Narayanan Nair v. Parukutty Amma — 1959 DIGILAW 308 (KER)

Judgment :- 1. These appeals are directed against the decree passed by the Subordinate Judge at Ottapalam, in O.S. 60 of 1948, a suit by three plaintiffs, for partition of 3/9 share in 82 items of immovable properties described in Schedule B, and in the movable properties mentioned in Schedule C, of the plaint, as belonging to their tarwad which, on the date of the institution of the suit, was composed of the plaintiffs and of defendants 1 to 6. The suit was resisted chiefly, by the second defendant, the son-in-law, and by defendants 7 and 9 to 14, the widow and some of the children of deceased Sankaran Nair, who was said to have been in management of the tarwad, and in whose time, the acquisitions were made. The Subordinate Judge held, that the immovable properties belonged to the tarwad, but that items 72 to 82 thereof, are not available for partition, having been validly alienated in favour of defendants 15 to 18; the movables, the existence of which was held to be not proved, need not be referred to in this judgment, and the items referred to hereinafter, relate to the immovable properties in Schedule B. Of the two appeals, A.S. 575 of 1955 (M) is by the second defendant, and A.S. 587 of 1955 (M) is by defendants 7 and 9 to 14. 2. Sankaran Nair died in July, 1948. By a will, Ext. B1 dated the 20th September, 1944, he bequeathed items 1 to 20, 27 to 30 and 32 to 34 in favour of the tarwad, items 36 to 39 to the second defendant, item 40 to the 14th defendant, items 41 to 51 to defendants 7 to 14 and he set apart items 21 to 26 for certain charitable purposes. Earlier, on the 23rd September, 1931, he had executed an assignment, Ext. B13, in favour of the first defendant for item 35; items 52 to 71 had been assigned by him to the 10th defendant by Ext. B178 dated the 27th March, 1930 and by Ext. B179 dated the 13th September, 1931, and these properties were purchased by the 14th defendant, Sankaran Nair's daughter, under Ext. B169, sale certificate dated the 15th June 1942, in execution of a decree against the tenth defendant and Sankaran Nair. B178 dated the 27th March, 1930 and by Ext. B179 dated the 13th September, 1931, and these properties were purchased by the 14th defendant, Sankaran Nair's daughter, under Ext. B169, sale certificate dated the 15th June 1942, in execution of a decree against the tenth defendant and Sankaran Nair. The assignments for items 72 to 82 in favour of defendants 15 to 18 are not the subject-matter of these appeals, and need not be mentioned. 3. The original tarwad of the plaintiffs and defendants 1 to 6, and others was Kelankandathu of which the ancestress was Kunju Amma. She had three daughters Sreedevi Amma, Thayi and Unnipiri Sankaran Nair, the plaintiffs and defendants 1 to 6 are members of Sreedevi Amma's branch; Thayi's branch consisted of her two daughters and the descendants of one of them, the other having had no issue, and Unnipiri's branch consisted of her two sons only, of whom Kunjukrishnan Nair, who died in 1930-31, alone need be mentioned. Sreedevi Amma had a daughter, Ittymayamma from whom the tavazhi of Sankaran Nair, the plaintiffs and defendants 1 to 6 originated, and a son Ravunni Nair, who died in 1106 M.E. corresponding to the year 1931. Sankaran Nair had a sister Chirutheyi Amma, who was the mother of the second defendant and who died in the year 1921. Her sister Unnipiri Amma was the mother of the first plaintiff and the third defendant. Sankaran Nair's brother Gopalan Nair was the first defendant, and he died after the suit was disposed of by the lower court; plaintiffs 2 and 3 are children of the first plaintiff, defendants 4 and 5 are children of the third defendant and the 6th defendant is the daughter of the fifth defendant. 4. In the year 1916, Ravunni Nair instituted a suit 0. S.426 against the sons of Kunju Amma and others, alleging himself to be the karnavan of Kelankandathu tarwad, for the removal of trespass on two items of properties. It was found by the court, in that suit, that Ravunni Nair and others of the branch of Sreedevi Amma, had no community of interest with the other branches, and that the former had left Kelankandathu house for good, about 9 years before the date of the judgment, which was rendered on the 16th December, 1918. It was found by the court, in that suit, that Ravunni Nair and others of the branch of Sreedevi Amma, had no community of interest with the other branches, and that the former had left Kelankandathu house for good, about 9 years before the date of the judgment, which was rendered on the 16th December, 1918. In the meanwhile, Sankaran Nair had built a house on Naduvathu property, item 32, in which all those who came from Kelankandathu, including Unnipiri's son, Kunjukrishnan Nair settled themselves, and this, according to the plaintiffs, became the seat of their tarwad house and came to be known as Naduvathu tarwad. Ravunni Nair having died in the year 1931, Sankaran Nair became the de jure karnavan of the tarwad of the plaintiffs; but it is their case, that even during the former's life-time, that is, from December 1888, the latter had been in de facto management, and that the properties in suit, in the names of Sankaran Nair, Ittymayamma, Chirutheyi Amma, the first defendant, the first plaintiff and the 3rd defendant, were acquired with tarwad funds, and belong to the tarwad. On the other hand, the appellant contended that there was no such tarwad, and that Sankaran Nair was never its karnavan, and alleged, that the suit properties were all acquired with his separate funds, some of them in his name, and others in the names of Ittymayamma, the first plaintiff and the third defendant, but benami for him. 5. At this stage, it seems desirable to have an idea, as to the investments in their chronological order, made for acquiring the properties. Item 1 belonged in jenmom to Paluvai Devaswom and was outstanding on kanam; the kanamdars gave a mortgage of their right with possession to Narayanan Nair, the father of the first defendant, in the year 1873, and Narayanan Nair gave a sub-mortgage to Ravunni Nair by Ext. A8 in the year 1874. By Ext. A37 of the year 1876, Ravunni Nair took a mortgage of the kanam right itself for a sum of Rs. 200/- and on the 22nd January, 1886, Ittymayamma, the mother of Sankaran Nair took an assignment of kanam, Ext. A9 for Rs. 325/-, inclusive of Rs. 200/- under Ext. A37. Items 65 to 68 were acquired on assignment of kanam in the name of Sankaran Nair under Ext. B238 dated 25th. November, 1887, for Rs. 200/- and on the 22nd January, 1886, Ittymayamma, the mother of Sankaran Nair took an assignment of kanam, Ext. A9 for Rs. 325/-, inclusive of Rs. 200/- under Ext. A37. Items 65 to 68 were acquired on assignment of kanam in the name of Sankaran Nair under Ext. B238 dated 25th. November, 1887, for Rs. 150 Items 35 and 36 were acquired on kanam assignment by Ext. B 235 dated the 8th July, 1893, for Rs. 1,150/- and items 41 to 46 also on kanam assignment for Rs. 300/- by Sankaran Nair. Items 13 to 20, 25, 73 to 76, 78 and 80 were acquired on possessory mortgage, Ext. B224 dated the 3rd October, 1894, for Rs. 250/-, and item 31 under a kanam assignment Ext. B25 dated the 9th April, 1895, for Rs. 90/-, all by the first defendant. For the items comprised in Ext. B224, the first defendant then took an assignment of kanam, Ext. B4 on the 12th September, 1895, for Rs. 150/-. Chirutheyi Amma, the mother of the second defendant, took an assignment of kanam, Ext. A19 for Rs. 650/- on the 16th December, 1895, for item 38, under which the whole consideration was reserved with her for discharging a decree debt due to one Raghunatha Pattar; but as to the date on which it was discharged, there is no evidence. The only investment in the year 1896, was on a