Judgment :- 1. This is an appeal from the decree dismissing O. S. No. 33 of 1951 of the Additional Subordinate Judge's Court of Trivandrum. Plaintiffs 1 and 2 are the appellants. 2. The facts necessary for the decision of this case may be stated. The plaintiffs and defendants 10 to 20 and 32 to 35 are members of an Ezhava sub tarwad. Besides these, there were 18 other members in the sub tarwad on the date of suit. The members of the sub tarwad are the descendants of one Chakki Kali who died in the year 1032. Her husband was Kunchena Narayanan who died in 1069. They had four children, Narayanan Krishnan, Narayanan Velayudhan, Kali Kali and Kali Nagaru. Of these, Kali Kali died without issue. The members of the sub tarwad are the descendants of Kali Nagaru. Narayanan Krishnan who died on 16-6-1113 had executed a will Ex. T dated 2-1-1931 (13-5-1106) bequeathing properties to his wife and children. He had married thrice and two of them survived him. Defendants 1 to 5,6 to 9 and 21 to 24 are his descendants by the first marriage. The 10th defendant is the second wife and defendants 11 to 20 are his children and grand children by that marriage.. His third wife is the 25th defendant and defendants 26 to 29 are her children. The will Ex.T dealt with 23 items of property. According to the plaintiffs; these properties were acquired by Narayanan Krishnan with the surplus income of the tavazhi properties, and he was therefore incompetent to dispose of the same in favour of his wife and children. Their case is that the tavazhi had some ancestral properties besides which it got some property on the death of Kali Narayanan. His properties were, divided under Ex.J dated 26-9-1069 between his Marumakkathayam and Makkathayam heirs. Similarly, after Narayanan Velayudhan's death in 1094, there was a partition deed Ex. G dated 3-6-1095 under which also the tavachi got immovable property and money. According to the plaintiffs the tavazhi had a surplus income of Rs. 500A-per year in those (days Narayanan Krishnan is alleged to have been the karanavan and manager since 1057 when he is stated to have attained majority. G dated 3-6-1095 under which also the tavachi got immovable property and money. According to the plaintiffs the tavazhi had a surplus income of Rs. 500A-per year in those (days Narayanan Krishnan is alleged to have been the karanavan and manager since 1057 when he is stated to have attained majority. It is the plaintiffs Case that the tavazhi had a right over items 24 to 28, the equity of redemption over which was purchased by Narayanan Krishnan in the names of defendants 25 to 29 with tarwad funds. Similarly items 31 and 32 are stated to have been purchased by him in the name of 5th defendant. The suit was for a declaration that the plaint properties belonged to the tavazhi, for cancellation of Ex.T and a further declaration that items 24 to 28 and 31 and 32 were acquired with the tavazhi funds for recovery of these items from the defendants who were in possession with mesne profits, for recovery of Rs. 2056/-with interest from defendants 1 to Sand their properties, and Rs.1,500/ with interest from the 5th defendant and their properties, and for recovery of the various amounts collected by defendants 1 to 24 on the strength of Ex. T 3. Defendants 1, 5 and 10 filed a joint written statement. Their main contentions were that Narayanan Krishnan was not in possession of the tavazhi properties that he never assumed management of those properties which remained in the possession of his mother was acting as manager that the tavazhi had no surplus income for making acquisitions but that from early time Narayanan Krishnan who had lucrative contract work was earning money and acquiring properties by his own efforts and that the items dealt with under Ex.T belonged to Narayanan Krishnan alone. They further contended that items 31 and 32 were not purchased by Narayanan Krishnan and that the 1st defendant provided funds for the acquisition of the same. There wag an earlier suit O. S. No. 113 of 1106 by the members of the tavazhi for cancellation of a gift deed executed by Narayanan Krishnan in respect of properties which were claimed by the tavazhi on identical grounds. That suit was dismissed by the trial court as well as the High Court of Travancore and it was contended that the decision operated as res judicata. That suit was dismissed by the trial court as well as the High Court of Travancore and it was contended that the decision operated as res judicata. According to these defendants the will was valid and was not liable to be set aside. Defendants 25 and 27 to 29 filed a separate written statement raising, more or less the same contentions and further contended that item 24 to 28 were purchased by the 25th defendant with her own funds. It was also urged that if Narayanan Krishnan had any right to these items such right was.barred by limitation and adverse possession. The 31st defendant was an alienee of item No.10. He contended that that item was the self acquisition of Narayanan Krishnan. 