A CHATHU NAMBIAR Vs. ASEKHARAN NAMBIAR

JUDGEMENT

(1.) This suit is brought to recover with mesne profits possession of the properties described in the plaint from the possession of the defendants on the allegation that they are tarwad properties. The plaintiffs and the defendants are all members of a Marumakkatayam tarwad called "Appatta." The 1 defendant is the present karnavan of that tarwad and the other defendants also belong to the tarwad. The plaintiffs who are some of the members of the tarwad are the appellants before me. The defendants against whom reliefs are claimed in this suit are also members of a tavazhi in the tarwad called Kuttierigandi tavazhi. The lower Courts have found that though the existence of the tavazhi was denied such a tavazhi does exist as a separate body in the tarwad with a separate karnavan and owning separate properties. The members of the tavazhi claim the suit properties as theirs except items 1 to 12 and 14 which are admitted to be tarwad properties. The second appeal has been argued before me only with reference to items 27, 28, 29, 34, 35, 37 and 38 and items 1 to 6 and the improvements on items 8, 9 and 10. As regards items 27 and 23 the evidence is that they were originally acquired on an otti right in the name of one Ukkandan Nambiar by the then karnavan of the tavazhi. Imbichunni Nambiar, and that in 1889 the jenm right was acquired by Imbichunni Nambiar himself, part of the consideration of the jenm right being the otti amount which had previously been advanced. Imbichunni Nambiar being the Karnavan of the tavazhi at the time there is a presumption in favour of holding that he acquired the properties for the tavazhi. The lower Court has also found that the claim of the tarwad even if it had any at any time, is clearly barred by limitation as from 1889 onward the defendants tavazhi has been in possession.

(2.) As regards item 29 that was acquired by Ukkandan Nambiar in 1071 (1896) under Exhibit FF. At that time he had become the karnavan and manager of Kuttierikandi tavazhi. So the learned Judge was right in holding that in the absence of evidence to the contrary, the presumption was in favour of the view that the property acquired by him was acquired for the tavazhi and with the tavazhi funds. And this presumption must prevail unless the person who avers that the property is self acquisition proves that fact by evidence.

(3.) Items 34 and 35 were purchased in Court auction in 1889 by Kelappan Nambiar, the previous karnavan of this tavazhi, and the tavazhi has bean dealing with these items as pointed out by the learned Judge ever since as their property.