Govinda Menon J.- I am in entire agreement with my learned brother. Since he has discussed the facts of the case in extenso I do not wish to repeat them. As it has been found that most of the properties now in dispute came into existence after Exhibit B.17, dated 1st December, 1918, it is contended on behalf of the plaintiffs that the first defendant that is the karnavan of the tarwad, must be deemed to have acquired them from out of the nucleus afforded by the properties which belonged to the tavazhi on that date, whereas the contention of the first defendant in the Court below and now repeated here by his legal representatives is that there was no sufficient nucleus out of which any acquisitions could have been made by the first defendant and unless the plaintiffs are able to show that there were surplus funds in the hands of the first defendant with which such properties could be acquired, the presumption must be that the even tenor of the documents namely, that the acquisitions belonged to the first defendant must prevail. This raises the general question of law with regard to the ownership of properties standing in the name of the karnavan of a tavazhi. That the first defendant was the karnavan of the group by. birth from the time the tavazhi separated from the main tarwad at least for the purpose of living has not been questioned. The law is stated in P.R.Sundara Iyer’s “Malabar and Aliyasantana Law” at page 179, in the following terms: “A karnavan who is in possession of family funds for instance would be presumed to have made all his acquisitions with diem for the benefit of the family and in his case the presumption would be very strong.” The presumption referred to is that the properties should be deemed to be joint family properties. But if it is proved that there was no joint family property from which the disputed properties could have been acquired that fact would certainly rebut the presumption of family acquisition but it is not sufficient to show that the family funds alone cannot account for the acquisition. The learned author also states that when there is a mixing up of the family funds and separate funds the presumption is that the separate funds are merged in the family funds. The learned author also states that when there is a mixing up of the family funds and separate funds the presumption is that the separate funds are merged in the family funds. This presumption does not ordinarily apply to acquisitions made by the junior members as is laid down to that effect in a series of decisions. It is stated in Mayne’s Hindu Law and Usage (nth Edition) at pages 992-993 that in such matters there cannot be a definite presumption either way but that the circumstances of the particular case have to be looked at to ascertain the nature of ownership. The view taken has been that property acquired by a junior member is to be presumed to be his own separate acquisition and that it lies on the party setting up, that it is tarwad property to prove that it was an acquisition on behalf of the tarwad. But where properties stand in the name of the karnavan and were acquired at a time when he was the de facto karnavan there is a natural presumption that the acquisitions were for and on behalf of the tarwad. The customary Marumakkathayam law has always been that when the karnavan in possession of tarwad property is found to acquire other properties it must be deemed that he acquired them on behalf of the tarwad. The same rule has been held to be applicable when an Anandravan is the manager of a branch tarwad and is in possession of funds belonging to such branch tarwad. See Mari Veetil Chattu Nair v. Mari Veetil Mulamparol.1 There is no difference in this matter so far as Aliyasanthana law also is concerned: Vide the decision in Kunhanna Shetty v. Timmaju2. Where it was seen that a manager of an Aliyasanthana family which was undivided acquired certain properties in his name it was held in Thimmakka. v. Akku3, that the onus was on the person who set up private ownership that the properties were acquired in fact out of private funds. Otherwise it will be presumed to belong to the joint family. v. Akku3, that the onus was on the person who set up private ownership that the properties were acquired in fact out of private funds. Otherwise it will be presumed to belong to the joint family. It has been laid in Chathu Nambiar v. Sekharan Nambiar4, by Krishnan, J., that “in the absence of evidence to the contrary there is a presumption that property acquired by the karnavan of a tavazhi was acquired for the tavazhi and with the tavazhi funds and this presumption must prevail unless the person who avers that such property is his self-acquistion proves that fact by evidence.” A year later Phillips and Ramesam, JJ., in Soopiadath Ahmed v. Irimbantakath Manha Mammad Kunhi5, laid down the proposition following Chathu Nambiar v. Sekharan Nambiar 4 and Mari Veetil Chattun Nair v. Mari Veetil Mulamparol 1 that in regard to property standing in the name of a karnavan “there is a presumption that the property belongs to the tarwad but the same presumption does not ordinarily apply to a property which stands in the name of an Anandravan.” The reason for laying down that proposition in the words of the learned judges is “undoubtedly in regard to karnavans the presumption is very strong for they are in possession of the whole of the property of the tarwad and can deal with it as they like.” As under the Hindu Law so under the Marumakkathayam and Aliyasanthana systems there is no presumption that the joint family as such owns property. A joint family is the result of relationship by birth and it is not a necessary sine quo non of a