KUNHANNA SHETTY Vs. TIMMAJU

JUDGEMENT

(1.) These are two appeals from a judgment and decree of the District Judge of South Canara. The plaintiffs asked for an order that the 1st defendant should be removed from his ejamanship; they also asked for a decree for possession of certain items of property. (This would be consequential on any order for the removal of the 1st defendant from his ejamanship). The plaintiff also asked that certain alienations of family property which had been made by the 1st defendant should be set aside. The family is a joint Aliyasantana family consisting of the 1st defendant and the plaintiffs. The 1st defendant is the last survivor of his branch of the family. He is now a very old man some 80 years of age. He has been the ejaman of the family since 1900 when he succeeded his elder brother Manjanna Shetty. The learned Judge gave the plaintiffs a decree for the removal of the 1st defendant from the ejamanship; and as consequential on that he gave them a decree for possession of certain family lands, items 1 to 10. As regards other items which were in dispute, items 12, 13, 14 and 15, the learned Judge held that item 14 belonged to the ejaman as his self-acquired property. He held that items 12, 13, and 15 belonged to the family, but that the plaintiffs right to recover those lands for the family was barred by limitation. Appeal 245 of 1910 is an appeal on behalf of the 1st defendant against so much of the decree as directs his removal from his ejamanship. Appeal 44 of 1911 is an appeal by the plaintiffs on the ground that the learned Judge was wrong in holding that item 14 was the self-acquired property of the 1st defendant and also on the ground that the Judge was wrong with reference to the question of limitation to items 12, 13 and 15.

(2.) I take Appeal 245 of 1910 first. As I have stated, the 1st defendant succeeded his brother as ejaman in the year 1900. Within a year or two of his succession to the office he set up a claim to certain properties as the self-acquisition of his branch of the family and a suit was brought in 1901 by the family. It was held that the properties in question were family property. In that suit, however, although the plaintiffs asked for a decree for the removal of the 1st defendant no decree for his removal was given. We thus have a state of things in which for the second time in the course of some seven or eight years a suit has been brought against the ejaman of the family to establish the proprietary rights of the family in land which the ejaman has purported to deal with as his own self-acquisition. It is quite true, as pointed out by Mr. Naraina Rau, that the particular items of property which are in question in the present suit were not included amongst the items of property which were claimed by the family when the suit of 1901 was brought and Mr. Naraina Rau has contended that, assuming that these items of property now in question are family property, it is consistent with good faith in the ejaman that he should have purported to deal with them as his self-acquired property. Speaking for myself I should feel some difficulty in acceding to that contention, because I find it difficult to conceive how, having regard to the position of an ejaman of a family such as this and to the means of knowledge which must be at his disposal how he could honestly deal with family property under a bona fide belief that it was his self acquired property. However I do not think it is necessary for us to take the view in this case that the ejaman, when he purported to convey these items of property in 1906 under the instrument Exhibit XXXVI was acting dishonestly. For the purposes of this case I will assume that he acted under bond, fide mistake. Taking that to be so we have at any rate this: that in 1902, he, the ejaman set up a claim to family property which as against the family he was unable to maintain, and that since then, he has dealt with property, which in our, view is family property (I deal with this part of the case later) as his own.

(3.) There are other matters which we must consider. It became necessary for the family to raise a very substantial sum of money for payment off of a decree debt owing to one Abakke under a" mortgage of family property executed in her favour. It is scarcely necessary to observe that if the ejaman was in possession of family funds sufficient to meet that decree it would have been his duty to pay off the decree out of family funds or devote the family funds, so far as practicable or so far as they existed, to wards paying off the decree, and not to encumber the family property with unnecessary mortgages. I think it may be taken as established by the evidence that he had in his possession a sum of Rs. 2,108, which might have been applied in reduction of this decree debt. There is evidence that this Rs. 2,108 was family property. I do not say that evidence is conclusive, but the. presumption of law is that the money which stood in his hands was family property and I think it may be safely said that that presumption has not been rebutted. Then there is evidence that the net profit which he received from the family lands came to a sum of Rs. 2,324 per annum. There is no evidence as to what . became of this sum. There is no evidence that it was devoted to purposes of family necessity; and, although I do not suggest that the ejaman was under a liability to render an account for this Es. 2,324, I think that, if it was family-property as I am prepared to hold it was, it was either his duty to devote it to the discharge or reduction of the family debt or to show generally that it was utilized for family purposes.