JUDGMENT P. Subramonian Potti, J. 1. These two Second Appeals arise out of two g jointly tried and disposed of, the earlier suit being O.S No. 2 of 1957 of the Sub Court, Kottarakkara and the later suit O.S. No. 13 of 1958 of the same Court. S.A. No. 576 of 1966 arises out of the earlier suit which is one for maintenance by the plaintiffs who claim to be the members of a sub-tarwad of which the first defendant is the karanavan, from out of the properties of the said sub-tarwad. S.A. No. 717 of 1966 arises from O.S. 13 of 1958 which is a suit filed by the first plaintiff in O.S. 2 of 1957 seeking a declaration that a sale deed Ext, P-9 taken by the first defendant in the suit who is the wife of the second defendant, the karanavan, regarding the shares in the tarwad properties of certain members of the tarwad was an acquisition made with the funds of the second defendant, the karanavan, and therefore it enured to the benefit of the sub-tarwad of the plaintiffs. The second defendant, who is the karanavan, in O.S. 13 of 1958 is the first defendant in O.S. 2 of 1957. 2. Originally both the suits were dismissed and appeals were filed to the District Court therefrom. The appellate Court found that item 2 in plaint A schedule was sub-tarwad property while item 5 in the A schedule was not sub-tarwad property. In regard to, other items of properties the court below found that there was necessity for further investigation and therefore remitted the case back to the trial court for issuing a commission for determining whether items, other than A schedule items 2 and, 5, in respect of which documents of acquisition had been produced by the plaintiff in O.S. 2 of 1957 had been acquired with the income of the tarwad properties and whether such items belonged to the tarwad. Though this was attacked by way of Civil Miscellaneous Appeal before the High Court the remand order was upheld by this court which further directed that the commissioner will determine the income of A schedule item No. 5 also, so that, if necessary, when the matter comes up before the appellate court that also may be available in the file. Though this was attacked by way of Civil Miscellaneous Appeal before the High Court the remand order was upheld by this court which further directed that the commissioner will determine the income of A schedule item No. 5 also, so that, if necessary, when the matter comes up before the appellate court that also may be available in the file. Pursuant to the remand the matter was again tried and the trial court held that A schedule items 4, 5, 7 and 14 and B schedule items and 11 are not sub-tarwad properties while all the rest are items belonging to the sub-tarwad. In this view the plaintiffs were given a decree for maintenance at the rate of Rs. 50 per mensem as against those items found to belong to the tarwad. The suit O.S. 13 of 1958 was decreed holding that the first defendant had not succeeded in showing that her own income had been utilised for acquisition under Ext. P-9. The appellate court to which appeals were filed against the decisions in the two suits upheld the decision in O.S. 2 of 1957 holding that those items which were found to belong to the tarwad really did belong to it. But so far as the other suit O.S. 13 of 1958 was concerned the court below reversed judgment of the trial court holding that the second defendant was shown to be a man of means and even assuming that his funds had been utilised for taking Ext. P-9 in the name of the first defendant it did not automatically follow that the properties obtained thereunder enured to the benefit of the sub-tarwad. In that view the suit O.S. 13 of 1958 was dismissed. S.A. 576 of 1966 arising from O.S. 2 of 1957 is filed by the first defendant, the karanavan, who, in this appeal, challenges the concurrent findings of the courts below as to the nature of acquisitions which are claimed by him to be his own. S. A. No. 717 of 1966 is by the plaintiff in O.S. 13 of 1958 whose suit seeking declaration that Ext. P-9 acquisition in the name of the wife of the karanavan belongs to the tarwad was dismissed and the challenge in the appeal is to the view taken by the court below as to the nature of the acquisition by the wife of a Marumakkathayee. 3. P-9 acquisition in the name of the wife of the karanavan belongs to the tarwad was dismissed and the challenge in the appeal is to the view taken by the court below as to the nature of the acquisition by the wife of a Marumakkathayee. 3. I need not go into the details with regard to the claims of the, appellants in S.A. 576 of 1966 since the findings which are challenged before me are concurrent. All the Same as the learned counsel would contend that the approach by the courts below is wrong and therefore there is ground for interference in Second Appeal, I will refer in brief to the contentions of the learned counsel for the appellant. I am now dealing with the appeal arising from the earlier suit for maintenance. 