Narayanan Krishnan and Another vs Kali Lekshmi and Others

Subramnia lyer, J.—These appeals arise (SIC) of the decree dated 23rd Mithunam 1120 passed by the Temporary Second Judge of Trivandrum in O. S. No. 123 of 1113 in the District Court of Trivandrum. Defendants 2 and 4 re the Appellants in the former and Plaintiffs 1 and 8 are the Appellants in the latter appeal.

The suit was for recovery of possession if 8 items of immovable property held in ownership and shown in schedule a, one item of unmovable property held under a mortgage (SIC)shown in schedule B, and various items of (SIC)oveables shown in Schedule C to the plaint.

There were 3 Plaintiffs when the suit was (SIC) of whom the 2nd Plaintiff died subsequently and Appeal No. 566 of 1123 was, therefore, filed by the remaining Plaintiffs 1 and 3. Plaintiffs 2 and 3 are the children of the 1st Plaintiff. 1st Defendant is the brother of the 1st Plaintiff. Defendants 3 to 7 are the children of Kumaran Raman, the maternal uncle of the 1st Plaintiff and 1st Defendant and Defendants 8 to 11 are his grandchildren. 2nd Defendant is a stranger in whose favour Kumaran Raman gave a mortgage which is attacked in the suit. 12th Defendant is another stranger and he is brought in as representative of hie father, in whose favour the said Kumaran Raman executed a hypothecation in connection with a ohitty, which document also is impeached in the suit. Defendants 8 to 11 are impleaded as claimants to and as in possession of Kumaran Raman''s properties under a deed of settlement which is also impeached.

The parties, except Defendants 2 and 12, belong to the Ezhava community belonging to that part of the Travancore area wherein the rule of devolution is (what is there called) (SIC) (misradayam) that is to say, a combination of Makkathayam and Marumakkathayam. Under that system of devolution, the self-acquired or separate property of a male devolves, on his death, on his wife and children as also on his Seshakars i. e., members of his family in equal moities, subject to certain preferential claims in favour of the wife and children. These preferential claims are what are known as (SIC)"(Vatsaravakasom)" and (SIC) (Oheruthettam) or(SIC) (Cherunettam). Vatsaravakasotm means the right of the wife and children to be in possession and enjoyment of the properties of the deceased for one year from the date of death without being accountable for the income to the Seshakars. Cheruthettam means the right to a share in the properties of the deceased towards the performance of the marriage and other ceremonies of minor children.

The properties sought to be recovered in the suit were acquired by the said Kumaran Raman in his name. They are claimed by the Plaintiffs as the tarwad properties of themselves and of the 1st Defendant who constitute the sole surviving members of the tarwad, on the ground stated in para. 10 of the plaint, viz., that the properties were acquired for the tarwad when Kumaran Raman was the karnavan, using the moneys of the tarwad in his possession by way of income from the ancestral and old tarwad properties from the properties earned by his older brother Mathevan, and amounts left by the said Mathevan Kumaran Krishnan, and Kumaran Kali. Kumaran Krishnan was another brother of Kumaran Raman who predeceased him, and Kumaran Kali was the mother of 1st Plaintiff and 1st Defendant.

It has to be mentioned that this is the sole ground of claim. No part of Kumaran Raman''s self-acquisitions is claimed for the tarwad on the ground of the same being thrown into the common stock. It has also to be mentioned that the only relief claimed in the plaint is recovery of possesion of the properties as tarwad properties, that is to say, no alternative claim is made with regard to any fund of the tarwad that may be found to have been used by Kumaran Raman in connection with the acquisitions of these properties, should such User be found ineffective to render the acquisitions tarwad properties.

The question that arises for determination, therefore, in this case is whether any moneys of his tarwad or income of tarwad properties existed or were available to Kumaran Raman for making the acquisitions in question. The contesting Defendants claim tha properties as the self-acquisition of Kumaran Raman who had a profitable trade of his own even from the time when he was an ananthiravan, and state that he had, in his control, other properties unconnected with the tarwad, but that Kumaran Raman never came into possession of any tarwad moneys or any ancestral tarwad properties except the properties of his elder brother Mathevan, which he obtained on partition whose net value was email and which did not yield an income even sufficient for meeting the ordinary expenses of the tarwad.

The lower Court found that Kumaran Raman had a trade of his own even before he beoamekarnavan, that that trade was not claimed as tarwad concern, and that therefore the income therefrom was Kumaran Raman''s own. The lower Court also found that the evidence disclosed that Kumaran Raman came into possession of tarwad properties capable of yielding "some income" and held that

under such circumstances the presumption will be either that tarwad funds were used to make the acquisitions (10 T. L. T.625) or that the acquisitions were made for the tarwad, in the discharge of his duty as karnavan 1943 T. L. R. 731. Either way the onus is on the Defendants to prove that the private funds of Kumaran Raman were actually used for acquiring the properties.

