Pappu v. Sekharan — 1953 DIGILAW 188 (KER)

Judgment :- 1. The 1st defendant is the appellant. The appeal is from a decree granting each of the two plaintiffs maintenance at the rate of Rs. 2 Ch. 22 cash 11 per mensem. The suit was brought on the following allegations. Plaintiffs 1 and 2 and defendants 1 to 36 are members of a Misradaya Ezhava Tarwad of which the 1st defendant is the karnavan and manager. Items 1 to 50 described in the plaint schedule are properties belonging to the tarwad. For some time prior to the filing of the suit, the 1st defendant has not been properly discharging his duties to the members of the tarwad or maintaining them and he had been appropriating the income of immovable properties and interest on investments. Such gross income would amount to Rs. 3,000/- per annum. After deductions for tax and maintenance of the properties, each of the plaintiffs would be entitled to get Rs. 5/- per mensem tarwads maintenance. The plaintiffs prayed for a decree for maintenance from 1.7.1112 at the rate mentioned above, making the 1st defendant and tarwad properties liable for the same. 2. The 1st defendant contested. He admitted that plaintiffs and defendants 1 to 36 constituted an undivided tarwad as alleged by the plaintiffs. His main contention was that items other than 1 to 7 were his self-acquisitions and that the plaintiffs were entitled to get maintenance only out of the income of items 1 to 7 in the plaint schedule. According to him the Sakha had no properties until items 1 to 3 which were acquisitions by a common karnavan Perumal Nilakantan were obtained in partition after his death, by the Sakha to which the plaintiffs and defendants 1 to 36 belong. Kumara Bhagavathy was the karnavan of this branch and he was managing the affairs of the Sakha till he died on 19.6.1093. Items 4 to 7 which were the acquisitions of Kumara Bhagavathy were obtained by the Sakha as per partition deed dated 28.6.1095. He became karanavan only after the death of Kumara Bhagavathy. The annual income of these properties namely items 1 to 7 was only Rs. 287/-. This was insufficient for the maintenance of the members of the tarwad and he had to spend his private funds for this purpose, as well as for effecting valuable improvements in the properties. He became karanavan only after the death of Kumara Bhagavathy. The annual income of these properties namely items 1 to 7 was only Rs. 287/-. This was insufficient for the maintenance of the members of the tarwad and he had to spend his private funds for this purpose, as well as for effecting valuable improvements in the properties. In paragraphs 18 to 29 of the written statement, he gave details regarding the acquisition of items 8 to 50 which were claimed as his own. He claimed to have effected valuable improvements in items 1 to 9 of which he claimed the value in respect of improvements in items 1 to 7. He denied the other allegations in the plaint and stated that he had no objection in the plaintiffs being awarded maintenance at the rate of 31/2 Fs. per mensem, which could also be charged on items 1 to 7, subject to his claim for compensation for improvements. 3. A replication was filed by the plaintiffs wherein they stated their case with greater clarity and detail than the plaint. The averments in the replication are the following: Item No. 8 in the plaint schedule was obtained on lease by Kumara Bhagavathy the karnavan of the Sakha prior to 1070 M.E., buildings were constructed in item No. 8 excluding an area of 521/2 cents there in and his sister Chakkikali (mother of the 1st defendant) and her children were allowed to take the yield for their maintenance. All this was done to found a Sakha Tarwad known as Kochu Nammian Thitta. The management of the Sakha was attended to by Chakkikali and the 1st defendant initially and later on by the 1st defendant alone. With the income from this property as well as the income which accrued by the labour of the members of the Sakha, items 9 and 10 and the mortgage right in items 11 to 16 were acquired for the Sakha. In 1076 items 1 to 3 and a sum of 4816 9/16 fanams were obtained in partition of karanavan Perumal Nilakandan's assets and these went to the hands of the 1st defendant who was manager at that time. With this amount as well as the income of the other properties, Otti and Kuzhikanom rights over item No. 8 were acquired. In 1076 items 1 to 3 and a sum of 4816 9/16 fanams were obtained in partition of karanavan Perumal Nilakandan's assets and these went to the hands of the 1st defendant who was manager at that time. With this amount as well as the income of the other properties, Otti and Kuzhikanom rights over item No. 8 were acquired. In 1093 Kumara Bhagavathy died and by the subsequent partition of his assets, the Sakha obtained items 4 to 7. With the income of all these properties items 17 to 43 were acquired including registry of items 32 to 43. Item No. 44 formed part of items 19 to 43 but the 1st defendant fraudulently purchased the same in the name of his brother-in-law. Items 45 to 47 were acquired for the Sakha utilising the available finds of the Sakha and items 48 to 50 also belong to the Sakha. Plaintiffs were not aware of any mortgage relating to items 45 to 47 and even if there was any such mortgage, it was not binding on the plaintiffs. The release alleged to have been taken by the 1st defendant from his mother Chakkikali is fraudulent, invalid and not binding on the other members. The other allegations in the 1st defendant's written statement were also denied. 4. A joint written statement was filed by defendants 8, 9,11 to 18, 22, 24, 29 and 30, supporting the plaintiff's case. They however contended that plaintiffs were not entitled to get arrears of maintenance and that a decree for maintenance could be given only against the 1st defendant and charged on the income of the plaint items. 