kanam assignment, Ext. B5 dated the 23rd August for items 81 and 82 in the names of Sankaran Nair and the first defendant for Rs. 635/-. Items 27 to 30 were obtained on kanam demise in the names of the first plaintiff and the third defendant, under Ext. A 35 dated the 26th June, 1897, for a sum of Rs. 28-13-9. Item 37 was acquired in the year 1898, and items 2 to 12, 21 to 24, 39, 72, 77 and 79 in the year 1900 on assignment of kanam, as seen from a later document, but there is no evidence as to the amounts invested. In the year 1901, a kanam demise of one item of property for Rs. 200/- was taken in the name of Sankaran Nair, and another demise of another property called "Chengalathu Paramba" was taken in the names of the first plaintiff, the third defendant and Sankaran Nair, for an amount which, as seen from the judgment, Ext. In the year 1901, a kanam demise of one item of property for Rs. 200/- was taken in the name of Sankaran Nair, and another demise of another property called "Chengalathu Paramba" was taken in the names of the first plaintiff, the third defendant and Sankaran Nair, for an amount which, as seen from the judgment, Ext. A33, did not exceed Rs. 135/-; and on the 14th April, 1903, a kanam demise of another property for Rs. 100/- was taken by the first plaintiff and the third defendant, who were then minors, and were represented by Sankaran Nair as their guardian. These properties, though not involved in this suit, may be referred to as Keyi's lands. The next investment in order of date, was in the acquisition of item 26 under Ext. B57, kanam assignment dated the 7th December, 1903 in the name of Sankaran Nair for Rs. 325/-, out of which Rs. 122/- was paid on that date, and Rs. 203/- was reserved for the discharge of encumbrances; there is, however, no evidence when these were paid off. In the year 1904, items 69 to 71 were acquired on assignment of kanam by Sankaran Nair, but there is no evidence as to the amount invested for taking it; on the 14th of May in the same year, items 57 to 59 and 61 to 64 were acquired on kanam by Sankaran Nair for Rs. 28-13-9. Items 32 to 34 were acquired on assignment of jenmom right, Ext. A20 dated the 3rd August, 1905, for a consideration of Rs. 50/-, but possession was obtained only later. 6. Items 47 to 49 were acquired on assignment of kanam by Sankaran Nair under Ext. A17 dated the 11th February, 1906, under which Rs. 850/- was paid in cash, and Rs. 1,500/- was reserved for payment to the tenant under the decree for eviction in O.S. 668 of 1904. Sankaran Nair made this payment by raising a loan on a mortgage, Ext. A45 dated the 16th February, 1906, in respect of items 2 to 25, 35, 37, 39 and 72 to 80 and Keyi's lands, exclusive of Chengalathu paramba. Ext A45 was paid off with the prize amount of a kuri conducted by Mangalathu Mana, on receipt of which, Sankaran Nair executed a hypothecation deed, Ext. B190 dated the 8th June, 1909, for the properties mortgaged under Ext. A45. The discharge of Ext. Ext A45 was paid off with the prize amount of a kuri conducted by Mangalathu Mana, on receipt of which, Sankaran Nair executed a hypothecation deed, Ext. B190 dated the 8th June, 1909, for the properties mortgaged under Ext. A45. The discharge of Ext. B190, will be mentioned later in order of date. 7. The next investment was in acquiring a possessory mortgage right over items 32 to 34 under Ext. B28 dated the 13th July, 1909, in the names of the first plaintiff and the third defendant; a sum of Rs. 600/- was paid in cash, and a sum of Rs. 1,593-0-9 was reserved with the mortgagees for discharging a sub-mortgage in the name of one Krishna Pattar. This was liquidated by the execution of a mortgage, Ext. B82 dated the 15th July, 1909 to Krishna Pattar for items 47 to 49; Ext. B82 was paid off by borrowing under Ext. B84 dated the 18th March, 1912, a mortgage with possession, for items 47 to 49 to one K. Raman Nair. Ext. B84 was discharged by the execution of a hypothecation, Ext. B86 on the 28th October, 1913, to K. Raman Nair charging items 1, 47 to 49, 81 and 82. The discharge of this was in the year 1919, and will be mentioned presently. 8. A kanom assignment for items 52 to 56 and 60 was taken by Sankaran Nair on the 6th January 1919 by Ext. B 239 for Rs. 200/-, under which a sum of Rs. 32-14-6 was paid in cash. It was in that year, that both Exts. B190 and B86 were paid off; it was common ground, that the fund which was ultimately used for discharging these, was a deposit of over 7,000 rupees in court, as the redemption price for Keyi's lands including Chengalathu Paramba, under two decrees, O. S.669 of 1916 against Sankaran Nair and O.S. 670 of 1916 against Sankaran Nair, the first plaintiff and the third defendant. 9. On the 27th January, 1920, under Ext. B99, agreement for sale, for items 40, 50 and 51, Sankaran Nair advanced Rs. 80/-; on the 31st March, 1920, a kanam assignment, Ext. A18 was taken by him, under which Rs. 11-6-9 was paid in cash, a sum of Rs. 2,453-9-3 was reserved for discharging a mortgage, Ext. B105 to Ittiraricha Menon, and a sum of Rs. B99, agreement for sale, for items 40, 50 and 51, Sankaran Nair advanced Rs. 80/-; on the 31st March, 1920, a kanam assignment, Ext. A18 was taken by him, under which Rs. 11-6-9 was paid in cash, a sum of Rs. 2,453-9-3 was reserved for discharging a mortgage, Ext. B105 to Ittiraricha Menon, and a sum of Rs. 250/- was reserved for payment to a tenant Vareed. The mortgage was discharged with the kuri amount obtained on the strength of a mortgage, Ext. B88 dated the 6th July, 1920, charging items 1 and 47 to 49. The tenant Vareed was paid under Ext. B101, deed of surrender, dated the 15th November 1920. 10. Ext. B88 was renewed as per Ext. B258, and the decree in 0. S.64 of 1934 was obtained by the mortgagee under it, who sued to enforce it. The decree was discharged by the execution of a possessory mortgage, over items 1 and 47 to 49, under Ext. B90 dated the 17th April, 1934. In discharge of Ext, B90, a possessory mortgage, Ext. B92 was executed on the 4th November, 1939, in respect of items 1, 38 and 47 to 49, and Ext. B92 was paid off from the proceeds realised on the sale of items 81 and 82, received from defendants 16 to 18. 11. The kanam right over items 21 to 26, 36, 37 and 39 was assigned by Sankaran Nair by Ext. B37 on the 7th May, 1935, to a junior member of the family of the jenmi for a consideration of Rs. 3,400/-, which was applied for a specified purpose; the latter surrendered the kanam right to the jenmi who then assigned the jenmom right over the items to Sankaran Nair by Ext. B31 dated the 21st March, 1943, for Rs. 3,306-8-0. Sankaran Nair also took an assignment of the jenmom right in item 8, by Ext. A34 dated the 26th October, 1944, for Rs. 50/-. 12. In addition to the above, there have been a few renewals from the jenmies for some of the items, but the fee paid under them was nominal. There is no evidence as to the investments made for taking the documents of 1898 for item 37 of 1900, for items 2 to 12 etc., and of 1904 for items 69 to 71 and as to the time at which, the amounts reserved under Exts. There is no evidence as to the investments made for taking the documents of 1898 for item 37 of 1900, for items 2 to 12 etc., and of 1904 for items 69 to 71 and as to the time at which, the amounts reserved under Exts. A19 of 1895, B57 of 1903, and B239 of 1919 were paid. With respect to the latter category of investments, taking them at the worst for the plaintiffs, the payments may be deemed to have been made on the respective dates of the documents. The amounts of the mortgages paid off ultimately with the redemption price for Keyi's lands and with the sale proceeds of items 81 and 82 need not be considered. On this basis, leaving out item 1, and the documents, of 1898, 1900 and 1904, referred to above, the total investment is about rupees 9,540 odd, spread over nearly 57 years, that is, from 1887 to 1944. 