JUDGMENT P. Subramonian Poti, J. 1. The appellant in this Second Appeal is the plaintiff in a suit for partition of properties of a marumakkathayam tarwad. The plaintiff claims 1/16th share in plaint A and D schedule immoveable properties, B schedule moveables, and B-1 schedule kuri amounts. The D schedule items are admitted to belong to tavazhi and are not the subject-matter of this Second Appeal. A schedule items 34 to 41 are also not the subject-matter of this Appeal as the plaintiff has no case now that these items belong to the plaintiff's tavazhi. The only items with which this Second Appeal is concerned are A schedule items 1 to 25, 33, items 21 to 26, 27 to 29 and 32. The lower appellate court granted relief to the plaintiff in regard to plaint items 30, 31 and 33 of A schedule, and that is challenged in the cross-appeal filed by respondents 1 and 16. 2. Plaintiff and defendants 1 to 15 are members of an undivided marumakkathayam tarwad they being the descendants of one Lekshmi Amma alias Ammalu Amma. (Since there is a main tarwad of which the plaintiff, defendants 1 to 15 and others are members and I may have to refer to that in the course of this judgment, for the sake of convenience I may refer to the said tarwad as the main tarwad and the tarwad consisting of plaintiff and defendants 1 to 15 as plaintiff's tavazhi). First defendant, the son of Lekshmi Amma, is the karanavan of plaintiff's tavazhi. Navu Amma was the common ancestress and she had five daughters, eldest of whom was the above said Lekshmi Amma alias Ammalu Amma. She is the mother of defendants 1 to 3. The main tarwad consists of the daughters of Navu Amma and their descendants. Plaintiff's tavazhi is composed of the members of Lekshmi Amma's branch namely Lekshmi Amma, her 3 children and the descendants of her daughters defendants 2 and 3. She is the mother of defendants 1 to 3. The main tarwad consists of the daughters of Navu Amma and their descendants. Plaintiff's tavazhi is composed of the members of Lekshmi Amma's branch namely Lekshmi Amma, her 3 children and the descendants of her daughters defendants 2 and 3. The case of the plaintiff is that Lekshmi Amma was the manager of the tarwad consisting of herself and her four sisters, that the tarwad had very little assets, therefore all the sisters of Lekshmi Amma were living with their husbands, that for the purpose of maintenance of her own tavazhi Lekshmi Amma had taken certain Lands on verumpattam and was cultivating such lands, and that until first defendant attained majority Lekshmi Amma was the manager and karanavathi of her tavazhi. It is further the case of the plaintiff that as soon as first defendant attained majority Lekshmi Amma and the first defendant together obtained a lease for items 1 to 20 and 33 under Ext. A-1 in 1933, for taking which they had to pay a premium of Rs. 1,000 and this amount was made up from out of the income of the tavazhi properties of Lekshmi Amma and also the share of income due to Lekshmi Amma's tavazhi from the main tarwad. The acquisitions of the other items in the plaint schedule are also mentioned, in the plaint, as having been made by utilisation of such funds. After the death of Lekshmi Amma in May 1961, Ext. A-38 partition deed was entered into between defendants 1 to 3 taking plaint schedule properties not as properties belonging to the plaintiff's tavazhi but as belonging to Lekshmi Amma and the first defendant. According to the plaintiff the said partition deed is not binding on the plaintiff and that he is therefore entitled to seek partition and recovery of 1 /16 share in the plaint schedule properties, his share being 1/16 by reason of there being 16 members in the tavazhi on the date of suit. Defendants 1 to 16 contested the suit, the 16th defendant being the wife of the first defendant, she having been impleaded since items 34 to 41 were acquired in the joint names of the first defendant and the 16th defendant. First defendant challenged the claim of the plaintiff to partition, on the ground, that items 1 to 20 and 33 taken on lease under Ext. First defendant challenged the claim of the plaintiff to partition, on the ground, that items 1 to 20 and 33 taken on lease under Ext. A-1 was obtained by Lekshmi Amma and the first defendant jointly, that the tavazhi had no interests in these items, that items 21 to 26 alleged to have been taken on oral lease by Lekshmi Amma alone were also not items over which plaintiff's tavazhi could have any interest, that items 27 to 29 were purchased by Lekshmi Amma alone in 1944 and that too was not available for portion and that item 32 was acquired under Ext. B-1 of 1941 by Lekshmi Amma and the first defendant with their separate funds, and that items 30 and 31 were acquired by Lekshmi Amma alone in 1949 with her separate funds. Defendants 2 and 3 filed written statements supporting the plaintiff. Defendants 4 to 15 also filed a joint written statement supporting the plaintiff. It may also be mentioned that in the written statement of defendants 1 and 16 the answer to Ext. A-1, which appears to be the main document the source of acquisition of which is in dispute between the parties, is that the premium for taking the document was not out of any tavazhi funds, that no tavazhi fund was available at that time, and that it was taken with the separate funds of Lekshmi Amma and the first defendant. It is further mentioned there that out of the sum required for taking Ext. A-1, Rs. 500 was contributed by Lekshmi Amma, who had savings on account of some milk trade carried on by her and the balance required was raised by taking a promissory note loan of Rs. 700 from D.W. 6 by executing the promissory note jointly with D.W. 4. The trial court dismissed the suit holding that with regard to plaint A, B and B-1 schedule plaintiff was not entitled to any relief. There was no dispute with regard to D-schedule items. The lower appellate court to which the plaintiff appealed modified the decree of the trial court by finding that with regard to items 30, 31 and 33 plaintiff was entitled to a share since these items were seen to have been acquired