4. It has now been found that the earliest acquisition under Ext. P-1 of 1087 enured to the benefit of the sub-tarwad of the plaintiffs. That item is one which is 3 acres and 72 cents in extent, out of which it is seen that 1 acre was outstanding on mortgage. A schedule item No. 15 which was incorporated in the plaint schedule by amendment, is seen to be a property acquired by the sub-tarwad along with A schedule item No. 2 under Ext. P-1. That item is a property, 84 cents in extent. The learned counsel has very seriously attacked the order of the trial court permitting amendment. I see no reason to interfere with the discretion exercised by the trial court in allowing the amendment of the plaint. The amendment was sought for on the ground that though Ext. P-1 covers A schedule item 15 in addition to A schedule item 2 this was omitted in the plaint and the omission was mentioned as due to a clerical error. On the merits, the learned counsel for the appellant has nothing to say in answer to the claim of the plaintiffs that A schedule item 15 is of the same character as A schedule item No. 2, having been acquired under the same document, namely, Ext. P-1. If so, even as early as in 1087, 1 acre and 72 cents of property comprised in A schedule item 2 and 84 cents of property covered by A schedule item 15 were available as nucleus for the sub-tarwad. There was very serious attack to the commissioner's report. P-1. If so, even as early as in 1087, 1 acre and 72 cents of property comprised in A schedule item 2 and 84 cents of property covered by A schedule item 15 were available as nucleus for the sub-tarwad. There was very serious attack to the commissioner's report. That attack was found to be well-founded, by the appellate court was the case of the learned counsel for the appellant before me that, if the commission report was found to be unreliable, the proper course ought to have been to direct a fresh commission to be issued even though there will be some delay caused. I would agree with the learned counsel. But, do not think that, even so, any interference with the judgment of the court below is called for. The important point that has not been noticed by the court below is that in regard to A schedule item No. 2 the income as in the year 1088 is noticed in the report though in regard to other items that is not the case. The ground on which the report has been found to be not of any value is that the commissioner has not cared to notice the income other than that at the time he inspected the properties except in regard to item 2 in A schedule. But according to me the main nucleus being A schedule item 2 possibly, that may be sufficient for the purpose of this case though it would have been desirable to know what exactly the income in respect of each item of property would have been on and from the respective dates of the acquisition of these items. The court below has proceeded to decide the case on the basis of the income of the year 1088 in respect of A schedule item 2 and I would think that the approach to the question made by the court below is quite correct and does net call for any comment. So far as the income from A schedule item 2 is concerned the commissioner has noticed it at Rs. 57.50 per annum. Though there is no data as to the income from A schedule item 15 that has been estimated at half the income from 1 acre 72 cents in A schedule item 2. No doubt, this method is arbitrary. But arbitrariness to some extent is inevitable. 57.50 per annum. Though there is no data as to the income from A schedule item 15 that has been estimated at half the income from 1 acre 72 cents in A schedule item 2. No doubt, this method is arbitrary. But arbitrariness to some extent is inevitable. Nobody can be sure of what exactly was the income from the properties in the year 1088. It is impossible to conceive of the, exact condition of the property in 1088 or nearabouts. I do not think that the court below was in error in assuming that the tarwad had an income of Rs. 90 per annum. 5. No doubt, the income which served as nucleus to start with might not be considerable. But the fact remains that the earlier acquisitions did not necessitate huge investments. Acquisitions, which in turn, would have yielded income to serve as nucleus for further acquisitions were made with means which could have been saved from out of the income from A schedule item 2 and A schedule item 15. In this connection it is necessary to notice that in taking Ext. D-3, a release of the properties belonging to the tarwad in the year 1093 the first defendant associated his own sister, the third defendant. This is in respect of A schedule item No. 1. This document shows that the consideration is mentioned as paid not by the first defendant alone, but jointly by first defendant and third defendant. When it is borne in mind that there was a nucleus available by reason of Ext. P-1, acquisition, naturally one would assume that there was surplus income which would have been available for the purpose of taking Ext. D-3 and the execution of Ext. D-3 would further strengthen the case that after meeting the expenses of the sub-tarwad there would have been a surplus available for making acquisitions for the sub-tarwad. Ext. D-3 was acquired by an investment of fanams 700 (less than Rs. 100) and that too after five years of Ext. P-1. Ext. D-3 was only for a portion of A schedule item 1. The rest of the property in item 1 was obtained in 1099 under Ext. D-4 in the name of the first defendant alone. There was interval of time between the acquisition under Ext. D-3 and that under Ext. D-4 and during this period there were no other acquisition requiring considerable investment. The rest of the property in item 1 was obtained in 1099 under Ext. D-4 in the name of the first defendant alone. There was