Judgment :- 1. The suit (O.S. 588/1122, Munsiff's Court, Pathanamthitta) out of which this Second Appeal arises was brought by a member of an Ezhava tarwad consisting of 7 members, a mother, her three sons, one daughter and two grandchildren by that daughter. The plaintiff is the youngest of the sons. The 5th defendant is the eldest son and the 4th defendant is his younger brother. The remaining members of the tarwad are not on record. The 1st defendant is the wife of the 5th and defendants 2 and 3 are their daughter and son-in-law respectively. 2. The suit was for setting aside two documents, Ext. A dated 26.9.1114 which is a deed of sale executed by the 4th defendant in favour of his brother's wife, the 1st defendant and Ext. B dated 15th Thulam 1119 which is an Udampadi executed in favour of defendants 2 and 3 being a deed of settlement in their favour made for their marriage. These documents were sought to be set aside on the ground that the properties comprised therein belong to the tarwad of the plaintiff, that the documents are unsupported by consideration in so far as the tarwad is concerned, and that they were not executed for any necessity of the tarwad. The properties are claimed on behalf of the tarwad on the ground that they were purchased in the names of defendants 4 and 5 with tarwad funds. (See paragraph 3 of the plaint). Paragraph 6 of the plaint stated that the properties continue to be in the possession of defendants 4 and 5 on behalf of the tarwad despite the aforesaid documents and on that basis the only relief that was prayed for originally was the setting aside of the documents. 3. The 1st defendant and defendants 2 and 3 by separate written statements contended, inter alia, that the properties in question were the self-acquisitions of defendants 5 and 4, that the tarwad of the plaintiff had no manner of right to or possession of the properties, and that pursuant to the documents aforesaid the properties were in their possession. They also contended that the 5th defendant was living with and was in management of the properties of the 1st defendant and was in possession of the income derived from those properties until recently when he fell out with her and their children and filed O.S. Nos. They also contended that the 5th defendant was living with and was in management of the properties of the 1st defendant and was in possession of the income derived from those properties until recently when he fell out with her and their children and filed O.S. Nos. 534 and 537 of 1122 in the Pathanamthitta Munsiff's Court, that the present suit is engineered by him through the plaintiff on account of that estrangement, that the tarwad of the plaintiff had no funds for the purchase of the properties and that the only property of the tarwad which was a house with a small slice of a paramba appurtenant thereto measuring 62 cents has been in the possession and enjoyment of the mother, her daughter, son-in-law, and grand-children. The plaintiff filed a written statement after the above defence was entered wherein he averred that the properties belonging to the 1st defendant, besides those obtained by her on partition in her tarwad were purchased for her by the 5th defendant from out of his own funds. The issues framed in the case were as follows: (1) Has the plaintiff any right to the schedule properties? (2) Is the plaintiff entitled to question the documents in favour of defendants 1, 2 and 3? (3) Are the schedule properties the tarwad properties of plaintiff? (4) To what relief is the plaintiff entitled? (5) What is the order as to costs? 4. The plaintiff on whom the burden was cast on all the issues did not enter any protest to the burden having been so cast but on the other hand endeavoured to shoulder that burden by adducing oral and documentary evidence in the shape of Exts A to G and his own testimony as the only witness on his side. It seems to us that the plaintiff having accepted the onus and having a finding against him, is not entitled to turn round in a court of appeal and say that the onus is on the other side and that they have not discharged it. We do not however desire to rest our decision in this case upon that disability of the plaintiff. When upon the evidence adduced by the plaintiff, he has not merely not discharged the onus that was cast upon him, but has positively disproved his case, there is no need for the defendants to adduce any evidence on their side. We do not however desire to rest our decision in this case upon that disability of the plaintiff. When upon the evidence adduced by the plaintiff, he has not merely not discharged the onus that was cast upon him, but has positively disproved his case, there is no need for the defendants to adduce any evidence on their side. The defendants are entitled to rely upon the evidence adduced by or on behalf of the plaintiff