with funds which were available to the plaintiff's tavazhi and such funds were, utilised for such acquisition. The lower appellate court to which the plaintiff appealed modified the decree of the trial court by finding that with regard to items 30, 31 and 33 plaintiff was entitled to a share since these items were seen to have been acquired with funds which were available to the plaintiff's tavazhi and such funds were, utilised for such acquisition. In other respects it confirmed the decree of the trial court. The plaintiff has come up in appeal challenging the dismissal of the suit in regard to items 1 to 20, items 21 to 26, 27 to 29 and 32 in plaint A schedule. The earliest of the acquisitions which are claimed as acquisitions for which are claimed as acquisitions for the tavazhi is that under Ext. A-1 of 1933 for items 1 to 20 and 33 and if that is found to be acquired for the plaintiff's tavazhi, in regard to the acquisition of other items it may be said there was nucleus sufficient and available to enable a presumption to be raised in favour of the claims of the plaintiffs tavazhi. Therefore, the main question for consideration in this Second Appeal is about the character of the acquisition under Ext. A-1 dated 31st March 1933. 3. The case of the plaintiff in the plaint relating to the source for acquisition of Ext. A-1 lease in 1933 is that, funds of the tavazhi of the plaintiff was available and further; the income falling to the share of plaintiff's tavazhi out of the main tarwad properties was also available. Though it is the specific case of the plaintiff that, even before Ext. A-1, Lekshmi Amma and her tavazhi was possessed of properties obtained on lease, which have been cultivated by her tavazhi, no document has been produced in the suit showing that any such lease has been taken by Lekshmi Amma for her tavazhi nor is any particular item of property shown as taken on lease by Lekshmi Amma. As found by the trial court there is no reliable evidence in the case to assume that prior to Ext. A-1 acquisition Lekshmi Amma's tavazhi had been in possession of any properties from which any income could have been obtained. Therefore, the plaint allegations in so far they refer to such income remain unsubstantiated. As found by the trial court there is no reliable evidence in the case to assume that prior to Ext. A-1 acquisition Lekshmi Amma's tavazhi had been in possession of any properties from which any income could have been obtained. Therefore, the plaint allegations in so far they refer to such income remain unsubstantiated. The other source pleaded is the income from properties of the main tarwad, the share of income of which is said to have been available to Lekshmi Amma. No reference is made to any particular item of property which was enjoyed by the main tarwad, the sharer income of which was so available to plaintiff's tavazhi. But, in the evidence it has been attempted to be established that the main tarwad had taken on lease some 27.79 acres of paddy lands called 'Perapadam lands' which belonged in jenm to Parekkat Devaswom, and what has been attempted to be established is that Lekshmi Amma, being the de facto manager and Karanavathi of the main tarwad was in possession of these lands and therefore had the income of these lands. Though in the plaint the reference is to the share income from the main tarwad, in evidence there is no case that such income from the Perapadam lands was shared between the tavazhies and that any share of income so obtained by Lekshmi Amma's branch was available for acquiring Ext. A-1. On the other hand, the attempt appears to be that the entire Perapadam Lands was in the possession of Lekshmi Amma who was dealing with the same and therefore she had come into possession of funds. Certain facts which may be necessary to understand the contention of the parties may also be stated here. Navu amma's husband was one Achuthan Nair. It appears that Lekshmi Amma, the eldest daughter of Navu Amma, was living with Achuthan Nair in his house while her sisters were living with their husbands. Though the Perapadam lands were taken in the names of all the five daughters of Navu Amma, it is seen that later the daughters surrendered the said lands in favour of one Parukutty Amma, the second wife of Achuthan Nair. Though the Perapadam lands were taken in the names of all the five daughters of Navu Amma, it is seen that later the daughters surrendered the said lands in favour of one Parukutty Amma, the second wife of Achuthan Nair. circumstances relating to the taking of the documents for Perapadam lands and their surrender have been sought to be explained by the first defendant as in facting the fact that the daughters of Achuthan Nair were acting only as benamidars for Achuthan Nair and that even Kondath with regard to the Perapadam lands it was not as if the main tarwad had any independent possession at any time. Achuthan Nair had taken verumpattom of several lands and he was a man who was possessed of properties. 4. The main question which according to me arises in this Appeal and on the determination of which I can dispose of this Appeal are the following: (1) Whether plaintiff's tavazhi was possessed of properties which would have served as a nucleus for the karanavan or the person in management, for the time being, to acquire Ext. A-1 lease. (2) Whether, because of possession of such nucleus, a presumption would arise that acquisition by the first defendant and Lekshmi Amma were acquisitions for and on behalf of plaintiff's tavazhi. (3) Whether, even in the absence of proof of nucleus, a presumption that acquisitions in the name of a member of the tavazhi belongs to the tavazhi, if such member is shown to be the karanavan of the tavazhi de jure or de facto. (4) Even assuming that there is available nucleus of acquisitions to be made, since that would only raise an initial presumption that acquisition made by a karanavan de facto or de jure is acquisition for the tarwad, has such presumption been rebutted by evidence, in this suit. (5) Even assuming that the impugned acquisitions were made with the separate funds of Lekshmi Amma or the first defendant, have they to be treated as propertied available for the tavazhi by reason of the conduct of the acquirers? 