13. The history of the acquisitions will not be complete, unless the subsequent documents of title with respect to some of the properties, mostly deeds of renewal taken from the jenmies, are also mentioned. For item 1, though the initial documents, Exts. A8 and A37 were in the name of Ravunni Nair, and Ext. A9 was in the name of Ittymayamma, the subsequent renewals, Exts. A10 of 1898, All of 1911 and A12 of 1943 were in the name of Sankaran Nair. For items 13 to 20, 25, 73 to 76, 78 and 80, the initial documents, Exts. B224 and B4 were in the name of the first defendant, but the renewals Exts. A24 of 1903, B33 of 1918 and B182 of 1930 were taken by Sankaran Nair. At the same time, the deed of surrender from the tenant for items 13,18 and 19 was taken under Ext. B26 of 1918 by the first defendant. Though items 27 to 30 were acquired in the names of the first plaintiff and the third defendant under Ext. A35, a consolidated demise, Ext. A23 for these and for items 57 to 59 and 61 to 71 acquired in the name of Sankaran Nair, was taken in the joint names of all the three of them; later, items 27 to 30 were brought under a separate renewal, Ext. B118 in their joint names, and the others under another renewal, Ext. A23 for these and for items 57 to 59 and 61 to 71 acquired in the name of Sankaran Nair, was taken in the joint names of all the three of them; later, items 27 to 30 were brought under a separate renewal, Ext. B118 in their joint names, and the others under another renewal, Ext. B177 of 1926, in the sole name of Sankaran Nair. For item 31, though acquired in the name of the first defendant under Ext. B25 and renewed under Ext. B7, a deed of surrender from the tenant, Ext. A21, was taken in the name of Sankaran Nair. Items 32 to 34 were first acquired on jenmom assignment by Sankaran Nair under Ext. A20, but the mortgage, Ext. B28 of 1909, and the surrender deed from the tenant, Ext. B27 of the same year, were taken by the first plaintiff and the third defendant. Item 38 was originally a kanam assignment to Chirutheyi Amma under Ext. A19, and the subsequent renewals, Exts. B46 of 1900, B47 of 1915 and B50 of 1929, were in the name of Sankaran Nair. Items 81 and 82 were acquired on assignment of lease by Sankaran Nair and the first defendant but the renewals, Exts. A15 of 1898, A16 of 1911 and B209 of 1943, were in the name of Sankaran Nair. For one item of Keyi's lands Sankaran Nair, and for another from the first plaintiff and the third defendant, took the demises in the years 1901 and 1903 respectively, but a consolidated renewal, Ext. A39 of 1908, was taken in the joint names of all the three of them. It will thus be seen, that for several items of properties, viz., items 1,13 to 20, 25, 27 to 34, 38, 57 to 59, 61 to 71, 73 to 76, 78 & 80 to 82, the documents of title, including those relating to acquisition and renewals from the jenmies were indiscriminately in the names of the members of the tarwad, and not all in the name of Sankaran Nair exclusively, in some cases the initial documents being in the names of other members of the tarwad, either singly or jointly, and the later documents in the name of Sankaran Nair, and vice versa in other cases. 14. The course of dealings with respect to some of the properties as disclosed, is also a matter requiring scrutiny. 14. The course of dealings with respect to some of the properties as disclosed, is also a matter requiring scrutiny. In the year 1913, item 1 was mortgaged along with items 47 to 49, 81 and 82 under Ext. B86 and later, in the year 1920, it was mortgaged with items 47 to 49 only, under Ext. B88 by Sankaran Nair. When the mortgagee under Ext B88, obtained the decree in O.S. 64 of 1934 in enforcement of his mortgage, Sankaran Nair executed Ext. B90, a possessory mortgage in the year 1934, for items 1 and 47 to 49 in discharge of the decree. This was extinguished by a later possessory mortgage, Ext. B92 by Sankaran Nair, for items 1, 38 and 47 to 49, a part of the amount raised thereby being to pay off the dues under a kuri. 15. It has been seen in Para.13 above, that items 27 to 30, which were acquired in the names of the first plaintiff and the third defendant, were included in a consolidated renewal document, Ext. A23, with items 57 to 59 and 61 to 71 which were in the name of Sankaran Nair. Similarly, the consolidated renewal, Ext. A24 for items 13 to 20, 25, 73 to 76, 78 and 80, which were acquired in the name of the first defendant, and for items 2 to 12, 21 to 24, 35, 37, 39, 72, 77 and 79, which were acquired in the name of Sankaran Nair, Ext. A45 mortgage of the year 1906, for all the properties in Ext. A24, and also keyi's lands held under the renewal; Ext. A39 in the joint names of Sankaran Nair, the first plaintiff and the third defendant, and Ext. B190, which followed Ext. A45, have all been adverted to earlier, and are mentioned in this context, only for completeness. Ext. B34 of 1918 and Ext. B35 of 1924 are later simple mortgages with respect to the properties in Ext. A24. Sankaran Nair mortgaged the properties comprised in Ext. A24, with the exclusion of item 35, but including item 26, with possession, by Ext. B36 of the year 1930, which was extinguished by him later, by an assignment, Ext. B37 of the year 1935, for items 21 to 26, 36, 37 and 39, of which item 25 is a property, which was acquired in the name of the first defendant. B36 of the year 1930, which was extinguished by him later, by an assignment, Ext. B37 of the year 1935, for items 21 to 26, 36, 37 and 39, of which item 25 is a property, which was acquired in the name of the first defendant. It will be seen from the above resume, that items 1 to 25, 27 to 30, 35, 37 to 39, 47 to 49, 57 to 59 and 61 to 82 had been mingled by Sankaran Nair, in the course of the dealings with respect to them. 16. From the transactions enumerated in Para.6 and 7 earlier it will be seen, that in order to acquire items 47 to 49, others such as items 2 to 25, 35, 37, 39 and 72 to 80 and Keyi's lands were mortgaged under Ext. B190, and in order to acquire items 32 to 34, others, such as items 1, 47 to 49, 81 and 82 were mortgaged under Ext. B86, both of which were paid off with the redemption amount obtained for Keyi's lands, the renewal of which, Ext. A39, it may be remembered, was taken jointly. In the suits for redemption in respect of Keyi's lands, Sankaran Nair stood by Ext. A39, the validity of which, however, was disputed by the plaintiffs in them, but the point was not pressed to a decision, the judgment having been rendered on concession. Similarly, as seen from Para.10 above, for the acquisition of items 40, 50 and 51, others, such as items 1, and 47 to 49, and later item 38 also, were mortgaged, the last of the mortgages, Ext. B92 having been discharged with the sale proceeds of items 81 and 82. In other words, the three groups of the properties, viz., items 32 to 34, items 40, 50 and 51 and items 47 to 49, were acquired with the aid of items 1 to 25, 35, 37 to 40, 47 to 51, and 72 to 82, though at different points of time, which explains how some of the properties in one of the above groups happened to be concerned in the acquisition of the properties in the other groups. 17. 17. The above analysis furnishes an idea of the investments made year-war, for acquiring the properties and shows bow some of them were encumbered for the acquisition of others, how, many of them were mingled in the course of the dealings with respect to them, and how, even in acquiring many of them the documents of acquisition including renewal deeds, were taken indiscriminately in different names, but all, in the names of the members of the tarwad, to the exclusion of others. Before drawing inferences from these, it is useful to establish the character of at least some of the items of properties, on other data which are available. 