Parameswaran Pillai v. Bhagavathi Amma — 1954 DIGILAW 211 (KER)

Judgment :- 1. The plaintiff is the appellant. He filed this suit for declaration of title of his sub-tarwad over the plaint propertie According to him they belonged to the sub-tarwad consisting of himself, his sister one Bhagavathi Amma and her children. The plaintiff had an elder brother by name Krishna Pillai Velayudhan Pillai who died on 32nd Mithunam 1106. He was the Karnavan of his sub-tarwad from 1084. The plaint properties are said to have been acquired by Velayudhan Pillai out of the income from the tarwad properties and also out of funds belonging to the tarwad and realised by him. The 1st defendant is said to be Velayudhan Pillai's wife and defendants 2 and 3 his children. The 4th defendant is stated to be his concubine and defendants 5 to 7 her children. The partition in the main tarwad took place under Ext. A in 1084. The plaintiff's father who belonged to a rich tarwad had given valuable ornaments and vessels to the plaintiff's mother and was maintaining all the members of the tarwad till his death. Velayudhan Pillai was a peon in the old Town Improvement Committee and he was getting a salary of R6 a month. The acquisitions were made during his karnavanship. After his death disputes arose between the 4th defendant on the one hand and the Seshakars on the other and this resulted in criminal cases and summary proceeding The summary proceedings in respect of the house in the plaint properties ended in the 4th defendant's favour wereas the other properties were left in the possession of a receiver till the disputes between the parties were settled by a regular suit. The plaintiff prayed for a declaration of the rights of the plaintiff's sub-tarwad over the plaint properties and for recovery of possession of the same. 2. Defendants 4 to 7 filed a joint written statement. The plaintiff prayed for a declaration of the rights of the plaintiff's sub-tarwad over the plaint properties and for recovery of possession of the same. 2. Defendants 4 to 7 filed a joint written statement. They contended that the plaint properties were the separate acquisitions of the deceased Velayudhan Pillai, with his own separate and self-acquired funds, that the sub-tarwad had no right over the same, that all the members of the sub-tarwad were necessary parties to the suit, that the 1st defendant was only a concubine of Velayudhan Pillai, that her relationship with Velayudhan Pillai was dissolved in 1086, that Velayudhan Pillai then married the 4th defendant in 1087 legally, that defendants 5 to 7 were his legitimate children, that they were entitled to all the separate and self-acquired properties of Velayudhan Pillai, that there was no sufficient income in the tarwad to leave any surplus after meeting the ordinary necessities with which properties could be acquired, that the plaintiff's father had not given any ornaments or vessels as alleged, that Velayudhan Pillai was maintaining all the members of the tarwad, even out of his own funds, that he had means of earning separate income, that the 4th defendant was helping him in making such earnings, that the sub-tarwad had no rights over the plaint properties, that besides the properties involved in this suit they had filed a suit O. 56 of 1118 in the same court for a declaration that the other properties of Velayudhan Pillai included in that suit belonged to them, that this suit was barred by limitation and res judicata and that the plaintiff was not entitled to any relief. 3. By a replication the plaintiff denied all these special allegation 4. 3. By a replication the plaintiff denied all these special allegation 4. The court below found that defendants 1 to 3 were properly made parties, that Velayudhan Pillai's marriage relationship with the 1st defendant had been dissolved in 1086, that the 4th defendant was the lawful wife of Velayudhan Pillai, that defendants 5 to 7 were his legitimate children, that defendants 4 to 7 were entitled to the separate assets of the deceased Velayudhan Pillai, that Velayudhan Pillai was in management of the plaintiff's sub-tarwad properties, that the income from the sub-tarwad properties was not sufficient to meet even the expenses of all the members of the sub-tarwad, that Velayudhan Pillai had his pay as a peon on the municipality besides other sources of income such as conducting a tea-shop, vending milk, taking Pathivaram leases of lands from others, that the plaint properties were the separate and self-acquired properties of Velayudhan Pillai, that the suit was not barred by limitation of res judicata, and that the plaintiff was not entitled to any relief. The suit was therefore dismissed with cost 5. The connected suit is O.56 of 1118. The appeal against that decision is A. 94 of 1953. That suit was filed by defendants 4 to 7 for a declaration that the properties described in schedules A and B and the equity of redemption over the C schedule attached to the plaint were the separate acquisitions of Velayudhan Pillai. The 1st defendant who is the plaintiff in O.36 of 1120 (A. 93 of 1953) contended that the suit was barred by limitation, that the 1st plaintiff was only a concubine of Velayudhan Pillai, that the 7th defendant was the lawful wife, that the plaint properties were acquired with the income from the tarwad properties, that he had already filed O.93 of 1112 on the file of the Munsiff's court, Trivandrum (this was the suit that was subsequently transferred to the District Court and numbered there as 0.36 of 1120) and that the plaintiff was not entitled to any relief. 