5. Having posed the above questions I would now proceed to correct them. (5) Even assuming that the impugned acquisitions were made with the separate funds of Lekshmi Amma or the first defendant, have they to be treated as propertied available for the tavazhi by reason of the conduct of the acquirers? 5. Having posed the above questions I would now proceed to correct them. But, before dealing with them it is necessary to point out that really questions 1 and 2 which I have posed above may not arise at all if I find in answer to question No. 4 that the impugned acquisitions were made out of separate funds available to the acquirers. This is so because under the Marumakkathayam law (and the case is the same even under the Hindu Law) in the case of a karanavan there is only a presumption that acquisitions made by him are on behalf of the tarwad, if the tarwad is possessed of sufficient nucleus. This persumption is rebutted on the proof of availability of separate funds with the acquirers and further proof that such separate funds were utilised for such acquisitions. Once this is proved the question whether the tarwad had sufficient funds may not be material at all. In this case the first defendant has set up a definite case that the source of acquisition for Ext. A-1 was funds belonging to the mother Lekshmi Amma made by her own exertion by way of milk trade, and funds of the first defendant obtained by borrowing from D.W.6. This case appears to have been, as I will show in the course of this judgement, believed by the courts below which have found that the source of acquisition for Ext. A-1 is as pleaded by defendants 1 to 16 in their written statement. If so, the consideration of the question of nucleus may not be material unless it is open to the appellants to challenge the findings of the court below on the question of the source for acquisition of Ext. A-1 and such challenge is successful. I am afraid that in view of the fact that the findings on this aspect are concurrent it may not be open to them to challenge them. But whatever that be, since elaborate arguments have been addressed by counsel for both sides on the nucleus available for acquiring Ext. A-1 and such challenge is successful. I am afraid that in view of the fact that the findings on this aspect are concurrent it may not be open to them to challenge them. But whatever that be, since elaborate arguments have been addressed by counsel for both sides on the nucleus available for acquiring Ext. A-1 as well as other acquisitions which are impugned in the suit, I would go into these also herein. 6. Before I deal with the availability of nucleus I would rather deal with question No.3, since that relates to the contention of the plaintiff-appellant that even in the absence of proof of nucleus, any acquisition made in the name of a karanavan of a tarwad must be deemed to be that of the tarwad. The learned counsel for the appellant relies on the decision of the Supreme Court in Achuthan Nair v.Chinnammu Amma, A.I.R. 1966 S.C. 411 in support of this contention. According to him what has been laid down by the Supreme Court as the principle applicable in such cases is what is contended for by him. I am afraid if this is the principle of the decision this proposition will run counter to the well-settled principle with regard to the character of an acquisition by a karnavan of a Marumakkathayam tarwad. No doubt, the karnavan of such a tarwad, when he is in possession of properties belonging to the tarwad, that could have served as nucleus for the acquisition, may be presumed to act in the discharge of his duty, than in the furtherance of his own self interest. This may give rise to a presumption which is rebuttable. But the presumption would arise only on the showing of possession of properties by the tarwad, substantial if not ample, which could normally lead the court to presume that it was sufficient to form a nucleus for the acquisition made in the name of the karnavan. I would now consider whether the Supreme Court, in the above decision, has said anything against this principle or has taken a different view. The learned counsel brings to my notice the following passage in the decision of the Supreme Court: "A karnavathi or karanavan is a representative of the tarwad or tavazhi and is the protector of the members thereof. He or she stands in a fiduciary relationship with the members thereof. The learned counsel brings to my notice the following passage in the decision of the Supreme Court: "A karnavathi or karanavan is a representative of the tarwad or tavazhi and is the protector of the members thereof. He or she stands in a fiduciary relationship with the members thereof. In such a system of law there is an inherent conflict between law and social values, between legal incidents and natural affection, and between duty and interest. As the consort or the children of a male member, whether a karnavan or not, have no place in the tarwad. They have no right to the property of the tarwad. Whatever might have been the attitude of the members of a tarwad in the distant post, in modern times it has given rise to a feeling of unnaturalness and the consequent tendency on the part of the male members of a tarwad to divert the family properties by adopting devious methods to their wives and children. Courts have recognized the difference between a joint Hindu family uncer the Hindu law and a tarwad under the Marumakkathayam law in the context of acquisition of properties and have adopted different principles for ascertaining whether a property acquired in the name of a member of a family is a joint family property or the self-acquired property of the said member. Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law. But the said principle has not been accepted or applied to acquisition of properties in the name of a junior member of a tarward (Ananthiravan). It was held that there was no presumption either way; and that the question had to be decided on the facts of each case; see Govinda v. Nani, I.L.R. 36 Mad. 3C4; Dharnu Shettyv. Dejamma, A. I. R. 1918 Mad. 1367 Ahmad v. Manha Mammad Kunhi, A.I.R. 1926 Mad. It was held that there was no presumption either way; and that the question had to be decided on the facts of each case; see Govinda v. Nani, I.L.R. 36 Mad. 3C4; Dharnu Shettyv. Dejamma, A. I. R. 1918 Mad. 1367 Ahmad v. Manha Mammad Kunhi, A.I.R. 1926 Mad. 643 and Thath Amma v. Thankappa, A.I.R. 1947 Mad. 137. But it is settled law that if a property is acquired in the name of the karnavan, there is a strong presumption that it is a tarwad property and that the presumption must hold good unless and until it is Rebutted by acceptable evidence: see Chathu Nambiar v. Sekharan Nambiar, A.I.R. 1925 Mad. 430 (2); A.I.R. 1926 Mad. 643 and A.I.R. 1947 Mad. 137."t It is to the last sentence in the above extract of the judgment of the Supreme Court that the learned counsel would invite my attention and according to him the Supreme Court has observed that it is settled law that if the property is acquired in the name of the karnavan there is a strong presumption that it is tarwad property. What he would emphasise is that the Supreme Court has not chosen to qualify the statement by any reference to the availability of a nucleus for the tarwad and therefore whatever might have been the position, as well settled by earlier decisions, when the Supreme Court has so spoken it is not open to this Court to take a different view. I would read the decision of the Supreme Court and particularly the sentence in the extract which I have already noticed above in the light of what has been said earlier in the same paragraph. In referring to the acquisitions made by a member of a family it is said that the presumption that it is joint family property would arise on the proof that the family was possessed of sufficient nucleus or admission of that fact. This principle is referred to as a well settled principle. This presumption is said to be not applicable to the acquisitions in the name of a junior member of a tarwad, since in that case there would not be a presumption at all even if it is shown that nucleus was available. The reference to acquisition in the name of a karanavan immediately follows this. This presumption is said to be not applicable to the acquisitions in the name of a junior member of a tarwad, since in that case there would not be a presumption at all even if it is shown that nucleus was available. The reference to acquisition in the name of a karanavan immediately follows this. Reading it in the context in which it appears it quite evident to me that what their Lordships of the Supreme Court meant was not different man from what was understood to be the law and what this Court had occasion to hold in its earlier decisions. The Supreme Court did not lay down any principle contrary to the well-settled principles on this question. I may also point out that on the facts of that case also the construction given by the learned counsel for the appellant to the judgment to support the proposition canvassed by him does hot seem to be justified. The facts of the case show that in the case which was before their Lordships of the Supreme Court the tarwad was in fact possessed of nucleus. If any further support for the view taken by me here is necessary I need only point out that the three cases of the Madras High Court to which reference has been made by Subba Rao J. (as he then was) in that decision would also support what I have said above. In Ahmad v. Manha Mammad Kunhi, A.I.R. 1926 Mad. 643 the principle that there is a very strong presumption that property standing in the name of Karanavans belonged to the tarwad was justified for the reason that "they are in possession of the whole of the property of the tarwad and can deal with it as they like". Therefore it is the possession of the property of the tarwad that was the basis for the presumption as to the character of the acquisition in the name of the karanavan. M. Veeresalingam v. P. Kondayya,A.I.R. 1925 Mad. 430 is also a case where the tavazhi of which the karanavan, who made acquisitions in his own name, was in management was possessed of properties, necessarily leading to the presumption that acquisitions by him were for the tarwad. In Thatha Amma v. Thankappa, A.I.R. 1947 Mad. M. Veeresalingam v. P. Kondayya,A.I.R. 1925 Mad. 430 is also a case where the tavazhi of which the karanavan, who made acquisitions in his own name, was in management was possessed of properties, necessarily leading to the presumption that acquisitions by him were for the tarwad. In Thatha Amma v. Thankappa, A.I.R. 1947 Mad. 137 there is an elaborate discussion of the earlier case law on the question of character of acquisition by a karanavan. There again, it could be seen, that it was the possession of properties of a tarwad by a karanavan which justified the presumtion against him in regard to acquisitions in his name. Therefore, reading the decisions which have been referred to by the Supreme Court in support of the proposition that the acquisition of a karanavan is to be presumed as that of the tarwad I feel that I am justified in taking the view I have expressed above, in this judgment. 7. This Court had occasion to consider the character of the acquisitions by a karanavan in several decisions. I need only refer to the decision reported in Abhimanyu v. Kumaru, 1964 K.L.T. 1083. In paragraph 6 of that decision the principles bearing on this question, as laid down by the pronouncements of the Supreme Court in Srinivasa 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 have been noticed. In principle there is no difference between a presumption in regard to acquisitions by the manager of a joint Hindu family and that of a karanavan of a Marumakkathayam tarwad. The Privy Council in its decision in Appalaswami v. Suryanarayanamurthi, A.I.R. 1947 P.C. 189 referring to a case of acquisition by a manager of a joint Hindu family said: "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 is joint to establish the fact. 