JUDGMENT Varghese Kalliath, J. 1. A. S. No. 66 of 1978 is an appeal filed by plaintiffs 1 to 8 challenging the judgment in O.S. No. 40 of 197A. S. No. 74 of 1978 is an appeal by the 33rd defendant against the same judgment. In A. S. No. 66/78 defendants 2 to 9 and defendants 27 to 32 have filed cross objections. 2. O.S. No. 40 of 1972 is a suit for partition of 9 items of properties scheduled in schedule B of the plaint. The plaint reveals:- Plaintiffs and the first defendant are members of a marumakkathayam tavazhi. The tavazhi is known as the tavazhi of Urumi. One Urumi Thirumal had six children by name Kunhikannan, Chathukutty, Ambu, Ramunni, Devi and Govindan. Kunhikannan was the eldest son of Urumi Thirumal. Three members of the tavazhi, namely, Kunhikannan, Ambu and Ramunni died subsequent to the Hindu Succession Act. Defendants 2 to 9 are the children of Kunhikannan. Defendants 10 to 13 are the heirs of Ambu, Defendants 14 to 19 are the children of Ramunni. Defendant No. 1 and plaintiffs 1 to 8 are the heirs of Devi. It seems that Govindan died issueless. In the plaint it is alleged that the properties described in the plaint B schedule belong to the tavazhi and the same is now managed by the first defendant who is the karanavan of the tavazhi. Plaintiffs demanded partition but the first defendant did not agree. Plaintiffs claimed that they are entitled to 8/12 shares in the plaint schedule properties. They claim past and future profits also. 3. Defendants 20 to 25 were subsequently impleaded since they claimed possession of a portion of item No. Defendant No. 33 was impleaded as per the contentions raised in the written statement of defendants 2 to Defendants 27 to 32 claimed tenancy right over item No. 7 on the basis of an assignment deed executed by the first defendant in favour of the 26th defendant. 4. The first defendant admitted in his written statement that the properties are tavazhi properties. He only claimed tenancy rights over item No. He claimed tenancy rights by virtue of a lease granted by a karanavan of the tavazhi, namely Chathukutty on 3rd April 196He con- tended that the lease was granted by the karanavan with the consent of the members of the family. He only claimed tenancy rights over item No. He claimed tenancy rights by virtue of a lease granted by a karanavan of the tavazhi, namely Chathukutty on 3rd April 196He con- tended that the lease was granted by the karanavan with the consent of the members of the family. There was tavazhi necessity to grant such a lease since a decree amount holding on the tavazhi had to be discharged and the same was discharged by the karanavan with the amount paid by the first defendant as consideration for the lease. He stated that he has subsequently assigned the tenancy right to 26th defendant. Defendants 26 to 32 were impleaded on the basis of the written statement of the first defendant. Further he contended that items 1 to 6 are in the possession of defendants 14 to 19 and items 3, 4 and 5 are in the possession of defendants 2 to He claimed possession in respect of item No. 9 alone. It is stated in his written statement that item No. 9 is a burial ground. He claimed his share separately. He also put forward a claim for the movables in the house. 5. Defendants 2 to 9 filed a joint written statement. They contended that there is only one item belonging to the tavazhi. It is item No. In the written statement they have given the details of the acquisition of the properties. They claimed that items 1, 2 and 7 are co-ownership properties insofar as these properties were gifted to Thirumal and her children, by one Darmada Kannan who was the father of Thirumal. In respect of item No. 3 they claimed title by virtue of an assignment deed in favour of Thirumal and her children. Items 4 and 5 according to defendants 2 to 9 were purchased by their father Kunbikannan with his own funds. Defendants 2 to 9 claimed item No. 8 under an oral Will of one Valappil Kunhiraman. In regard to item No. 9 they claimed a lease in favour of Kunhikannan from the tarwad and that he was in possession of the same as a tenant. Defendants 2 to 9 claimed item No. 8 under an oral Will of one Valappil Kunhiraman. In regard to item No. 9 they claimed a lease in favour of Kunhikannan from the tarwad and that he was in possession of the same as a tenant. It was further contended that Kunhikannan, Ambu, Ramunni and Devi got the rights in items 1 to 3 and They admitted that plaintiffs 1 to 4 and defendant No. 1 as one group, defendants 2 to 9 as one group, defendants 10 to 13 one group and defendants 14 to 19 another group are entitled to 1/4th share each in items 1 to 3 and Items 4, 5, 8 and 9 exclusively belong to Kunhikannan and to defendants 2 to 9 and being the legal heirs of Kunhikannan - those items are not liable to be partitioned in the suit in so far as the plaintiffs and other defendants have no claim over these items of property. They admitted that item No. 6 is a tavazhi property and the plaintiffs are entitled to their share on the basis that it is a tavazhi property. It was further stated in the written statement that there was a mediation in 1969 and there was some arrangement in regard to the enjoyment of the properties separately and the properties were enjoyed separately from 1969 onwards. They contended that the exclusive right of defendants 2 to 9 over items 4, 5 and 9 were admitted by others and only items to 3, 7 and 8 were partitioned among the sharers. 6. Defendants 14 to 19 filed a joint written statement. They claimed that their predecessor-in-interest Ramunni nad a kuzhikanapattom right over item No. Ramunni's right had devolved on defendants 14 to 19 and the improvements effected after 1949 are to be reserved in favour of these defendants and defendants 14 to 19 are entitled 2/5 share as well as profits and that the share of these defendants have to be allotted separately. 7. Defendants 20 to 25 filed a joint written statement, They contended that item No. 8 is not available for partition. 7. Defendants 20 to 25 filed a joint written statement, They contended that item No. 8 is not available for partition. They alleged that item No. 8 originally belonged to Padinhare Valappil Kunhiraman and that his rights devolved on his sister Cheriya Manikkam and as the legal heirs of Cheriya Manikkam's daughter, defendants 20 to 25 have got exclusive right over item No. They contended that any document executed by Urumi Kunhikannan in respect of item No. 8 is not binding on them. Defendants 26 to 32 claimed tenaancy rights over item No. Defendant No. 26 got an assignment of the tenancy right from the first defendant. They also wanted that item No. 7 to be allotted to the first defendant in the event of actual division. 