CHENTHAMARAKSHAN Vs. KONDATH DAMODARAN NAIR

JUDGEMENT

(1.) THE appellant in this Second Appeal is the plaintiff in a suit for partition of properties of a marumakkathayam tarwad.The plaintiff claims 1/16th share in plaint A and D schedule immoveable properties,B schedule moveables,and B -1 schedule kuri amounts.The D schedule items are admitted to belong to tavazhi and are not the subject -matter of this Second Appeal.A schedule items 34 to 41 are also not the subject -matter of this Appeal as the plaintiff has no case now that these items belong to the plaintiff's tavazhi.The only items with which this Second Appeal is concerned are A schedule items 1 to 25,33,items 21 to 26,27 to 29 and 32.The lower appellate court granted relief to the plaintiff in regard to plaint items 30,31 and 33 of A schedule,and that is challenged in the cross -appeal filed by respondents 1 and 16.

(2.) PLAINTIFF and defendants 1 to 15 are members of an undivided marumakkathayam tarwad they being the descendants of one Lekshmi Amma alias Ammalu Amma.( Since there is a main tarwad of which the plaintiff,defendants 1 to 15 and others are members and I may have to refer to that in the course of this judgment,for the sake of convenience I may refer to the said tarwad as the main tarwad and the tarwad consisting of plaintiff and defendants 1 to 15 as plaintiff's tavazhi ).First defendant,the son of Lekshmi Amma,is the karanavan of plaintiff's tavazhi.Navu Amma was the common ancestress and she had five daughters,eldest of whom was the above said Lekshmi Amma alias Ammalu Amma.She is the mother of defendants 1 to 3.The main tarwad consists of the daughters of Navu Amma and their descendants.Plaintiff's tavazhi is composed of the members of Lekshmi Amma's branch namely Lekshmi Amma,her 3 children and the descendants of her daughters defendants 2 and 3.The case of the plaintiff is that Lekshmi Amma was the manager of the tarwad consisting of herself and her four sisters,that the tarwad had very little assets,therefore all the sisters of Lekshmi Amma were living with their husbands,that for the purpose of maintenance of her own tavazhi Lekshmi Amma had taken certain Lands on verumpattam and was cultivating such lands,and that until first defendant attained majority Lekshmi Amma was the manager and karanavathi of her tavazhi.It is further the case of the plaintiff that as soon as first defendant attained majority Lekshmi Amma and the first defendant together obtained a lease for items 1 to 20 and 33 under Ext.A -1 in 1933,for taking which they had to pay a premium of Rs.1,000 and this amount was made up from out of the income of the tavazhi properties of Lekshmi Amma and also the share of income due to Lekshmi Amma's tavazhi from the main tarwad.The acquisitions of the other items in the plaint schedule are also mentioned,in the plaint,as having been made by utilisation of such funds.After the death of Lekshmi Amma in May 1961,Ext.A -38 partition deed was entered into between defendants 1 to 3 taking plaint schedule properties not as properties belonging to the plaintiff's tavazhi but as belonging to Lekshmi Amma and the first defendant.According to the plaintiff the said partition deed is not binding on the plaintiff and that he is therefore entitled to seek partition and recovery of 1 /16 share in the plaint schedule properties,his share being 1/16 by reason of there being 16 members in the tavazhi on the date of suit.Defendants 1 to 16 contested the suit,the 16th defendant being the wife of the first defendant,she having been impleaded since items 34 to 41 were acquired in the joint names of the first defendant and the 16th defendant.First defendant challenged the claim of the plaintiff to partition,on the ground,that items 1 to 20 and 33 taken on lease under Ext.A -1 was obtained by Lekshmi Amma and the first defendant jointly,that the tavazhi had no interests in these items,that items 21 to 26 alleged to have been taken on oral lease by Lekshmi Amma alone were also not items over which plaintiff's tavazhi could have any interest,that items 27 to 29 were purchased by Lekshmi Amma alone in 1944 and that too was not available for partion and that item 32 was acquired under Ext.B -1 of 1941 by Lekshmi Amma and the first defendant with their separate funds,and that items 30 and 31 were acquired by Lekshmi Amma alone in 1949 with her separate funds.Defendants 2 and 3 filed written statements supporting the plaintiff.Defendants 4 to 15 also filed a joint written statement supporting the plaintiff.It may also be mentioned that in the written statement of defendants 1 and 16 the answer to Ext.A -1,which appears to be the main document the source of acquisition of which is in dispute between the parties,is that the premium for taking the document was not out of any tavazhi funds,that no tavazhi fund was available at that time,and that it was taken with the separate funds of Lekshmi Amma and the first defendant.It is further mentioned there that out of the sum required for taking Ext.A -1,Rs.500 was contributed by Lekshmi Amma,who had savings on account of some milk trade carried on by her and the balance required was raised by taking a promissory note loan of Rs.700 from D.W.6 by executing the promissory note jointly with D.W.4.The trial court dismissed the suit holding that with regard to plaint A,B and B -1 schedule plaintiff was not entitled to any relief.There was no dispute with regard to D -schedule items.The lower appellate court to which the plaintiff appealed modified the decree of the trial court by finding that with regard to items 30,31 and 33 plaintiff was entitled to a share since these items were seen to have been acquired with funds which were available to the plaintiff's tavazhi and such funds were,utilised for such acquisition.In other respects it confirmed the decree of the trial court.The plaintiff has come up in appeal challenging the dismissal of the suit in regard to items 1 to 20,items 21 to 26,27 to 29 and 32 in plaint A schedule.The earliest of the acquisitions which are claimed as acquisitions for which are claimed as acquisitions for the tavazhi is that under Ext.A -1 of 1933 for items 1 to 20 and 33 and if that is found to be acquired for the plaintiff's tavazhi,in regard to the acquisition of other items it may be said there was nucleus sufficient and available to enable a presumption to be raised in favour of the claims of the plaintiff ™s tavazhi.Therefore,the main question for consideration in this Second Appeal is about the character of the acquisition under Ext.A -1 dated 31st March 1933.