4. The trial court found that the suit was not barred by res judicata or limitation, that all the items were acquired by Narayanan Krishnan with his own funds and that the tavazhi had no right to the same. The suit was accordingly dismissed. 5. Before considering the main question we may dispose of some of the other points. The plea of res judicata was not pressed by the contesting defendants in the court below or here. The question of title to items 24 to 28 was covered by issue No. 4 in the case. The plaintiffs' case is that Narayanan Krishnan purchased those items in the names of his wife & children with the surplus income of the tavazhi properties, or in other words, that the title deeds in respect of which were taken by Narayanan Krishnan, benami in the names of others. This is a point on which the burden of proof is heavy on the plaintiff. The sole evidence on the point consists of the testimony of the 1st plaintiff who has no direct knowledge about the transactions. Items 24 to 28 were purchased under Ex. XXXV in 1079 and items 29 and 30 in 1092. The plaintiff was only 35 years old when he was examined in 1955 and he was not even born on the dates of acquisition of these items. The respective persons in whose names the property stands have all along been paying the tax and the tax receipts were produced in the case. There is no evidence that Narayanan Krishnan was ever in possession of these items. The respective persons in whose names the property stands have all along been paying the tax and the tax receipts were produced in the case. There is no evidence that Narayanan Krishnan was ever in possession of these items. The members of the tavazhi, senior in age to the 1st plaintiff, who could have given better evidence were not examined. We therefore confirm the finding of the court below that the plaintiff's case regarding items 24 to 32 must fail. 6. The next question for consideration is whether Narayanan Krishnan acquired items 1 to 23 with tarwad funds. This has to be decided in the light of the decisions of the Supreme Court in Srinivas Krishna Kango v. Narayanan Devji Kango (A.I. R.1954 S. C 379) and Mallasappa Bandeppa Desai v. Desai Mallappa alias Mallesappa (A. I. R.1961 S. C. 1268). In the earlier case the Supreme Court followed the dictum of the Privy Council in Appalaswamy v. Surianarayana Murthy (A. I. R.1947 P. C. 189) which was in these terms: "The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon 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". In the latter case it has been held that where a manager claims that any immovable property has been acquired by him with his own separate funds and with the help of the joint family funds of which he was in possession and charge, it is for him to prove, by clear and satisfactory evidence, his plea that the purchase money proceeded from his separate funds. It was further held that where a member of a joint Hindu family blends his self acquired property with property of the joint family, either by bringing his self acquired property into a joint family account or by bringing joint family property into his separate account, the effect was that all the properties so held became joint family property. These principles are applicable to persons governed by Marumakkathayam law and have been followed by this court in other cases. 7. Counsel for the appellants had a complaint that although it was held that the decree in O. S. No. 113 of 1106 would not operate as res judicata, the learned judge relied on it for entering findings adverse to the plaintiff. Some passages in the judgment might support this contention. Narayanan Krishnan was examined in this case and as he was dead at the time of the present suit his deposition can be made use of in this case. We will ignore the conclusions arrived at in O. S. No. 113 of 1106 and decide the case on the evidence available including the deposition of Narayanan Krishnan in the earlier case. 8. It was argued that in considering the question whether the income of the tarwad is sufficient to provide a substantial nucleus for the acquisition of properties, the court has to decide the question, taking into consideration the expenses for the maintenance of the family adopting a standard of rigid economy and thrift. Reliance was placed on the decisions of Madhavan Nair J. in A. S. No. 475 of 1957 extracted in another decision reported in 1962 