joint family, that the entity should be bound by reason of owning property in common. Therefore the mere fact that a person happens to be the eldest member of a Marumakkathayam or Aliyasanthana tavazhi or tarwad would not enable the Court to presume that all the properties standing in his name are the joint family properties; but if there is evidence to show that at the time the individual became the seniormost member of the tavazhi or tarwad he had to manage sufficient property belonging to the joint group as to leave a surplus income then it can be presumed that the subsequent acquisitions were made in a representative capacity and not in his individual capacity. This presumption therefore is restricted to cases where it can be shown that there were surplus funds left from which acquisitions could be made. Such a thing would depend upon various factors. A family with insufficient properties and a large number of members to be fed and clothed cannot be expected to leave any surplus. The karnavan may have a profession of his own and may be in a position to save some amounts as a result of his own exertions. In such a case it would be unwise or improper to draw a presumption that wherever a person is able to save by reason of his own gains by science or learning the mere fact that he is the head of the family should impress his acquisitions with the family character. In these circumstances the question of presumption will arise only where it is shown that the karnavan had properties which were sufficient to meet the daily needs of the family and to leave a surplus. It is on this principle that the learned Judges in Soopiadath Ahmed v. Irimbantakath Manha Mammad Kunhi1, made the observations quoted above. But where there is a group of persons constituting a natural tavazhi or tarwad all working together harmoniously and engaging themselves in the pursuit of agriculture together or where the family is a trading one and all the members of the family take some part or other in the family business then even if the acquisitions were made in the name of the karnavan they should be deemed to belong to the entire group. It is not the fact of one being the seniormost member of the family that is crucial in the decision regarding the nature of the property acquired but the deciding factor is the possession of funds belonging to the family from which the acquisition is made and even in the case of Anandravans any possession of sufficient family funds out of which the acquisitions could be made raises the presumption that the acquisition has been made for the benefit of the family. See the decision in Iswaran Nambudiri v. Vishnu Nambudiri2. See the decision in Iswaran Nambudiri v. Vishnu Nambudiri2. Even there, the principle has been stated rather too widely when the learned Judge observes that if nothing appears in the case except that a member of a joint family is in possession of property the burden of proving self acquisition lies on such persons, applies also to the property acquired by a junior member of a Malabar tarwad. In my view this statement of law cannot be applicable to all cases. In the case of an Anandravan if he is found in possession of property and there is nothing to show that he had anything to do with the family property then the presumption is quite the other way and that is that the property belongs to him. As stated already the question of presumption can arise only if there is firstly the nucleus and then the surplus out of that nucleus. It is the same principle that pervades throughout the judgment in Vythinatha Aiyar v. Varadaraja Aiyar3, where the learned Judge, Madhavan Nair, J. states that the nucleus should be shown to be of such a character as would reasonably be expected to lead to the acquisition of the property alleged to be part of the joint family property. The only other case which requires reference in this connection is the decision by Venkataramana Rao, J., in Puthiamathummal Peringadi Assan Kutii v. Peedikayilahath Mammad4. On the facts of that case the conclusion arrived at was perfectly correct and justified but certain observations made by the learned judge have been attempted to be used in such a way as was not probably intended to be understood in that manner. When the learned Judge says: “It is not enough to show that the karnavan had possession of tavazhi funds in his hands wherewith the acquisition might have been made.” with due respect the statement is made rather too broadly. The following general observations at page 331 should in my view be confined only to the facts of that particular case: “where again with the consent of the members of the family an individual member including a manager is allowed to have separate trade and acquire properties, the presumption ought to be that the property acquired in the name of the individual member is separate property even though he might have moneys of the joint family in his hands. It is not enough to show that he had family money in his hands wherewith the acquisition might have been made. It is not even enough to show that the family moneys were utilised in the business. When members of a family allow a manager or an individual member to acquire property separately with full knowledge that he has joint family moneys in his hands, it may well be that the family allowed him to use those moneys but profits or property acquired therefrom for himself cannot be claimed as joint family property though the member may be accountable to the family for the moneys so utilised. Such moneys would be in fact advances or loans made by the members of the family to the individual member or the manager........” The only other case relied upon by the