PARUKUTTY Vs. PROVINCE OF MADRAS

JUDGEMENT

(1.) THIS appeal was referred to a Full Bench for an authoritative decision of the question whether the last Sthani has absolute right to deal with sthanom properties. The Full Bench answered the question in the negative and remanded the suit for a finding on the question whether the property claimed by the appellant was one attached to the sthanom or one belonging to the tarwad of the sthani.

(2.) THE contentions of the parties and the decision on the question referred to above are stated in the order of remand a copy of which will be appended to this judgment. THE plaintiff, the province of Madras sued for recovery of possession of 90 items of immovable property alienated by kunhiraman Moothavar, the last Sthani, who was also the last member of his tarwad, on the allegation that the properties were attached to the office of sthanam and that the alienations were invalid. THE 64th defendant-appellant who was interested in item number 70 had a contention that this property did not belong to the sthanom but to the tarwad and that Kunhiraman Moothavar who was the last surviving member of the tarwad was competent to alienate the same. This was the question on which a finding was called for. THE finding submitted by the trial court is that the property belonged to the tarwad. It was also observed by the learned subordinate judge that if the burden of proof in the case is on the 64th defendant, the finding should be in favour of the plaintiff.

(3.) THE learned Advocate General who appeared for the state raised two points in this connection. THE first is that the form in which the issue was framed cast the burden of proof on the defendant and that it is not open to the defendant to contend at this stage that the plaintiff ought to have adduced evidence on the point. THEre is no substance in this point. As pointed out by the Privy Council in Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddy (49 I. A. 286) "when the entire evidence on both sides is once before the court the debate as to onus is purely academic". Further, the form of the issue cannot affect the "burden of proof on the pleadings". THE other point raised is that though there is no evidence to show that item No. 70 was attached to the office of sthanom, there is evidence in the case that whenever the last sthani dealt with tarwad properties, reference was made in the documents to that fact. Exts. A184, A189 and A209 were referred to in this connection and it was argued that in conveying item No. 70 to the appellant, Kunhiraman Moothavar did not refer to the property as belonging to the tarwad and that it should therefore be presumed to be Sthanom property. Ext. A184 is copy of a statement filed by the Sthani before the collector of Malabar on 27-5-1927. He stated that he was the sole Sthani. THE other documents show that when dealing with properties belonging to the tarwad, he described himself as sole member GImwkw and that at least in one document the consideration is described to have been received for discharging a debt incurred as Sthani. Kunhiraman Moothavar does not appear to have maintained any distinction in his dealings with property whether belonging to the tarwad or attached to the Sthanom. THEse documents do not conclusively show that the argument of the respondent's counsel is correct. We are able to see why the plaintiff was not able to adduce better evidence on the point. Revenue records and other documents relating to the property must have been available with the state to show the nature of the property but none was produced. In these circumstances the finding of the trial judge that the plaintiff failed to prove that the property belonged to the sthanom must be accepted. It follows that the suit must fail in respect of item No. 70. We therefore allow the appeal, set aside the decree regarding item 70 and dismiss the suit in respect of the same. In the circumstances of the case we direct both sides to bear their costs. Allowed. APPENDIX Copy of judgment in A. S. No. 368/55-M. This is an appeal by the 64th defendant in O. S. No. 79 of 1953 of the court of the Subordinate Judge of Tellicherry. THE suit was by the province of Madras for the recovery of possession of the properties specified in the A schedule to the plaint with past and future profits and the costs of the suit. THE appellant is interested only in one of the 90 items in the said schedule, namely, item No. 70 which she purchased from the late Kunhiraman moothavar by Ext. A200 dated 21-10-1934. 2. THE trial court accepted the plaintiff's contentions that the item belonged to the Koothali Sthanom of Payyormala in North Malabar, that Kunhiraman Moothavar had no right to execute Ext. A200 and that on his death on 8-7-1936 all the properties of the sthanom accrued to the State by escheat. In Appendix III to the 11th Edition of Mayne's Treatise on Hindu Law and Usage it is stated: "when a sthanom ceases to exist by the extinction of the tarwad, the members of which were entitled to succeed to the office, the property passes by escheat to the Crown, and the last holder's personal heirs cannot take the property by inheritance" (page 994 ). Mr. S. Srinivasa Iyengar's preface to the 10th Edition of the Treatise shows that Appendix III was prepared by Mr. P. Govinda Menon and revised by Mr. B. Sitarama Rao, the editor of Sundara Iyer's Malabar and aliyasanthana Law. Mr. N. Chandrasekhara Aiyar's preface to the 11th Edition states that Mr. Govinda Menon scrutinised the Appendix again for the purposes of that edition. 3. We see no reason to differ from the statement of the law embodied in the passage extracted above. Kunhiraman Moothavar was the last member of his tarwad and the last sthani and we must hold that the trial court was right in its conclusion that on his death on 8-7-1936 the properties of the sthanom escheated to the State. 4. It is well-settled that the estate taken by a sthani is a limited one and that he can encumber or alienate sthanom properties only for legal necessity like any other limited owner. Counsel for the appellant agrees that it is not possible to justify Ext. A 200 on the ground of benefit or necessity. His contention is that even though the estate taken by a sthani is ordinarily limited in character, that estate in the hands of the last sthani is absolute and untrammelled. 5. That such is the customary law is a matter for proof and no such proof has been attempted in this case. As pointed out in ILR. 38 madras 48 a custom cannot be extended by analogy and "the particular custom applicable to any set of circumstances must be proved".