K. L. J. 943. The relevant passage runs as follows: "It may be that in the hands of a spend thrift this income would have been next to nothing. But in the hands of a thrifty or extra-thrifty man it can give rise to acquisitions. Ninety percent of the acquisitions of the middle class families, have arisen out of the acquirer's thrifty habits rather than out of a surplus in the income that compelled accumulation and resulting acquisitions. It is proverbial that a person who neglects the penny can seldom save the sovereign. Many a person earns by courting all sorts of miseries of penury suffering many disrespects, and seeking their delight only in counting coins and reading documents of title. It is proverbial that a person who neglects the penny can seldom save the sovereign. Many a person earns by courting all sorts of miseries of penury suffering many disrespects, and seeking their delight only in counting coins and reading documents of title. Sufficiency of nucleus therefore must be understood as resources out of which it is not impossible for a man of thrifty habits to make the acquisitions, and not means sufficient for acquisitions in the bands of a person who makes liberal allowance for his own comforts." We do not think this is a proper standard to be adopted. Subject to the availability of funds, a karanavan is bound to maintain the members of the tarwad, consistent with the status of the tarwad. In addition to the maintenance of the members there are invariably marriages to be conducted and other ceremonies to be performed. This does not of course mean that a karanavan can dissipate tarwad funds because funds are available. It has also to be remembered that the junior members are not entitled to call upon the karanavan to account for the income of tarwad properties. They are entitled to demand that they be maintained that according to the status of the tarwad and the availability of funds. As pointed out by the Supreme Court, the question whether the income of a family is sufficient to leave a surplus is a question of fact in each case. There are some other aspects also to be considered in deciding this question. A karanavan may or may not be in possession of the properties of the tarwad. If the income does not come into his hands it cannot be said that tarwad funds are available for him to make acquisitions. Again, the karanavan may be engaged in activities which may bring in a substantial income for himself. 9. Though the plaintiffs' case is that Narayanan Krishnan became the karanavan of his tavazhi in 1062, there is unmistakable evidence that he was de jure karanavan ever since he attained majority in the year 1054. The plaintiffs admit that from the year 1070 Narayanan Krishnan was living separately and that the other members continued to reside in Pottakuzhi Purayidom which they got in partition of the main tarwad. Narayanan Krishnan is seen to have purchased a piece of land Odanvilagom, in 1067, under Ex.PI. The plaintiffs admit that from the year 1070 Narayanan Krishnan was living separately and that the other members continued to reside in Pottakuzhi Purayidom which they got in partition of the main tarwad. Narayanan Krishnan is seen to have purchased a piece of land Odanvilagom, in 1067, under Ex.PI. He states in his deposition Ex.LXXXII in O.. No. 113 of 1106 that he was residing at Odanvilagom from the year 1067 till 1108 when he came back to reside at Pottankuzhi. Although he was entitled to manage the tavazhi from 1054 it is seen that his mother was really functioning as the manager of the tavazhi. The pattas for the tarwad property stood in her name. Exx.A, B& C show that S.Nos.1124,1125 and 1125 stood in her name even at the time of settlement which took place several years after Narayanan Krishnan attained majority. Ex. D shows that the patta for another item of property stood in the joint names of. herself and her sister Chakki Kurumba and the latter's children. The partition in the main tarwad took place in 1070 by means of two documents Exx q and R. Narayanan Krishnan's mother conveyed 40 cents out of Pottankuzhi Purayidpm to Chacki Kurumba and her branch and under Ex. R she got 12 cents of paddy field in exchange. Ex. R was in favour of Chacki Kali alone even though Narayanan Krishnan should have figured as Karanavan of his tavazhi. Again there is a sale deed Ex. K taken by Chacki Kali in 1073. This admittedly is tavazhi property but Narayanan Krishnan does not figure in this transaction either. This clearly shows that Narayanan Krishnan's case in Ex.LXXXII that be he was away from the family that he was not in management of the tavazhi property and that his mother and other members were looking after such properties must be correct. 