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PETITIONER: ACHUTHAN NAIR

       Vs.

RESPONDENT: CHINNAMU AMMA AND OTHERS

DATE OF JUDGMENT: 13/08/1965

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. MUDHOLKAR, J.R. BACHAWAT, R.S.

CITATION:  1966 AIR  411            1966 SCR  (1) 454

ACT: Marumakkathayam  Law  Property whether  belongs  to  manager individually or to tarwad or tavazhi-Presumption.

HEADNOTE: A  suit was filed by the some members of a  malabar  tavazhi against  its  manager and others for maintenance  and  other reliefs.   The appellant was the 4th defendant in  the  suit while  his mother was the 1st defendant.  The  said  tavazhi owned a number of properties.  In the plaint it was  alleged that  a certain property called the chalakkode property  was the  property  of the lavazhi and therefore  the  plaintiffs were   entitled  to  maintenance  from  its   income   also. According  to  the  plaintiffs the  1st  defendant  was  the karnavati  or  manager of the tavazhi property and  the  4th defendant  was the de facto manager.  The defendants  denied that  the said chalakkode property belonged to  the  tavazhi but  alleged  that  it was purchased from  and  out  of  the private  funds  of defendants 1 and 4. The trial  court  ac- cepted  the  defendants  case  and  gave  a  decree  to  the plaintiffs without taking into consideration the income from the  chalakkode property.  The High Court,  however,  taking into account the relevant presumptions under Marumakkathayam law  by which the parties were governed held that  the  said property  belonged to the tavazhi and order the trial  court to fix the rate of maintenance after taking into account the income  from  it.   The 4th  defendant,  after  obtaining  a certificate from the High Court preferred an appeal to  +his Court.   The  plaintiffs,  the first  defendant,  and  other defendants were impleaded as respondents in the appeal. On  behalf of the appellant it was urged : (1) The  1st  and 4th defendants were not managers of the tavazhi  properties; (2)  Even if they were, there was no presumption  under  the Malabar Law that the properties acquired in their names were tavazhi   proper-ties;  (3)  Even  if  there  was   such   a presumption  the appellant had proved by  relevant  evidence that the chalakkode property was the self-acquired  property of the 1st defendant and himself. HELD : (i) A family governed by Marumakkathayam law is known as  a  tarwad  it consists of a  mother  and  her  children, whether  male or female, and all their  descendants  whether

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male or female, in the female line. A tavazhi is a branch of a tarwad.  The management of a tarwad or tavazhi  ordinarily tests  in the eldest male member of the tarwad  or  tavazhi. But  there are instances where the eldest female  member  is the  manager.  The male manager is called the  karnavan  and the  female one Karnavati.  He or she standing  a  fiduciary relationship with the members of the tarwad or tavazhi as  t case may be. [457 E-H] (ii) Under  Hindu law when it is proved or admitted  that  a family possessed sufficient nucleus with the aid of which  a member  might  have made an acquisition of  property,  there arises  a presumption that it is 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.  But the said principle has not been  accepted or  applied  to acquisition of properties in the name  of  a junior member of a tarwad 455 (amandravan).  It has been held that there is no presumption either  way, and that the question has to be decided on  the facts of each case. [458 C-E] Further,  the settled law is that if a property is  acquired in  the name of the karnavan there is a  strong  presumption that  it  is tarwad property and that the  presumption  must hold good unless it is rebutted by acceptable evidence. [458 E-F] Govinda  v.  Nani,  (1913) 36 Mad.  304,  Dharnu  Shetty  v. Dejamma,  A.I.R. 1918 Mad. 1367, Soopiadath Ahmad v.  Mammad Kunhi, A.I.R. 1926 Mad. 643, Thata Amma v. Thankappa, A.I.R. 1947  Mad.  137  and Chathu Nanibiar  v.  Sekharan  Nambiar, A.I.R. 1925 Mad. 430, approved. (iii)     On  the  evidence  it  was  clear  that  the   1st defendant  was the karnavati of the tavazhi and her son  the 4th defendant an advocate, had been managing the  properties on her behalf.  If that was so, so far as the 1st  defendant was  concerned there was a strong presumption that the  said property  was  acquired  from and out of the  funds  of  the tavazhi;  and so far as the 4th defendant was concerned,  in the  circumstances of the case, the position was  the  same; though  in  law he was not the manager, he was in  de  facto management  of  the  tavazhi  properties  and  therefore  in possession  of  the tavazhi properties, its income  and  the accounts relating to the properties.  Being in management of the properties he stood in a fiduciary relationship with the members of the tavazhi.  Irrespective of any presumption the said circumstances had to be taken into account in coming to the conclusion whether the property was tavazhi or not. [459 A-D] (iv) In regard to the Chalakkode property, so far as the 1st defendant  was concerned he strong presumption  against  her exclusive:  title had not been rebutted at all;  as  regards the  4th defendant the facts shifted the burden  of  proving title to the property to him and he had failed to  discharge the same. [459 F-G; 460 A] The  High  Court  was  therefore  right  in  coming  to  the conclusion   that  the  property  in  question  was   tavzhi property.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 273 of 1963. Appeal  by special leave from the judgment and decree  dated July 15, 1955 of Madras High Court in Appeal Suit No. 142 of 1951.