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 is 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."t In the decision in 1964 K.L.T. 1083 this Court held that the same principle as applied to the Joint Hindu family applies to persons governed by Marumakkathayam law. 8. My learned brother Krishnamoorthy Iyer, J. had occasion to notice the decision of the Supreme Court in A.I.R. 1966 S.C. 411 in the case Narayani Amma Kalliyani Amma v. Narayani Amma Lekshmi Amma, 1967 K.L.T. 637. My learned brother, after extracting the relevant passage from the decision in A.I.R. 1966 S.C. 411 applied the principle therein, assuming that the principle laid down by the Supreme Court was in line with the earlier decisions on the point and the Supreme Court did not intended to make any departure from the well settled view. No doubt, there is no discussion on this question, possibly because, the question was not raised in the form in which it was so raised before me by the learned counsel for the appellant. But this is seen to have been so raised and urged before my learned brother Madhavan Nair J. in an unreported case, S.A. No. 1291 of 1963. It is seen that in that case also the same approach, as was made by the appellant's counsel here, to the decision of the Supreme Court, was attempted Dealing with this Madhavan Nair, J. said: "I am strongly of the view that the last sentence in the above quote has to be read subject to the premise in Nair the earlier sentence therein "when it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition". It is a salient principle in the appreciation of a judicial dictum that it is understood only in the setting in which it occurs”secundum subjectam materiam-and not in isolation. It is a salient principle in the appreciation of a judicial dictum that it is understood only in the setting in which it occurs”secundum subjectam materiam-and not in isolation. In the circumstances I find no difficulty in holding that in respect of acquisitions by a karanavan of a tarwad in his name the presumption that such acquisition would enure for the benefit of the tarwad would arise only on the proof of sufficient nucleus being shown to be available to the tarwad. 9. Now I will proceed to consider the question of nucleus, which, according to learned counsel for the appellant, was available to Lekshmi Amma and the first defendant at the time Ext. A-1 was taken. The case now urged before me is, the availability of Perapadam lands for the main tarwad, which, according to the plaintiff, was being managed by Lekshmi Amma, the de facto karanavathi of the main tarwad. As I have already pointed out this is not the case that is pleaded in the plaint. There the source for acquisition of Ext. A-1 is referred to as the share of the income available to Lekshmi Amma's tavazhi, out of the properties of the main tarwad. I have already adverted to the fact that there is no evidence as to the other source pleaded in the plaint, namely, taking of lease by Lekshmi Amma of properties for and on behalf of her own tavazhi. The finding of both courts below on the question of availability of Perapadam lands are against the plaintiffs. In paragraphs 20 and 21 of the judgment of the learned Subordinate Judge it is held that the purchase of the mortgage in respect of the Perapadam lands must have been at the instance of Achuthan Nair, that even assuming that the entire income of these lands was available in the hands of Lekshmi Amma for and on behalf of the main tarwad, there could not have been any surplus for the acquisition of the properties under Ext. A-1 in her own name and that even if it was so available any acquisition made out of such income would not be acquisition of the plaintiff's tavazhi but would be of the main tarwad. A-1 in her own name and that even if it was so available any acquisition made out of such income would not be acquisition of the plaintiff's tavazhi but would be of the main tarwad. On this question the learned District Judge has found in paragraph 14 that the plaintiff's tavazhi had not been shown to have been possessed of sufficient funds to acquire kanom properties, that the transactions were for and on behalf of Achuthan Nair and that the plaintiff had not succeeded in showing that Lekshmi Amma's tavazhi had any substantial nucleus from out of which the plaint A schedule properties, items 1 to 20 and 33 could have been acquired. It is seen that in respect of this Perapadam lands one Rama Kurup had kanom. In 1920 he executed a usufructuary mortgage of it to one Muhammed Kani Rowther for Rs. 7,000 and took it back on lease. Subsequently he executed a Purakadam for Rs. 800 in favour of the same person. The mortgagee filed a suit, O.S. No. 210 of 1921 for realisation of the amount due under the mortgage and the Purakadam and pending that suit Rama Kurup executed Ext. B-4 in 1921, a second usufructuary mortgage to Achuthan Nair, father of Lekshmi Amma for Rs. 9,000. The cash that is seen to have been paid by Achuthan Nair on the execution of Ext. B-4 was only Rs. 332-9-10, the balance being reserved for payment to Rowther. It is also seen that Rama Kurup who thus executed a usufructuary mortgage in favour of Achuthan Nair took the property back on lease from Achuthan Nair. It is further seen that Achuthan Nair did not discharge the encumbrance of Rowther and therefore the property was sold in court auction in the mortgage suit O.S. No. 210 of 1921. It was purchased by Rowther (it is seen from the Judgment that it was purchased by Lekshmi Amma and her sisters which does not seen to be quite consistent with the statements in Ext. B-6). Rowther is seen to have sold the property to Lekshmi Amma and her sisters under Ext. B-6 in 1922 for Rs. 7,000. The consideration for this is seen to be Rs. 1,000 paid in cash and Rs. 6,000 raised by way of executing a hypothecation. Lekshmi Amma and her sisters obtained Ext. B-42 renewal in 1927. B-6). Rowther is seen to have sold the property to Lekshmi Amma and her sisters under Ext. B-6 in 1922 for Rs. 7,000. The consideration for this is seen to be Rs. 1,000 paid in cash and Rs. 6,000 raised by way of executing a hypothecation. Lekshmi Amma and her sisters