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Judgment
A preliminary decree for partition is under challenge in these appeals. A.F.A No.35 of 1995 is at the instance of the second defendant, and
A.F.A No.34 of 1995 is at the instance of defendants 5 and 6.
The first defendant is the wife of one Kanaran. The first plaintiff and defendants 2 to 4 are their children. The plaint schedule property belonged
to the family of Kanaran, of which he was the Karanavar. The said Kanaran along with his mother Manikyam and his brothers, Kunkar and
Kunhiraman, executed Ext A1 Kanam deed in favour of first defendant (wife of Kanaran) and one Edakkattu Lekshmi who is the wife of Kunkar,
the brother of Kanaran. The rights of Edakkattu Lekshmi was conveyed by her in favour of the second plaintiff as per Exts A2 and A3 assignment
deeds. The rights of the first defendant was gifted by her to the second defendant as per Ext B9. Pending the suit, 2nd defendant assigned half out
of his rights over the property to defendants 5 and 6 as per Ext B11. The claim for partition is made contending that, the acquisition under Ext A1
in the name of the first defendant, was by her husband, which enures to her thavazhi. Defendants 1, 2, 5 and 6 challenge the claim for partition
contending that, it is the self acquisition of first defendant and Edakkattu Lekshmi, whereas defendants 3 and 4 support the plaintiffs case.
The trial court held the acquisition under Ext A1 to be self acquisition and that it does not enure to the benefit of the thavazhy. On appeal by the
plaintiff, the learned Single Judge reversed the finding and held that the acquisition enures to the benefit of the thavazhy.
Heard Shri M. Gopikrishnan Nambiar and Parthasarathy learned counsel for the appellants, Shri T.R.Ravi and Shri K.S. Dilip learned counsel
for the respondents.
Section 48 of the Madras Marumakkathayam Act reads thus:
48.Construction of bequests, gifts etc. to wife or wife and children.- Where a person bequeaths or makes a gift of any property to, or purchases
any property in the name of his wife alone or his wife and one or more of his children by such wife together, such properties shall unless a contrary
intention appears from the will or deed of gift or purchase or from the conduct of the parties, be taken as tavazhi property by the wife, her sons
and daughters by such person and the lineal descendants of such daughters in the female line;
Provided that in the event of partition of the property taking place under Chapter VI, the property shall be divided on the stirpital principle, the wife
being entitled to a share equal to that of a son or daughter.
In terms of Section 48 of the Madras Marumakkathayam Act, if the acquisition is by the husband in the name of the wife, there arises a
presumption that the acquisition was for the benefit of the thavazhy. The presumption, as is evident from the section itself, is rebutable. The
contention of the plaintiffs is that the acquisition under Ext A1 was by Kanaran, the husband of the first defendant in her favour, and hence it enures
to the Tavazhy. Therefore, the question for determination is, ""whether the presumption under Section 48 of the Madras Marumakkathayam Act
applies to the acquisition under Ext A1 by the first defendant, and if it applies, whether the presumption is rebutted"".
There is no direct evidence as regards the source of consideration for Ext A1. The circumstances and other materials available are to be looked
into to arrive at a finding as regards the nature of acquisition. The contesting defendants(appellants) would rely on Exts B1, B2 and B3 which are
the certified copies of depositions of Kanaran (husband of first defendant), Kunkar (husband of Edakkattu Lekshmi) and the father of the first
defendant in an earlier litigation to contend that this is not an acquisition by the husband for the wife. In Ext B1, Kanaran has deposed that he had
not advanced the amounts for acquisition of Ext A1. In Ext B2, Kunkar has deposed that he had not advanced the amounts for acquisition of Ext
A1. As seen from Ext B3, the father of the first defendant deposed therein that he had advanced amount for the acquisition of Ext A1. The trial
court relied upon Exts B1 to B3 while arriving at the conclusion that the property in question is the separate property of the first defendant and
Edakkattu Lekshmi. The learned Single Judge found that Exts B1 to B3 depositions in an earlier suit could not be relied upon since it does not
satisfy the essentials under Section 33 of the Indian Evidence Act. The learned counsel appearing for the appellants would contend that even if
Section 33 of the Indian Evidence Act does not apply, it is an admission made by the predecessor in interest of the first defendant in an earlier
proceeding in relation to the subject matter of the suit and hence would be admissions under Section 18 of the Evidence Act. We are afraid we
cannot agree with the said submission. It might be possible to contend that the first defendant got interest under Kanaran and Kunkar who were
also executants in Ext A1, and hence they are predecessors'' in interest. However, Section 18 postulates that the admissions should be made
during the continuance of the interest of the persons making the statements"". It means that, the admission should be made when the interest was
subsisting with the maker and before he parted with it. The assignment, Ext A1 was in the year 1943 whereas Exts B1 to B3 are the depositions in
a suit of the year 1950, which is much subsequent to the transfer under Ext A1. Therefore, at the time of deposing, they did not have subsisting
right. Hence the appellants would not be entitled to bank upon Section 18 of the Evidence Act. So, Exts B1 to B3 would not be of avail. The net
effect is that we are left with no evidence as to the source of consideration for Ext A1. It is here that the circumstantial evidence, especially the
conduct of the parties assumes relevance.
Ext A1 took in two items of properties, of which one is the plaint schedule. The other item of property was alienated jointly by the first
defendant and Edakkattu Lekshmi in the year 1975 as per Ext B8 sale deed. In Ext B8, they have asserted their exclusive title over the property
which they acquired under Ext A1. If it was really an acquisition in favour of the thavazhy, there could not have been such an assignment. So also
as regards the acquisition of the property by Edakkattu Lekshmi under Ext A1, it would appear that there was no challenge that the acquisition by
her enures to the benefit of her thavazhy or that it was not her separate property. The rights of Edakkattu Lekshmi was conveyed by her in favour
of the second plaintiff under Exts A2 and A3 assignment deeds treating it as her separate property. The said Edakkattu Lekshmi was examined in
the suit as PW2. In her cross-examination, she practically supports the defendant''s case that the source of acquisition was not from the husband of
the first defendant. Coupled with these such circumstances is the fact that Kanaran, the husband of first defendant had issued Ext B5 letter to The
Special Officer, District Board, Malabar on 21-4-1948, requesting for reemployment, wherein it is stated that he is in financial constraints. This
improbabilizes him having funded for the acquisition under Ext A1. The circumstances as noticed above, including the conduct of the parties, lead
to an inference that the source of acquisition was not provided for by the husband of the first defendant and at any rate, the parties never treated
the property as thavazhy property of the first defendant. Section 48 of the Madras Marumakkathayam Act does not apply and even if it applies,
the presumption under Section 48 thereof stands rebutted. We concur with the finding of the trial court. The decree and judgment passed by the
learned single judge is liable to be interfered with. Accordingly, the appeals are allowed. The decree and judgment in A.S.158 of 1989 are set
aside. The decree passed by the trial court is restored. No costs.