5. The suit was filed on 5.7.1112 and was first decided on 26.10.1994/10.3.1120, decreeing maintenance based on the income of items 1 to 7 only. The plaintiffs were given liberty to file a separate suit for declaration that items 8 to 50 were tarwad assets, and to claim maintenance in respect of the income of those items in such suit. On appeal by the plaintiffs, this decree was set aside and the case was remanded to the trial court for fresh decision. After remand, the trial court decreed the suit holding that items 1 to 50 belonged to the Sakha of plaintiffs and defendants 1 to 36 and granting maintenance to plaintiffs at the rate of Rs. 2 ch. 22 cash. After remand, the trial court decreed the suit holding that items 1 to 50 belonged to the Sakha of plaintiffs and defendants 1 to 36 and granting maintenance to plaintiffs at the rate of Rs. 2 ch. 22 cash. 11 per mensem, making the 1st defendant liable and giving charge for the same on all the plaint items. This appeal has been preferred by the 1st defendant against the decree passed after remand. The appellant died after filing the appeal and the 3 petitioners in C.M.P. 818 of 1951 who claimed to be the widow and children of the appellant were directed to impleaded as additional appellants, without prejudice to the rights of the petitioners in C.M.P. 1144 of 1951 who claimed to be another widow and children of the deceased appellant who were ordered to be impleaded as additional respondents. Shri N. Varadaraja Iyengar appeared for the additional appellants (petitioners in C.M.P. 818 of 1951). 6. It may be useful to mention at the outset the relationship of the parties. The karnavan of the common tarwad was Perumal Nilakandan. The plaintiffs and defendants 1 to 36 belong to a sakha of which the ancestress was Perumal Nilakandan's sister Chakki who had a son Kumara Bhagavathy and a daughter Chakkikali. The latter had 3 daughters Mathevi, Kali (2nd defendant) and Kurumba and one son the 1st defendant. Mathevai was married to Kochucherukan. The 1st plaintiff and defendants 21 to 34 are descendants of Mathevi. The 2nd daughter Kali, i.e., 2nd defendant, was married to Nilakandan Sankaran, the 2nd plaintiff and defendants 3 to 20 being 2nd defendant's descendants. Defendants 35 and 36 are the descendants of the 3rd sister Kurumba. Perumal Nilakandan died on 12.5.1074 and Kumara Bhagavathy on 19.6.1093. 7. Though the suit relates to the claim of the plaintiffs for maintenance, the main point in controversy is as to whether items 8 to 50 in the schedule belong to the Sakha of which the 1st defendant was the karanavan or whether, these are the self-acquisitions of the 1st defendant. A large volume of evidence was adduced by both sides. 8. A large volume of evidence was adduced by both sides. 8. Shri Varadaraja Iyengar, learned counsel for the appellant, prefaced his arguments by a general criticism of the judgment of the court below, that several documents relating to the source of funds for the acquisition of the disputed items were not considered by the court below and that the acquisitions of each item or set of items were not considered separately. The main points urged by him were that the 1st defendant was only a junior member in the tarwad till the death of Kumara Bhagavathy in 1093, that the majority of the disputed acquisitions were before 1093, that while still a junior member he had his own trade and independent sources of income and that his Sakha had no right to items 8 to 50 which were acquired with his private funds. On the other hand, the plaintiffs rested their case on the basis that the 1st defendant though a junior member in the common tarwad was the dejure and defacto karanavan of his Sakha known as Kochumammiamthitta, that Kumara Bhagavathy founded this Sakha tarwad by giving item No. 8 to his sister Chakkikali and her children, that he allowed them to take the yield, that Item No. 8 together with the earnings of the members constituted the nucleus from which the other items were acquired and that the 1st defendant was handling the income of the Sakha properties. The evidence regarding acquisition of the disputed items has to be examined in the light of these respective positions. 9. It was contended on behalf of the appellant that the 1st defendant was not karanavan or manager till 1093. Reliance was placed on the partition deed Ext. XVI dated 1.6.1076 executed between the two sets of heirs of Perumal Nilakandan the common karanavan, whereunder items 1 to 3 in the schedule were obtained, and it was urged that the 1st defendant was not a party to this deed and that there was no evidence that Kumara Bhagavathy did not retain possession of these properties or that he let the 1st defendant into possession. It was also stated that the tax receipts Exts. XXVII, XXVII(a) and the copy of Thandaper Ext. AD would show that Kumara Bhagavathy was paying tax till 1093. It was also stated that the tax receipts Exts. XXVII, XXVII(a) and the copy of Thandaper Ext. AD would show that Kumara Bhagavathy was paying tax till 1093. It is unnecessary to examine this part of the case in detail, as the plaintiffs do not rest their case on the allegation that the 1st defendant was manager of the tarwad during the lifetime of Kumara Bhagavathy. As the plaintiff's case is based on item No. 8 being the nucleus of the Sakha properties, it is useful to consider that at this stage. 