6. The court below found that all the properties were the self-acquisitions of Velayudhan Pillai, that the suit was not barred by limitation and that the plaintiff was entitled to a decree as prayed for. The 1st defendant has filed A. 94 of 1953 against this decision. 6. The court below found that all the properties were the self-acquisitions of Velayudhan Pillai, that the suit was not barred by limitation and that the plaintiff was entitled to a decree as prayed for. The 1st defendant has filed A. 94 of 1953 against this decision. Thus the appellant is the same in both the appeal These two suits were tried together with the consent of parties and the whole evidence was recorded in O.36 of 1120. The reference to the parties and documents will be as mentioned in O.36 of 1120. 7. The properties scheduled in the plaint are ten items of immoveable properties described in schedule A and two items of movables mentioned in schedule B. The documents for the immoveable properties stand in the name of Velayudhan Pillai. A schedule items 1 to 5 were acquired in his name under Ext. VII or Ext. AG sale deed on 14.10.1098 for R 2,100. It is a garden land with an extent of 1 acre and 70 cent Item 6 was purchased by Velayudhan Pillai under Ext. XXV dated 25.12.1102 for R 100. He then mortgaged this to his wife the 4th defendant for R 196 under Ext. XXIV. Item 7 was acquired on mortgage under Ext. XVII dated 25.10.1100 for R 350. Item 8 was acquired by an assignment of a mortgage for 1050 fanam Ext. XVI is the document for that. Item 9 was acquired under Ext. XV mortgage on 24.11.1105 for 550 fanams and item 10 was a similar acquisition under Ext. XIV on 4.11.1106 for another 500 fanam Thus these acquisitions had been made between the years 1098 and 1106. Admittedly, Velayudhan Pillai died on 32.11.1106, that is, within four weeks of the last acquisition Ext. XIV. He was the seniormost male member in his Thaivazhi and it is seen that his branch got some properties in a partition Ext. A from the main tarwad in the year 1084. The properties thus obtained were five in number of which three were paddy lands with seed capacity of 51/2 Paras,11/z paras and 71/2 Edangalies and two garden lands with an extent of 10 cents and 53 cent Over the 71/2 Edangalies of paddy land and 53 cents of garden land; the tarwad had only a mortgage right. The properties thus obtained were five in number of which three were paddy lands with seed capacity of 51/2 Paras,11/z paras and 71/2 Edangalies and two garden lands with an extent of 10 cents and 53 cent Over the 71/2 Edangalies of paddy land and 53 cents of garden land; the tarwad had only a mortgage right. At the time of the partition there were in the sub-tarwad four adult members, that is Velayudhan Pillai, the plaintiff, their sister Bhagavathi Amma, their mother Narayani Amma and also a minor child to this Bhagavathi Amma. Though it had been argued that the plaintiff's father was a member of a rich tarwad and that he was maintaining the members, it has come out in evidence that the father died before 1084. No document had been produced to show that the father had given any amount or any property for the benefit of his children. From 1084 Velayudhan Pillai became the Karnavan by virtue of his seniority in the branch. According to the plaintiff, examined as Pw.1 the yield from one Para of paddy land would be 9 paras per year and the income from the 10 cents of garden land which is called Thekkey Veettu Purayidom, would be R 10 a year and each member required at least R 5 a month for maintenance. According to the plaintiff the income of the sub-tarwad would be 693/4 paras of paddy and R 10 a year from properties covered by Ext. A together with the yield from 53 cents of cocoanut garden which had been surrendered on 21.7.1089 under Ext. C for 1219 fanam When deduction is made from this yield for the expenses of cultivation and maintenance, it would be seen that the balance income would be hardly sufficient even to meet the ordinary necessities of life. Therefore it was evident that the tarwad income could not leave any surplus after meeting the usual expenses of the tarwad. 