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N.   C. Chatterjee and R. Thagarajan, for the appellant. A.   V.  Visvanatha  Sastri and V. A.  Seyid  Muhammad,  for respondents Nos.  1 to 24. The Judgment of the Court was delivered by Subba  Rao,  J.  This  appeal  by  certificate  raises   the question,   whether   a  certain  property,   described   as Chalakkode property, is the property of the Tavazhi of which the  appellant  and his mother are members or  the  separate property of the appellant. Plaintiffs in O.S. No. 108 of 1948 in the Court of the  Sub- ordinate Judge, Palghat, and the defendants in the said suit are  members  of  a Malabar tavazhi : originally  it  was  a branch of a      456 tarwad,  but separated itself from the said tarwad  on  July 13,  1934  under  a decree in a  partition  suit.  The  said tavazhi  owns a number of properties.  The plaintiffs  filed the suit against the tavazhi represented by its manager  and others, for arrears of maintenance due to them and for other reliefs.   In  the  plaint  it was  alleged  that  the  said Chalakkode  nilam property was the property of  the  tavazhi and,  therefore, they were entitled to maintenance from  the income  of the said property also.  The defendants in  their written-statement  denied  that the said property  was  -the property  of the tavazhi, but alleged that it was  purchased from  ,and out of the private funds of defendants 1 and  her son,  defendant 4. One of the issues raised was whether  the property  referred  to  in paragraph 5  of  the  plaint  was tavazhi  property from which maintenance could  be  claimed. The  learned Subordinate Judge held that the  said  property did  not  belong  to the tavazhi but  it  was  the  personal property  of defendants I and 4. In the result in  giving  a decree  for maintenance, he did not take into  consideration the  income from the said property.  On appeal,  a  Division Bench  of  the  Madras  High Court,  having  regard  to  the relevant  presumptions under the Malabar law, held that  the said  property  belonged to the tavazhi; in the  result,  it allowed the appeal and remanded the suit to the Court of the Subordinate  Judge for fixing the rate of maintenance  after taking into account the income from the said property  also. The 4th defendant, after obtaining- the certificate from the High  Court, has preferred the present appeal to this  Court against  the judgment of the said -Court.  In  this  appeal, the  plaintiffs,  the first defendant and  other  defendants have been impleaded as respondents. The only question in the appeal is whether the said property is  the  property  of the tavazhi or  is  the  self-acquired property  of the first respondent and her son,  the  present appellant. Mr.  N.  C. Chatterjee, learned counsel for  the  appellant, contends  that the first and the fourth defendants  are  not the  managers of the tavazhi properties; even if  they  are, there  is  no  presumption under the Malabar  law  that  the properties  acquired in their names are tavazhi  properties; and that even if there is such a presumption, the  appellant has proved by relevant evidence that the Chalakkode property is  the  self-acquired  property  of  himself  and  the  1st defendant. Mr.  A. Viswanatha Sastri, learned counsel for  the  respon- dents, argues that the 1st defendant is the karnavati of the tavazhi that she was managing the tavazhi properties  during the crucial period with the active help of her son, the  4th defendant appel- 457 lant,  that there is presumption under  the  Marumakkathayam