and pray for a dismissal of the suit if that would be justified by such evidence, even though they have not adduced any evidence on their side and in such a case it is competent for the court to dismiss the suit upon such evidence. See (XXV M.L.J. 281.) T. Ruthna Gramany and another v. M. Veerabudra Aiyer and others, (A.I.R. 1921 Lahore 284) Jadunath v. Raman Mal & another and (A.I.R. 1934 Lahore 1019) Bishambar Das and others v. Telu Ram and ohers. Exts. F and G are petitions for recording compromise of the suits O.S. No. 534 and 537 of 1122 and have no relevancy to the question at issue in this case, except perhaps to show that though there was estrangement between the 5th defendant and his wife and children there had been a rapproachement during the course of the proceedings in the present suit. Ext. C dated 8th Thulam 1097 is the document under which the properties in question were purchased in the names of defendants 4 and 5. The consideration was Rs. 294/- made up of Rs. 275/-reserved to be paid to a creditor of the vendors on or before the 30th Makaram of that year and Rs. 19/-stated to have been received in cash from the vendees. At the time of purchase, the property was a vacant paramba. The house that there exists now was put up by the 5th defendant for the residence of his wife and children who are living there. Ext. E is a deed of gift executed by the father of the plaintiff, defendants 4 and 5, and their sister, in favour of their mother in the year 1073. It is admitted by the plaintiff in his deposition that that property which is the residential house was the only property possessed by the tarwad at the time of Ext. Ext. E is a deed of gift executed by the father of the plaintiff, defendants 4 and 5, and their sister, in favour of their mother in the year 1073. It is admitted by the plaintiff in his deposition that that property which is the residential house was the only property possessed by the tarwad at the time of Ext. C, that it was registered in the name of the mother in the Revenue records, that the tax is being paid by her and that she, her daughter and grand-children are living in the house and taking the usufruct therefrom, whose value is admitted by the plaintiff to be not more than Rs. 100/- per annum. It is admitted by the plaintiff that this income would be insufficient for the maintenance even of the members resident in the house and that the deficit is made up by the 5th defendant by his own earnings. It is also admitted that defendants 4 and 5 are and have been living in the houses of their respective wives. 5. At the time of Ext. C, the plaintiff was a student aged about 12 or 13. After he attained majority and married, he is also living in the house of his wife. 6. The plaintiff relies upon Ext. D dated 9th Kumbhom 1097 which is a deed of hypothecation executed by the plaintiff's mother, defendants 4 and 5, and their sister, who were all the major members of the family at the time, to secure future subscriptions to a chitty in which defendants 5 and 4 had each taken a half ticket. Ext. D recites that the one ticket thus owned by the two brothers was prized by them at the auction, that the net amount due to them namely Rs. 200/- was paid to them and that the amount of Rs. 140/- due by way of future subscriptions to the chitty would be paid in instalments as specified therein for which the executants undertook personal liability and the properties comprised in Ext. E were given as security for the aforesaid obligation. The plaintiff relies particularly upon the recital contained in this document that the prize money was meant for payment towards the balance of sale price under Ext. C. The amount reserved under the sale deed is stated to be payable on or before the 30th Makaram. E were given as security for the aforesaid obligation. The plaintiff relies particularly upon the recital contained in this document that the prize money was meant for payment towards the balance of sale price under Ext. C. The amount reserved under the sale deed is stated to be payable on or before the 30th Makaram. The receipt of the chitty prize money was in the next month. Besides producing this document and relying upon the aforesaid recital therein, the plaintiff has made no attempt to link up the prize money with the balance sale price. His version that the prize money was utilised towards payment of the sale price is hearsay as his information is admittedly derived from his mother and sister, both of whom are alive and neither had been called as a witness. Assuming that the prize money was in fact utilised for payment in part satisfaction of the balance sale price, that fact does not operate in favour of the plaintiff as the chitty ticket which was prized belonged to defendants 4 and 5. Indeed even the plaintiff does not claim the ticket of the chitty which stood in the names of defendants 