interval of time between the acquisition under Ext. D-3 and that under Ext. D-4 and during this period there were no other acquisition requiring considerable investment. Therefore it may be taken that the income from the properties so far acquired were available for acquiring Ext. D-4. In between Exts. D-3 and D-4 the acquisitions made were of 46 cents out of A schedule item No. 9 under Ext. D-1 dated 3rd Dhanu 1093 and Ext. D-8 dated 21st Thulam 1097. Ext. D-11 was for fanams 200. Ext. D-8 was for fanams 2778, but out of this all, excepting 28 fanams were reserved for payment and payments were made only very much later. Nothing has been pointed out with regard to the subsequent acquisitions, excepting that under Ext. D-17, so as to require me to go in detail into those acquisitions in spite of the concurrent findings by the courts below. By the time subsequent acquistions were made, the items with which I have so far dealt with were available as nucleus to form source for much acquisitions. Therefore, I do not think it is necessary to interfere with the findings of the courts below in the matter of those acquisitions. 6. Ext. D-17 is an exception to the other acquisitions. Ext. D-17 is seen to be a viruthi deed taken in the name of the first defendant. That was on a payment of 120 fanams and a small amount as 'oppupanam'. The rent provided under the document was to be set off in lieu of periodical services and offerings to be made in terms of the provisions of that document. Some of the services were personal in character. At any rate, the document conceived of the arrangement under the deed to exist only so long as the first defendant was alive. There was a specific provision in the document that the first defendant was to hold possession thereunder only during his lifetime. It is not as if, under law the karanavan of a tarwad is disqualified from acquiring any properties for himself. There is no prohibition in law against the karanavan acquiring properties. There was a specific provision in the document that the first defendant was to hold possession thereunder only during his lifetime. It is not as if, under law the karanavan of a tarwad is disqualified from acquiring any properties for himself. There is no prohibition in law against the karanavan acquiring properties. The law only casts on him a responsibility to prove that in making acquisitions he has not sacrificed the interests of his own tarwad. Until the contrary is shown it is presumed that he has acted in promotion of the interests of his tarwad rather than his own. This presumption is liable to be rebutted by evidence showing that the source for the acquisition actually proceeded from the karanavan. Sometimes it may be that the character of the acquisition itself may be sufficient to indicate that it was intended to be personal. In the present case the fact that what is contemplated in Ext. D-17 is the performance of services in return for the right to enjoy the property and also the fact that such services were contemplated only during the lifetime of the karanavan would be sufficient to rebut the presumption, if any, available as to the character of the acquisition. On a reading of Ext. D-17 I have no hesitation in holding that the parties thereunder intended only an arrangement during the lifetime of the first defendant, an arrangement in which the first defendant figured in his own individual capacity and not acting on behalf of the tarwad. If so, I have to modify the concurrent decrees of the courts below so far as it concerns the acquisition made under Ext. D-17 which covers B schedule items 4, 5, 8 and 12. These are found to be not answerable to the plaint claim in O.S. 2 of 1957. The decree granted by the courts below as against and changed on these items will be vacated while the decree will remain as against all the other items in respect of which a charge has been given in the decrees of the courts below. 7. I will now come to the facts and the contentions in the suit O.S. 18 of 1958 out of which S.A. 717 of 1965 arises. The acquisition under Ext. 7. I will now come to the facts and the contentions in the suit O.S. 18 of 1958 out of which S.A. 717 of 1965 arises. The acquisition under Ext. P-9 taken in the name of the first defendant this suit is said to be with the funds of the second defendant, her husband, who is the karanavan of the plaintiff's tarwad. The only question in the suit is whether this is so. If it is taken with the funds of the first defendant, according to the plaintiff, the first defendant being the karanavan, it must be subject to all the obligations of property acquired by the first defendant himself. The obligation of a karanavan to show that the acquisition claimed as personal was not made out of tarwad funds but out of his own would arise even in the case of acquisition made by a karanavan said to be with his funds in his wife's name. But this would so arise only if it is shown that though the acquisition stands in the name of the wife the fund utilised to take it was that of the husband. Therefore I must consider whether it is established in this case that the funds for taking Ext. P-9 in the name of the first defendant proceeded from her husband, the second defendant. There is no evidence in this case as to the source for the acquisition under Ext. P-9 and normally one would assume that any acquisition which is not shown to