.J. 695., Krishnan, J held that in the absence of evidence to the contrary, there is a presumption that property acquired by the karnavan of a tavazhi was acquired for the tavazhi and with the tavazhi funds and that this presumption must prevail unless the person who avers that such property is his self-acquisition proves that fact by evidence.
In Soopiadath Ahmed v. Manha Mammad Kunhi 33 L.W. 575., Phillips and Ramesam, JJ. approved the contention before them that there is a very strong presumption that property standing in the name of a member of a Malabar tar-wad belonged to that tar-wad and added that the presumption has been laid down in Chathu Nambiar v. Sekharan Nambiar 47 M.L.J. 695, and Mari Veetil Chathu Nair v. Mari Vcetil Mulamparol Sekharan Nair 33 Mad. 250, with regard to karnavans, and undoubtedly, with regard to karnavans, the presumption is very strong, for they are in possession of the whole of the property of the tar-wad and can deal with it as they like.
In Kunhi Raman Kitavu v. Kunhikaranavan Kitavu (1989) 2 M.L.J. 757=50 L.W. 676, Wadsworth, J. held that in the absence of evidence that the family possessed property with the income of which the new acquisition might have been made, there was no presumption that the property acquired by the manager was family property and followed C.V. Vythinatha Aiyar Vs. C.V. Varadaraja Aiyar and Others,
In Puthiamathathummal Peringadi Assankutti v. Peedikayilahath Mammad ((1919) 1 M.L.J. 308, Venkataramana Rao, J. deduced the following propositions :
There is no presumption in law that when a Malabar family is joint, it possesses any joint property or that all the property possessed by it is joint property. "When property stands in the name or is in the possession of a member of a family, it is incumbent upon those who assert that it is joint family property to establish it. Where it is proved or admitted that a family possesses sufficient nucleus with the aid of which any member might have made the acquisition, the law raises a presumption that it is joint family property and the onus is shifted on to the individual member to establish that the property was acquired by him without the aid of that nucleus. Whether the presumption should be raised and the burden of proof should be shifted at all and what weight should be given to the said presumption depend on the facts and circumstances of each case. The presumption aforesaid is one which the law raises where nothing is known except the bare fact of a nucleus and acquisition.
In Kutti Unni v. Kochunni ILR 1944 Mad. 515=57 L.W. 224. Sir Lionel Leach, C. J. and Lakshmana Rao. J. held that in a family governed by the Marumakkatayam law the presumption is that the properties held by the head of it belonged to the tar-wad. and the burden of proof lies on him who contends otherwise.
The onus, however, as a determining factor of the whole case can only arise if the Court finds the evidence pro and con so evenly balanced that it can come to no definite conclusion and then the onus will determine the matter. But if the Court after hearing and weighing the evidence comes to a definite conclusion, the need for placing the onus does not arise. In other words the question of onus at the close of a case only becomes important if the circumstances are so ambiguous that a definite conclusion is impossible without resort to it. [William Robins v. National Trust Co. 1927 P. C 66., Sine Darly and Co. v. Official Assignee 1928 P. C. 77 = 27 L.W. 714., Tellappa v. Tippamma 1929 P. C. 8 - 29 L.W. 281., Nand Kishwar Bux v. Gopal Bux 1940 P. C. 93 = 52 L.W. 57. Sree Chidambara v. Veeramma Reddi 1922 P. C. 292=45 Mad. 586=16 L.W. 102, E.I.R. v. Major Andrew 1922 P. C. 195 = 48 Cal. 757-15 L.W. 248., Harmes v. Kinkson 1956 P.C. 156=50 L.W. 489].
In the instant case the learned Subordinate Judge has correctly applied these well settled principles as will be evident from the discussion in paragraph 14 of his judgment. Secondly, the question of onus was thoroughly unimportant in this case because both sides adduced a volume of oral and documentary evidence in support of their respective contentions and the learned Subordinate Judge has grounded his conclusion on the evidence in this case and decided whether the properties in question were tar-wad properties or self acquisitions of the karnavan.
Bearing these principles in mind let us examine the disputed items,
X X X X
(After discussing the facts of the case, his Lordship continued). In the result, subject to the modifications mentioned above, the decree and judgment of the lower Court are affirmed and both these appeals are dismissed and in the circumstances without costs.