18. It admits of no doubt, that item 1 is a tarwad property. Ravunni Nair, the acquirer was the seniormost male member of the tarwad at the time. On the date of Ext. A8, Sankaran Nair was only eight years old. Though Ext. A9 was taken in the name of Ittymayamma, there had been no redemption of the original mortgage in favour of Ravunni Nair, at any time. Though the defence did not make a distinction between this and the other acquisitions, it seemed, at one stage of the cross-examination of the first defendant, that their case was that Ravunni Nair had been in possession; if so when and how did possession pass to Sankaran Nair, even before, the death of Ravunni Nair? The plaintiffs' case has been that Ravunni Nair entrusted item 1 with Sankaran Nair when the latter took up management. The entries as to possession in Exts. A9 and A10, afford good evidence, that possession passed from Ravunni Nair to Sankaran Nair, even before the date of Ext. A 10 which is, the 6th December, 1898. Dw. 2 even said that Ext. A 9 taken in the name of Ittymayamma was paid off by Sankaran Nair. The entry in the account book bearing the date, the 28th Kanni, 1119 M. E, i.e., in October 1943, proves, that the first defendant advanced Rs. 15/- to Sankaran Nair for taking the renewal, Ext. A 12. It was common ground, that the income from item 1 was received by Sankaran Nair, together with the income of the other properties, and brought into the account. We have no doubt, that item 1 belonged to the tarwad. Item 31 was acquired on assignment of kanam, Ext. B25, and renewal of kanam, Ext. A 12. It was common ground, that the income from item 1 was received by Sankaran Nair, together with the income of the other properties, and brought into the account. We have no doubt, that item 1 belonged to the tarwad. Item 31 was acquired on assignment of kanam, Ext. B25, and renewal of kanam, Ext. B7, in the name of the first defendant. Dw. 2, the son of Sankaran Nair admitted, that it belonged to the first defendant. It was excluded by Sankaran Nair himself, from his will, Ext. B1, and is not the subject-matter of the appeals. Items 81 and 82 were acquired in the names of both Sankaran Nair and the first defendant; the junction of the first defendant with Sankaran Nair cannot be explained on any theory of benami acquisition, but on the contrary, confirms the tarwad character; admittedly, these were set apart to Ravunni Nair for "melchilavu", a term, which as defined in Sundara Iyer's treatise on Malabar Law, page 453, means "pocket expenses allowed to junior members". This, we regard, as an important circumstance tending to prove the tarwad character of these properties. 19. Items 32 to 34 constitute the seat of the Naduvathu tarwad house; the acquisition of these items under Ext. A 20 in the name of Sankaran Nair was only of the jenmom right, and possession was obtained under Ext. B28, in the names of the first plaintiff and the third defendant in the year 1909. It was admitted by Sankaran Nair in Ext. B1, that for taking Ext. B28, Rs. 1,200/- was contributed by the father of the first plaintiff and the third defendant. Dw. 2 at first suggested that Sankaran Nair obtained a surrender of these properties from the first plaintiff and the third defendant, but admittedly there is no document to evidence it; he also admitted, that Sankaran Nair was in possession on their behalf. Under Ext. B27 of the same year, the tenant, who was in possession, surrendered them to the first plaintiff and the third defendant. It was common ground that after the exodus from Kelankandathu tarwad, Sankaran Nair, and the members of the tarwad were living in the house, which was constructed on this property and was referred to as Naduvathu tarwad in Sankaran Nair's will Ext. B1. Item 68 was acquired in the name of the second defendant's mother under Ext. A19 of 1895. It was common ground that after the exodus from Kelankandathu tarwad, Sankaran Nair, and the members of the tarwad were living in the house, which was constructed on this property and was referred to as Naduvathu tarwad in Sankaran Nair's will Ext. B1. Item 68 was acquired in the name of the second defendant's mother under Ext. A19 of 1895. Dw. 2 stated, that the first defendant acquired this property in his sister's name, but added, that Sankaran Nair paid for it. If there is a tarwad prima facie, items 32 to 34 belong to it; the indication is also that item 38 was acquired for the tarwad. It may be noted, incidentally, that the appellants had no case in the pleadings, that the acquisitions in the name of Chirutheyi Amma and the first defendant were made benami for Sankaran Nair. 20. It has been seen above, that items 27 to 30, and 57 to 59, and 61 to 71 are covered by the consolidated renewal, Ext. A23 in the names of Sankaran Nair, the first plaintiff and the third defendant; but that this was cut upon the 31st July, 1926, into two renewals, one of which was Ext. B177, for items 57 to 59 and 61 to 71, and also for items 52 to 56 and 60, which were not comprised in Ext. A23, and the other, Ext. B118 for items 27 to 30. We are satisfied, that on a proper understanding of Ext. B177, the description of the title in Ext. B177, as the separate properties of Sankaran Nair, applies only to items 7 to 21 in Ext. B177, which are items 57 to 59 and 61 to 71 of the suit properties, and not to items 52 to 56 and 60 also; even so, this distinction between the two sets of properties comprised in Ext. B177, as also the distinction between Exts. B177 and B118 of the same date, may be deemed to be an admission by Sankaran Nair, that items 27 to 30, 52 to 56 and 60 were not his separate properties. 21. Items 35 and 36 were acquired in the name of Sankaran Nair under Ext. B235 on the 8th July, 1893, for a sum of Rs. 1,150/-. Ext. B241 is said to be a memorandum written by the second defendant to Ravunni Nair's dictation, and evidences that the latter had advanced Rs. 21. Items 35 and 36 were acquired in the name of Sankaran Nair under Ext. B235 on the 8th July, 1893, for a sum of Rs. 1,150/-. Ext. B241 is said to be a memorandum written by the second defendant to Ravunni Nair's dictation, and evidences that the latter had advanced Rs. 1,000/- to Sankaran Nair for the acquisition of these properties. Besides being an incomplete document, the only evidence to prove Ext. B241 being the statement of Dw. 1, the first defendant, that it is in the handwriting of the second defendant, we are unable to rely on it. Dw. 2 has admitted that this property was in the possession of Kunjukrishnan Nair, who it may be recalled, was one of those who came away from Kelankandathu, and lived the rest of his days in Naduvathu house, for his maintenance and it was restored to Sankaran Nair's possession only on the death of Kunjukrishnan Nair in the year 1930 or 1931. To our minds, this arrangement or entrustment is more suggestive of the tarwad character of the properties than otherwise, though it is by no means so decisive as the allotment of items 81 and 82 to Ravunni Nair for "melchilavu". The finding regarding item 35 must depend largely on the other circumstances in the case. As matters now stand, item 35 must be held to belong to the tarwad, as the first defendant, to whom it had been conveyed by Sankaran Nair by Ext. B13 of the year 1931, has not preferred an appeal against the decree setting it aside at the instance of the plaintiffs, and the appellants cannot lay any claim to it after the conveyance. By Ext. B37 of the year 1935, Sankaran Nair had assigned the kanam right in items 21 to 26, 36, 37 and 39 to Ashtamurthi Namboodiripad, a junior member of the family of the jenmi, to whom they belonged; after the latter had surrendered the kanam right to the jenmi, Sankaran Nair took an assignment of the full proprietary right in them in his favour by deed, Ext. B31 of the year 1943. The prior rights in these properties had been wiped out by Ext. B37, and by Ext. B31 a new chapter in the history of their title was opened. B31 of the year 1943. The prior rights in these properties had been wiped out by Ext. B37, and by Ext. B31 a new chapter in the history of their title was opened. But then, Sankaran Nair had already become the karnavan of the tarwad, as will be seen with sufficient nucleus that notwithstanding the self-serving description of the title in Ext. B31 as his separate properties, they must be presumed to belong to the tarwad. 