9. The 33rd defendant in his written statement claimed item No. 8 exclusively. She is the daughter of Padinhare Valappil Kunhiraman. According to her, this property was acquired by Kunhiraman in 190. She contended that Kunhiraman executed a Will on 30th November 1914 bequeathing this property to her and that she had been in possession since the death of her father. 10. After considering the elaborate evidence adduced in this case, both oral and documentary, the court below entered the following findings:- (i) that items 1 to 3 and 7 are not tavazhi properties and that they are enjoyed by the donees in co-ownership rights- (ii) that items 4 and 5 are not available for partition and that it belonged exclusively to Kunhikannan as his self acquisition; (iii) that item No. 6 is a tavazhi property and it is divisible as tavazhi property; (iv) that defendants 14 to 19 have got jenmom right over item No. 6; (v) that the claim of tenancy by defendants 14 to 19 over item No. 6 is not established. They are entitled to reservation of improvements from 1949 onwards; (vi) that defendants 26 to 32 have no tenancy right over item No. 7; (vii) Though the tenancy right claimed by defendants 26 to 32 was rejected, their claim for value of improvements over item No. 7 effected between 1965 and the date of suit was allowed; (viii) The request of these defendants for allotment of item No. 7 to the share of the first defendant has been directed to be considered when passing the final decree; (ix) that the claim of defendant No. 33 in regard to item No. 8 is not established; that the Will is not genuine and it has not been proved to be the last testament of deceased Kunhiraman; (x) that item No. 8 was possessed and enjoyed by the tavazhi and it belonged to the tarwad constituted by the descendants of Korumbi and Manikkam. The rights of Urumi tavazhi over this property are divisible among the tavazhi members; (xi) that in regard to item No. 9 the kanam rights as per Ext. A5 alone are available for division. 11. A.S. No. 66/78 by the plaintiffs appellants Appellants contend that items 1, 2, 3 and 7 are also tavazhi properties and the finding that they are not tavazhi properties but co-ownership properties is incorrect. Further they contend that items 4, 5 and 9 are also properties belonging to the tavazhi though items 4, 5 and 9 were acquired by Kunhikannan. The case that items 4, 5 and 9 were acquired by Kunhikannan using his own funds is disputed by the appellants. According to them, Kunhikannan was the Karanavan at the time when items 4 and 5 were acquired and the tavazhi had sufficient surplus income to acquire those items of properties. Appellants have also challenged the finding of the Trial Court in regard to item It is contended that defendants 14 to 19 have no right over item No. 6 as lessees, and that defendants 14 to 19 are not entitled to the improvements over those items decreed by the Trial Court. 12. We propose to examine first the contention of the appellants in respect of items 1, 2, 3 and 7 together. Items 1, 2 and 7 originally belonged to Dharmada Kannan father of Thirumal. Admittedly, Dharmada Kannan gifted these properties to Thirumal and her children by Ext. A1, Ext. 12. We propose to examine first the contention of the appellants in respect of items 1, 2, 3 and 7 together. Items 1, 2 and 7 originally belonged to Dharmada Kannan father of Thirumal. Admittedly, Dharmada Kannan gifted these properties to Thirumal and her children by Ext. A1, Ext. A1 is dated 27th March 190The Trial Court found that this gift in favour of Thirumal and her children enures only to the benefit of Thirumal and the named children in the document. The Trial Court held that it is not possible to presume that the gift is intended to be a gift to the tavazhi of Thirumal. Ext. A2 is a renewal of the lease in respect of items 1, 2, 3 and Ext. A2 is dated 4th June 190Even though the Trial Court was initially inclined to draw a presumption that Ext. A1 gift would enure to the tavazhi of Thirumal the Trial Court declined to hold so, mainly on the reason that Ext. A2 showed an indication otherwise. The Trial Court observed:- "These words by themselves are not of any help to decide either way and the presumption regarding tavazhi character could have been drawn but for the subsequent conduct revealed from Ext. A2." It is true that immediately after the execution of the gift deed, the donees executed a marupat evidenced by Ext. A2, dated 4th June 190 It has to be noted that the marupat refers to the devolution of the rights of the executants of Ext. AWe think the fact that a marupat Ext. A2 has been executed immediately after Ext. A1 gift deed is not a decisive factor for the determination of the character of the gift. The circumstance that in the marupat all the donees in Ext. A1 are parties, is said to be an indication that the donees under Ext. A1 took the property as co-ownership property. The marupat has been executed in favour of an European and it is recited in the marupat itself that the executants got the right under Ext. A1 gift. Perhaps the European wanted the junction of all the donees of Ext. A1 parties in the renewal (marupat) Ext. A-2. 13. The gift Ext. A1 is to a natural group of people, namely, the mother and all the children. A1 gift. Perhaps the European wanted the junction of all the donees of Ext. A1 parties in the renewal (marupat) Ext. A-2. 13. The gift Ext. A1 is to a natural group of people, namely, the mother and all the children. The document states: xxx xxx xxx The above quoted recitals are indicative of a gift in favour of a tavazhi. Ext. A1 was executed at a time in an area where the rules of customary marumakkathayam law were applicable. The Madras Marumakkathayam Act came into force in the year 193Ext. A1 document was executed on, 27th March 190The learned counsel for the appellants cited Sundara Aiyar's Malabar and Aliyasanthana Law and he invited our attention to a passage in page 179 of that book. "As under the Hindu Law, so under the Marumakkathayam and Aliyasanthana systems joint holding is the rule and individual holding the exception and it is for the individual member who sets up separate title to make it out.", When a gift of acquisition is made in favour of a marumakkathayee woman and all her children, a natural presumption would arise that the acquisition is for the benefit of the tavazhi. Of course, the presumption is capable of being rebutted by other circumstances and evidence indicating an intention otherwise. The question to be considered in this case is whether or not there are circumstances indicative of an intention other than the natural and probable intention of giving the property to a natural group of people to be enjoyed by them as tavazhi property. The Trial Court has taken the circumstance of the execution of Ext. A2 document as an indication of giving the property to the named persons in Ext. A1 to be enjoyed not as tavazhi properties but as co-ownership properties. We do not think that the fact that Ext. A2 document has been executed is sufficient to rebut the presumption. 