The Defendants not having proved that Kumaran Raman actually used his own funds in making the acquisitions, the lower Court considered that they must be regarded as having been acquired by the use of tarwad income and applying the provisions of Section 19, Expln. 1, Travancore Ezhava Act, III of 1100, which provides that

If the deceased person was in management of his or her tarwad or of undivided Makkathayam property, one half of the acquisition, if any, made by such person during such management with the aid of the income from such tarwad or Makkathayam properties, as the case may be, shall be treated as that person''s self-acquisition for the purpose of this part in addition, to other self-acquisition,

passed a preliminary decree. This directed partition of the A and B schedule properties and certain items in the C schedule, into two halves, and delivery of one-half with mesne profits to the Plaintiffs. There was a consequential decree declaring the usufructuary mortgage in favour of Defendant 2, the hypothecation in favour of Defendant 12''s father, and the deed of settlement in favour of Defendants 3 to 7, inoperative to the extent of that halt. Hence the aforesaid two appeals,

The acquisitions in question were made within 11 years commencing from Kanni 1075 and extending up to cbingom 1086. The first acquisition is an investment of 696 Fanams on mortgage over item 4, a schedule, under Ex. K dated 18th Kanni 1075. Item 4 was purchased under Ex. ll in Vrischigom 1082 for a consideration of 4120 fanams out of which a cash payment of 2261/2 fanams is stated to have been made and the rest appropriated to two earlier transactions, of which Ex. K is one. The next acquisition was of item 3 in the A schedule, in VriBchigom 1077, under Ex. J for 1400 Fanams, which was made up of 585 Fanams due to Mathevan under a mortgage, 450 Fanams for improvements and 365 Fanams paid as ready cash. In 1078, Kumaran Raman appears to have realised 1435 Fanams by giving a release (ex. N ) of a mortgage right of Mathevan. In the year 1080, Kumaran Raman invested 4575 Fanams and purchased the mortgage right over items J. 5 and 6 of the a schedule to the plaint. Exhibit F of Thulam 1080 is the assignment deed. That document recites the consideration as made up of 1575 Fanams as income from (SIC) (pithurarjitbam) properties, 7121/2 Fanams belonging to sister Kumaran Kali and 22871/2 Fanams Kumarana Raman''s own money. These items were afterwards purchased by Kumaran Raman under Exs. IV and V in Kumbhom 1085 for 9300 Fanams appropriating the entire money due under the mortgage, Ex. F, and for other considerations by way of ready cash payments, appropriations towards other amounts due to Kumaran Raman under dealings, and reservations of amounts for future payments to a creditor of the vendor. Items 2 and 4 in Sch. A to the plaint were purchased by Kumaran Raman in Vrisohigom 1082 under Ex. II, and item 8 was purchased under Ex. III in Meenom 1085. There is no document evidencing the purchase of item 8. The mortgage right shown in B schedule to the plaint was acquired in Chingom 1086 under Ex. S.

None of these acquisitions were made professedly on behalf of the tarwad. No document describes the acquirer Kumaran Raman as Karnavan. The tenor of the documents would clearly indicats the contrary i. e., that the acquisitions were Kumaran Raman''s own.

The Plaintiffs filed 3 documents Ex. G of the year 1053, Ex. R of the year 1056, and Ex. E of the year 1076, to show that Kumaran Raman came by and bad in his possession (SIC)arwad properties from out of whose income the acquisitions in question could have been made. Exhibit G would indicate that at a family partition Kurnaran Mathevan came by property worth 572 Fanams net. Exhibit R evidences a partition under which Mathevan Kali, the mother of Kumaran Raman and others got some properties. Except one item in Ex. R, there is no identification of or proof regarding any other property alleged to have been obtained under the transactions of the years 1053 and 1056. The item identified is a Purayidam in the possession, admittedly, of. Defendant 1. There is no evidance that any property obtained under the said partition arrangements came into or was in the possession of Kumaran Raman. Exhibit H dated 21st Chingom 1076 is a deed of partition of the properties of Kumaran Raman''s deceased older brother Kumaran Mathevan, who died in Chingom 1074. Exhibit H shows that Kumaran Raman got properties by way of outstandings and otherwise to the tune of 13,400 Fanams subject to a liability to discharge Kumaran Mathevan''s debt amounting to 10,300 Fanams that is to say, Kumaran Raman got properties of the value of 3,100 Fanams net. The debts directed to be diacharged by Kumaran Raman have all been diacharged by him. The details of the collection of the outstandings allotted and the discharge of debts are not in evidence. Under the circumstances, the only assets to be reckoned with as having come to Kumaran Raman would be 3,100 Fanams, It will be noticed that the earliest investment by Kumaran Raman evidenced by Ex. K was made before Kumaran Raman got the properties of his eider brother on partition. There is no evidence in this case regarding the income of the properties obtained by Kumaran Raman under Ex. H, nor is there any evidence that Kumaran Raman came by any other moneys or properties of the tarwad as alleged in para. 10 of the plaint.