22. As a result of the discussion in Para.18 to 21, apart from other considerations, we have no doubt that items 1 and 31 are tarwad properties. On the above basis, tentatively, our conclusion is that items 27 to 30, 32 to 34, 38, 52 to 56, 60, 81 and 82 also belong to the tarwad and that whatever be the antecedent title, the present title to items 21 to 26, 35, 36, 37 and 39, is with the tarwad. These conclusions, as will be seen, are reinforced by other considerations too, some of them being, that the documents of title stand in the names of different members of the tarwad, male or female, that several properties were acquired with the aid of, and by encumbering other properties and utilising what may be held to be a common fund, and that in the course of the dealings, many of the properties had been mingled with item 1 and with other items of properties which may reasonably be held to belong to the tarwad, and as will be seen later, by the existence of a nucleus for making these and other acquisitions. 23. It has been noted that some of the acquisitions were in the names of the female members of the tarwad, Ittymayamma, Chirutheyi Amma, the first plaintiff and the third defendant. In Para.12 of the plaint, this was specially relied on as pointing to the tarwad character of such properties. It is not unusual to find acquisitions being made for the tarwad, in the names of female members. It is not necessary to travel beyond Sankaran Nair's own statement as to the policy of this tarwad and the reason underlying it, in his deposition Ext. B226 dated the 11th November, 1918, that it was usual to take documents in the names of female members, in order that the male members may not alienate them. It is not necessary to travel beyond Sankaran Nair's own statement as to the policy of this tarwad and the reason underlying it, in his deposition Ext. B226 dated the 11th November, 1918, that it was usual to take documents in the names of female members, in order that the male members may not alienate them. This is at least sufficient to show, bow Sankaran Nair's mind was working. Some of the acquisitions were in joint names, and even in the case of some of the individual acquisitions, the later renewals were taken by Sankaran Nair, singly, or jointly with other members. The plaintiffs had only one case in the plaint, as disclosed by Para.5 and 12, that all the acquisitions were made with tarwad funds; in this view, the development attempted by the first defendant at the trial, and made use of at the hearing, as to specific sources of funds, may be ignored. It is not the case of the plaintiffs at all, that Sankaran Nair used his separate funds in order to make the acquisitions in other names, & their learned counsel did not rely on any theory of: advancement, which it has been ruled, has no application in India. It is unnecessary to refer to the cases cited on this point. It was common ground that the acquisitions, in whatever names they were made, belonged to the same entity; the difference between the parties was only whether that entity was the tarwad, or Sankaran Nair in his individual capacity. The only theory, which the appellants put forward, and which their learned counsel pressed before us, was that the acquisitions were made in other names benami for Sankaran Nair. This theory, must; founder with regard to the documents, which are by no means negligible, in which Sankaran Nair associated himself with the so-called benamidars, a feature which is so fundamentally opposed to the concept of benami. Apart from the argument, to be dealt with later, that the tarwad had no adequate nucleus, positive proof that Sankaran Nair used his private funds in making the alleged specific benami acquisitions, or that he had a motive to do so, is wholly lacking. As observed, even a specific plea that; the acquisitions in the names of the first defendant and Chirutheyi Amma were made benami for him, is singularly absent. As observed, even a specific plea that; the acquisitions in the names of the first defendant and Chirutheyi Amma were made benami for him, is singularly absent. That the first plaintiff and the third defendant were minors when a. few acquisitions were made in their names, does not give support to the theory, for we have seen, that in taking the mortgage, Ext. B28, the father of the first plaintiff and the third defendant had made a substantial contribution. We are not also prepared to regard it as a matter of accident or of mere coincidence, that Sankaran Nair selected only the members of his tarwad, but not his wife or any of his children, to act as his benamidar. We have therefore no hesitation in rejecting this theory of the appellants, as thoroughly unsustainable. The reasonable inference to make is, that the acquisitions in the names of Ittymayamma, Chirutheyi Amma, the first plaintiff and defendants 1 and 3, and those in respect of which Sankaran Nayar, associated his name in taking renewals and other documents, with the exception of items 57 to 59 and 61 to 71 covered by the renewal, Ext. B177 referred to above, were for the tarwad. 24. But it was contended, that the association of other names in the documents of acquisition, does not establish the tarwad character and reliance was placed on Jetharam v. Hazarimal, AIR. 1952 Rajasthan 28. It is far too elementary to state, that in determining in whom title to immovable properties vests, the deeds by which they were acquired or by which the purchases were made, afford the best of proofs in the generality of cases, and where more than one are found associated with them, the junction of any one or more of them, may be explained as inconsequential as in the Rajasthan case, or as representing common proprietorship, say in a tarwad or a joint family. We do not understand their Lordships of the Rajasthan High Court to have laid down an inflexible rule of interpretation of title deeds, applicable under all conditions and circumstances. In the case before them, it was a patta in the name of the father & son, and not, as here, a large number of title deeds, in which a policy, as it were, in the manner of making the acquisitions is more or less indicated. In the case before them, it was a patta in the name of the father & son, and not, as here, a large number of title deeds, in which a policy, as it were, in the manner of making the acquisitions is more or less indicated. The Madras High Court had held in a case cited before us, Kunhiraman v. Kunhikanaran, AIR. 1940 Madras 80, that a mortgage of an item of property, the character of which is in dispute, with others proved to belong to the joint family, does not raise a presumption that the disputed item also belongs to the joint family, unless it is shown, that the mortgage itself was a borrowing for family purposes. The law as it stood in the year 1922, has been summarised thus by P.R. Sundaran Iyer on Malabar and Aliyasanthana Law, page 180: "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 joint family property. It would be otherwise if the amount is raised by pledging the family property". This statement of the law by the