obtained Ext. B-42 renewal in 1927. It is also seen that, though Lekshmi Amma and her sisters took Ext. B-6 in 1922, they did not get possession until 1926. For discharging the encumbrances created by Lekshmi Amma and her sister for taking Ext. B-6 they had to execute a further encumbrance for Rs. 4,800 and that was done in favour of Achuthan Nair under Ext. B-7 dated, 27th February 1929. Reference is particularly made to Ext. B-7 because there is a statement in Ext. B-7 that the document Ext. B-6 was taken for the main tarwad namely the tarwad of Lekslimi Amma. Achuthan Nair filed a suit for interest on Ext. B-7 mortgage amount as O.S. No. 95 of 1938 and thereupon it is seen that Lekshmi Amma and her sisters executed a sale (kanom theeru) Ext. A-3 on 5th April 1938 in favour of Paru Amma, the second wife of Achuthan Nair. Based on these documents it is contended that the properties covered by Ext. B-6 would have been in the possession of Lekshmi Amma as karanavathi of the main tarwad from 1926 till 1933 when Ext. A-1 acquisition was made. I do not propose to go into the question of the income available from these properties or whether after meeting the expenses any surplus was available in 1933 for taking Ext. A-1. This is because both the courts below having concurrently found that even if these lands were treated as lands, the income of which could have been utilised for acquiring Ext. A-1, there was no balance left out of the income to serve as nucleus for Ext. A-1 acquisition. I am not called upon to disturb the concurrent findings of fact in this Second Appeal. I will therefore assume that the income from these lands were not available as nucleus in 1933. A-1, there was no balance left out of the income to serve as nucleus for Ext. A-1 acquisition. I am not called upon to disturb the concurrent findings of fact in this Second Appeal. I will therefore assume that the income from these lands were not available as nucleus in 1933. Even assuming that they were also available it is doubtful whether plaintiff would benefit by such finding, since the availability of any fund of the main tarwad and acquisition made from such fund will not lead to a presumption that such acquisition is by the tavazhi of the plaintiff alone, and there is no case that the property was acquired for the main tarwad and the main tarwad relinquished its rights, in favour of the plaintiff's tavazhi. In the absence of such a plea I am not going to enter into the question whether there has been a subsequent relinquishment by the tarwad. In addition to this, I think, that in view of the concurrent findings of the courts below that there was no surplus available even from out of the income of Perapadam lands, the case of the appellant cannot succeed. No other source of nucleus for Ext. A-1 which would give it the character of tarwad property has been brought to my notice in the Second Appeal. Hence plaintiff cannot succeed on the basis that any nucleus was available out of the tavazhi income or properties to serve as a source for acquisition on behalf of the tarwad. 10. As I stated earlier the question may not be important at all in view of the concurrent findings of both the courts that Ext. A-1 was acquired with separate funds which proceeded from the mother Lekshmi Amma as well as the first defendant. Both the courts have found that Lekshmi Amma, though she is not shown to have been in possession of any tavazhi properties, had her own resources, namely some milk trade on a small scale, from out of which she was able to save amounts to contribute a sum of Rs. 500 for taking Ext. A-1. It has been further found by both the courts that the case of the first defendant that he jointly with D.W. 4 borrowed a sum of Rs. 700 from D.W. 6 for contributing towards the acquisition of Ext. A-1 is true. 500 for taking Ext. A-1. It has been further found by both the courts that the case of the first defendant that he jointly with D.W. 4 borrowed a sum of Rs. 700 from D.W. 6 for contributing towards the acquisition of Ext. A-1 is true. If so, even assuming there is an initial presumption that presumption is rebutted by proof of the fact that it was the separate funds of these persons that was utilised for making the acquisition. In view of this I have to agree with the conclusions reached by the courts below that Ext. A-1 was acquired by the first defendant and Lekshmi Amma in their own names and such acquisition does not, in any way enure to the benefit of the plaintiff's tavazhi. 11. 'A' schedule items 21 to 26 are said to have been obtained on an oral lease by Lekshmi Amma. There is no reliable evidence as to the oral lease. It is said to have been taken by or about 1933 or 1935 and the case that it enures to the benefit of the tarwad has to fail for the same reason as in the case of acquisition under A-1, namely that there is nothing to connect the acquisition to the plaintiff's tavazhi. Items 27 to 29 are seen purchased by Lekshmi Amma under Ext. A-5 of 11th November 1944 for a sum of Rs. 1,500, out of which Rs. 900 alone is seen to have paid. It may be mentioned that on the date of Ext. A-5 purchase Lekshmi Amma was not the karanavathi of the tarwad at all, the first defendant having become karanavan years earlier. As I have stated, there is also nothing to show that any income of the tarwad came into her hands on or before Ext. A-5 date which could have been utilised by her for that acquisition. Being an acquisition in the name of a member of the tarwad other than the karanavan, in the absence of anything more I hold that Ext. A-5 is an acquisition of the person in whose name it stand's. What remains is only item No. 32. This is seen to have been purchased under Ext. B-1 dated, 6th February 1941 in the names of Lekshmi Amma and the first defendant jointly for a consideration of Rs. 250. A-5 is an acquisition of the person in whose name it stand's. What remains is only item No. 32. This is seen to have been purchased under Ext. B-1 dated, 6th February 1941 in the names of Lekshmi Amma and the first defendant jointly for a consideration of Rs. 250. There is no evidence that prior to that date the family was possessed of sufficient nucleus to serve as the source for this acquisition. Moreover this being an acquisition in the name not only of the first defendant but of Lekshmi Amma also, it cannot be said that it is an acquisition for and on behalf of the tarwad. If Ext. A-1 had been held by me to be an acquisition for the plaintiff's tavazhi, possibly my finding in regard to the acquisition of item 32 might have been different, since it would have been then open to the plaintiff to contend that the income of items covered by Ext. A-1 was available to the first defendant which would have served as a 'nucleus for acquisition under Ext. B-1. For reasons, I have indicated, I hold that none of the items already referred to which are sought, to be treated as items belonging to the plaintiff's tavazhi belong to the said tavazhi. 