8. It has been shown that the income from the sub-tarwad properties was hardly sufficient for the maintenance of the member The karnavan Velayudhan Pillai had independent source of income. The first acquisition made in his name in 1091 under Ext. 8. It has been shown that the income from the sub-tarwad properties was hardly sufficient for the maintenance of the member The karnavan Velayudhan Pillai had independent source of income. The first acquisition made in his name in 1091 under Ext. H had been held by three courts to have been made with his separate and self-acquired fund Ext XXI(a), XXXVI and XXXVII will show thi From the very early days he was a peon in the Municipality on a pay of R 6 per mensem. Apart from the suggestion made that it was a job yielding more income, the pay of R 6 in those days was sufficient to meet the expenses of a small family. He had also a tea-shop of his own in Cantonment besides business in milk vending. Dw. 7 who was the Surgeon-General of the State Service then had spoken to these fact The lower court has also referred to his other activities such as enjoyment of stranger's properties on pattom basis, conducting Chitties and other job So there was every possibility for him to make his own acquisition 9. Notwithstanding the several decisions of this court and of other Indian High Courts, there seems to be an erroneous impression that if there is some nucleus in the tarwad, then all acquisitions made by the seniormost male member will go to the tarwad even though some of these acquisitions are the result of the labour and private industry of that individual. In one of the earliest decisions, Ramen v. Narasimhen, reported at page 170 of 19 T.L.R., it had been held that unless there was sufficient nucleus of ancestral property, the acquisition made in the name of one member of a joint family cannot be presumed to be family property. Though this arose under the Hindu Law, the principle could be applied in the case of Marumakkatahayee Under the Hindu Law if a junior member of a family which has sufficient family properties capable of yielding income and which could be used for acquiring properties, acquired a property, the presumption would be that the acquisition was made for the benefit of the joint family. The Marumakkathayam law does not go to that extent. The Marumakkathayam law does not go to that extent. The acquisitions of a junior member of a Marumakkathayam tarwad are always considered to be his self-acquisition So the presumption drawn in the case of Hindu families and Marumakkathayam tarwads as to acquisitions of junior members are entirely different. But the acquisitions made by the Kartha of the family or the Karnavan of the tarwad which possessed of sufficient nucleus are presumed to be made with family or tarwad funds, provided there are joint properties which would yield sufficient income so as to leave a surplus after meeting the ordinary expenses of that joint family. 9. (a) In considering this aspect, the following observations at page 359 of 1953 Edn. Mayne on Hindu Law and Usage, based on the several decisions of the Privy Council and of other Indian High Courts may be pertinent. "Where the possession of a nucleus of joint family property is either admitted or proved, an acquisition made by a member of the family is presumed to be joint family property. But this is subject to the limitation that the joint family property must be such as with its aid the property in question cold have been acquired. And it is only after the possession of an adequate nucleus is shown, the onus shifts on to the person who claims the property as self-acquisition, affirmatively to make out that the property was acquired without any aid from the family estate". This principle had been accepted by the Full Bench of the Travancore High Court in Ramalingom Pandit v. Chondu Ammal, reported at page 827 of 26 T.L.J. and it was pointed out there that where the family income was hardly sufficient to supply its owner and his family even with the bare necessaries itself no nucleus of ancestral property could be said to exist and in such cases no presumption in favour of the acquisition in the names of a member as being joint family property can arise. The decision in Raman Nadan v. Kannimariyal Nadachi, reported at page 1095 of 26 T.L.J. is also on parallel line There is also a recent decision of the Supreme Court on this question in Srinivas v. Narayan, reported at page 379 of A.I.R. 1954 C. Relying on the decision in Appalaswami v. Suryanarayanamurti, reported at page 189 of A.I.R. 1947 P.C. Their Lordships of the Supreme Court accepted the law enunciated on the subject in that case thus: "The Hindu Law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon any one asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property". 