learned author was relied on by a Division Bench of the High Court consisting of Govinda Menon and Ramaswami, JJ., in Gopalan Nayar v. Lakshmi, 1955 M. W. N. 350. We think that it is not open to doubt, that the mingling of different properties in the same transaction, is at least a potent circumstance indicative of their common ownership. Naina Pillai v. Daivanai Ammal, AIR. 1936 Madras 177 also relied on, was a case in which a property which was found on evidence to be seff-acquired, was held not to lose its character as such, on being mingled with family properties, and does not furnish any assistance to us in the present case, where the issue itself fails to be decided. In Chandrasekhar v. Pitambari Dibya, AIR. 1953 Orissa 315, the court held that "a purchase made with money borrowed on the security of the common property belongs to the joint family, the members of which would be jointly liable for the debt as the detriment to the common property is obvious", the principle being that "if the acquisitions were made with the aid of the joint estate, it would become part of the joint family property". We do not think it necessary while dealing with this aspect, to refer to other cases to which our attention was invited. We are of the view, that the features relating to the acquisitions of the suit properties, which we have discussed at length, are such as ought to be taken into consideration along with the question, as to the existence of a nucleus for making the acquisitions. We may also state here, that the cases cited to us, on blending of self-acquired and separate properties, or on throwing what was self-acquired property into the common stock, or on properties acquired by joint labour or joint exertions, are not relevant, and do not require consideration, in the state of the pleadings in this case. 25. The rule of presumption applicable to the acquisition of properties for a Hindu joint family formulated by the Privy Council in Appalaswami v. Suryanarayana Murti, AIR. 1947 P. C. 189, has been approved by the Supreme Court in Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR. 1954 S. C. 379 at 382 (2) and is in these terms: "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 I burden rests upon anyone 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". The rule has been applied by the Madras High Court in Gopalan Nayar v. Lekshmi, referred to earlier, also to the acquisitions of a de facto karnavan of a Malabar tarwad. We therefore pass on to a consideration of the evidence which bears on the existence of a tarwad nucleus. 26. The learned counsel for the appellants disputed even the very existence of a tarwad, to which the properties in suit could appertain. Kunjukrishnan Nair, who came away from Kelankandathu was of course not, and could not be, a member of that tarwad; that he was in the exodus from Kelankandathu, is inconsequential. There is no case that he contributed anything towards the acquisitions. Kunjukrishnan Nair, who came away from Kelankandathu was of course not, and could not be, a member of that tarwad; that he was in the exodus from Kelankandathu, is inconsequential. There is no case that he contributed anything towards the acquisitions. Sreedevi Amma (senior) and her descendants formed a natural Marumakkathayam group. Ext. B1 itself postulates a tarwad called "Naduvathu tarwad". Dw. 2, the 8th defendant admitted, that Sankaran Nair was its karnavan, that he was living in Naduvathu house with other members of the tarwad, and that he was managing the tarwad properties. The plaintiff's case is that from December, 1888, during the life-time of Ravunni Nair, Sankaran Nair had been in de facto management of the tarwad properties. Exts. A 54, A 50, letters of the second defendant to the first defendant in the years 1922 and 1928 show, that the members of the tarwad had been looking up to Sankaran Nair to meet their educational expenses. Ext. A 48 dated the 22nd February, 1931, another letter of the second defendant says, that Sankaran Nair had relinquished management of the tarwad; it does appear that there was an interregnum, during which Sankaran Nair was not in management. But Ext. A 53, another letter of the second defendant dated the 4th May, 1932, states that Sankaran Nair had resumed management. The plaintiffs had relied on a letter Ext. Al bearing no date, purporting to be of Sankaran Nair, and said to be in the hand-writing of the second defendant, which states, that he had taken over management in Dhanu 1064 M. E., corresponding to December, 1888. There is intrinsic evidence in the letter, that it was of the year 1926 or 1927. It was also produced in evidence by the plaintiffs on the 1st August, 1949, and was marked as an exhibit, with an endorsement "admitted by consent" dated the 30th June, 1951, as in the case of a large number of documents marked on the same day. Our attention was not drawn to any rule of law or practice, on the strength of which the endorsement upon it was made. At the hearing before us, the plaintiffs-respondents', counsel invited our attention to the line of cases which have held, that when documents are allowed to be marked without objection, the mode of proof cannot afterwards be questioned. Our attention was not drawn to any rule of law or practice, on the strength of which the endorsement upon it was made. At the hearing before us, the plaintiffs-respondents', counsel invited our attention to the line of cases which have held, that when documents are allowed to be marked without objection, the mode of proof cannot afterwards be questioned. We are not called upon to decide this question in the abstract, as we are clear, that notwithstanding the endorsement, which in itself is of dubious import, all parties understood its true meaning, and conducted themselves, as if, the issue of the genuineness of Ext. Al was still open. Accordingly, Dw. 10 the second defendant denied his hand writing and Sankaran Nair's signature in Ext. Al, and was elaborately cross-examined upon the denial. Though we feel, that there is some resemblance in the hand-writing and signature with those which are genuine, and there is some degree of extraneous, corroboration to the contend of Ext. Al, we are not satisfied, that the proof tendered, is sufficient to establish its genuineness. 27. Pw. 2, the Amsom Menon for about thirty years, an independent witness, whose testimony can be accepted, swore that Sankaran Nair was meeting the expenses of the members, and managing the affairs of the tarwad, even when Ravunni Nair was alive. Dw. 3, the Karyasthan of Kanipayoor Mana deposed, that to his knowledge, the plaintiffs and defendants 1 to 6 were living with Sankaran Nair in Naduvathu house ever since the year 1918, and that he was meeting their expenses. The allotment of items 81 and 82 on "melchilavu" is a strong indication, that Ravunni Nair was not in active management of the tarwad. Ext. A40 dated, the 22nd June, 1916, is a letter by Sankaran Nair to the Collector, protesting against the grant of "melcharth" for Keyi's properties to one Krishna Iyer, and claiming them, as having been granted to him for the support of his "family", which in the context of the renewal deed, Ext. A39 in the names of Sankaran Nair, the first plaintiff and the third defendant, must be construed to mean his tarwad. 28. A few account books, Exts. B228 to B234, covering the period beginning with the year 1919 and ending with the year 1946, were produced by the appellants. A39 in the names of Sankaran Nair, the first plaintiff and the third defendant, must be construed to mean his tarwad. 