10. Item No.8. Ext. A.P. dated 11.9.1064, the earliest deed relating to this property, is a deed executed by Kumara Bhagavathy in favour of the owners, Dw. 5 and others. The annual rent was 1200 fanams and 1500 cadjans worth 150 fanams. In a partition in the jenmi's tarwad this was allotted to 3 sharers and on 27.4.1075 these three executed a renewal Ext. G in favour of Kumara Bhagavathy who advanced 5100 fanams charged on the shares of two of them viz. Krishnan Krishnan and Krishnan Narayanan. The annual pattom was fixed at 1450 fanams and 1500 cadjans. It was stipulated in the deed that if further improvements were to be effected, the jenmis would do it. This was followed by Ext. O dated 6.11.1078, whereunder the 3rd sharer also received 2100 fanams charged on his share. The annual rent was raised to 24933/4 fanams and 1800 cadjans worth 180 fanams. The number of trees in the property was also mentioned as 422 yielding cocoanut trees, 43 young cocoanut trees, 44 arecanut palms, 2 jack trees, etc. The total amount charged in the property became enhanced to 7200 fanams including the sum of 2100 fanams paid under this deed, the latter sum being made good by adjusting the same against an advance of 2100 fanams by Kumara Bhagavathi's son Narayanan on an earlier date. It does not appear from the documents mentioned above that Chakkikali or the 1st defendant had any connection with the property. However on 19.12.1082 an otti and Kuzhikanom deed Ext. It does not appear from the documents mentioned above that Chakkikali or the 1st defendant had any connection with the property. However on 19.12.1082 an otti and Kuzhikanom deed Ext. XXI or L was executed in favour of Chakkikali by all the three sharers for one-third of the property i.e.1 acre 62 cents, stating that Chakkikali was residing in the property in a building put up by her, that a consideration of 22800 fanams was received by the executants and that she was to plant cocoanut and other trees. This lends considerable support to the plaintiff's case that Kumara Bhagavathy had given this property to Chakkikali and her children long before this with the intention of founding a tarwad. His generosity to his sister can be gathered from Exts. A and B dated 15.12.1071, on which date he sold a mortgage right for 1200 fanams and took a hypothecation deed in the name of Kali for 850 fanams. The consideration recited in Ext. XXI was as follows i) 2800 fanams as Vettozhivu for raising the portion lying on a lower level. ii) 7200 fanams to be paid to Kumara Bhagavathy under Exts. G and O; iii) 1500 fanams to be paid to Kelan Kochucherukan (son-in-law of Chakkikali) under registered debt bond executed by Krishnan Narayanan (Ext. P dated 12.12.1078), iv) 226 fanams adjusted as interest on the cash payment in view of the fact that the term in favour of Kumara Bhagavathi would expire only 4 months later and v) cash payment of 11074 fanams. There is an endorsement by the Sub-Registrar that the cash payment was made in his presence by the 1st defendant as agent of Chakkikali. It is seen from Ext. L or XXI that there were 150 bearing cocoanut trees on the property at that time. On 2.3.1084 Kumara Bhagavathy executed a counter lease deed Ext. LXII in respect of the eastern 2/3 portion i.e. excluding the western 1/3 covered by Ext. XXI for a term of 6 years. This was followed by another counter lease deed Ext. AL or LXIII executed by Kumara Bhagavathy. In this deed,1 acre 62 cents covered by Ext. XXI and another plot 1 acre 35 cents taken on otti and kuzhikanom by his children Bhagavathy Narayanan and others are excluded and the deed is for the rest of the property, i.e., the middle portion where he was residing. AL or LXIII executed by Kumara Bhagavathy. In this deed,1 acre 62 cents covered by Ext. XXI and another plot 1 acre 35 cents taken on otti and kuzhikanom by his children Bhagavathy Narayanan and others are excluded and the deed is for the rest of the property, i.e., the middle portion where he was residing. Nangeli Janaki one of the 3 co-owners died in 1086 and the other two executed two sale deeds Ext. AM dated 5.10.1091 and Ext. AN dated 27.10.1094 to Bhagavathy Narayanan and two other sons of Bhagavathy. After Kumara Bhagavathy's death in 1093, his children and Marumakkathavazhi heirs executed Ext. I on 28.6.1096. The 1st defendant is a party to this. The equity of redemption over 1 acre and 62 cents is allotted to Chakkikali and also 521/2 cents which is 1/4th of Ext. LXVIII property. 11. Chakkikali was the only sister of Kumara Bhagavathy. Ext. XXI as already referred to shows that Chakkikali was residing in the plot covering 1 acre 62 cents in item No. 8. Dw. 5 one of the executants of the lease deed Ext. G and the later lease and mortgage deeds has sworn that the building in Ext. L property was put up 15 years before the execution of Ext. L. That would be in the year 1067. The 1st defendant as Dw.1 admitted that in 1068 he and other members (`Y) were residing in Mammianthitta. Dw. 5 has stated that the yield of the property was being taken by the 1st defendant and his mother and that Kumara Bhagavathy used to pay rent from the income of the rest of the leased property. In Ext. Q, copy of the written statement filed by the 1st defendant and his mother Chakkikali they stated that the latter had constructed the building in this property. In Ext. X hypothecation bond of 1087, the 1st defendant describes himself as residing at Kochumammiamthitta. Kochucheruken son-in-law of Chakkikali who was residing there described his residence as Kochumammiamthitta in Ext. C of 1072 and Ext. N of 1076. There is overwhelming evidence in the case that Chakkikali and members of her thavazhi were living in this property from about 1068 and that it was known by the name Kochumammianthitta. 