10. The following observations made at page 383 which are pertinent for the purpose of this case may also be quoted with advantage. "Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleu The important thing to consider is the income which the nucleus yield A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value". In the case reported above, the finding was that the income from the land was not sufficient even for the maintenance of the member Therefore it was pointed out that the lower courts were right in holding that the plaintiff had not discharged the initial burden, which lay on him, to show that the acquisition was with the help of the family fund 11. This principle had been accepted in the case of Marumakkathayam families also. This principle had been accepted in the case of Marumakkathayam families also. In Madhavan Pillai v. Muthu Pillai, reported at 31 T.L.J. 1036 it was pointed out thus: "In my opinion, the discussion as to the existence or the contrary is undoubtedly common to the ordinary Hindu law and the Marumakkathayam or Aliyasanthana systems of law". Therefore, to raise a presumption that the acquisition was with the help of tarwad funds it was necessary that there should be an appreciable income from the properties of the sub-tarwad so as to leave a surplus after meeting the ordinary necessaries of that tarwad. In Narayanan Krishnan v. Kali Lekshmi, reported at page 735 of 1950 K.L.T. wherein some of these decisions were considered it was held 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 acquisitions being made from out of the nucleus or out of the income thereof. 12. Thus, though Velayudhan Pillai was the Karnavan of the sub-tarwad by force of his seniority in age among the adult members and though that sub-tarwad possessed some properties it would not be proper to hold that the acquisitions made by Velayudhan Pillai were out of tarwad funds unless there was sufficient evidence to show that the nucleus yielded an income which was more than sufficient to meet the ordinary expenses of the tarwad. There were in that tarwad in 1084 four adult members and a minor child. The mother and the children were living together and though the plaintiff's sister had been married she too was living in that house. Velayudhan Pillai was to meet the expenses of all these people and as mentioned above the income of the properties, according to the existing evidence was not even sufficient to meet the ordinary expenses of the tarwad. Being so, it cannot be held that the acquisitions made by Velayudhan Pillai were with the help of the tarwad fund. 13. The appellant's learned Advocate had referred us to the several transactions to show that Velayudhan Pillai was dealing with the tarwad properties and realising the movie On 4.9.1086 a mortgage Ext. F by all the members of the tarwad had been given for the 51/2 paras of paddy land obtained under Ext. 13. The appellant's learned Advocate had referred us to the several transactions to show that Velayudhan Pillai was dealing with the tarwad properties and realising the movie On 4.9.1086 a mortgage Ext. F by all the members of the tarwad had been given for the 51/2 paras of paddy land obtained under Ext. A for a consideration of 3500 fanam With this amount and with the sum of 2000 fanams borrowed under Ext. M, two mortgage deeds for 11 Paras and 91/2 edangalies of paddy land had been taken in the name of Velayudhan Pillai's mother. Those mortgage deeds had not been produced, but their releases Ext E and Q would show that the mortgages stood in the name of the mother. Ext. M hypothecation bond also had been executed by him to raise the fund It was therefore evident that the intention was to treat those mortgages separately from the other acquisitions Velayudhan Pillai and for otherwise there was no justification in taking the mortgagee in the name of the mother. In 1086 under Ext. B one property which had been left in the common tarwad had been surrendered and Velayudhan Pillai got 976 fanams for the share of his branch. Ext. D dated 8.9.1089 is the release for 71/2 edangalies of paddy land and under that Velayudhan Pillai got 370 fanam Ext. C dated 21.7.1089 is the release of the mortgage over the 53 cents of garden land obtained under Ext. A and 1219 fanams had been obtained. It is in evidence that the house in that 10 cents of land obtained under Ext. A had been repaired and additional buildings also were put up there by Velayudhan Pillai. The lower court has found on very good evidence that Velayudhan Pillai had spent the above amount and something more. The total expenses were estimated at 3000 fanam Dw 2 to 6 and 8 speak to thi Dw. 2 is a retired Inspector of Police. He pays an annual tax of R 100. He swears to have seen the building constructed in this compound. Dw. 3 is a peon employed with Velayudhan Pillai in the same office. Dw. 4 is a retired Munsiff and though he has not seen the actual construction of the building he speaks to the circumstances under which the building has been constructed. He swears to have