THIMMAKKE Vs. AKKU

JUDGEMENT

(1.) This is an appeal by the plaintiffs from the decree in a suit in which the plaintiffs are the same parties as the plaintiffs in the suit which we have just disposed of on appeal. The first and second defendants are respectively the older daughter of Chennamma and her son. They were the sixth and seventh defendants in the other suit. The plaintiffs in this suit ask for a declaration that two mortgages which stand in the name of the second defendant belong to the family and they also ask for an order removing the first defendant from the position of Ejman.

(2.) According to the finding in the other suit which we have accepted the first defendant in this suit is the de jure Ejman of this Aliyasantaua family and also de facto joint Ejman together with Devapparai. The finding of the learned Subordinate Judge with reference to these two mortgages is in paragraph 12 of his judgment. He says "I find that exhibit I," (that is the first mortgage) "was obtained from private funds," He therefore upholds that transaction. Ho says: "Exhibit II," i.e., the second mortgage, to the extent of Rs. 500 was from family funds." I suppose inferentially he finds as to the residue that it was obtained from private funds of the first defendant. He therefore decides in favour of the plaintiffs to the extent of Rs. 500 in regard to the second mortgage and in favour of the defendants with regard to the residue. The first defendant being a de jure manager and for certain purposes, at any rate de facto manager with the deceased Devapparai, the onus is no doubt upon her to show that these transactions were entered into out of her own private funds. In this case we have specific affirmative evidence the definite findings with reference to the question as to the source from which, it might reasonably be inferred, the monies which were advanced under these two mortgages were obtained, In paragraph 6 of his judgment, the learned Subordinate Judge aya "The first defendant swore in the connected suit" --by agreement the evidence in the connected suit is treated as evidence in this suit--"that she received Rs- 1,500 from her father." The learned Subordinate Judge does not say so in so many words, but I think it must be taken that he accepts her evidence, because in paragraph 8 has says: "there is further indubitable evidence of first defendant having obtained money from her husband," Now these two sums of money would be sufficient if not entirely, at any rate to a substantial extent, to provide funds for these transactions, which the first defendant says were entered into for the benefit of her son and with regard to which the title-deeds stand in the name of her son, the second defendant. I may say the evidence is not very strong; but we are not pro-pared to say that the learned Subordinate Judge in holding that the evidence is sufficient to rebut the presumption which arises in a case of this sort in plaintiff's favour, or, in other words, to discharge the onus which rests on the defendants, we are not prepared to say the learned Subordinate Judge in so holding was wrong. Therefore as regards this portion of the appeal, we are of opinion that it should be dismissed,

(3.) We now come to a question which, to my mind, is one of greater difficulty, and as to which, I confess, I have bean in some doubt; and that is the question whether the plaintiffs have made out a case for the removal of the first defendant from the management of this family. Now the grounds of alleged misconduct on the part of the first defendant in her capacity as joint manager wore: first, that the two mortgages in the name of the second defendant really belonged to the family and that she acted in fraud of the family rights in entering into the so transactions on behalf of hot: won. As to that I have said we are not prepared to differ from the learned Subordinate Judge.