be from the funds of another must be deemed to be made by the acquirer out of his own funds, if so, in this case, plaintiff will have to fail, there being no evidence to show that Ext. P-9 has been taken by the first defendant with funds other than her own But when the District Court remanded the case to the trial court earlier, that court relied on a presumption that all acquisitions made by a Marumakkathayam female during coverture were out of the funds of the husband. If the burden is upon the first defendant to show that the funds for taking Ext. P-9 were her own, certainly she has not succeeded in showing that and therefore the trial court, taking note of the direction in the judgment of the appellate court, ' held that Ext. If the burden is upon the first defendant to show that the funds for taking Ext. P-9 were her own, certainly she has not succeeded in showing that and therefore the trial court, taking note of the direction in the judgment of the appellate court, ' held that Ext. P-9 must enure to the benefit of the tarwad and therefore granted the plaintiff a decree. This has been reversed in appeal. The learned Judge of the appellate court held that the first defendant was shown to be a man of means and therefore even assuming that the first defendant's funds have been utilised for taking Ext. P-9 it cannot be assumed that it belongs to the tarwad. Therefore I have necessarily to deal with this question. 8. A Division Bench of the Travancore Cochin High Court in the decision reported in Bhagavathi Pillai v. Narayana Pillai (1952) 7 D.L.R.T.C. 114 held as follows: "The presumption in the case of the Marumakkathayees is that the acquisitions made by a female during coverture is with the funds advanced by the husband for the benefit of herself and her children." The learned Judges seemed to think that this would follow from the provision In section 41 of the Nair Act 2 of 1100, as it would appear from the following statement in the judgment. " This was recognised in section 41 of the Nair Act, 2 of 1100." I may now extract section 41 of the Nair Act, 2 of 1100 which runs as follows: "41. Property acquired by gift or bequest from husband or father before Act 1 of 1088: Property acquired by gift or bequest from the father or husband before Act 1 of 1088 came into force shall, for the purpose of this chapter, in the absence of evidence to the contrary, be treated as the tarwad property of the donees or devisees and of their thavazhee." I do not see anything in the section which would justify the observation of the Division Bench of the Travancore-Cochin High Court. No doubt, that section recognises the principle that Makkathayam properties acquired before Act 1 of 1088 came into force with the funds of father or husband would be deemed to be tarwad property in the absence of evidence to the contrary. No doubt, that section recognises the principle that Makkathayam properties acquired before Act 1 of 1088 came into force with the funds of father or husband would be deemed to be tarwad property in the absence of evidence to the contrary. But that section does not in any way give rise to any presumption as to the source of acquisition by a wife or the children. There is nothing in the provisions of the Nair Act of 1100 which would warrant the view that the acquisitions made in the name of a Marumakkathayam female during coverture is to be presumed as acquired with the funds of the husband. Whatever might have been the view held on this question at one time, taking into account the social set up and the notions of holding property by husband and wife, I do not think that it is justifiable, in the present context, to draw a presumption that acquisitions seen in the name of females belonging to the Nair Community must be taken to be that made with the funds of the husband. One cannot forget the fact that females are seen to be as much earning members as males themselves and so long as here is no statutory provision which obliges a court to consider such acquisition as really belonging to someone other than the person in whose name it stands, I think it would only be proper to consider that the acquirer owns the property acquired. This rule may be good with regard to Ext. P-9 acquisition as it is in 1944. I therefore do not think that the property acquired by the first defendant under Ext. P-9 must be presumed to be to have been acquired with the funds of her husband. It is not shown that actually the funds of second defendant was utilised for making such acquisition and I would consider that the acquisition enures to the benefit of the first defendant alone. On this ground I would uphold the decree of the court below and hold that the suit O.S. 13 of 1958 has to be dismissed. Since the suit itself is dismissed, the cross-objection does not require notice. On this ground I would uphold the decree of the court below and hold that the suit O.S. 13 of 1958 has to be dismissed. Since the suit itself is dismissed, the cross-objection does not require notice. In the result, I dismiss S.A. No. 576 of 1966 except to the extent that I hold that the plaintiff would not be entitled to decree for maintenance as against B schedule items 4, 5, 8 and 12 which items are found belonging to the first defendant alone. S.A. No. 717 of 1966 is dismissed. In both the appeals, in the circumstances of the case, I direct both parties to suffer costs.