14. The Trial Court has taken the circumstance of the execution of Ext. A2 document as an indication of giving the property to the named persons in Ext. A1 to be enjoyed not as tavazhi properties but as co-ownership properties. We do not think that the fact that Ext. A2 document has been executed is sufficient to rebut the presumption. 14. One of the earliest decisions of the Madras High Court which positively recognised the existence of a presumption that property acquired by a marumakkathayee by a gift or purchase should under normal circumstances be deemed to be held by the donees or the beneficiaries subject to the tramels of tarawad property is the Full Bench Ruling in Kunhacha Umma v. Kutti Mammi Haji ILR 16 Madras 20It was a case of a marumakkathayee husband granting a gift of certain properties in favour of his wife and children. The Full Bench held that the presumption is that the donor intended that the donees should take them as properties acquired by their branch with all the characteristics of tarawad properties in accordance with the marumakkathayam law applicable to them. This principle was followed in several decisions of the Madras High Court. Some of them are Koroth Amman Kutti v. Perungottil Appu Nambiar ILR 29 Madras 322 Pattatheruvath Pathumma v. Mannamkunniyil Abdulla Haji ILR 31 Madras 228 and Kalliani Amma v. Govinda Menon ILR 35 madras 64All these decisions would lay down the principle that if a gift is made by a person in favour of a marumakkathayee woman and her children, the law would raise a presumption that the grant is intended to be enjoyed by the tavazhi with the usual incidents of tarwad properties. The decision reported in ILR 16 Madras 201 in a different context was doubted by a Division Bench of the Madras High Court and the matter was referred to a Full Bench. The Full Bench considered the question elaborately and accepted the principle laid down in ILR 16 Madras 201 as the correct principle. The second Full Bench decision Chakkra Kannan v. Kunhi Pokker ILR 39 Mad. 317 (FB). The above decisions were considered and followed in Seetha v. Krishnan 1975 KLT 156 (FB) 15. In this case the gift is to the mother and all the children and the gift was made as early as in 1907. The second Full Bench decision Chakkra Kannan v. Kunhi Pokker ILR 39 Mad. 317 (FB). The above decisions were considered and followed in Seetha v. Krishnan 1975 KLT 156 (FB) 15. In this case the gift is to the mother and all the children and the gift was made as early as in 1907. We think that the finding of the court below that the properties given under the gift have to be taken as coownership properties is incorrect. We cannot accept the finding of the Trial Court that the gift enures to the benefit of the named persons. We hold that the gift is to benefit the tavazhi of Thirumal and the properties are tavazhi properties. 16. Item No. 3 property was acquired under Ext. B-1 by Thirumal and her children. Ext. B-1 is an assignment, dated 5th September 190The assignment is by the husband of Thirumal. Learned counsel for the plaintiffs submits that though the document purports to be an assignment for all indents and purposes, the document has to be treated as a gift. We were not told any convincing circumstances to hold that this document is not what it purports to be, namely a sale deed. There is no evidence suggesting that the document Ext. B-1 is a gift deed and not a sale deed. The fact that the document is a sale deed or a gift deed, is not very relevant for the purpose of determining whether the properties are held by the tavazhi or not. All what has been said as reasons for holding that items 1, 2 and 7 are tavazhi properties, is applicable in regard to item No. 3 property also. The Trial Court found that item No. 3 property is coownership property and not tavazhi property. We cannot agree. We hold that item No. 3 property is also tavazhi property. 17. Appellants' learned counsel very strongly argued that items 4 and 5 are also, to be treated as tavazhi properties. He submits that the case of defendants 2 to 9 that items 4 and 5 were acquired by Kunhikannan as self acquisition is absolutely unsustainable. Items 4 and 5 were acquired under Exts. B-2 and B-Ext. B-2 is, dated 12th June 1931 and Ext, B-4 is, dated 3rd September 192Item No. 4 property was purchased by Kunhikannan from a stranger by paying a consideration of Rs. Items 4 and 5 were acquired under Exts. B-2 and B-Ext. B-2 is, dated 12th June 1931 and Ext, B-4 is, dated 3rd September 192Item No. 4 property was purchased by Kunhikannan from a stranger by paying a consideration of Rs. 175 and item No. 5 was acquired by Kunhikannan from his father for a consideration of Rs. 25It was argued that at the time when these purchases were made Kunhikannan was the karanavan of the family and the acquisition has to be treated as an acquisition for the tarawad The learned counsel submits that there is a presumption under the Marumakkathayam Law that a property acquired in the name of a Karanavan in the tavazhi is the property of the tavazhi and that unless and until that presumption is rebutted by adducing convincing evidence, the properties have to be treated as tavazhi properties, In support of this proposition, he has relied on the decision reported in A. Mr v. C. Amma AIR 1966 SC 41 The lower court found that Kunhikannan had independent sources of income and that he has purchased the property utilising his own funds and that the properties have to be treated as his self acquisition. The Trial Court also found that there was no evidence to establish sufficient surplus income for the tavazhi to acquire items 4 and In coming to this conclusion, the Trial Court relied on the fact that the tavazhi had only two items of properties namely item Nos. 6 and Further the, court below found that since items 1, 2, 3 and 7 were coownership properties, even if Kunhikannan had utilised the income of these properties for acquiring items 4 and 5, the tavazhi members cannot claim the same as an acquisition for the benefit of the tavazhi. 