KRISHNAN Vs. KUNJU

JUDGEMENT

(1.) The only point in the Second Appeal by the plaintiff is as to whether the acquisition of the equity of redemption in respect of the suit properties under Ext. 1 by the Karnavan of the defendants Sakha in 1100 M. E. enures only for the benefit of that Sakha, or to the common tarwad of the plaintiff and the other parties. Though, no doubt, the Karnavans of the 2 Sakhas seem to have acted jointly till a particular stage, and in fact, took also a mortgage right in respect of these very properties evidenced by Ex. B, ultimately, we find that the present acquisition under Ext. 1 is really in favour of only the Karnavan of the tarwad of defendants 1 to 9, viz., Achuthan Kesavan. It is not really necessary to refer to the various Karnavans who were in existence. But there is no doubt that at any rate, till a particular stage, acquisitions were made by the two Karnavans jointly. The defendants themselves have also accepted the position that the acquisition of the mortgage right over these properties evidenced by Ext. B, is really an acquisition for the entire tarwad. But their contention is that, so far as the acquisition of the equity of redemption evidenced by Ext. 1 is concerned, it is really an acquisition by Achuthan Kesavan in his own right and it enures only for the benefit of his Sakha namely, defendants 1 to 3.

(2.) On this point the Trial Court was of the view that even putting the income in favour of the plaintiff, Achuthan Kesavan would not have been in possession of sufficient tarwad nucleus or assets to enable him to invest in this acquisition evidenced by Ext, 1. This really is a finding in favour of defendants 1 to 9. But after recording this finding and also recording a further finding that money must have come from somewhere else and also holding in favour of the defendants that Achuthan Kesavan, who had money to advance and make acquisitions at about the relevant time, has come to the conclusion "Whether this money was the separate fund or tarwad money is not relevant.

(3.) I am not able to appreciate this remark of the Trial Court, because the essential point which will have to be established by a member, who claims an item of acquisition as belonging to the tarwad, is that the tarwad Karnavan has sufficient tarward nucleus or assets available for making this acquisition. When the very basis for the acquisition is held in favour of the defendants on the ground that the funds of the tarwad are not available, I am not able to accept the further conclusion arrived at by the Trial Court that it must be presumed that the purchase was intended for the joint benefit. In my opinion this judgment of the Trial Court has been rightly reversed by the learned District Judge