28. A few account books, Exts. B228 to B234, covering the period beginning with the year 1919 and ending with the year 1946, were produced by the appellants. It was the agreed ease of all parties, that the income from the suit properties, perhaps with the exception of the paddy lands, was brought into these accounts. They relate to the expenses incurred for the maintenance of the tarwad members, for their education, and the conduct of ceremonies, and to other items of usual tarwad expenditure. At the same time, there are entries in them, of receipts of the personal income of Sankaran Nair, amounting, according to the learned judge's calculation, which was not questioned, to about Rs. 1,000/- for the period. It must however be noted that, Sankaran Nair had ceased to be a vakil's clerk long before the year 1919. The state of accounts, as they stand, presents a picture, not only of tarwad management, but also of a mixing up of the income from the properties including item 1, not to mention other items which as stated above, may be reasonably held to belong to the tarwad, and of Sankaran Nair's private funds. If so the law is as summarised by Sundara Iyer in his Treatise on Malabar Law, 1922 Edition, at page 179, that "Where there is a mixing up of the family funds and separate funds, the presumption is that the latter is merged in the former". As the Privy Council observed in Rajanikanta Pal v. Jaganmohan Pal, AIR. 1923 PC. 57, "the real question is what is the true conclusion to be drawn, when people united, by bonds of close relationship and living as a joint family draw for the joint family expenses out of a fund enriched by other contributions. If the members of a joint Hindu family confuse the incomes of their joint properties with their separate properties, their intention presumably is, that the properties acquired with such mixed up funds are for the joint family". According to the plaintiffs, Sankaran Nair had been keeping accounts from the very commencement of his management in the year 1888, as stated in Ext. Al. The evidence of Dw. According to the plaintiffs, Sankaran Nair had been keeping accounts from the very commencement of his management in the year 1888, as stated in Ext. Al. The evidence of Dw. 3, the karyasthan of the Kanipayoor Mana, is clear and positive, and is useful to show, that Sankaran Nair had been maintaining accounts at least from the year 1911; but the testimony of Dw. 2 is discrepant, as to when the account books were removed to Sankaran Nair's wife's house before he died, and is not reliable. On the showing of Dw. 3 then, there is good room for thinking, that the account books prior to the year 1919 have been suppressed. 29. More important than all this, is perhaps Sankaran Nair's dealing with properties standing in the names of other members of the 'tarwad. It may be remembered that Sankaran Nair had taken the renewal for item 1 in the year 1898, and had begun to deal with it, by mortgaging it, under Ext. B86 of the year 1913. The earliest dealing with respect to items 27 to 30 was under Ext. A23 of the year 1911, and with respect to item 38 was under Ext. B46 of 1900. The renewal for Keyi's properties was by Ext. A39 of the year 1908. The first dealing with respect to items 81 and 82 was by Ext. A14 of the year 1896 by Sankaran Nair and the first defendant, followed by renewal, Ext. A15 of the year 1898. Sankaran Nair took the renewal, Ext. A24 in the year 1903 for items 13 to 20, 25, 73 to 76 78 and 80 which were covered by the mortgage, Ext. B224, to the first defendant in the year 1894. The parties were agreed, that the income from the suit properties was collected by Sankaran Nair. If the theory of benami cannot stand it is reasonable to conclude, that in these dealings, he was acting in his representative capacity, as the karnavan of the tarwad. Even for Keyi's properties, the amount deposited to the credit of the first plaintiff and the third defendant, was withdrawn by Sankaran Nair, as admitted by Dw. 2, and was used for acquiring properties. Even for Keyi's properties, the amount deposited to the credit of the first plaintiff and the third defendant, was withdrawn by Sankaran Nair, as admitted by Dw. 2, and was used for acquiring properties. Though possession of Naduvathu property was obtained only in the year 1909, and the house was built at about that time, the evidence is clear, that other acquisitions had already been made in the names of different members of the tarwad, and the properties were all managed by Sankaran Nair, even during the life-time of Ravunni Nair, Ext. Al not being proved, the date on which the management commenced cannot be fixed with certainty or precision; but Ext. A10, the deed of renewal for item 1, and the entries as to possession in Exts. A9 and A10, establish, that such management commenced before the year 1898. 30. The next question to determine is, whether there was sufficient nucleus for making the acquisitions. Dw. 2, the eighth defendant, has deposed, that the acquisitions were made with the income of the suit properties. He also said, that though item 1 would yield Rs. 150/- per year at present, formerly the income was not more than Rs. 25/-; this appears to be a gross underestimate. He was born only in the year 1900 and his evidence is not of much value. Dw. 1, the first defendant seems to have overestimated this income, at Rs. 200/- per year. We consider, that the income may be fixed between Rs. 50/- and Rs. 100/- per year. The learned counsel for the appellants complained, that the court below had not made any allowance for the expenses of the tarwad. But Dw. 2 and Dw. 4 have admitted, that till the date of the exodus, all of them were living in Kelankandathu. Items 65 to 68 were acquired in the year 1887, admittedly before Sankaran Nair came into management. Though, as stated earlier, the total investment of about Rs. 10,000/- spread over 50 years, could well be accounted for by the tarwad nucleus as it originated, and as it grew with the passage of time, it is difficult to hold, that the investment of Rs. 1,150/-in the year 1893 for the acquisition of items 35 and 36 under Ext. B235, could be so accounted for. Considering the burden of proof on the plaintiffs, we also think, that items 41 to 46 covered by Ext. 1,150/-in the year 1893 for the acquisition of items 35 and 36 under Ext. B235, could be so accounted for. Considering the burden of proof on the plaintiffs, we also think, that items 41 to 46 covered by Ext. B67 might, also be similarly acquired without the aid of the nucleus. But we do think, that the income from item 1, was sufficient for the acquisition under Ext. B224 in October, 1894, for Rs. 250/- in the name of the first defendant & also for the later acquisitions. We therefore cannot find our way to accept the contention of the learned counsel for the appellants, that there was no adequate nucleus for making the acquisition under Ext. B224, and the later acquisitions. 31. It is no doubt true, that Sankaran Nair had been employed as a vakil's clerk for some time; the statements of the witnesses are various, as to the duration and the nature of his activities, and it is sufficient to refer to what Sankaran Nair had said about himself. In Ext. B226, Sankaran Nair's deposition in the suit of 1916, he said, that he was vakil's clerk for the past one year, before that he was karyastha for five or eight months, and before that period he had been a vakil's clerk for about twenty years, and admitted, that for some years he was without employment. Though there is no clear evidence as to his income, and Dw.1 cannot, as contended, be deemed to have admitted, that it was about Rs. 30/- per mensem during the whole period of his employment as vakil's clerk, there is evidence, that during his early days, he had subscribed for a few kuries, the capital of which, however, was not large. It is unnecessary to go into this, once it is established that there was adequate nucleus, from which the tarwad could have acquired the properties; if so, the burden of proof is on the appellants to prove, that he used his private funds to acquire them. 32. It remains to formulate the conclusions, which may be reached, on the theory of an adequate nucleus for making the acquisitions. 