18. The learned counsel for the respondents submitted that a tavazhi can claim acquisition in the name of the karanavan only if the tavazhi is proved to be possessed of a certain nucleus and the burden to prove the sufficient nucleus is on the party or a person asserting that the properties are tavazhi properties. It was pointed out that the plaintiffs have not adduced evidence in this case to ascertain the actual income of the tavazhi properties. The learned counsel for defendants 2 to 9 submitted that Kunhikannan was the karisthan of an estate and was getting sufficient income. It was pointed out that the plaintiffs have not adduced evidence in this case to ascertain the actual income of the tavazhi properties. The learned counsel for defendants 2 to 9 submitted that Kunhikannan was the karisthan of an estate and was getting sufficient income. Further it was contended that the plaintiffs did not adduce any evidence in regard to the expenses of the tavazhi. On the aforesaid facts, it was argued that there is lack of evidence in the case to prove sufficient surplus fund with the tavazhi to acquire items 4 and It was also stressed that, there is evidence in the case that Kunhikannan had independent source of income. As regards the income of Kunhikannan, though there is no clear evidence as to what exactly the income was, there is evidence in this case that Kunhikannan was employed in an estate. 19. Learned counsel for the respondents contends that it is incumbent upon those persons who are asserting that the property is tavazhi property to establish it. He submits that if it is proved or admitted that the family possessed sufficient nucleus with the aid of which the family might have made acquisition, the law raises a presumption that it is a family property and then alone the onus is shifted to the individual in whose name the property was acquired to establish that the property was acquired by him without the aid of the said nucleus. The correct principle is what is stated in A. Nair v. C. Amma AIR 1966 SC 41 "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 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 junior member of a tarwad (anandaravan). 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 junior member of a tarwad (anandaravan). 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. Mani (ILR 36 Mad. 304); Dharnu Shetty v. Dejamma (AIR 1918 Mad. 1367) Ahmed v. Manha Mammed Kunhi ( AIR 1926 Mad. 643 ) and Thath Amma v. Thankappa (AIR 1947 Mad. 137). But it is settled law that if a property is acquired in the name of karanavan 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." Unlike is the case of anandaravan, undoubtedly the application of the presumption is very strong in the case of a karanavan acquiring property in his name, for the karanavan is in possession of the whole property of the tarawad. 20. Chathu Nambiar v. Sekaran Nambiar AIR 1925 Mad. 430 is one of the decisions approved by the Supreme Court in AIR 1966 SC 41In AIR 1925 Madras 430 it is observed: "Where there is no evidence to the contrary an initial presumption obtains that property which the karanavan of a tavazhi has acquired has been acquired for the tavazhi and with the aid of the tavazhi fund. This presumption must hold good unless and until the person who states that the property is the karanavan's self acquired property proves the fact by evidence (emphasis added). This presumption is only a conditional presumption which affords a presumptive or conditional proof. In other words it is a fact which amounts to proof only so long as there exists no other fact amounting disproof. It is a provisional proof valid until overthrown by contrary proof. We will not be justified if we evaluate the evidence on the basis that the presumption affords a conclusive proof for that it must be a conclusive presumption. A conclusive presumption as opposed to a conditional or rebuttable presumption, possesses probative force of such strength as not to admit effective contradiction. In other words, it amounts to proof irrespective of the existence or non existence of any other facts whatsoever which may possess a contrary probative force. A conclusive presumption as opposed to a conditional or rebuttable presumption, possesses probative force of such strength as not to admit effective contradiction. In other words, it amounts to proof irrespective of the existence or non existence of any other facts whatsoever which may possess a contrary probative force. In fact these presumptions ,are based generally on no precise accurate or real estimate of probabilities. But are established for the purpose of placing the burden of proof upon the party who is best able to bear it or who may most justly be made to bear it. In the background of this principle of law, when we appreciate the evidence in this case, it is difficult to hold that item Nos. 4 and 5 are the self, acquisition of Kunhikannan. The burden of proving that item Nos. 4 and 5 were acquired as self acquisition of Kunhikannan is on defendants 2 to 9 since otherwise the presumption must hold good. The Trial Court held that there were only two items of properties' namely item Nos. 6 and 8 as tavazhi property. Now we have already held that item Nos. 1, 2, 3 and 7 are tavazhi properties. It means the tavazhi had substantial properties and Kunhikannan was the karanavan of the tavazhi managing these properties. Even though it is proved that Kunhikannan had an employment in an estate, there is no evidence as to what was his remuneration. The burden is on the karanavan to prove the actual income of the tavazhi properties and the expenses of the tavazhi. Defendants 2 to 9 have not discharged this onus of proof satisfactorily. We hold that item Nos. 4 and 5 are not the self acquisition of Kunhikannan even though those items stand in the name of Kunhikannan. These two items are also to be treated as tavazhi properties and are divisible as tavazhi properties. 21. Item No. 8 property is claimed by the tavazhi as an acquisition by the original tarawad. This property was acquired by Kunhiraman who died before the Madras Marumakkathayam Act came into force. His rights in the property devolved on his taraward. His tarawad was constituted by the children of his sisters, Korumbi and Manikkam. 