12. The 1st defendant had a contention that Ext. C of 1072 and Ext. N of 1076. There is overwhelming evidence in the case that Chakkikali and members of her thavazhi were living in this property from about 1068 and that it was known by the name Kochumammianthitta. 12. The 1st defendant had a contention that Ext. XXI was taken in the name of his mother benami for himself, an that he provided the funds. He had no explanation for not taking the deed in his own name if he paid the consideration. All that he says is that it was for the sake of convenience. He cannot rely on the fact that the payment before the Sub-Registrar was made by him, as the endorsement on the deed is that the payment was made by him as the agent of Chakkikali. As the only son of Chakkikali, this is what one would normally expect under the circumstances. 13. In this connection it has to be remembered that 1 acre 62 cents with 150 bearing cocoanut trees would have given a substantial income to the Sakha. Apart from this, the Sakha had obtained items 1 to 3 in 1076 on the death of Perumal Nilakandan, under Ext. XVI or K partition deed dated 1.6.1076. Ext. I to which the 1st defendant was also a party states in unambiguous terms that Kumara Bhagavathy was not taking the yield of tarwad on Sakha properties during his life time. Ext. M a deed of partition between the Sakha of plaintiffs and defendants 1 to 36 on the one hand and the descendants of Thirutha, a collateral branch shows that items 1 to 3 were enjoyed exclusively by the former Sakha as per oral partition which was confirmed by Ext. M. The income from items 1 to 3 may not have been very substantial but that also was available to the Sakha. The statement in Ext. I that Kumara Bhagavathy was not taking the yield of tarwad properties confirms the plaintiff's case that the 1st defendant as Karnavan and manager of the Sakha had control of the income from those properties. 14. As regards the other items of consideration in Ext. XXI, there was the sum of 7200 fanams to be paid to Kumara Bhagavathy. The plaintiff's case is that this amount was given up by Kumara Bhagavathy who was very much interested in his only sister. 14. As regards the other items of consideration in Ext. XXI, there was the sum of 7200 fanams to be paid to Kumara Bhagavathy. The plaintiff's case is that this amount was given up by Kumara Bhagavathy who was very much interested in his only sister. The 1st defendant has no evidence that he paid it. No release has been taken from Kumara Bhagavathy. Pw. 3 son of Kumara Bhagavathy supports the plaintiff's case on this point. The plaintiff's version is consistent with the conduct and attitude of Kumara Bhagavathy. Then there was the sum of 1500 fanams to be paid under Ext. P to Kalian Kochucherukan who was son-in-law of Chakkikali. He had no Seshakars and was living in Kochumammiamthitta with his wife and children. It is admitted that he was in affluent circumstances. Though the 1st defendant had a case that he paid this amount, he has given conflicting versions about the alleged payment. There is no document evidencing payment of this sum by the 1st defendant or any one else. Ext. P which is the original Debt Bond relating to this transaction is produced by the plaintiffs. There is no satisfactory evidence that Ext. XXI was taken by the 1st defendant in his mother's name, utilising his private funds. The finding of the court below that item No. 8 was acquired for the Sakha of Chakkikali is upheld. 15. In this connection, the validity of a release Ext. XIX executed by Chakkikali in favour of the 1st defendant on 1.9.1097 has to be considered. It is in evidence that the 1st defendant married considerably late in life in 1100. Thereafter there was a marked change in his attitude towards his Seshakars and Ext. XIX came into existence under circumstances which cannot be characterised as highly suspicious. His mother though described as 80 years old in Ext. XIX was 89 at that time according to earlier records. It is executed behind the back of the other members and the 1st defendant continued in possession as before. This release deed by Chakkikali alone, relating as it does to Sakha property, cannot confer any title on the 1st defendant. Ext. XIX leaves out a plot of 521/2 cents in item No. 8 which stood in the name of Chakkikali. As regards this, the 1st defendant's case is that his mother was merely a benamidar for him. This release deed by Chakkikali alone, relating as it does to Sakha property, cannot confer any title on the 1st defendant. Ext. XIX leaves out a plot of 521/2 cents in item No. 8 which stood in the name of Chakkikali. As regards this, the 1st defendant's case is that his mother was merely a benamidar for him. We have already dealt with this aspect of the case and have only to overrule this argument. There is yet another plot of 53 cents comprised in item No. 8 which the 1st defendant claims as having been obtained by him by adverse possession. His contention is that this cannot be treated as an accretion to the plot having 1 acre 62 cents as he was not in possession of that area and as the plot of 53 cents lay separated from this by a channel. We have already found that he was in possession of the larger plot from 1068 onwards as Karanavan and manager of the Sakha properties. This area of 53 cents is bounded on 3 sides by the other area. We therefore repel this contention and confirm the finding of the court below that the whole of item No. 8 is property belonging to the Sakha. 