BALAKRISHNAN Vs. MAKKAM

JUDGEMENT

(1.) Defendants 1 to 6, 8 and 9 are appellants in this appeal. The suit out of which this appeal has arisen was one for partition of Thekkeveedu paramba which originally belonged in jenmom on the tarwad of the plaintiffs and the deceased father of defendants 1 to 6, Kunhikuttan. The 7th defendant is the widow of the said Kunhikuttan. A prior karanavan of the tarwad, one Kanarukutty, demised the property to one Chandu on kanom. One Ravunni, the uncle of the plaintiffs, took an assignment of this kanom right. While he was in enjoyment under the said kanom, he created a sub kanom right on 20-9-1877 under Ext. A1 in favour of one Chathukutty. Later, Ravunni assigned his rights in the property to two members of his tarwad, namely, Makkam, his sister and her cousin Cheeru. The plaintiffs claimed under the said Makkam while the defendants claimed under Cheeru. Kunhikuttan, the deceased father of defendants 1 to 6, was the son of Cheeru. Ext. A2 is the assignment by Ravunny in favour of Makkam and Cheeru and that was on 27-11-1889. Sometime thereafter, on 6-1-1890 Cheeru, one of the two assignees under Ext. A2, obtained an assignment of the sub kanom right of Chathukutty under Ext. A3 which is the same as Ex. B3. The case in the plaint is that the said assignment, Ex. B3, was taken in 1890 with the funds of Makkam as well as Cheeru though the document stands in the name of Cheeru alone. As such, it is claimed that the plaintiffs are entitled to the subtenancy rights equally with the defendants. This plea of the plaintiffs is refuted by the defendants, according to whom, Ex. B3 having been an acquisition of the sub kanom right by Cheeru alone, the defendants are solely entitled to that right and that should not be the subject of partition. Therefore, the question that arose for decision in the courts below was whether Ex. B3 right taken by Cheeru enured to Makkam also and whether the plaintiffs were entitled to partition in regard to such sub kanom rights also. On that, the courts below have found in favour of the plaintiffs and, therefore, the defendants have come up in appeal.

(2.) On the question pleaded in the plaint, the courts below have taken divergent views. While the plaintiffs' case is that for taking Ext. A3 Makkam contributed equally with Cheeru though the document was taken in the name of Cheeru, that has not been accepted by the appellate court though the Trial Court accepted the case. It is seen from Ext. A3 that the assignment was taken on payment of a sum of Rs. 45/-. On the face of it, the document shows that it was taken with the funds of Cheeru who is the assignee thereunder. There is no evidence to show that Makkam contributed one half of the consideration and even the Trial Court which found in favour of the plaintiffs, did not base its conclusion on the evidence in the case. On the other hand, it assumed that it was for Cheeru and those claiming under her to show that the document was taken by Cheeru alone; in other words, the view taken by the Trial Court was that the source of consideration for the acquisition must be proved by Cheeru, failing which it will be assumed that the property belonged to Cheeru as well as Makkam. As rightly pointed out by the appellate court, one is unable to appreciate this approach to the case by the Trial Court. The document, so long as it stands in the name of Cheeru, must be taken to be evidence of acquisition of rights by Cheeru alone and it is for the person who contends against the apparent tenor of any document to prove it. Whenever a document of acquisition is seen to be standing in the name of a person and it is pleaded that the right to the property under the document does really belong to someone else or belongs also to someone else, it is for the person who pleads so to adduce evidence to dislodge the presumption that would normally be available from the fact that the tenor of the document is otherwise.

(3.) The appellate court seems to have made the correct approach and found that in the absence of any evidence, it cannot be said that Makkam contributed one half for the acquisition under Ext. A3. Notwithstanding this finding and contrary to the finding of the Trial Court, the plaintiffs were given a decree as the court was of the view that as a coowner the acquisition under Ext. A3 made by Cheeru must be taken to have been on behalf of Makkam also. To reach this conclusion the court relied on the provisions of S.90 of the Indian Trusts Act, 1882. According to the Court, as a coowner, Cheeru obtained an advantage and that advantage was in derogation of the rights of Makkam and so, that advantage must be held for the benefit of Makkam also. There is a plea of adverse possession at the instance of the defendants. According to them, Cheeru who obtained Ext. A3 had dealt with the properties and this dealing for a long number of years must be sufficient to show that at no time the property was treated as that of Makkam also. On that, the court below seemed to think that since in the case of a coowner, ouster has to be positively proved, that must be found to have not been so proved in the case and therefore the defendants are not entitled to succeed in their plea of adverse possession.