JUDGMENT S. Velu Pillai, J. 1. The respondents in the two appeals are holders of two decrees for money obtained against the assets of Jathavedan Namboodiripad. On his death, during the pendency of the suit, the present appellant, who is a junior member of his illom was impleaded as the 6th defendant. The right of Jathavedan Namboodiripad under a mortgage in his name evidenced by Ext. I dated the 17th Mithunam, 1094, was attached in execution of the two decrees, when the appellant preferred claims on the ground, that it belonged to his illom. The claims were rejected by the execution court as well as by the lower appellate court. Both the courts below have held that the mortgage right did not enure to the illom, but belonged exclusively to Jathavedan Namboodiripad. 2. The material finding being concurrently against the appellant, his learned counsel pressed the contention, that the presumption of law in respect of an acquisition standing in the name of a member of the illom, has not been given effect to by the lower courts. I am satisfied, that this contention cannot be sustained. 3. On the 7th Vrichigom 1092 an udampadi was executed by the members of the illom, by which Jathavedan Namboodiripad was authorised to manage illom properties in specified desavazhies in the former Travancore State, while Tharathan Namboodiripad, also a member of the illom, was authorised to manage the properties in the former Cochin State as well as in one of the desavazhies of the former Travancore State. On the strength of this, it was contended, that Jathavedan Namboodiripad was constituted a manager of the illom in respect of the properties committed to him. The next step in the argument was, that he had sufficient nucleus in his hands, out of which the mortgage right under Ext. I could have been acquired for a consideration of Rs. 1,950/-. The law as regards the presumption applicable to acquisitions in such cases, has been authoritatively laid down by the Supreme Court in Sreenivas Krishna Rao Kango v. Narayan Devji Kango, AIR 1954 SC 379 , and it is unnecessary to refer to other cases decided by the Travancore-Cochin High Court, which were also cited at the Bar.
1,950/-. The law as regards the presumption applicable to acquisitions in such cases, has been authoritatively laid down by the Supreme Court in Sreenivas Krishna Rao Kango v. Narayan Devji Kango, AIR 1954 SC 379 , and it is unnecessary to refer to other cases decided by the Travancore-Cochin High Court, which were also cited at the Bar. The law has been stated by the Supreme Court in the aforesaid case, 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 burden rests upon any one asserting that any item of property was joint, to establish the fact. But where it is established, that the family possessed some joint property, which from its nature and relative value, may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self acqusition, to establish affirmatively, that the property was acquired without the aid of the joint family property". It is necessary for the appellant to prove, with reference to the nature and relative value of the joint property, the sufficiency of the nucleus for the acquisition. It is on this point, that the appellant has failed according to the lower courts. 4. The sum total of the argument of counsel for the appellant comes only to this, that a large number of desavazhies in the former Travancore State have been mentioned in Ext. II, with reference to the properties, entrusted to Jathavedan Namboodiripad for management, that a kanam right had been sold by him for a consideration of 12,000 odd Rupees after the date of Ext. II, and before the date of Ext. I, and further, that under Ext. XIV, a sum of Rs. 2, 000/- had been received by Jathavedan Namboodiripad. 5. The mere mention of a number of desavazhies, furnishes no index as to the nature and relative value of the rights of the illom, accruing from those desavazhies. For aught we know, the income may consist of jenmi's dues from the tenants. There is no indication in the evidence, as to the income from the desavazhies or as to the nature or extent of the properties of the illom therein. On the contrary, the inferences which may be drawn from certain provisions in Ext.
For aught we know, the income may consist of jenmi's dues from the tenants. There is no indication in the evidence, as to the income from the desavazhies or as to the nature or extent of the properties of the illom therein. On the contrary, the inferences which may be drawn from certain provisions in Ext. II are adverse to the appellant. Only a sum of Rs. 10/- per mensem was made payable to the first party in Ext II, the seniormost member of the illom, who was till then the manager of the family, for his maintenance, and a sum of Rs. 50/- per mensem alone, was set apart for the expenses of the illom. This gives an insight into the financial condition of the illom. Out of the income from the properties by way of pattom, michavaram, Onakazcha, etc., certain ceremonies and festivals in temples had to be attended to. As observed, it is not permissible to infer from the mention of the desavazhies alone, that Jathavedan Namboodiripad had sufficient nucleus in his hands. 6. The document evidencing the sale of the kanom right for 12,000 odd Rupees, was not produced on behalf of the appellant, although Ext. XIV, another document, had been filed. The appellant admitted, that the debts of the illom at about that time, amounted to Rs. 20,000/-. It has been recited in Ext. II, that the debts of the illom, had been enumerated and classified in three lists, A, B and C. These lists must be in the possession of the members of the illom. The provision in Ext. II was, that Jathavedan Namboodiripad could by himself alienate specified rights of the illom, to clear off these debts. No other alienation by Jathavedan Namboodiripad was permitted, except with the concurrence of the other members of the illom. It is a reasonable inference to make, that the sale of the kanom right for over 12,000 odd Rupees was in pursuance of the provisions of Ext, II for the discharge of debts due from the illom. In the lower court, counsel for the appellant seems to have advanced a contention, that the sum of 2,000 odd Rupees obtained by Jathavedan Namboodiripad under Ext. XIV might have been made use of by him for acquiring the mortgage right, but this is to ignore the plain recitals in Ext.
In the lower court, counsel for the appellant seems to have advanced a contention, that the sum of 2,000 odd Rupees obtained by Jathavedan Namboodiripad under Ext. XIV might have been made use of by him for acquiring the mortgage right, but this is to ignore the plain recitals in Ext. XIV, which indicate, that specific debts were to be cleared off with the money so obtained. The appellant's counsel has not therefore succeeded in establishing, that even the funds realised under the two transactions, were available for making the acquisition. On this basis, the courts below cannot be found fault with, for the approach they made towards the decision of the controversy. No foundation has been laid by the appellant, for drawing a presumption in his favour. 7. The courts below have also adverted to other considerations, which lend support to the view they have taken. It is unnecessary to canvass these, in disposing off this Second Appeal, beyond observing, that no exception can be taken to the reasoning so adopted. It follows therefore, that there is no ground for interference with the concurrent findings of the courts below. These appeals are therefore dismissed with costs.