The position thus reduces itself to this: Kumaran Raman, even from the time that he was a ananthiravan, had a trade of his own which, according to the evidence accepted by the lower Court, brought him about Rs. 200 a month. There was one item of the ancestral property which was a house and site, not shown to yield any income and which has, admittedly, been in the possession of Defendant 1. Properties obtained by Kumaran Raman on partition under Ex. H are not such as to yield an income sufficient to acquire the properties in question, though those properties were under the management of Kumaran Raman. There is no evidence either way as to the fund that was actually used for making these acquisitions, except the aforesaid recitals contained in Ex.. F. Under the circumstances, the question has to be decided on the principles of law applicable to the case.

Membership of a family or management thereof as a de facto manager or a de jure kartha or karnavan is no disqualification for making self-acquisitions. Title to property would vest in the acquirer and whoever claims the property or any interest therein against the tenor of the title has to make out the claim. More existence of an ancestral nucleus would not render an acquisition made by its custodian other than his own. The person chiming the property for the tarwad, will have to show that the necleus was substantial if not ample, and available to the acquirer to admit of the acquisitions being made from out of that necleus or out of the income thereof. The case in 10 T.L.T. 625 relied upon by the lower Court is not an authority for the position that ancestral nucleus, however unsubstantial it may be, would be enough to lead to a presumption in favour of the tarwad in respect of acquisitions made by the karnavan. The adequacy and availability of tarwad resources for making the acquisitions in question in that case would appear to have been unquestioned. The only contention was that because the acquirer had his own self-acquisitions, the presumption of tarwad character could not be raised. That contention was rightly repelled. The case in 1943 T. L. R. 731 relied upon by the lower Court only decides:

Where a person is the karnavan of a tarwad and he has separate funds of his own, and there are also tarwad funds available, and a transaction is put through with funds which could have been drawn from either source, in the absence of definite evidence the law steps in with a presumption and the party to the transaction is presumed to have acted for the benefit of the tarwad whose interest ho is under a duty to protect rather than that he acted for his own benefit,

This position is unexceptionable, but will not solve the question arising in this case. The latest case of the Travancora High Court is Padmanabhan Raman v. Krishnan Baghavan 29 T. L. T. 26 which held that

the presumption that acquisition of a karnavan have been made from tarwad funds can obtain only where it can be shown generally that there have been surplus funds available after meeting the ordinary and recognised needs of every member who lived indenting upon such proceeds and not from the more fact of some nucleus, however inconsiderable the proceeds from which may be.

This question came up for the consideration of the Madras High Court in Kotikelapudi Venkatramayya Vs. Digavalli Seshamma and Others, where Varadachariar J, approving of the decision of Ananthakrishna Aiyyar J. in C. Sankaranarayana Mudaliar Vs. Tangaratna Mudaliar and Others, stated that

a party alleging that property held by an individual member of a joint family is family property must show that the family was possessed of some property with the aid of which the property in question could have been acquired

and added

that the learned Judge (Ananthakrishna Aiyyar J.) takes care to add that, it is only after this is shown that the onus shifts to the party alleging self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.

Ananthakrishna Aiyyar J. in C. Sankaranarayana Mudaliar Vs. Tangaratna Mudaliar and Others, after an exhaustive review of the authorities, came to the aforesaid conclusion and approved of the remarks of Venkafcasubha Rao J. in Tanjore Kannammal Vs. Tanjore Ramathilakammal and Another, that "the law on the point may now be taken as being clearly settled." Reference may also be made to the 11th Edn. of Mayne''s Hindu Law, 1950, p. 359, para 293.

The burden of proving that any particular property is joint firmly property is in the first instance upon the person who claims it as coparcernary property. Where the possession of a nucleus of joint family property is either admitted or proved, an acquisition made by a member of the family is presumed to be joint family property. But this is subject to the limitation that the joint family property must be such as with its said the property in question could have been acquired. And it is only after the possession of an adequate nucleus is shown, the onus shifts on to the person who claims the property as self-acquisition, affirmatively to make out that the property was acquired without any and from the family estate,

Applying the above principles of law to the facts of the present case, only one conclusion is possible and that is that the Plaintiffs on whom the burden rests to establish the existence of family nucleus such as to lead to the presumption of tarwad character as regards the acquisitions in question, have failed to prove the existence of such a nucleus. On the other hand, there is ample material to show that "Kumaran Raman who made the acquisitions could have made them from out of his own turnings independent of any tarwad properties. The Plaintiffs have, therefore, failed to make out that the properties claimed belong to the tarwad. The claim for recovery of possession of the properties must, therefore, be rejected.