21. Item No. 8 property is claimed by the tavazhi as an acquisition by the original tarawad. This property was acquired by Kunhiraman who died before the Madras Marumakkathayam Act came into force. His rights in the property devolved on his taraward. His tarawad was constituted by the children of his sisters, Korumbi and Manikkam. The branch of Korumbi is now represented in this suit by the plaintiff and defendants 1 to 1Manikkam's branch is represented by defendants 20 to 2Before considering the special claim over this item by defendants 2 to 9, we shall consider the primary question whether whole of this item is a tavazhi property available for partition in this suit. This property was acquired by Kunhiraman under Ext. A5 dated 1st June 190. There is no serious dispute in this case that if there are no special claims over these properties, the rights over this property should devolve on two branches of Kunhiraman's tarawad, namely Korumbi's branch and Manikkam's branch. Korumbi's branch is admittedly represented by the tavazhi of Thirumal and Manikkam's branch is represented by defendants 20 to 2As such, half of this property should be treated as tavazhi properties available for partition. The Trial Court also found so. The further question to be decided pertinent to this item is with respect to the special right claimed by different defendants in the suit The respondents in this appeal (D-2 to D-9) claim exclusive right over this item (item No. 8). The claim is based on certain tenancy rights obtained by Kunhikannan. It is also alleged that Kunhikannan got this property under an oral Will and pursuant to this, the renewal Ext. B-5 was taken. It has to be noted that when the renewal Ext. B-5 was taken in 1934, Kunhikannan was the senior most male member of the tavazhi. Though in the document he is not described as the karanavan of the tarawad, it is difficult to treat the renewal to ensure to the benefit of Kunhikannan personally and not to the tavazhi. In order to get over this difficulty, defendants 2 to 9 set up an oral Will, but there is absolutely no evidence to prove the oral Will. The Trial Court also did not accept the case of the oral Will. In order to get over this difficulty, defendants 2 to 9 set up an oral Will, but there is absolutely no evidence to prove the oral Will. The Trial Court also did not accept the case of the oral Will. The rent receipts in the name of Kunhikannan, produced by the defendants 2 to 9, may not have much consequence in this case so long as Kunhikannan was the karanavan of the family. Moreover, plaintiffs have produced Exts. A-9 to A-19, which are rent receipts issued to the previous karanavan Ghathukutty for payment of rent for this item. These receipts would also show that item No. 8 was managed by another karanavan, a fact which is certainly an indication that the property was held by the tavazhi, We find no material to hold that defendants 2 to 9 have tenancy rights over this item of property. Half of this item of property, as stated earlier, is available for partition as an item of property belonging to the tavazhi. 22. Defendants 2 to 9 have filed cross objections claiming tenancy right in regard to this item. Our finding that defendants 2 to 9 have no tenancy right over this item is sufficient to dispose of the cross objection filed by them since their cross objection is confined to a claim of tenancy right over item No. The 33rd defendant has filed A.S. No. 74/78, in regard to her special claim over item No. That will be considered separately when we I consider the appeal A.S. No. 74 of 1972 23. The next contention of the appellants is that the entire right over item No. 9 is also tavazhi property. This item was acquired in the name of Thirumal as per Ext. A6 dated 12th October 190 This item was held by the tarawad and a kanam was granted in favour of Thirumal. The property was also under a mortgage to one Moosa. The mortgage right was purchased by Thirumal as per Ext. B-6 It was contended that while the property was held by Thirumal under Ext. B-66, she got the kanam right as per Ext. A In the context it has to be held that the property belonged to the tavazhi of Thirumal. The Trial Court also held that the jenmom right of the property vests with the tavazhi. Defendants 2 to 9 claim tenancy right over this property. B-66, she got the kanam right as per Ext. A In the context it has to be held that the property belonged to the tavazhi of Thirumal. The Trial Court also held that the jenmom right of the property vests with the tavazhi. Defendants 2 to 9 claim tenancy right over this property. The Trial Court held that the tavazhi has got only jenmom right over this property. The question to be decided is whether defendants 2 to 9 can validly claim tenancy right over this item. As stated earlier, the mortgage right was purchased by the mother of Kunhikannan and Kunhikannan got a lease in his favour. The mortgage is evidenced by Ext. B-66 and the marupat in favour of Kunhikannan is evidenced by Ext. B-6Ext. A6 is dated 12th October 190 By Ext. A6 Tirumal obtained the kanam right in regard to item No. 9 property, The learned counsel for the appellants contends that by virtue of Ext. A6, the entire right over item No. 9 property has been acquired by Thirumal and that the tenancy right is also extinguished by the execution of Ext. A6 document. It is difficult to accept this contention. We think that there is no ground to hold that the tenancy right of Kunhikannan had been extinguished when Ext. A7 document was executed. Insofar as there is no clear evidence on this matter, we do not want to interfere with the finding of the Trial Court. 24. Defendants 14 to 19 claim leasehold interest over item No. 6 The court below rejected their claim on the ground that this was not a specific contention raised in the written statement. It is stated that a house has been constructed in this property by Ramunni and considerable improvements had also been effected. Even though the claim for tenancy was rejected the court below granted a conditional reservation in regard to value of improvements. The reservation granted by the court below is to the effect that 'as far as possible this item will be allotted to the share of .defendants 14 to 19 in which case the value of such improvements will not be taken into account'. The appellants as well as defendants 2 to 9 took serious objection to the aforesaid reservation. The reservation granted by the court below is to the effect that 'as far as possible this item will be allotted to the share of .defendants 14 to 19 in which case the value of such improvements will not be taken into account'. The appellants as well as defendants 2 to 9 took serious objection to the aforesaid reservation. Relying on the decision reported in 1972 KLT 86 1 the appellants contended that defendants 14 to 19 are not entitled to value of improvements. What has been directed by the preliminary decree in this regard by the lower court is perfectly justifiable on the basis of the principle laid down in 1972 KLT 86 l. The direction of the Trial Court is only to the effect that as far as possible item No. 6 would be allotted to the share of defendants 14 to 19 in which case the value of such improvements will not be taken into account. The Court below is right in making such a reservation. We uphold that finding. 