appellant is the decision of Wadsworth, J. in Mammilli Kunhi Raman Kitavu v. Vengileri Thanancheri Kunhi Karnavan Kitavu.1 This judgment is brief and does not lay down anything new. The learned Judge says that in the absence of evidence that the family possessed property with the income of which the new acquisition might have been made, there is no presumption that the property acquired by the manager is family property. This is only a restatement of the principles which we have already discussed. On the facts of the case my learned brother has found that the learned Subordinate Judge was right in holding that except the Pappala Thodi properties and items 102 to 104 rest of them belonged to the family, for there is clear evidence of joint cultivation by all the members of the family. I need only refer to the evidence of P.Ws.1, 3 and 4. P.W.1 is the second plaintiff and he says that ever since he was ten or fourteen years of age he was attending to the cultivation and that ploughing instruments were kept at the gate house of Pappala Thodi, that the harvest from the lands used to be kept together and thrashed and that no differentiation was made. I am prepared to accept the evidence of P.W. I in this respect namely that all the members of the family lived together in commensality, worked together and augmented the family properties and in such a case there can be no doubt that the acquisition was by the family. I am prepared to accept the evidence of P.W. I in this respect namely that all the members of the family lived together in commensality, worked together and augmented the family properties and in such a case there can be no doubt that the acquisition was by the family. P.W. 3 who knows the parties very well says that the members to the family were always cultivators and the karnavan and the other members were all together cultivating and that the crops were all taken to Pappala Thodi after harvest. P.W.4 a Moplah states that he has seen Vadakemadam cultivation and that the defendant No.3 was ploughing lands and attending to cultivation. Even D.W.1 states that all the properties were jointly cultivated, harvested and thrashed and all the paddy was kept at Pappala Thodi. In these circumstances it is difficult to agree with the learned Counsel for the appellant that there was no joint living or joint cultivation. Subject to the modifications mentioned in the judgment of my learned brother both these appeals are dismissed and in the circumstances without costs. Ramaswami, J.,-These are two connected appeals arising from the decree and judgment of the learned Subordinate Judge of Ottapalam, in O.S. No. 56 of 1946. Plaintiffs and defendants 1 to 12 are members of an undivided Marumakkathayam tarwad and they are related as shown in the genealogical table appended below: The first defendant is the karnavan and manager of the tarwad. The suit is for partition and separate possession of the shares of the Anandravans plaintiffs in the tarwad properties. In these appeals we are confined to three sets of properties known as the Pappala Thodi properties, Korungot Kalam properties and Mozhikunnu properties, items 102 to 104 of the plaint schedule and three debts evidenced by Exhibits B-84, B-47 and B-48. In regard to these properties the claim of the plaintiffs is that the three sets of properties are tarwad properties, that items 102 to 104 which are in the names of the wife and children of the karnavan 1st defendant are properties purchased by the karnavan out of tarwad funds and therefore have got to be treated as resultant trust and hence partible as tarwad properties, and that the debts evidenced by Exhibits B-84, B-47 and B-48 are not binding upon the tarwad. On the other hand the claim of the karnavan the first defendant who has since died was that the Pappala Thodi, Korungot Kalam and Mozhikunnu properties are his self acquisitions and separate properties and therefore not liable for partition, that items 102 to 104 have been purchased out of the funds of defendants 13, 14 and 16 to 19 and hence not partible and that the three debts are binding upon the tarwad. The learned Subordinate-Judge held that the Pappala Thodi properties were the separate properties and self acquisitions of the karnavan, that the Korungot Kalam and Mozhikunnu properties are tarwad properties, that items 102 to 104 do not belong to the tarwad but belong to defendants 13, 14 and 16 to 19 and the three debts evidenced by Exhibits B-84, B-47 and B-48 are binding on the tarwad. Hence these two appeals by the Anandravans and Karnavan in regard to the disallowed portions of their claims. On a review of the entire circumstances of the case we have come to the same conclusion as the learned Subordinate Judge. Here are our reasons. Before dealing with facts, I wish to dwell upon one topic on which we were addressed at considerable length by the learned Advocate for the appellants, viz., the alleged incorrect presumptions of law which are said to have been applied by the learned Subordinate Judge in regard to separate property acquired by a karnavan. Where a suit is brought by a member of a tarwad for partition of property alleging that it is joint family property and a karnavan contends that it is his self-acquired property the question arises - upon whom the burden of proof lies. There is no presumption that because there is a tarwad it possesses tarwad property or any property. When in a suit for partition a party claimed that any particular item of property is tarwad property or when in a suit on a mortgage a party contends that the property mortgaged is tarwad property, the burden of proving that it is so rests on the party asserting it, though