10. There is no satisfactory, evidence in this case to show the income of these properties. Narayanan Krishna deposed in Ex. LXXXII that there were 9 members in the tavazhi at that time and that the income was insufficient even for the expenses of the tavazhi. The 1st plaintiff who was not even born at at time cannot give useful evidence on that point. It has there fore to be held that till 1070 there was not sufficient income to leave a surplus for the acquisition of the propertiets. The 1st plaintiff who was not even born at at time cannot give useful evidence on that point. It has there fore to be held that till 1070 there was not sufficient income to leave a surplus for the acquisition of the propertiets. Till partition in 1070 Narayanan Krishnan was a junior member of the tarwad and it cannot be said that the income of the tarwad properties could have been in his hands. Item No. 15 was acquired under Ex.XXIV in the year 1060. This was long before Exx. Q and R.This item cannot therefore be tarwad property. 11. The next occasion when the tavazhi got some property was after the death of Kunjena Narayanan. His properties were divided between his. makkathayam and marumakkathayam heirs under Ex. J dated 26-9-1069., The plaintiffs tavazhi got only 70 cents of land under Ext. G. There is no evidence about the income of this property and it is admitted that Narayanan Krishnan Was residing separately at that time. The income could not have come into his hands. 12. The tavazhi obtained some more properties under the partition under Ext.G. Narayanan Krishnan died and there was a partition of his assets between, his makkathayam and marumakkathayam heirs. Ext.G is the partition deed dated 3-6-1095. Between 1070 and 1095 some properties were acquired, and what we have stated earlier applies to such acquisitions also. There is no evidence that the income reached Narayanan Krishnan's hands or that it was sufficient to leave a substantial make these acquisitions. Items Nos. 8, 22, 23, ~~~ ~ and 9 were acquired during this period. Of these, certain special considerations arise in the case of item No. 8 which we will deal with separately. As regards the other items it has to be held that the same are not tavazhi properties. 13. Some properties were acquired after the date of Ex. G. These are items 2,14,17, 4,18, 7,16,19, 20, 21,11,12; and 13. The tavazhi having obtained some more property under Ex. G, the question arises whether the subsequent acquisitions can be treated as belonging to the tavazhi. As stated earlier, Narayanan Krishnan was living separately and carrying on his business during this period. According to his deposition (Ex. LXXXII) he was 'not taking the income of these properties. The tavazhi having obtained some more property under Ex. G, the question arises whether the subsequent acquisitions can be treated as belonging to the tavazhi. As stated earlier, Narayanan Krishnan was living separately and carrying on his business during this period. According to his deposition (Ex. LXXXII) he was 'not taking the income of these properties. By this time the number of members in the tavazhi had increased and there was not sufficient income for the education, marriages etc of junior members so that he had to help the tavazhi with his separate funds obtained from his contract work. We shall show later that by this time Narayanan Krishnan earned a lot by his exertions and that be was in a position to make these acquisitions with his own funds. For the present we shall content by saying that there is no reliable evidence that Narayanan Krishnan took the income of these properties. We can safely presume that the state of affairs till the death of his mother continued even thereafter. There is unmistakable evidence that his mother was managing the properties even after he became the Karanavan. It is also seen from Ex. G that several of the properties of Narayanan Velayudhan were outstanding on mortgage at the time of his death. 14. Narayanan Velayudhan had advanced some loans to others, and it is alleged by the plaintiff that two of such debts were collected by Narayanan Krishnan. A debt amounting to Fs. 3,803/-(about Rs. 540) due from one Nilakanta Warrier was collected by Narayanan Krishnan, under Ex. H dated 15-10-1096. Another debt was due under a hypothecation bond executed by one Kunju Krishna Pillai. This is not mentioned in Ex. G. But it is seen that Narayanan Krishnan received Fs. 1400/- (Rs. 200) by assigning this bond under Ex. N dated 8-8-1100. Narayanan Krishnan's case in the earlier suit was that these were utilised for putting up buildings in Pottakuzhi Purayidom where there were none at the time of Exx. Q & R. He deposed in Ex. LXXXII that he had constructed