Vatakee Neelamana Illoth Iswaran Nambudiri and Others vs Vatakee Neelamana Illoth Vishnu Nambudiri and Others

Sundaram Chetty, J.—Defendants 6 to 9 and 13 are the appellants. This second appeal arises out of a suit brought by the plaintiff who is a

junior member in a Nambudiri Illom for the recovery of a certain sum of money alleged to be due as arrears of maintenance. In deciding the

matters relating to the plaintiff''s claim for maintenance, it became necessary to decide whether certain properties covered by Ex. XIV should also

be treated as the properties of the tarwad for the purpose of determining the proper amount of the maintenance awardable to plaintiff. There is no

doubt that these properties were purchased in the name of the 1st defendant when he was a junior member of the illom and during the period of his

father''s term of Karnavanship. Some time after the acquisition, these properties were gifted by the 1st defendant to his sons, the present

defendants 6 to 9. On the plaintiff''s side it is contended that these properties, though they were purchased in the name of the 1st defendant, are

really the properties of the tarwad, whereas on behalf of the defendants 6 to 9, it is contended, that they were the self-acquisitions of the 1st

defendant. The learned District Judge has found that the properties in question are the properties of the tarwad and as such should be taken into

consideration for determining the amount of maintenance due to the plaintiff. As against this finding the present second appeal has been filed.

It is argued, on behalf of the appellants, that the lower appellate Court was not correct in applying to the present case the rules of presumption

applicable to an ordinary joint Hindu family, and on account of the erroneous view taken by that Court: in the matter of applying the presumption of

law, the finding should be deemed to be vitiated. The question for consideration is, whether in the case of a tarwad, the presumption is just like the

one applied to an ordinary Hindu family or whether there is any special presumption which should be applied to an acquisition made in the name of

a junior member of a tarwad, so as to throw the burden of proof on the party who sets up that it is tarwad property. It is true that there are some

vital differences between a Malabar tarwad and an ordinary joint Hindu , family in certain respects, that is, as regards impartibility and inalienability.

Though a junior in a tarwad cannot claim partition and separation of his share, he is still entitled to joint enjoyment of the tarwad property, subject

of course to some well-known restrictions. As regards the pious obligation of the son to discharge the debt of his father even out of his share of the

joint family, which, of course, exists in an ordinary joint Hindu family, it has been held that such an obligation does not exist in the case of a son of

any member of the tarwad. Vide Kunhu Kutti Ammah v. Mallapratu ILR (1913) M. 527. In view of the incidents appertaining to a joint Hindu

family and those relating to a tarwad, it seems to me that it may not be quite correct to apply the presumption that will hold good in the case of a

joint Hindu family, without any reservation, to a Malabar tarwad. I at first thought that in the case of an acquisition by a junior member of a

Malabar tarwad, the presumption as to self-acquisition would be a little stronger than in the case of an ordinary Hindu family. But the decision in

Man Veeril Chathu Nair v. Mart Veetil Mulamparol Sekarm Nair ILR (1909) M. 250 : 20 M.L.J. 86 lays down that the rule of Hindu Law, that if

nothing appears in the case except that a member of the joint family is in possession of property, the burden of proving self-acquisition lies on such

person applies also to property in the possession of a junior member of a tarwad. It is stated that this rule has been applied in certain earlier

decisions of this Court, namely, Vira Rayen v. Valia Rani of Pudia Kovilagom, Calicut ILR (1881) M. 141 and two other unreported decisions.

The well-recognised principle of Hindu Law applicable to joint Hindu families has been early applied to a Malabar tarwad also in Mari Veetil

Chathu Nair v. Mori Veetil Mulamparol Sekaran Nair ILR (1909) M. 250 : 20 M.L.J. 86 But, in the decision in Govinda Panikker v. Nani ILR

(1911) M. 304 the learned Judges, while observing that the presumption of law laid down in Vira Rayen v. Valia Rani of Pudia Kovilagom, Calicut

ILR (1881) M. 141 and two other unreported cases is to the above effect, state that they do not, however, understand those cases as laying down

that there is any presumption of law either way. They explain the position in the subsequent passage which is as follows:

The presumption is one of fact, see Mayne''s Hindu Law, paragraphs 289 to 291, and whether a presumption in favour of the property being

tarwad property should be drawn or not in any particular case would depend on various circumstances, such as the relationship of the member in

whose name the title stands to the karnavan at the time of the acquisition of the property in question, the possession of private means by the junior

member, the existence of any family funds at the time of the acquisition which disappeared after the acquisition, and any other facts that may throw

light on the source of the money used for the acquisition.

According to this decision, much importance is not attached to the abstract question of law, ""On whom does the burden of proof lies?"" but the

facts that are admitted or proved in a particular case should be mainly taken into account in order to apply the rule of law as to presumption. In a

later decision in Subramania Pattar Vs. Krishna Embranderi and Others, Sadasiva Aiyar, J., refers to the decision in Govinda Panikker v. Nani

ILR (1911) M. 304 and also to the decision in Dharmi Shetti v. Dejamma (1916) 5 L.W. 259 as authorities for the view that there is no

presumption either way. The learned Judge observes that if there is no presumption either way, the plaintiffs coming into Court should prove the

facts which would show that their contention is true. An opinion is expressed, that as regards the Malabar tarwad, the presumption should be

against the tarwad. But this view, as I have stated above;, runs counter to what is expressed in Mari Veetil Chathu Nair v. Mari Veetil Mulamparol

Sekaran Nair ILR (1909) M. 250 : 20 M.L.J. 86 and also in the three earlier cases referred to therein. The. general trend of all these cases does

not negative the application to a tarwad, of the rule of Hindu Law as to a joint Hindu family, in the matter of deciding whether a particular item of

property claimed to be the self-acquisition of one member thereof is really his self-acquisition or the property of the family. That being so, the main

argument of the learned advocate for the appellants that the Lower Appellate Court was wrong in applying the ordinary rule of Hindu Law to the

present case cannot be accepted as correct. In my opinion, the view expressed in Govinda Panikker v. Nani ILR (1911) M. 304 can be safely

followed in deciding questions of this kind.

Now we must see what the outstanding facts established in this case are. As found by the learned District Judge, the 1st defendant was in actual

management of the affairs of the illom under his father who was too old to take any part in the effectual management of the family. It is true that the

1st defendant did not possess any power of attorney or mukhtearnama to entitle him to manage the family affairs. But still he was in dc facto

management of the affairs though not in his own right but under his aged father. Moreover, the acquisitions in question were all made by the 1st

defendant during the period of such management. Even granting that if nothing is known, we should say that there is no presumption either way, the

aforesaid facts which have been found to be true in the present case give rise to a presumption in favour of the plaintiff''s contention that these

properties should have been acquired with the funds of the tarwad. Whether this presumption is strong or slight, it is still perfectly open to the

defendants to rebut that presumption in any manner. Whether they have rebutted or not has also been considered by the learned District Judge.

Taking the evidence into consideration, he disbelieves the 1st defendant''s version that he had some private funds with which he made these

acquisitions. That finding is one of fact and based upon the evidence in the case. The only effectual way of rebutting the aforesaid presumption

would be by showing that the 1st defendant had some private funds of his own to enable him to acquire these properties. That proof not having

been adduced, the District Judge is right in saying that the presumption has not been rebutted.

In the present case, there is no basis for attacking the finding of the learned District Judge as due to an erroneous application of a presumption of

law. I therefore hold that his finding is correct and should be accepted.

In the result, the second appeal fails and is dismissed with costs.