16. Item No. 9 was acquired in the name of Chakkikali under Ext. D or XX dated 28.12.73 for a consideration of 1000 fanams. It is stated that the consideration under Ext. XX is made good by the vendee by paying the same to Kochucherukan to whom the vendors owed money under Ext. C dated 21.11.1072. In view of the position of Kochucherukan in this family, it is doubtful whether any amount had to be paid to him. From the fact that the 1st defendant and Chakkikali hypothecated this property under Ext. E dated 28.1.1074 no inference can be drawn that funds belonging to the 1st defendant were utilised for the acquisition. Chakkikali and the 1st defendant were in possession of item No. 8 at this time. The 1st defendant cannot, therefore, have any special claim in respect of the property. 17. Item No. 10 was acquired in the 1st defendant's name under Ext. III dated 30.9.1074 for 2150 fanams. 900 fanams out of the consideration was a recital in favour of Kalikurumba for which the 1st defendant executed a hypothecation deed Ext. IV in her favour the same day. 17. Item No. 10 was acquired in the 1st defendant's name under Ext. III dated 30.9.1074 for 2150 fanams. 900 fanams out of the consideration was a recital in favour of Kalikurumba for which the 1st defendant executed a hypothecation deed Ext. IV in her favour the same day. This was discharged by Ext. IV(a) and the same would show that it was the 1st defendant who made the payment. This property was again hypothecated by the 1st defendant for Rs. 1,200 under Ext. XII dated 16.8.1088. We hold that this was an acquisition by him as karnavan of the Sakha and that the income of item No. 8 was available to him for this purpose. 18. The next acquisition was of a usufructuary mortgage right in items 11 to 16 as per Ext. J or V dated 25.2.1076. The reasoning in respect of item No. 10 applies to this also. 19. One argument advanced by the appellant was that items 8, 9,10 and 11 to 16 were acquired before the 1st defendant became karanavan of the main tarwad. We have already mentioned that the plaintiffs did not base their claim on the allegation that he was the defacto karnavan of the tarwad but on the fact of his being the dejure and defacto karanavan of the thavazhi of his mother. 20. Item No. 18 was acquired under Ext. XIV sale deed dated 19.6.1097. Items 19 to 31 comprise one-half of the properties acquired in the joint names of the 1st defendant and his sister Mathevi under Ext. XLIV dated 2.1.1098. Item No. 48 was acquired under Exts. XXVIII dated 13.4.1101, items 45 to 47 under Ext. XLV dated 10.3.03, item 17 under Ext. XVIII dated 12.8.08 in the 1st defendant's name. Items 32 to 43 were obtained by Puduval Registry of which Ext. XXVI is the patta dated 13.9.1110. Of these, item No. 18 was purchased for Rs. 4,000/- made up of Rs. 1,562-11-8 due to a prior mortgage and Rs. 2,437-16-8 due to the 1st defendant from the vendee under a chitty started in 1084. An argument was advanced that this chitty was joined by the 1st defendant when he was a junior member in the tarwad. For the reason stated earlier, viz., that he was the defacto and dejure karnavan of the thavazhi in possession of thavazhi funds the argument has to be over-ruled. An argument was advanced that this chitty was joined by the 1st defendant when he was a junior member in the tarwad. For the reason stated earlier, viz., that he was the defacto and dejure karnavan of the thavazhi in possession of thavazhi funds the argument has to be over-ruled. The prior mortgage was got released by the 1st defendant under Ext. XVII dated 11.7.1103 utilising the prize amount in the chitties in which the 1st defendant was a subscriber. It cannot be inferred that the 1st defendant joined the chitty and paid subscriptions in his personal capacity; the presumption is the other way. Similarly in the case of items 19 to 31 though part of the consideration is stated as prior debts due to the 1st defendant as per a mortgage deed dated 8.12.1096 and promissory note dated 7.11.1097, both after Kumara Bhagavathy's death no inference in favour of the 1st defendant can be drawn in the circumstances of the case. Items 32 and 33 constitute one-half of the puduval land which lay within the boundaries of Items 19 to 31. Exts. XXVI and XXVI(a) are the receipts obtained by the 1st defendant on 1.8.1110 and 5.8.1110 for payment of Tharavila to the Government. The total amount paid is Rs. 600. Item 48 was purchased in the 1st defendant's name on 13.4.1101. Item 49 is the decree in O.S. No. 38 of 1110 (Ext. V) obtained by the 1st defendant on a promissory note dated 28.5.1105 and item No. 50 the decree in O.S. No. 23 of 1108 (Ext. T) obtained by the 1st defendant against defendants 39 and 40 on a promissory note dated 25.5.1102 which itself was in satisfaction of a claim under a chitty. 21. As regards items 8 to 43 and 45 to 50 an argument was advanced on behalf of the 1st defendant that the 1st defendant had his own trade and independent earnings with which to make these acquisitions. To substantiate this point, various documents were filed. His occupation is described as trade in Exts. E, III, IV and V ranging from 1074 to 1076. Ext. X is a chitty hypothecation bond of 1088 executed by him and another hypothecating item No. 10. The subscriber in that chitty was the co-obligant Sankaran Pappukutty. Ext. To substantiate this point, various documents were filed. His occupation is described as trade in Exts. E, III, IV and V ranging from 1074 to 1076. Ext. X is a chitty hypothecation bond of 1088 executed by him and another hypothecating item No. 10. The subscriber in that chitty was the co-obligant Sankaran Pappukutty. Ext. XXXIX is copy of plaint in Small Cause Suit No. 1123 of 1085 against the 1st defendant for balance due from him on account of money paid for the supply of coir. Ext. LII Nalvazhi account of Dw. 2 was produced to show that on 18.12.1082 i.e. a day prior to the execution of Ext. XXI Rs. 1,000/-was borrowed by the 1st defendant. The court below refused to act on, the account books of Dw. 2 for