4 and 5 as belonging to the tarwad. The prize money belongs to the owner of the ticket in the chitty. If on receipt of the prize money, the owners thereof, that is, defendants 4 and 5, executed a deed to secure future subscriptions in the chitty, in which deed they sought the co-operation of their mother and sister and induced them to agree to the giving of tarwad property as security, the result would only be that for their own obligation, defendants 4 and 5 offered the tarwad property as security. This conduct of theirs is not such as to convert their property, that is the prize money, into tarwad property. It is also not contended nor is it, under the circumstances possible to contend, on behalf of the plaintiff that the liability under Ext. D was discharged by or by use of any money belonging to the tarwad. It is thus obvious that there was no detriment to the estate of the tarwad in the matter of the acquisition of the property. D was discharged by or by use of any money belonging to the tarwad. It is thus obvious that there was no detriment to the estate of the tarwad in the matter of the acquisition of the property. In the absence of such detriment, the property belongs to the acquirers in their own right albeit they were the karnavan and the senior anathiravan of the tarwad as that fact by itself will not operate to impress upon it the character of tarwad property. The junction of the senior anathiravan with the karnavan may lead to the inference of the binding character of an alienation of tarwad property as according to one view the concurrence of the senior anathiravan is presumptive proof of the consent of the other members. That principle however has no application to the case of an acquisition of properties by the two together which are claimed by them as their own. 7. A scrutiny of Ext. D reveals a contrast between the properties secured thereunder, that is tarwad property, and the property for payment of whose price, the prize money is stated to have been received. Whereas the tarwad property is mentioned as belonging to all the executants the other property is mentioned as belonging to defendants 4 and 5. Far from being evidence in favour of the plaintiff to prove the tarwad character of the properties in question, Ext. D demonstrates that those properties are the self-acquisitions of defendants 4 and 5 and that fact is admitted by their mother and sister. 8. It is thus clear that the plaintiff by the averments in his pleadings as also by his evidence not merely has not proved his case of purchase of the property in question by the funds of the tarwad, but he has effectively disproved the possibility of that case being made out. It is admitted by the plaintiff that the only property that the tarwad had was such as not to yield anything from out of which any part of the purchase price was or could have been paid. It is admitted that the 5th defendant though he is the eldest male member of the tarwad was not in possession and management of the only tarwad property which was the residential house and the appurtenant compound. It is admitted that the 5th defendant though he is the eldest male member of the tarwad was not in possession and management of the only tarwad property which was the residential house and the appurtenant compound. It is admitted that the 5th defendant had his own sources of income and that by his earnings he maintained his mother and sister and besides, purchased properties for his wife. 9. Under these circumstances, the learned Munsiff found against the plaintiff upon all the issues and dismissed the suit. The learned temporary Second Judge of Mavelikara who heard the appeal against the decree of the Munsiff, in a very short judgment, set out the facts in paragraph 1 by quoting entirely from the judgment of the Munsiff. In paragraph 2 he stated that the Munsiff had dismissed the suit and hence the appeal. In paragraph 3 he poses the question thus:- "The only point arising for determination in the appeal is whether the plaint schedule properties are the tarwad properties of plaintiff and defendants 4 and 5 or are they the self-acquisitions of defendants 4 and 5". He then proceeds to say that "The specific case put forward by the 1st defendant is that the plaint schedule properties were purchased by defendants 4 and 5 with their separate funds. The burden of proof is heavily on the defendant to establish her case. There is absolutely no evidence except her interested testimony. Defendants 4 and 5 are respectively the karnavan and senior anathiravan of the plaintiff's tarwad. The plaint schedule properties were acquired in the names of defendants 4 and 5 under Ext. C. The plaintiff's case is that the tarwad funds were utilised for purchasing schedule properties and for that plaintiff relies on Ext. D, hypothecation bond. Ext. D is admittedly for tarwad properties