12. In regard to items 30, 31 and 33 which have been found to belong to the plaintiff's tavazhi there is a cross appeal by the first defendant. The lower appellate court has given sufficient reasons to hold that these items are acquired for the tarward. The consideration for taking documents in regard to these items are seen to have been available out of funds which came into the hands of the acquirers on behalf of the plaintiff's tavazhi, and the learned counsel for the first defendant has not shown any material before me to come to a conclusion different from that reached by the lower appellate court. Therefore, I agree with the lower appellate court in regard to the findings as to the character of acquisition of items 30, 31 and 33. 13. The only question that remains to be considered is whether by the conduct of the acquirers of the items which are now claimed by the plaintiff's tavazhi as belonging to it have been treated as tavazhi property and on that basis whether plaintiff is entitled to a decree. 13. The only question that remains to be considered is whether by the conduct of the acquirers of the items which are now claimed by the plaintiff's tavazhi as belonging to it have been treated as tavazhi property and on that basis whether plaintiff is entitled to a decree. It is open to any member of a tarward to treat properties belonging to him as that of the tarwad and if the course of conduct of the acquirer shows an unequivocal intention on his part to treat such properties as that of the tarwad a court may be justified in holding that such are available for the purpose of partition among the members of the tarwad. Before I refer to the evidence in this case on which the appellant would rely I may notice the decisions placed before me by either side on this question. The learned counsel for the appellant relied on the decision R. Subramonia Iyer v. The Commissioner of Income-tax, Madras, A.I.R. 1955 Mad. 623. According to him no formalities are necessary to treat separate property as joint family property and the question is only one of intention on the part of the owner of the separate property to abandon his separate rights. My attention has been drawn to the following passage in that decision: "In our opinion it is not open to the assesssee to canvass the correctness of the finding reached by the Income-tax authorities and the Tribunal as regards the source from which the assessee was able to secure the Rs. 350 and whether his case that this represented his ancestral property has been proved. This, however, leaves for consideration the other point which is raised by the declaration embodied in the partnership deed. Under the Hindu law, there is no necessity for joint family property to exist in order that there may be a joint family. The assessee and his son undoubtedly constitute members of a joint Hindu family. They might have started with no ancestral nucleus or other joint family property but there was nothing to prevent the assessee from impressing upon any self-acquired property belonging to him the character of joint family property. The assessee and his son undoubtedly constitute members of a joint Hindu family. They might have started with no ancestral nucleus or other joint family property but there was nothing to prevent the assessee from impressing upon any self-acquired property belonging to him the character of joint family property. No formalities are necessary in order to bring this about and the only question is one of intention on the part of the owner of the separate property to abandon his separate rights and invest it with the character of joint family property. Where an inference of this sort is sought to be deduced from the conduct of the parties, there might be room for ambiguity and for difference of opinion. Where, however, it is the declaration of the owner of the separate property that is the evidence before the Court or the Tribunal, the inference that the character of joint family property is impressed upon the separate property follows, unless the words are incapable of that construction or if it represents merely a future intention not yet given effect to." The question whether the conduct of parties in a given case justifies the inference that the parties intended to abandon their separate rights and interests in favour of the tarwad is a question of fact to be judged taking into account all facts and circumstances of each case. In the case Naina Pillai v.Daivanai Ammal, A.I.R. 1936 Mad. 177 cited before me there were a series of transactions where in self-acquired property of a person was an dealt with as that of the joint family and the question arose whether it would lose its character as self-acquired property by reason of such dealings. It was held therein "By merely being dealt with as joint family property the self-acquired property of the person who deals with it as such does not necessarily lose its character of separate property."t and in support of this proposition the following passage from 'Mayne on Hindu Law' was quoted by the learned Judge: " "property which was originally self- acquired, may become joint property, if it has been voluntarily thrown by the owner into the joint stock with the intention of abandoning all separate claims upon it. This doctrine