32. It remains to formulate the conclusions, which may be reached, on the theory of an adequate nucleus for making the acquisitions. As already stated, items 65 to 68, items 35 and 36 as they were originally acquired, and items 41 to 46, could not be held to belong to the tarwad, though for the reasons stated, item 35 must be deemed to be partible property now, and item 36 had been alienated and a fresh title had been acquired under Ext. B31, which must enure to the tarwad. The subsequent acquisitions made from time to time, in the name of Sankaran Nair, and of the different members of the tarwad, with the exception of items 57 to 59, 61 to 64 under Ext. B172 of 1904, and of 69 to 71 under a document of 1904, with respect to which, as remarked earlier, their is special evidence to the contrary, must all be held to belong to the tarwad, on the hypothesis of a sufficient nucleus. This view derives support from the tentative conclusions reached already, so far as items 1, 21 to 39, 52 to 56, 60, 81 and 82 are concerned, based on the special considerations applicable to them, and accords with the opinion expressed earlier, regarding the character of items 13 to 20, 25, 27 to 34, 38, 73 to 76, 78 and 80 to 82 based on the documents of title with respect to them. Of the items now found to belong to the tarwad on the basis of a nucleus, items 1 to 30, 35, 37 to 39, 47 to 49, 57 to 59 and 72 to 82 had been mingled in the several dealings which have been considered. It may also be recalled, that items 32 to 34, 40 & 47 to 51 had been acquired with the aid of other properties. We hold that all the items of immovable properties, except items 41 to 46,57 to 59 and 61 to 71 belong to the tarwad, and are partible. 33. The evidence has revealed a change in the attitude of Sankaran Nair towards the members of the tarwad from about the year 1930. The learned Subordinate Judge seemed to think, that this manifested itself even in the year 1926; but the evidence is not conclusive. In the years 1930 and 1931, Sankaran Nair executed the two assignments. Exts. 33. The evidence has revealed a change in the attitude of Sankaran Nair towards the members of the tarwad from about the year 1930. The learned Subordinate Judge seemed to think, that this manifested itself even in the year 1926; but the evidence is not conclusive. In the years 1930 and 1931, Sankaran Nair executed the two assignments. Exts. B178 and B179 for items 52 to 71, with recitals of consideration in them which could not bind the tarwad; in the year 1931, he assigned item 35 to the first defendant, also with questionable recitals, as if to enlist his sympathy. Before us, though the learned counsel for the appellants made an attempt to establish the binding character of Exts. B 178 and B 179 as against the tarwad, he soon gave up the attempt, and rightly, we think, agreed, that they can be supported only on the footing that the properties did not belong to the tarwad. It has to be stated, that items 52 to 71 were sold in execution of a decree against the tenth defendant and Sankaran Nair, when the latter's daughter the 14th defendant purchased them, and the first defendant took delivery of possession on her behalf. It may be mentioned incidentally, that the first defendant had been changing his front often, perhaps after the assignment in his favour, and shifting his case in this litigation itself, and had proved himself to be not reliable. The execution proceedings referred to above have no validity as against the tarwad. In view of the change, which had come over Sankaran Nair, in his relations with the tarwad members, we are not prepared to attach much importance to the self-serving statements in Exts. B37 and B31 of the years 1935 and 1943, that the properties were his self-acquisitions. On the finding recorded earlier, Exts. B178 and B179 and the purchase by the fourteenth defendant in execution of the decree, are valid so far as they relate to items 57 to 59 and 61 to 71. 34. The learned counsel for the appellants invited our attention to the fact, that several alienations were made by Sankaran Nair, all by himself, though of properties not in suit; these were considered by the learned Subordinate Judge in Para.61 of his judgment. 34. The learned counsel for the appellants invited our attention to the fact, that several alienations were made by Sankaran Nair, all by himself, though of properties not in suit; these were considered by the learned Subordinate Judge in Para.61 of his judgment. The necessity or benefit to the tarwad, if any, on account of these alienations and their validity or binding effect on the tarwad, had not been the subject of investigation. What was emphasised chiefly was, that the tarwad members were not associated with them, and that the alienees were conscious, that the properties did not belong to the tarwad. Sundara Iyer in his Treatise at page 62 summarised the law as laid down by the earlier decisions of the Madras High Court in these terms: "In the case of absolute sales, no definite rule can yet be said to have been laid down. The tendency of the Madras High Court appears to be in favour of putting absolute sales on the same footing as limited alienations, and to hold that where the sale is necessary or beneficial, it is valid, although the anandiravans of the tarwad may not consent to the sale." The circumstances relied on, are not therefore decisive; it does not also matter, for the present purpose, that other properties of the history of which we have no information, belonged to Sankaran Nair absolutely. 35. It would appear that Sankaran Nair had executed a will, Ext. B132 in the year 1916, by which he made a disposition of items 47 to 49 in favour of his wife and children, and bequeathed the remainder of his properties without specifying them, to the tarwad. Afterwards items 40, 50 to 56 and 60 were acquired. By a second will, Ext. B133 of the year 1930, he bequeathed items 40, 50 & 51 additionally to his wife and children; this was registered at Kottapadi, about 31/2 miles away from the Chavakat Sub-Registry Office within whose jurisdiction the suit properties are situated. Ext. B1, the last will of the year 1944 was registered at Ottapalam, a few miles away from Chavakat, by which he made the dispositions enumerated at the commencement of this judgment. No inference adverse to the plaintiffs can be drawn from these wills. 36. The items of properties which were bequeathed to the tarwad by the will, Ext. Ext. B1, the last will of the year 1944 was registered at Ottapalam, a few miles away from Chavakat, by which he made the dispositions enumerated at the commencement of this judgment. No inference adverse to the plaintiffs can be drawn from these wills. 36. The items of properties which were bequeathed to the tarwad by the will, Ext. B1, have now been found to belong to the tarwad. In this view, the contention, that if the will is not cancelled, the plaintiffs are precluded by their conduct in instituting this suit from claiming under it, and that they must be put on their election, to adopt one of the two courses open to them, does not arise for consideration. In the result, subject to the declaration, that items 41 to 46, 57 to 59 and 61 to 71 do not belong to the tarwad and are not partible, and that Exts. B178 and B179, and the purchase by the fourteenth defendant in execution of the decree are valid and there shall be no liability for mesne profits, so far as the items aforesaid are concerned the decree appealed against is confirmed in other respects. The appeals are disposed of as above, the parties shall bear their costs in this court.