reasons which we consider valid. Ext. VII, a lease deed dated 10.3.1083 was relied on to show that the 1st defendant and another took on lease a site suitable for soaking cocoanut husks. This document further shows that the 2nd plaintiff's father was the prior lessee. Exts. XXXII to XXXV are Bills relating to coir business. Dw. 4 speaks about the existence of a pit of soaking cocoanuts (RfUOv.U) in item No. 7 where 2 lakhs of husks could be soaked. The 2nd plaintiff swears that this was a family business. The 1st defendant offered the stock excuse for non-production of his accounts viz. depredation of white ants. The testimony of Dw. 4 would show that he had seen the accounts 5 or 6 years before the date of his deposition. As observed by the court below the evidence to show that the 1st defendant had independent trade is not conclusive. Exts. E of 1074, XII of 1086, XIV of 1097, XLVII of 1101 and Ext. XVII of 1103 would show that he was subscribing in chitties from 1072 onwards. Of these Ext. E shows that his mother also joined in the execution of the security deed. This would indicate that it was as manager of the thavazhi that he joined and bid the chitty. Till 1100, the 1st defendant does not appear to have evinced any interest in dissociating himself from the thavazhi. Exts. VI, VIII, X, XI and IX ranging between 1081 and 1085 also would not materially help the 1st defendant. This would indicate that it was as manager of the thavazhi that he joined and bid the chitty. Till 1100, the 1st defendant does not appear to have evinced any interest in dissociating himself from the thavazhi. Exts. VI, VIII, X, XI and IX ranging between 1081 and 1085 also would not materially help the 1st defendant. Even if he had trade and his own chitties, it would not materially affect the question as will be shown later. We have already held that the 1st defendant was karanavan and manager of the thavazhi properties and it is unnecessary to consider the rulings of the question of acquisitions by a junior member of the tarwad. Learned counsel cited some decisions of this court relating to acquisitions by karanavans. In Narayanan Krishnan v. Kali Lekshmi (1950 K.L.T. 735) the question for decision was stated as follows: "The question that arises in this case is whether any money of his tarwad or income of tarwad properties existed or were available to Kumaran Raman (karanavan) for making the acquisition in question." It was found on evidence that the ancestral property consisted of a house and site not shown to yield any income, and further, that the karanavan while junior member had a trade of his own which brought him an income of Rs. 200 per mensem. The plaintiffs in that case failed to prove the existence of a nucleus of tarwad property. On the other hand it was found that the karanavan who made the acquisition could have made them with his own earnings. In Velumpi Kochu Pennu and another v. Sankaran Nilakantan and another (1951 K.L.T. 670) it was held that on the facts and circumstances of the case, there was no scope for the application of any presumption that the acquisitions were for the tarwad. Following the earlier decision the law relating to the presumption was stated as follows: "The person claiming the property for the tarwad will have to show that the nucleus was substantial if not ample and available to the acquiror to admit of the acquisition being made from out of the nucleus or out of the income thereof." In the earlier of the two cases mentioned above, the dictum in Narayanan Govinda Panicker and others v. Narayanan Madhava Panicker (1943 T.L.R. 731) was held to be unexceptionable. That was in these terms: "Where a person is the karanavan of a tarwad and he has separate funds of his own, and there are also tarwad funds available, and a transaction is put through with funds which could have been drawn from either source, in the absence of definite evidence the law steps in with a presumption and the party to the transaction is presumed to have acted for the benefit of the tarwad whose interest he is under a duty to protect rather than that he acted for his own benefit. The transaction is presumed to have been out of the tarwad funds and for the benefit of the tarwad and unless the contrary is proved he cannot take advantage of it himself. This presumption arises out of his position as karanavan who has a duty towards the tarwad. The law does not encourage people to put themselves in a position where duty and interest may conflict. If persons should put themselves in such a position, and a question should arise whether an advantage was derived for the beneficiary or for themselves, the law leans in favour of presuming that the benefit was acquired in the discharge of a duty rather than in self interest". 22. It is unnecessary to examine the position, since on the evidence it is clearly seen that there was a nucleus which could have provided the funds for the acquisition of items 8 to 50. The acquisitions were made one after another during a period of nearly 37 years during which the income of the Sakha was increasing year after year. The three daughters of Chakkikali were married during the life time of Perumal Nilakandan and their husbands were people who could afford to be and were generous to their wives and children. Even if the 1st defendant had other sources of income, the principle laid down in Narayanan Govinda Panicker and others v. Narayanan Madhava Panicker and others (1943 T.L.R. 731) would apply to the facts of this case. 23. Item No. 44 however stands on a different footing. The plaintiff's case regarding this is that this was acquired by the 1st defendant as karanavan but that he got the same purchased in revenue sales in the name of his brother-in-law with the fraudulent intent of depriving the other members of the family. 