25. It was also contended that there was ,an oral partition in respect of the property scheduled in the plaint among the members of the tavazhi and the other defendants. Since there was an oral partition defendants 2 to 9 contended that the suit itself is not maintainable. There is absolutely no evidence to establish an oral partition. We see no merit in this contention. Now the cross objections filed by defendants 27 to 32 26. Defendants 27 to 32 claim tenancy rights over item No. 7 of the plaint schedule. Since they claim a leasehold interest over item No. 7, the question was referred to the Land Tribunal, Cannanore. The finding of the Land Tribunal was against defendants 27 to 3The Trial Court accepted that finding and rejected the claim of tenancy set up by defendants 27 to 3Naturally defendants 27 to 32 are aggrieved and they have filed a cross objection. The finding of the Land Tribunal was against defendants 27 to 3The Trial Court accepted that finding and rejected the claim of tenancy set up by defendants 27 to 3Naturally defendants 27 to 32 are aggrieved and they have filed a cross objection. Defendants 27 to 32 claim that a karanavan of the tavazhi-Chathukutty granted a lease in favour of the first defendant in the year 196The first defendant assigned his lease hold interest to the 26th defendant and the right of the 26th defendant devolved on his death to defendants 27 to 3On the basis of the lease granted by Chathukutty in the year 1965, defendants 27 to 32 are claiming exclusive right over this property as lessees. The lease deed is not in evidence in this case. But reference to a registered lease Document No. 383/65 is made in Ext. B-84, the assignment of the leasehold interest by the first defendant in favour of the 26th defendant in this case. In order to support the case of lease, Ext. B-85, a compromise decree has also been produced. It is stated that some amounts were required for the tavazhi in order to compromise a suit O.S. No. 100 of 1965 and that the first defendant contributed the required amount. It is true that in Ext. B-85 there is reference to the payment of some amount by the first defendant for settling the dispute in the aforesaid suit. 27. The question to be considered is whether this lease is a valid lease or not. The learned counsel for the plaintiffs and defendants 2 to 9 strongly contended that no effect can be given to this abortive lease of the year 196It was contended that the first defendant was a member of the tavazhi and perhaps the senior most member and any lease of tavazhi property taken by the member of the tavazhi cannot be treated as a valid lease in the eye of law. Further it was contended that by the force of S.74 of the Kerala Land Reforms Act, all leases subsequent to the commencement of the Kerala Land Reforms Act are invalid. Further it was contended that by the force of S.74 of the Kerala Land Reforms Act, all leases subsequent to the commencement of the Kerala Land Reforms Act are invalid. The learned counsel for defendants 27 to 32 submitted that even if the lease of the year 1965 is invalid, by the operation of S.74 of the Kerala Land Reforms Act, the first defendant should be deemed to be a tenant under S.7 of the Kerala Land Reforms Act and that if the first defendant is a tenant under S.7 of the KLR Act, defendants 27 to 32 can legitimately claim tenancy over item No. 7 by virtue of the assignment in their favour by defendant No. 1 28. Counsel for defendants 27 to 32 relied on the decisions reported in Sree Karikad Devaswom v. Wandoor Jupiter Chits 1980 KLT 760 and Thomas v. Radhakumari Devi, 1975 KLT 47He also relied on the short notes in 1979 KLT Page 47 and 1981 KLT Page 6 In 1980 KLT 760 , this court held that S.60 of Act 27/79 saves a lease if it was invalid under S.74 of Act 1 of 1964, and not if it was null and void under S.29 of the Hindu Religious and Charitable Endowments Act, 195 It was also held that S.13 of the Land Reforms Act is also of no avail. It confers fixity on a tenant notwithstanding anything to the contrary in any law, only if there is a valid tenancy. 29. In 1975 KLT 475 , it has been held that a co-owner is legally competent to come to any kind of arrangement for the enjoyment of his undivided property and is free to lay down any terms concerning the enjoyment of the property. Further it was held that there was no principle of law which excludes them from providing in the agreement that those of them as are in actual occupation and enjoyment of the property shall pay to the other co-owners compensation, including the occupation by one co-owner, the property of the other co-owners as lessee with a fixed fair rental. 30. In 1979 KLT Short Notes Page 47, M. P. Menon, J. held: "Obviously, S.7 and 74 have to be read together so that the two provisions can be reconciled. 30. In 1979 KLT Short Notes Page 47, M. P. Menon, J. held: "Obviously, S.7 and 74 have to be read together so that the two provisions can be reconciled. It cannot be that under S.74 the legislature invalidated all tenancies brought into being after 1st April 1964, but recognised creation of tenancies in the Malabar area right up to 1st January 1970, under S. What S.74 invalidates is only tenancy "created" by the parties after 1st April 1964 S.7 also does not validate any such creation; it amounts only to a declaration by the legislature that under certain conditions the status of a tenant can be attributed to some persons. If the conditions specified in S.7 are satisfied in a given case, the transaction shall be deemed to be a tenancy, notwithstanding the embargo of S.74 against creation of tenancies after 1st April 1964 So understood, S.7 cannot be considered as repugnant to S.74, and it has to be given full effect." In 1981 KLT Short Notes Page 62 it has been held that unless the document evidences a lease S.6C will not be attracted. A document which does not spell out a lease, but merely spells out a deemed tenancy will not attract the operation of S.6G of the Kerala Land Reforms Act. It was also held that the expression 'tenancy' used in S.74 of the Act cannot be limited to tenancy simplicitor other than deemed tenancy. There is nothing in S.74 of the Act or. in any Other provision of the Act, which would indicate that the expression 'tenancy' in S.74 is intended to have such a restricted meaning. 31. S.74 is a bar for the creation of tenancies. At the same time, S.7 of the Kerala Land Reforms Act provides for deeming certain transactions as deemed tenancies. 32. in any Other provision of the Act, which would indicate that the expression 'tenancy' in S.74 is intended to have such a restricted meaning. 31. S.74 is a bar for the creation of tenancies. At the same time, S.7 of the Kerala Land Reforms Act provides for deeming certain transactions as deemed tenancies. 