circumstances may readily cause the onus to be discharged. When in a suit for partition a party claimed that any particular item of property is tarwad property or when in a suit on a mortgage a party contends that the property mortgaged is tarwad property, the burden of proving that it is so rests on the party asserting it, though circumstances may readily cause the onus to be discharged. To render the property tarwad property, the plaintiff must prove that the tarwad was possessed of some property with the income of which the property in question could have been acquired or from which a presumption could be drawn that all the property possessed by the tarwad is joint family property or that it was purchased with tarwad funds, such as the proceeds of sale of tarwad property or by joint labour. None of these alternatives is a matter of legal presumption. It can only be brought to the cognizance of the Court in the same way as any other fact, viz-, by evidence. When a nucleus of tarwad property is proved or admitted, a presumption arises that the whole of the property of the tarwad is joint including any acquisition by the karnavan. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption, the nucleus must be such that with its help the property claimed to be joint would have been acquired. Such being the presumption, if the karnavan claims any portion of the property as his separate property the burden lies upon him to show that it was acquired by him in circumstances which would constitute it his separate property. He can do this by showing that the income of the existing tarwad property was employed otherwise and secondly by correlating the acquisitions with his own self-earnings and also by proving that these earnings were not blended with the tarwad estate and remained his self-acquired property. On account of the fiduciary position which he occupies, Courts will lay upon him a heavier burden than in the case of any other member of the tarwad and in fact in the case of an Anandravan the presumption would be in favour of the acquired property being his self-acquisition. On account of the fiduciary position which he occupies, Courts will lay upon him a heavier burden than in the case of any other member of the tarwad and in fact in the case of an Anandravan the presumption would be in favour of the acquired property being his self-acquisition. This larger quantum of proof satisfying both the negative and positive aspects of acquisition out of karnavan’s own exertions and without any detriment to the tarwad, i.e., without the aid of the tarwad property is based upon section 111 of the Indian Evidence Act. It will be remembered that the position of a karnavan is fiduciary in respect of the junior members who are known as Anandravans and he is the protector of the tarwad’s interest and the guardian of its minor members and therefore he is bound to scrupulously account for the acquisition not having been made to the detriment of the tarwad. These principles are deducible from the following line of decisions of this Court. The case-law on the subject as it stood upto 1916 has been summarised in P.R.Sundara Aiyar’s ‘Malabar and Aliyasantana Law,‘1922 Edition, paragraph 100, as follows: “As under the Hindu Law, so under the Marumakkatayam and Aliyasanthana systems joint holding is the rule and individual holding the exception and it is for the individual member who sets up separate title to make it out. Mari Veetil Chatu Nair v. Mari Veetil Sekharam Nair1, Virarayan v. Valid Rani2”, Govinda Panikar v. Nani3 , Thimmakka v. Parameshri4. Dharnu Shetty v. Dejamma5. The strength of the presumption would no doubt vary according to circumstances. A karnavan who is in possession of family funds, for instance, would be presumed to have made all his acquisitions with them for the benefit of the family and in his case the presumption would be very strong: Kallati Kunju Menon v. Palat Erracha Menon6, Kunhanna Shetti v. Timmaju7. The discussion as to a nucleus and the burden of proving its existence or the contrary is common to the ordinary Hindu Law and these systems. The discussion as to a nucleus and the burden of proving its existence or the contrary is common to the ordinary Hindu Law and these systems. If it is proved that there was no family property from which the property in question could have been acquired, that undoubtedly would rebut the presumption of family acquisition but it is not sufficient to show that the family funds alone cannot account for the acquisition [Thimmakka v. Parameshri 4].or it must be borne in mind that when there is a mixing up of the family funds and separate funds the presumption is that the latter is merged in the former. As under the Hindu Law, an inconsiderable contribution from the family funds may not affect the nature of the acquisition. It could not in those circumstances be said that the family property was instrumental to the acquisition: Strange, Vol. I, page 213 ; Lakshman Mayaram v. Jamnabai1. As said in Books of Hindu Law "hings of ordinary value may be given up for they are mere chaff " (de minimis non curat lex); for instance in the practice of agriculture, it is said, taking a rope for his plough out of the common stock would not invalidate his pretensions to an exclusive right. Nor would the fact that the money is raised on the credit due to the relation of the manager to the family property be a reason for holding that the property acquired is family property. It would be otherwise if the property is raised by pledging the family property. A member of the family making improvements on the family property or raising crops on the family property cannot of course claim them; Kantian