23. Item No. 44 however stands on a different footing. The plaintiff's case regarding this is that this was acquired by the 1st defendant as karanavan but that he got the same purchased in revenue sales in the name of his brother-in-law with the fraudulent intent of depriving the other members of the family. This brother-in-law of the 1st defendant has not been made a party this suit and the plaintiffs cannot get any relief in respect of the income of that property in this case. 24. Ext. AB is the Mahazar and Ext. AC is the report of the commissioner who assessed the income of the properties. He found the properties in a bad state of neglect. The rates adopted for assessing the annual income were very low. For example, cocoanuts were valued at Rs. 2-4-0 per 100. Taking this fact into account and the negligible income from items 45 to 48, we do not propose to make any reduction in the rate of the maintenance allowed by the court below. 25. The 1st defendant died during the pendency of this appeal, on 9.5.1951, and the 1st plaintiff has become the karanavan. He cannot thereafter have a claim for maintenance. However, the decree of the trial court awards maintenance only till date of decree and in view of this, it is unnecessary to make any modification. 26. It was urged on behalf of the appellant that the 1st defendant's death after the filing of the appeal had brought about a change in the situation. The tarwad was originally one which had been exempted from partition under S.33(1) of the Ezhava Act 3 of 1100. The 1st defendant had made an application under S.33(2) of the Act for revoking the exemption and an order of revocation has been passed by the Government on 11.3.1938. It was contended that one-half of items 8 to 50 should in any event go to his lineal descendants and that that share could not be burdened with the liability under this decree. It is unnecessary to examine this point in detail as the maintenance awarded is in respect of a period prior to the death of the 1st defendant. His successors if at all get the properties only subject to the liability for past maintenance which accrued during the life time of the 1st defendant. It is unnecessary to examine this point in detail as the maintenance awarded is in respect of a period prior to the death of the 1st defendant. His successors if at all get the properties only subject to the liability for past maintenance which accrued during the life time of the 1st defendant. The liability of the properties for maintenance accruing subsequent to the death of the 1st defendant does not arise for decision in this case. There is no need to modify the decree of the court below on account of this fact. In the result the decree of the court below is confirmed except as regards the findings relating to item No. 44 as stated in paragraph 23 supra. The appeal fails and is dismissed with costs, one set only, to respondents 1 and 2. Sankaran, J. 1A. While agreeing to the decree proposed by my learned brother, I wish to add a few words on the contention urged on behalf of the additional appellants that even if plaint items 8 to 15 are held to have been acquired by the 1st defendant during the period he was in management of his tarwad and with the aid of the income of the other properties of the tarwad the decree for maintenance passed in favour of the plaintiffs cannot be enforced as against the half share in these items, which must be deemed to have devolved on his heirs as his self-acquired properties. The only provision of law relied on in support of this contention is that contained in the first of the two Explanations given at the end of Part IV of the Ezhava Act (Act III of 1100) of Travancore. That Explanation runs as follows: "If the deceased person was in management of his or her tarwad or of undivided Makkathayam property, one half of the acquisitions, if any, made by such person during such management with the aid of the income from such tarwad or Makkathayam properties, as the case may be shall be treated as that person's self-acquisition for the purpose of this Part in addition to other self-acquisitions". The expression "shall be treated as that person's self-acquisition" indicates that the properties acquired by him with the aid of the income of the tarwad properties do not really partake of the nature of self-acquisitions of such person. The expression "shall be treated as that person's self-acquisition" indicates that the properties acquired by him with the aid of the income of the tarwad properties do not really partake of the nature of self-acquisitions of such person. All the same, statute has laid down that one-half of the acquisitions thus made shall be notionally deemed to be the self-acquisitions of the karanavan in management, solely for the purpose of Part IV of Act, which deals with intestate succession. It is therefore obvious that for the purpose of the other Parts of the Act, these properties will not be deemed to be the self-acquisitions of the karanavan in management of the tarwad. In this respect the Legislature appears to have made a deliberate departure in the provision made in the Ezhava Act as compared with the provision made in the Nair Act (Act II of 1100) of Travancore, even though both these Acts were put on the Statute Book almost at the same time. Under the Nair Act, the provision made in respect of the self-acquisitions made by the karanavan during the period of his management of the tarwad and with the aid of the income of the tarwad properties, is that contained in S. 40. It is laid down in that section that on partition of the tarwad properties, one-fourth of such