32. In Parvathi Amma v. Panathi Amma 1983 KLT 71 a Division Bench of this court held that a member of a tarawad in possession of the tarawad property cannot be considered to be a person in occupation of the properties of another and he is not entitled to claim the benefits of S.7 of Act 1 /64 as amended by Act 35/6The Division Bench relied on the decision Balakrishna Menon v. Rajagopala Menon 1974 KLT 85 where this court observed: "The petitioner contends that he has been continuously in occupation of the properties of the tarwad honestly believing himself to be a tenant for not less than two years within a period of 12 years immediately preceding the 11th day of April, 196He also relies strongly on the Explanation to the said section which obliges the court to draw a presumption that a person who has been continuously in occupation of the land of another for two years within the said period of 12 years has been in occupation honestly believing to be a tenant. The essential prerequisite for the applicability of S.7 is that a person should have been continuously in occupation of land belonging to another. Obviously, this condition is not satisfied in the present case. The petitioner is a co-owner of the properties and he has been in possession only of the lands belonging to himself and others. In fact the finding recorded in the suit both by the Trial Court and by the appellate court is that the properties were in the possession of the family and the petitioner was only cultivating it for and on behalf of the family under an arrangement entered into between him and all the other members. In such circumstances it is impossible to say that the petitioner has been in occupation 'of the land of another' so as to entitle him to invoke the provisions of S.7 of the Act. In such circumstances it is impossible to say that the petitioner has been in occupation 'of the land of another' so as to entitle him to invoke the provisions of S.7 of the Act. Moreover the case put forward by the petitioner in the written statement filed by him in the suit was that he had tenancy rights over the properties under a specific lease arrangement set up by him. The court went into the question whether the tenancy pleaded by the 5th defendant (petitioner) was true and arrived at the finding that the lease was not true. In such circumstances, when the court has held that the specific lease put forward by him is not true it is not open to the party, to rely on the provisions of S.7 and contend that he was honestly believing himself to be a tenant." It has to be noted that these defendants claim a specific lease. We have found that the lease is invalid. In the circumstances it is not open to these defendants to claim a deemed tenancy founded on honest belief that they are tenants in occupation of the land for the period mentioned in S.7 of the KLR Act. Eradi, J. (as he then was) following the decision of Poti, J. (as he then was) in Kunhambu Nair v. Kunhammaru Amma and others 1973 KLT 1048 , has taken the view that when once a specific lease set up by the defendant is found against, he must be presumed to know that the tenancy set up by him is false and in such circumstances there cannot be an honest belief that he is a tenant of the property concerned. 33. In view of the Division Bench ruling it is difficult to uphold the contention of defendants 27 to 3The Trial Court has granted an equitable relief to defendants 27 to 32 when it granted the claim of value of improvements over item No. 7 effected between 1965 and the date of suit. Further the Trial Court has also granted the request of these defendants for an allotment of item No. 7 to the share of the first defendant as far as possible. We find no merit in the cross objection of defendants 27 to 32 and the same is dismissed. A.S. No. 74 of 1978 34. This appeal is filed by the 33rd defendant, Yesodha. We find no merit in the cross objection of defendants 27 to 32 and the same is dismissed. A.S. No. 74 of 1978 34. This appeal is filed by the 33rd defendant, Yesodha. The Trial Court rejected her claim over item No. She is aggrieved, hence this appeal. 35. Yesodha is the daughter of Kunhiraman. She claims item No. 8 under a Will executed by Kunhiraman. The Will is evidenced in this case as Ext. B-9It is dated 30th November 191There is no dispute that this item was acquired by Kunhiraman under Ext. A5, dated 1st June 190Admittedly, Kunhiraman is not a member of Korumbi's tavazhi. According to P.W. 1, Kunhiraman is the karanavan of another family. The claim as stated earlier is based on Ext. B-91 Will. As per the Will, the property has been bequeathed to 33rd defendant by Kunhiraman. It is in evidence that Kunhiraman had only one daughter, the 33rd defendant. The learned Sub Judge refused to accept the Will as a genuine Will of Kunhiraman. 36. The learned counsel for the appellants submitted that the Will in question requires no strict proof under the Evidence Act since it is more than 30 years old. The main ground relied on by the Trial Court for rejecting the Will is its late production. The 33rd defendant has attempted to explain the delay caused in the matter of the production of the Will. She stated that the Will was produced in another suit and she got it back only late. There is no clear proof to show that this Will has been produced in another suit. There is no indication on the Will that the Will was, marked in another suit. Admittedly the Will has not been proved as required under law. The one person who has been examined for the purpose of proving the Will also does not identify the signature of the testator. 37. The learned counsel relies on the decision reported in Munnalal v. Kashibai AIR 1947 PC 15 where it is stated that "the actual execution and attestation of a Will more than thirty years old and produced from proper custody can be presumed under S.90 of the Evidence Act". In this case of course the Will produced before the court is more than 30 years old. In this case of course the Will produced before the court is more than 30 years old. The only circumstance for us to hold that the Will is genuine is that it is 30 years old. Only on the presumption under S.90, it is difficult to hold that the Will is genuine. The attendant circumstance has to be taken note of in determining the genuineness of the Will. In P. Devaswom v. Pyli AIR 1952 TC 438 a similar question has been considered. Sankaran and Gangadhara Menon, JJ. held: "The rule of presumption must be applied with exceeding caution and where circumstances throw suspicion on genuineness of the document no presumption under S.90 can be drawn. " In Dhanpal v. Govindaraja AIR 1961 Mad. 262 it has been observed: - "Under S.90 the court has got a judicial" discretion to be