buildings, dug wells and erected walls in that property at a total cost of Rs. 7,000/-. It is admitted that there are such buildings in Pottaknzhi Purayidom now. The plaintiffs admitted in para 6 of the replication that Narayanan Krishnan had put up a two-storeyed building in that property. LXXXII that he had constructed buildings, dug wells and erected walls in that property at a total cost of Rs. 7,000/-. It is admitted that there are such buildings in Pottaknzhi Purayidom now. The plaintiffs admitted in para 6 of the replication that Narayanan Krishnan had put up a two-storeyed building in that property. They further stated that the two other buildings were in existence even before that. Exx. Q and R show that there were no buildings in the plot which this tavazhi got under those documents. In view of the partial admission of the plaintiff and the fact that the plaintiffs had no direct knowledge on these matters, we are inclined to place greater weight on Narayanan Krishnan's testimony in Ex. LXXXII than that of pw.1. We are therefore unable to hold that Narayanan Krishnan made acquisitions in his name with funds obtained under Ex. G. 15. There is some evidence to show what the income of the property was at that time. O. S. No. 199 of 1951 was filed by 9 members of the tavazhi for maintenance. Ex. XXXIV is a copy of deposition of the 1st plaintiff in this case, who was the 8th defendant in that case. Ex. AE is a copy of the decree and Ex. AF, copy of the judgment in that case. It is significant to note that the maintenance claimed for each member was at the rate of Rs. 2 per month. This shows that the income of tavazhi properties which, according to the plaintiffs, must have enabled Narayanan Krishnan to acquire properties must have been negligible and could not have furnished a nucleus for the same. That suit was dismissed on the ground that Narayanan Krishnan had allotted tarwad properties to several branches for maintenance. This supports the defence case that Narayanan Krishnan was not taking the income of tavazhi properties. The 1st plaintiff further deposed in that case that the total income was only Rs. 400/ - per annum. Ex. XXXII is a copy of the plaint in O. S. No. No. 1215 of 1950 of the Munsiffs Court, Trivandrum in which one member of the tavazhi sued for partition. It is stated in that plaint that the annual income is Rs. 250/-. This further strengthens the defence case. The acquisitions after the date of Ex. Ex. XXXII is a copy of the plaint in O. S. No. No. 1215 of 1950 of the Munsiffs Court, Trivandrum in which one member of the tavazhi sued for partition. It is stated in that plaint that the annual income is Rs. 250/-. This further strengthens the defence case. The acquisitions after the date of Ex. G are items 2,14,17, 4, 18, 7,16,19, 20, 21, ~~~ ~~ and 13. Of these, items 19, 20, and 21 were acquired by Narayanan Krishnan under court sale in execution of the decree in O. S. No. 1677 of 1096 of the Trivandrum Munsiffs Court. Ex. XXII is the sale certificate. This decree was obtained by Narayanan Krishnan on the basis of a hypothecation bond taken by him in the year 1088 so that items 19, 20 & 21 do not fall in the category of properties acquired after 1095. As regards the other items we have already held that there could not have been surplus income after meeting the maintenance of the members. It is not possible under the circumstances to hold that these items acquired after 1095 belonged to the tavazhi 16. We have stated earlier that the case regarding item No. 8 would be considered separately. Narayanan Krishnan had purchased item No. 8 in revenue sale conducted for realisation of abkari dues from a stranger. Ex. IV is the sale certificate, dated 18-7-1085. The sale was for a sum of Fs. 16,000/- (about Rs. 2280/-). Subsequently a sale deed was executed by Narayanan Krishnan, Narayanan Velayudhan and their sisters and minor children of Nagaru on 14-7-1084 for Fs. 18,000/- (about Rs. 2570/-). The property sold admittedly belonged to the tavazhi. It is stated in Ex. F that out of the consideration of Fs. 18,000/-, 4,987 Fs. and odd had been received by Narayanan Krishnan earlier for depositing in the revenue sale. There is a statement in Ex. F that the purchase in revenue sale was on behalf of all the members including the minors. In view of this the contesting defendants cannot contend that this item belonged to Narayanan Krishnan alone. For the balance of consideration in Ex. F which was to be paid in cash the vendee had executed a hypothecation bond, Ex. S, on the same date for Rs. 800/-. This was discharged under Ex. Z dated 4-9-1085. Ext. Z is the receipt executed by Narayanan Krishnan. For the balance of consideration in Ex. F which was to be paid in cash the vendee had executed a hypothecation bond, Ex. S, on the same date for Rs. 800/-. This was discharged under Ex. Z dated 4-9-1085. Ext. Z is the receipt executed by Narayanan Krishnan. This has given rise to the argument that Narayanan Krishnan came into possession of tarward funds from this source. However Narayanan Krishnan had a case that a part of the sum was received by his brother Narayanan Velayudhan. There is some support for this in Ex. G. Whatever that be, there is ample evidence that Narayanan Krishnan had spent much more for the tavazhi than the amount that came into his hands. 