of plaintiff and defendants 4 and 5. It is clearly stated in Ext. D that the amount secured thereunder was to be utilized for paying the consideration under Ext. C. The evidence of P.W.1 when taken along with Ext. D clearly shows that Ext. C properties were acquired with the funds belonging to the tarwad by hypothecating tarwad properties. In these circumstances and in the absence of any evidence on the defence side, I believe P.W.1 and his evidence and hold that the plaint schedule properties are the tarwad properties of the plaintiff and defendants 4 and 5". D clearly shows that Ext. C properties were acquired with the funds belonging to the tarwad by hypothecating tarwad properties. In these circumstances and in the absence of any evidence on the defence side, I believe P.W.1 and his evidence and hold that the plaint schedule properties are the tarwad properties of the plaintiff and defendants 4 and 5". 10. We cannot help remarking that the treatment of the case by the learned Temporary Second Judge is perfunctory and far from satisfactory. If he had looked into the evidence in the case, the facts and circumstances mentioned in our judgment would have been obvious. They are not matters of a controversial character where different views are possible. All the considerations relevant to the issue alike converge towards the only conclusion possible viz., that the properties in question are the self-acquisitions of defendants 4 and 5. The learned judge says that he believes P.W. 1. If he does so, he has to decide against him because the only matters on which he gives evidence are not in favour of his case and his statement about the use of the prize money in the chitty is hearsay and is therefore not evidence. Even if that statement is taken to be true, it does not lead to any result in favour of the plaintiff. Under the circumstances, it is surprising that the learned judge rested his conclusion on a presumption of tarwad character of the properties in question stated to have asisen on account of the fact that defendants 4 and 5 in whose names the properties were purchased happened to be the karnavan and senior anathiravan of the plaintiff's tarwad. 11. On the facts and circumstances of this case, there is no scope for the application of any presumption or for resting the conclusion of the court on onus of proof. We may however refer to our decision in Narayanan Krishnan and another v. Kali Lekshmi and others (1950 KLT 735, and AIR 1951 T.C. 135) where we have considered the question and said that "the person claiming the property for the tarwad will have to show that the nucleus was substantial if not ample, and available to the acquirer to admit of the acquisition being made from out of that nucleus or out of the income thereof". The latest decision of the erstwhile Travancore High Court which we could then lay our fingers on and which we followed, was Padmanabhan Raman v. Krishnan Raghavan (20 TLT 26) which was of the year 1119. A still later decision of the same High Court which conforms to our view is the decision of Sankara Subbaier, J. sitting with another learned judge in A.S. No. 199/1121 which, having been unreported, escaped our notice then. It is said that "the law is the last interpretation of the law given by the last Judge". If so, Mr. Justice Sankara Subbaier's is the law on the point so far as the erstwhile Travancore High Court is concerned. The learned judge starts the discussion and poses the question thus: "Point No. 3. This is the most important question for decision in the appeal. It was not urged before us that Narayanan Nair was not the eldest male member of subtarwad. The lower court held that the income from plaint A schedule items 1 and 9 constituted the nucleus for acquisition of the other plaint schedule items. We have therefore to see first whether A schedule items 1 and 9 were sub¬tarwad acquisitions and whether the income from them afforded sufficient nucleus for the acquisition of other properties" and concludes thus:- "Item 9 of A schedule was first acquired under a mortgage of 1080. The mortgage stands in the name of Narayanan Nair alone. Ext. F is a purakadom in respect of the same item and that also stands in the name of Narayanan Nair alone". "As we have already stated, there is no proof that the sub-tarwad had sufficient nucleus for acquiring properties. It is also in evidence that each of the defendants 1 to 6 has separate puduval registries of his own". In the circumstances the learned judge held that the properties were not tarwad properties, quite correctly, if we may say so, with respect. 12. The result is that the Second Appeal should be allowed. We set aside the decree of the temporary Second Judge of Mavelikara in A.S. No. 71 of 1125 and restore that of the Munsiff. The plaintiff will pay the costs of the appellant here and in both courts below. Allowed.