exercised in drawing the presumption. x x x x x x x x x x x x However, inasmuch as the presumption dispenses with proof of due execution in cases of testament where the onus of proof is heavy on the prepounders of the Will, the Court must act with extreme caution and with utmost circumspection. The degree of proof sufficient to establish a Will is not what is required to satisfy the mind of every sceptic but what would appease the conscience of the court." In Kunhaminia Umma v. Special Tahsildar AIR 1977 Ker. 41 , Bhaskaran and Chandrasekhara Menon, JJ. observed:- "The true scope of S.90 is that the section does away with the strict rules of proof which are enforced in the case of private documents, by giving rise to a presumption of genuineness with regard to documents reaching a certain age. If private documents not less than thirty years old are produced from proper custody, and are on their face free from suspicion, the court may presume that they have been signed or written by the person whose signatures they bear or in whose handwriting they purport to be, and that they have been duly attested and executed, if the purport so to be. In other words, documents thirty years old prove themselves. In other words, documents thirty years old prove themselves. The section deals with the admissibility of such old documents without proof in the usual manner, but the credit to be given to them depends on the discretion of the court exercised in a judicial manner and the particular circumstances of each case. No doubt, the presumption is permissive and according to the circumstances of each case the court may or may not raise it." As stated earlier, the 33rd defendant produced the document stating that she was not able to produce the document earlier in point of time on the ground that the same was produced in another litigation. Whether the document has been produced from proper custody is also doubtful. The circumstances stated by D.W.3, brother of the testator, Kunhiraman, are also not convincing. D.W. 3 has not vouch-safed the signature of Kunhiraman. 38. S.90 of the Evidence Act reads thus:- "Where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports . to be executed and attested." The presumption under S.90 as to documents over 30 years old has to be made with serious forethought and judiciousness. It would be very serious indeed for persons owning land, if the mere production of an instrument purporting to be 30 years old, absolutely entitles the person producing it, to a decision that it is a genuine and valid instrument. 39. In Trailokya Math Nandi v. Shurno Chungoni ILR 11 Cal. 539 it was observed that the rule in S.90 is a rule which even in England, is exercised with great caution. In Swarnamoji v. Sourindra Math Mitra AIR 1925 Cal 1189, the Calcutta High Court held that the mere production of an ancient document unless supported by some corroborative evidence of acting under it is not entitled to any weight. 539 it was observed that the rule in S.90 is a rule which even in England, is exercised with great caution. In Swarnamoji v. Sourindra Math Mitra AIR 1925 Cal 1189, the Calcutta High Court held that the mere production of an ancient document unless supported by some corroborative evidence of acting under it is not entitled to any weight. We think that, before applying the presumption under S.90 in regard to an ancient document, it is always safe to insist for certain corroborative evidence of ancient or modern, corresponding enjoyment, or other equivalent explanatory proof, to dispel any suspicious circumstance surrounding the document. 40. In S.90 of the Evidence Act, the words "may presume" point out in unmistakable terms to the fact that the court has a judicial discretion in the matter whether to draw the statutory presumption in regard to an ancient document under S.90 or not. There is absolutely, no other corroborative piece of evidence apart from Ext. B-91 will. The appellant would say that her uncle was managing the property for sometime. She also claims that she enjoyed the property through her husband with the active cooperation of Kunhikannan, a karanavan of Urumi family. Though she claims possession for a very long period, namely from 1917 onwards, she was not able to produce any proof to establish possession with her. She did not produce any acceptable evidence to show such possession with her. She produced Exts. B-80 to B-8. They are revenue receipts. These receipts are issued after the filing of the suit. It has been found that a portion of this item was allotted to defendants 20 to 25 and they are in possession of the same. It is difficult to think that the 33rd defendant was in possession of this property at any time. 41. On the above facts and circumstances, this court will not be justified in interfering with the discretion exercised by the court below in rejecting the presumption under S.90 of the Evidence Act. It is difficult to think that the 33rd defendant was in possession of this property at any time. 41. On the above facts and circumstances, this court will not be justified in interfering with the discretion exercised by the court below in rejecting the presumption under S.90 of the Evidence Act. Although the courts are empowered to adopt the rule of presumption laid down in S.90 they are not bound to do so in all cases and must apply it with exceeding caution and may, if the circumstances of the particular case require it, call for proof, or refuse, in the absence of proof to accept as any document irrespective of its alleged age or of the custody from which it is produced. In Shafiq-un-nisa v. Shaban Ali ILR 26 All. 591 their Lordships of the Privy Council refused to overrule the discretion of the lower courts in the matter of raising the presumption of genuineness in respect of an apparently very old document because the reasons given by the lower courts were not prima facie unsound. 42. We think the finding of the court below in regard to the genuineness of the will is correct and is not called for any interference. The appellant claims fight over item No. 8 property only on the basis of Ext. B-91 Will. Hence there is no merit in the appeal. 43. In the result, we dismiss A.S. No. 74 of 1978 and the cross objections filed by defendants 2 to 9 and 27 to 3. The appeal A.S. 66 of 1978 is allowed modifying the preliminary decree of the court below holding that item Numbers 1, 2, 3, 4, 5 and 7 are also tavazhi properties and divisible as tavazhi properties subject to whatever special claims and reservations granted by the court below in its preliminary decree in respect of these items. In all other respects the decree of the Trial Court is confirmed, Parties are directed to bear their respective costs.