17. Reference has also to be made to three other sources of funds alleged by the plaintiff. One is a sum. of Fs. 700/-obtained under a hypothecation bond, Ex. XXV, executed by Narayanan Krishnan for items 8 and 17. The other is the sum of Rs. 2,600/-alleged to have been obtained by sale of the property in Quilon which belonged to two branches of the original tarwad. This branch was to get Rs. 1,300/-. Ex. 0 is the sale deed in question. This was however set aside in a suit by junior members and Ex. LXXXIII is the copy of the judgment. The case in regard to this source must therefore fail. As regards the first, namely Fs. 700/-, this is too trivial a sum to be taken into account. The third item is a sum of Rs. 800/-alleged to have been obtained under a Chitty hypothecation bond, Ex. X, received by him along with his sister Nagaru. Ex. X shows that Nagaru was the subscriber in the Chitty and that Narayanan Krishnan joined only for the purpose of furnishing security. The mere fact that the karanavan helped the junior members by giving security of tavazhi property does not lead to the conclusion that the consideration was received by the karanavan. We are therefore unable to attach any weight to this part of the plaintiffs' case. 18. Till now we were not referring to the question whether Narayanan Krishnan had private source of income with which he could have made these acquisitions. There is ample evidence in this case on this point. He had begun to acquire properties even when he was a junior member. Ex. 18. Till now we were not referring to the question whether Narayanan Krishnan had private source of income with which he could have made these acquisitions. There is ample evidence in this case on this point. He had begun to acquire properties even when he was a junior member. Ex. LXX is a certificate obtained from the Sub Registrar's Office, Trivandrum. There are 5 items in Ex. LXX acquired before the year 1070. Ex. XLIX shows that two other items had been acquired by him before 1070. Exx. G, X, L, N, P, Y,12 to 21, 25, 27 to 31 and 52 to 67 show that Narayanan Krishnan was contractor at least from 1077 to 1100. The 1st plaintiff admitted this fact in his deposition. Exx. LI to LXVII show that he had been advancing fairly large sums to others on loan. This is also seen from Ex. LXX. He is also seen to have advanced over Rs. 10,000/- from 1084 to 1100 and acquired Rs. 16,000 -before 1084. Ex. LXXXII gives details of his financial position in those days. As against Ex. LXXXII there is only the uncorroborated testimony of the 1st plaintiff who has no direct knowledge on these matters. It is thus clear that Narayanan Krishnan had ample resources of his own. There is also evidence that he was spending large sums for the tavazhi even though he was living apart by construction of buildings, for the tavazhi, for marriage and other ceremonies in the tavazhi, defending criminal prosecutions against some junior members etc. Even if a small sum was obtained by him by sale or otherwise of the tavazhi property, he has accounted for much more than that. 19. It follows that the plaintiffs are entitled to succeed only in respect of item No. 8 in the plaint schedule. The decree of the court below requires modification only to this extent, and has to be confirmed in other respects. We accordingly allow the appeal so far as it relates to item No. 8 and dismiss the appeal is other respects. The plaintiffs are allowed to recover item No. 8 from the parties in possession. The court below will determine by a final decree the claim for mesne profits in respect of this item and further determine as to who are liable for the same. The plaintiffs are allowed to recover item No. 8 from the parties in possession. The court below will determine by a final decree the claim for mesne profits in respect of this item and further determine as to who are liable for the same. As the appellants have succeeded only in respect of a very small part of the plaint claim, we direct the appellants to bear their costs and pay three fourth of the costs of the contesting respondents (one set only).