acquisitions shall be allotted to the share of that karanavan in addition to the share which he would otherwise be entitled to get. The Ezhava Act does not contain any such provision. The result is that at the time of partition of an Ezhava Tarwad, the acquisitions made by the karanavan during the period of his management of the tarwad and with the aid of the income of the tarwad properties, have also to be created as properties belonging to the tarwad and liable to be partitioned among all the members of the tarwad, just as the other items of tarwad properties. The karanavan will not get any additional share out of the acquisitions made by him with the aid of the income of the tarwad properties. So far as this matter is concerned the normal rule of Marumakkathayam law appears to have been maintained so far as the Ezhavas are concerned, even after such law was modified by the Ezhava Act in respect of certain other matters. So far as this matter is concerned the normal rule of Marumakkathayam law appears to have been maintained so far as the Ezhavas are concerned, even after such law was modified by the Ezhava Act in respect of certain other matters. That this was deliberately intended to be so is clear from Cl. (b) of S. 3 of the Act which runs as follows:- "Nothing in this Regulation shall affect the existing rules of Marumakkathayam law, custom or usage except to the extent here-in-after expressly provided for". Thus it is clear that the acquisitions made by the 1st defendant in this case during the period of his management of the tarwad and with the aid of the income of tarwad properties, became properties of the tarwad as soon as they were acquired, and up to the time of the 1st defendant's death he was in possession and management of those properties in the same manner and with the same legal incidents applicable to other items of tarwad properties. He had no absolute power of disposal either by way of sale or gift in respect of such acquisitions. Alienations of such properties were subject to the same restrictions and limitations as are applicable to other tarwad properties. In short, such acquisitions possessed all the characteristic features of tarwad properties and, as such, the plaintiffs as junior members of the tarwad, were certainly entitled to get a decree for maintenance charged on these items as well. It follows therefore that no share in these items can be excluded or exempted from the operation of the decree passed in this case, because neither the 1st defendant karanavan nor his legal representatives had any separate share in these items. It is only with the death of the 1st defendant that the first Explanation given at the end of Part IV of the Ezhava Act could come into operation. For the purpose of intestate succession alone, one-half of the acquisitions made by the 1st defendant with the aid of the income of tarwad properties could be notionally treated as his self-acquired or separate properties, so that such share could be deemed to have devolved on his legal representatives. For the purpose of intestate succession alone, one-half of the acquisitions made by the 1st defendant with the aid of the income of tarwad properties could be notionally treated as his self-acquired or separate properties, so that such share could be deemed to have devolved on his legal representatives. The utmost that such legal representatives could claim is that the estate, which thus devolved on them, could not thereafter be made answerable for the claims arising in favour of the members of the 1st defendant's tarwad subsequent to the date of his death. 2A. There is yet another aspect to be considered in view of the peculiar circumstances of this case. When the Ezhava Act was passed, the 1st defendant chose not to be governed by the Act, but to be governed by the pre-existing Marumakkathayam law applicable to himself and the other members of the tarwad. Accordingly he exercised the option given by Clause.1 of S. 33 of the Act and got an order exempting him from the provision of Part IV of the Act. By such a conduct, he had waived the benefit conferred by the provisions contained in that Part of the Act. The result of such wavier was to surrender, in favour of the tarwad, any, special or exclusive right which the 1st defendant could have claimed in respect of the acquisitions he made in his name. Thus those acquisitions became tarwad properties for all practical purposes. The same was the position by virtue of the Rules of Marumakkathayam law that were in force at that time. Some years later, the 1st defendant is seen to have changed his mind and to have got an order from Government under Clause.2 of S.33 of the Act, revoking the prior order exempting him from the operation of Explanation I to Part IV of the Act. This revocation order appears to have been passed on 11.3.1938 and published in the Government Gazette dated 2.8.1113. The question will naturally arise whether by virtue of such an order of revocation, the acquisitions of the 1st defendant, which had already become tarwad properties, would be divested of their legal incidence as tarwad properties, so as to be deemed to be the self-acquisitions of the 1st defendant attracting the provision contained in Explanation I to Part IV of the Act. In the nature and scope of the decree passed in this case, it is not necessary to give a final decision on this question. Such a decision may be called for at a subsequent stage when the claim of the legal representatives of the 1st defendant for a half share in the acquisitions made by him is met by the rival claim of the members of the tarwad that such share also belongs to the tarwad. The aspect of the question is therefore left open for the present.