has been repeatedly recognised by the Privy Council. This doctrine has been repeatedly recognised by the Privy Council. Perhaps the strongest case was one, where the owner had actually obtained a statutory title to the property under the Oudh Talukdars Act 1 of 1868. He was held by his conduct to have restored it to the condition of ancestral property. The question whether he has done so or not, is entirely one of fact, to be decided in the light of all the circumstances of the case; but a clear intention to waive his separate rights must be established and will not be inferred from acts which may have been done merely from kindness or affection." It was decided there that "The person who alleges that the property is joint family property must show that the owner has voluntarily thrown the property into the joint stock with the intention of abandoning all separate claims on it." In Narayanan Neelakutty v. Krishnan Venki, A.I.R. 1955 T.C. 199 which was a case where there was a plea of blending, it was held by a Division Bench: "Had there been a case that that event happened antecedent to Ext. B and that document is relied upon as recording its result it may have had evidentiary value. But such a case there is not. Throwing into the common hotchpot is a positive act or conduct on the part of the owner which would operate to deprive him of separate rights and constitute the property "family property” in which he would thereafter be interested only as a coparcener with the others. A clear intention of the owner to waive his separate and exclusive right must be established to constitute throwing into the common stock and merely dealing with self-acquisitions as joint family is not sufficient." 14. The question therefore to be decided is whether the first defendant as well as Lekshmi Amma who are seen to have acquired the items of properties which are now sought to be treated as tavazhi properties have conducted themselves in such a manner as to lead to the inference of an unequivocal intention to abandon all their separate rights and interests over those properties. The reliance in this case, on this aspect of the question, is placed by plaintiff on Exts. A-2, A-35, A-36 and A-39. Ext. The reliance in this case, on this aspect of the question, is placed by plaintiff on Exts. A-2, A-35, A-36 and A-39. Ext. A-2 is an assignment of the rights of the four tavazhies of the main tarwad in favour of the 5th tavazhi, namely Lekshmi Amma's tavazhi, in respect of a property belonging in common to the main tarwad in which it appears the tarwad house was situate. In that document, it is mentioned that, for a consideration received thereunder, the four branches are surrendering their rights in the single item of property possessed by the tarwad. There is also a mention in that document referring to the acquisition under Ext. A-1. Malayalam According to the learned counsel for the appellant the reference to Ext. A-1 as belonging to the persons who took Ext. A-2 as their private property would be indicative that A-1 belongs to the plaintiff's tavazhi since it is not taken by Lekshmi Amma and first defendant alone but by Lekshmi Amma and all her three children. But I fail to see anything in Ext. A-2 which declares uriequivocal the intention of Lekshmi Amma or the first defendant to abandon their rights in the property acquired under Ext. A-1. There is no mention in Ext. A-1 that the property belongs to the tavazhi of the plaintiff. It is not a statement made by Lekshmi Amma or the first defendant. No doubt, it is made in a document taken by them and accepted by them. It is not as if the statement in Ext. A-2 must positively mean that Ext. A-1 was taken for the plaintiff's tavazhi though that is also a possible construction. On the basis of Ext. A-2 and in particular the statement referred to by me above I am not prepared to find an unequivocal intention on the part of Lekshmi Amma or the first defendant to abandon their claims to the property obtained under Ext. A-1 in favour of their tavazhi. Ext. A-35 is a notice from the Agricultural Income-tax Officer to file a return in respect of the properties of Lakshmi Amma, and Ext. A- 36 is return so filed by her. Reliance on Ext. A-1 in favour of their tavazhi. Ext. A-35 is a notice from the Agricultural Income-tax Officer to file a return in respect of the properties of Lakshmi Amma, and Ext. A- 36 is return so filed by her. Reliance on Ext. A-36 as made because of the statement there that is the manager of the tarwad and plaint items 1 to 20 and 33 are also seen included in the return- But as pointed out by learned counsel for the respondents Ext. A-33 shows that notwithstanding Ext. A-36 return Lekshmi Amma was assessed ultimately for the year 1959-60, for which A-36 return was filed, only as an individual and not as head of a Marumakkathayam tarwad. Admissions, if any, in Ext. A-36 is something which could be explained and if any explanation is necessary that is furnished by Ext. A-39. The tendency to avoid payment of tax is one which is normally found in people and Ext. A-39 indicates that it is that which persuaded Lekshmi Amma to file a return as if she is the Karanavathi of the tarwad. It is mentioned there. Malayalam and it is significant to note that though she attempted by this method to obtain the lesser incidence of tax (the rate of tax as well as the limit for exemption are different in the case of individual and that of marumakkathayam tarwad) Lekshmi Amma did not ultimately succeed because the tax authorities proceeded to assess her as an individual. On this meagre and scanty material I cannot accept the case that the properties obtained under Ext. A-1 were being treated as, tarwad properties by the acquirers or as the acquirers having expressed an unequivocal intention to abandon their rights to those properties in favour of the tarwad. Hence the plaintiff is not entitled to succeed on this plea also. 15. In view of what I have stated above it follows that both the appeal and the cross appeal have to be dismissed. I do so. But in the circumstances of the case I direct the parties to suffer their costs.