v. Tenju2, and Vishnu Nambudri v. Akkamma3. They will be regarded as accretions to the family property; it would be otherwise if the lands were held on lease from the family; acquisitions out of maintenance allowances or out of the income of the family allotted for that purpose should be similarly treated as self-acquisitions. They will be regarded as accretions to the family property; it would be otherwise if the lands were held on lease from the family; acquisitions out of maintenance allowances or out of the income of the family allotted for that purpose should be similarly treated as self-acquisitions. The case may vary if it is only an improvement of the family property in his possession for maintenance for then the simple case would be complicated by the principle of merger." In Chathu Nambiar v. Sekharan Nambiar4, Krishnan, J., held that in the absence of evidence to the contrary, there is a presumption that property acquired by the karnavan of a tavazhi was acquired for the tavazhi and with the tavazhi funds and that this presumption must prevail unless the person who avers that such property is his self-acquisition proves that fact by evidence. In Soopiadath Ahmed v. Manha Mammad Kunhi5 Phillips and Ramesam, JJ., approved the contention before them that there is a very strong presumption that property standing in the name of a member of a Malabar tarwad belonged to that tarwad and added that the presumption has been laid down in Chathu Nambiar v. Sekharan Nambiar4, and Mari Veetil Chathu Nair v. Mart Veetil Mulamparol Sekharan Nair6, with regard to karnavans, and undoubtedly, with regard to karnavans, the presumption is very strong, for they are in possession of the whole of the property of the tarwad and can deal with it as they like. In Kunhi Raman Kitavu v. Kunhikarnavan Kitavu7, Wadsworth, J., held that in the absence of evidence that the family possessed property with the income of which the new acquisition might have been made, there was no presumption that the property acquired by the manager was family property and followed Vydianatha Aiyar v. Varadaraja Aiyar8. In Puthiamathathummal Peringadi Assankutti v. Peedikayilahath Mammad9, Venkataramana Rao, J., deduced the following propositions: " There is no presumption in law that when a Malabar family is joint, it possesses any joint property or that all the property possessed by it is joint property. When property stands in the name or is in the possession of a member of a family, it is incumbent upon those who assert that it is joint family property to establish it. When property stands in the name or is in the possession of a member of a family, it is incumbent upon those who assert that it is joint family property to establish it. Where fit is proved or admitted that a family possesses sufficient nucleus with the aid of which any member might have made the acquisition, the law raises a presumption that it is joint family property and the onus is shifted on to the individual member to establish that the property was acquired by him without the aid of that nucleus. Whether the presumption should be raised and the burden of proof should be shifted at all and what weight should be given to the said presumption depend on the facts and circumstances of each case. The presumption aforesaid is one which the law raises where nothing is known except the bare fact of a nucleus and acquisition." In Kuttan Unni v. Kochunni10 Sir Lionel Leach, C.J. and Lakshmana Rao, J., held that in a family governed by the Marumakkatayam Law the presumption is that the properties held by the head of it belonged to the tarwad, and the burden of proof lies on him who contends otherwise. The onus, however, as a determining factor of the whole case can only arise if the Court finds the evidence pre and con so evenly balanced that it can come to no definite conclusion and then the onus will determine the matter. But if the Court after hearing and weighing the evidence comes to a definite conclusion, the need for placing the onus does not arise. In other words the question of onus at the close of a case only becomes important if the circumstances are so ambiguous that a definite conclusion is impossible without resort to it. [William Robins v. National Trust Co.1, Sine, Darby and Co. v. Official Assignee2, Yellappa v. Tippanna3, Nand Kishwar Bux v. Gopal Bux4, Sree Chidambara v. Veeramma Reddi5 , E.I.R. v. Major Andrew6, Harmes v. Kinson7 .] In the instant case the learned Subordinate Judge has correctly applied these well settled principles as will be evident from the discussion in paragraph 14 of his judgment. v. Official Assignee2, Yellappa v. Tippanna3, Nand Kishwar Bux v. Gopal Bux4, Sree Chidambara v. Veeramma Reddi5 , E.I.R. v. Major Andrew6, Harmes v. Kinson7 .] In the instant case the learned Subordinate Judge has correctly applied these well settled principles as will be evident from the discussion in paragraph 14 of his judgment. Secondly, the question of onus was thoroughly unimportant in this case because both sides adduced a volume of oral and documentary evidence in support of their respective contentions and the learned Subordinate Judge has grounded his conclusion on the evidence in this case and decided whether the properties in question were tarwad properties or self-acquisitions of the karnavan. Bearing these principles in mind let us examine the disputed items. * * * * * * [His Lordship after discussing the facts of the case, concluded:-] In the result, subject to the modifications mentioned above, the decree and judgment of the lower Court are affirmed and both these appeals are dismissed and in the circumstances without costs. K.S. ----- Appeals dismissed.