(3.) THE case of the plaintiff in the plaint relating to the source for acquisition of Ext.A -1 lease in 1933 is that,funds of the tavazhi of the plaintiff was available and further;the income falling to the share of plaintiff's tavazhi out of the main tarwad properties was also available.Though it is the specific case of the plaintiff that,even before Ext.A -1,Lekshmi Amma and her tavazhi was possessed of properties obtained on lease,which have been cultivated by her tavazhi,no document has been produced in the suit showing that any such lease has been taken by Lekshmi Amma for her tavazhi nor is any particular item of property shown as taken on lease by Lekshmi Amma.As found by the trial court there is no reliable evidence in the case to assume that prior to Ext.A -1 acquisition Lekshmi Amma's tavazhi had been in possession of any properties from which any income could have been obtained.Therefore,the plaint allegations in so far they refer to such income remain unsubstantiated.The other source pleaded is the income from properties of the main tarwad,the share of income of which is said to have been available to Lekshmi Amma.No reference is made to any particular item of property which was enjoyed by the main tarwad,the sharer income of which was so available to plaintiff's tavazhi.But,in the evidence it has been attempted to be established that the main tarwad had taken on lease some 27.79 acres of paddy lands called 'Perapadam lands 'which belonged in jenm to Parekkat Devaswom,and what has been attempted to be established is that Lekshmi Amma,being the de facto manager and Karanavathi of the main tarwad was in possession of these lands and therefore had the income of these lands.Though in the plaint the reference is to the share income from the main tarwad,in evidence there is no case that such income from the Perapadam lands was shared between the tavazhies and that any share of income so obtained by Lekshmi Amma's branch was available for acquiring Ext.A -1.On the other hand,the attempt appears to be that the entire Perapadam Lands was in the possession of Lekshmi Amma who was dealing with the same and therefore she had come into possession of funds.Certain facts which may be necessary to understand the contention of the parties may also be stated here.Navu amma's husband was one Achuthan Nair.It appears that Lekshmi Amma,the eldest daughter of Navu Amma,was living with Achuthan Nair in his house while her sisters were living with their husbands.Though the Perapadam lands were taken in the names of all the five daughters of Navu Amma,it is seen that later the daughters surrendered the said lands in favour of one Parukutty Amma,the second wife of Achuthan Nair.circumstances relating to the taking of the documents for Perapadam lands and their surrender have been sought to be explained by the first defendant as in facting the fact that the daughters of Achuthan Nair were acting only as benamidars for Achuthan Nair and that even Kondath with regard to the Perapadam lands it was not as if the main tarwad had any independent possession at any time.Achuthan Nair had taken verumpattom of several lands and he was a man who was possessed of properties.