seen the building constructed in this compound. Dw. 3 is a peon employed with Velayudhan Pillai in the same office. Dw. 4 is a retired Munsiff and though he has not seen the actual construction of the building he speaks to the circumstances under which the building has been constructed. It may therefore be seen that the amount received under Ext B, C and D must have been used by Velayudhan Pillai for the construction of the building. There is however one item of money Velayudhan Pillai received but which had not been accounted for. As mentioned already the 51/2 paras of paddy land obtained under Ext. A had been mortgaged under Ext. F. Subsequently on 18.6.1095 the same had been sold by all the members of the tarwad under Ext. VI to Dw. 5. After giving credit for the mortgage and also another debt, 27871/2 fanams had been received in cash by the member Velayudhan Pillai took that as a loan from the tarwad and executed Ext. L mortgage to the 1st plaintiff and other for 14 cents of land which he had purchased on 9.10.1091 under Ext. H. Though this acquisition was in 1091 all the members had admitted that it was Velayudhan Pillai's separate property. Subsequently Ext. H property was sold to Dw. 7 on 9.10.1098 under Ext. O. The other members of the tarwad had also been joined as co-executants because by Ext. O the mortgage right of the property owned by the tarwad under Ext. L was also surrendered. Some of the tarwad properties had also been given as collateral security for the consideration under the sale deed. In Ext. O also it was admitted by the other members of the tarwad that the property thus conveyed was the separate and self-acquired property of Velayudhan Pillai. A nephew of the plaintiff sued to set aside Ext. O sale deed in 0.401 of 1110. That suit was dismissed by Ext. XXI(a) judgment, and in appeal, the lower court decision was confirmed. Ext. XXXVI is the judgment. In second appeal also the decision of the court below had been confirmed and Ext. AK is copy of the same. Ext. O sale deed in 0.401 of 1110. That suit was dismissed by Ext. XXI(a) judgment, and in appeal, the lower court decision was confirmed. Ext. XXXVI is the judgment. In second appeal also the decision of the court below had been confirmed and Ext. AK is copy of the same. Ext. AK had been produced in this court and marked by u So even from 1091 Velayudhan Pillai had separate propertie This had been judicially recognised in the suit by the tarwad which terminated in Ext. AK judgment. The sum of 2787 1/2fanams had been received by Velayudhan Pillai before the Sub-Registrar when Ext. O was executed. There is an endorsement of the Sub-Registrar to that effect. Ext. O was on 9.10.1098 and Velayudhan Pillai took the sale deed for items 1 to 5 on 14.10.1098. He must have used the sum of 2787 1/2fanams also for taking that sale deed. Till his death he was maintaining the members of the family so that the interest on this amount would be said to have been utilised by Velayudhan Pillai for the benefit of the sub-tarwad. At any rate the tarwad would have a charge on items 1 to 5 in A schedule to the extent of 27871/2 fanam Ext. VII was for R 2100/- and since the bulk of the consideration came out of Velayudhan Pillai's acquisitions we hold that the properties belong absolutely to Velayudhan Pillai though we give the tarwad the benefit of the amount covered by Ext. O. This is our finding as regards A schedule items 1 to 5. 14. As regards items 6 to 10 the documents ranging from the period 1100 to 1106 have already been referred to by u By that time Velayudhan Pillai had already acquired items 1 to 5 which constituted a very valuable property. Items 6 to 10 must have been also acquired by Velayudhan Pillai with his own fund Thus the appeal is allowed only as regards 2787 1/2fanams charged on items 1 to 5 of the A schedule and in other respects, it was to fail. 15. Items 6 to 10 must have been also acquired by Velayudhan Pillai with his own fund Thus the appeal is allowed only as regards 2787 1/2fanams charged on items 1 to 5 of the A schedule and in other respects, it was to fail. 15. Thus in modification of the decree of the court below we allow the plaintiff a decree for 27871/2 fanams with interest at four per cent from date of suit till date of the decree of the lower court and thereafter interest on the aggregate amount at four per cent charged on items 1 to 5 of the plaint A schedule. In other respects the appeal A. 93 of 1953 fails and it is dismissed. The respondents will get three-fourths of their costs from the appellant and the appellant will get one-fourth of his costs from the respondent. 16. A. 94 of 1953: The facts have already been stated and in view of the findings recorded by us in A. 93 of 1953 the appellant is not entitled to any relief as regards the properties mentioned in schedules A, B and C of the suit. The appeal is hence dismissed with costs.