Regarding the moveables, apart from the above infirmity, the Plaintiffs must fail for another reason, viz., that it has not been proved the moveables to which they lay claim ever came into the possession of any of the Defendants.

Kumaran Raman executed a deed of hypothecation in Kunni 1099 and a usufructuary mortgage in Thulam 1103 in favour of the 12th Defendant''s father and the and Defendant respectively. Kumaran Raman also executed a deed of settlement in Kumbhom 1104 in favour of his children, Defendants 3 to 7. Exhibits C, B and A respectively are the documents. The properties were put into and continue to be in, the possession of the respective parties pursuant to Exs. B and A. Kumaran Raman died towards the end of 1104, and the suit was filed only in 1108.

This case is peculiar in more respects than one. Ordinarily where ananthiravans claim property acquired by their karnavan in his name as tarwad property, they impeach the conduct of the karnavan and attribute motives to him as regards the acquisitions themselves not being professedly in the name of the tarwad. Subsequent transactions relating to the properties as the acquirer''s own would be attacked as the outcome of selfishness. In this case it is significant that the Plaintiffs make no whisper against Kumaran Raman the acquirer, either in not having made the acquisitions professedly for the tarwad, or in having afterwards dealt with the properties as his own under the aforesaid documents which are all impeached as not binding upon the properties. Plaintiffs do not attribute anything blameworthy to Kumaran Raman. The case of the Plaintiff in respect of those documents is that Kumaran Raman was a victim of fraud and misrepresentation as a result of which the documents were brought into existence and that in fact Kumaran Raman was, in a way, now compos mentis when those documents were executed. Of this, however, the Plaintiffs have not sought to adduce any evidence. One can, therefore, confidently rely upon the apparent tenor of the documents evidencing the acquisitions as representing the true state of affairs. Whenever a fund which was not his self acquisition was used, Kumaran Raman acknowledged that fact expressly as is seen from Ex. F.

In the view of the law as aforesaid applicable to the case, Section 19, Expln. 1, Travancore Ezhava Act III [3] of 1100, relied upon by the lower Court, does not come up for consideration or application.

We cannot conclude this judgment without a retrospect of the history of this litigation. The suit was filed with an application for permission to sua in forma pauperis on 28 12-1108. It was registered as a suit in Kanni 1113, and disposed of by the lower Court in Mithunam 1120. No reason appears as to why it should have taken more than 4 years for the petition for permission to sue in forma pauperis to be enquired into and decided. After the petition was allowed, a period of 7 years & 9 months was taken for the trial and disposal of the suit. The issue in the case was simple and the evidence was not much. Besides the parties and the Commissioner, only 4 stranger witnesses were examined and their depositions are not lengthy. Why it should have taken such a long time for the lower Court to dispose of this suit, passes comprehension, Notwithstanding the long delay for the trial and disposal of the suit, we find the Plaintiffs failing in the suit for not adducing that evidence viz., regarding the existence of properties and the quantum of income from the properties on which the Plaintiffs based their claim. It may be that the Plaintiffs might have been entitled to some relief in respect of the amounts shown in Ex. F as "Pithurarjitham" and in respect of the amount shown in the same document as money belonging to the mother of the 1st Defendant and the 1st Plaintiff, but no relief in respect, of those amounts was claimed in the case and that matter docs not call for any consideration. The let Defendant was sought to be removed from management on account of his not having taken action to get the reliefs on behalf of the tarwad that are now sought by the Plaintiffs in the suit. It is clear that that was a prayer inserted mala fide with a view to obviate objections as to the maintainability of the action which is brought by ananthiravans claiming relief on behalf of the tarwad, whose karnavan did not care to make the claim himself. The conduct of the parties in the course of the suit disclosed that the Plaintiffs and 1st Defendant are in collusion in this matter. The prayer for removal of the 1st Defendant from management, which was rejected by the lower Court, was not pressed in appeal.,The remarks of the Supreme Court in Sheth Maneklal Mansukhbhai Vs. Hormusji Jamshedji Ginwalla and Sons, "The long time taken in deciding the suit which involved determination of a few simple issues is such as is calculated to bring to ridicule the administration of justice" apply with even greater force to this case.

In the result Appeal Suit No. 179 of 1128 is allowed with costs. Appeal Suit No. 566 of 1123 is dismissed, but without costs. The Plaintiffs having been permitted to sue as also to appeal in forma pauperis are directed to pay the requisite court-fee to the State.

Kunhi Raman, C.J.

I concur.