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law  that a property acquired in the name of a manager of  a tavazhi  is the property of the tavazhi, and that  the  said presumption   has  not  been  rebutted  by  any   acceptable evidence.   Further, he contends that the  same  presumption should  be  invoked  in  the  case  of  the  4th  defendant- appellant,  who  was  in de facto management  of  them  said property during the crucial period and that he had kept back all  the  relevant  accounts and failed to  rebut  the  said presumption. To appreciate the scope of the said presumption it is neces- sary  to  notice  briefly the relevant  legal  incidents  of toward under the Marumakkathayam law.  The said law  governs a large section of people inhabiting the West Coast of South India.   "Marumakkathayam" literally means  descent  through sisters’  children.   There  is  a  fundamental   difference between  Hindu  law  and Marumakkathayam law  in  that,  the former  is founded on agnatic relationship while the  latter is  based  on  matriarchate.   The  relevant  principles  of Marumakkathayam  law  are well settled  and,  therefore,  no citation is called for.  A brief survey will suffice. A  family  governed  by Marumakkathayam law is  known  as  a tarwad:  it consists of a mother and her  children,  whether male  or female, and all their descendants, whether male  or female,  in the female line.  But the  descendants,  whether male  or  female,  of  her sons or  the  sons  of  the  said descendants in the female line do not belong to the  tarwad- they belong to the tarwads of their mothers.  A tavazhi is a branch  of  a  tarwad.   It  is  comprised  of  a  group  of descendants  in the female line of a female common  ancestor who  is a member of the tarwad.  It is one of the  units  of the  tarwad.  It may own separate property as distinct  from tarwad  property.   The management of a  tarwad  or  tavazhi ordinarily vests in the eldest male member of the tarwad  or tavazhi, as the case may be.  But there are instances  where the  eldest  female member of a tarwad or a tavazhi  is  the manager  thereof.  The male manager is called  the  karnavan and the female one, karnavati.  A karnavati or karnavan 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 458 members of a tarwad in the distant past, 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 under 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

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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  tarwad (anandravan).   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;(1) Dharnu  Shetty v.  Dejamma;(2)  Soopiadath Ahmad v.  Mammad  Kunhi;(3)  and Thatha Amma v. Thankappa.(4) 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;(5)  Soopidath Ahmad v. Mammad Kunhi;(3) and  Thatha Amma v. Thankappa.(4) [His  Lordship  then  discussed  the  oral  and  documentary evidence and proceeded :] We may at this stage mention that the fact that the  learned Subordinate  Judge  accepted the oral  evidence  adduced  on behalf  of the defendants has no particular significance  in this case, for the learned Subordinate Judge did not examine the witnesses in Court, but the oral evidence adduced in the earlier  maintenance suit was marked by consent as  evidence in  the  present  case.   ’Me  learned  Subordinate   Judge. therefore, was not in a better position than the High  Court in the matter of appreciating the oral evid- (1) [1913] 36 Mad. 304.    (2) A.T.R. 1918 Mad. 1367. (3) A.I.R. 1926 Mad. 643.  (4) A.T.R. 1947 Mad. 137. (5)  A. 1. R. 1925 Mad. 430. 459 ence  as  he could not have observed their  demeanour.   We, therefore, agree with the High Court, on a consideration  of the documentary and oral evidence, that the 1st defendant is the karnavati of the tavazhi and her son, the 4th defendant, who is an advocate, has been managing the properties on  her behalf. If  that  be so, so far as the 1st defendant  is  concerned, there  is  a strong presumption that the said  property  was acquired  from and out of the funds of the tavazhi, and,  so far as the 4th defendant is concerned, in the  circumstances of the present case the position is the same; though in  law he  was  not  the  manager,  we find  he  was  in  de  facto management  of  the tavazhi properties  and,  therefore,  in possession  of  the tavazhi properties, its income  and  the accounts relating to those properties.  Being in  management of the properties, he stood in a fiduciary relationship with the  other  members  of the tavazhi.   Irrespective  of  any presumption,  the  said  circumstances must  be  taken  into consideration  in coming to the conclusion whether the  said property is tavazhi property or not. [After tracing the title of the Chalakode property His Lord- ship concluded :] To sum up : the tavazhi has properties yielding  appreciable income  from and out of which the Chalakkode property  could have been purchased.  The 1st defendant was the karnawati of the  tavazhi and the 4th defendant was managing the  tavazhi properties  on behalf of his mother, the 1st defendant,  The assignment  of  the  decree in execution  whereof  the  said property   was  purchased  was  taken  in  favour  of   both defendants  I and 4, the de jure and the de  facto  managers respectively.  The sale certificates for the same was issued in  the  names of both of them The ticket for the  kuri  was admittedly taken in the name of the 1 st defendant and it is admitted  by the 4th defendant that his accounts  would  not

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disclose  that he paid the subscript-ions to the  kuri.   So far   as  the  1st  defendant  is  concerned,   the   strong presumption  against  her  exclusive  title  has  not   been rebutted  by  any  evidence  at  all;  as  regards  the  4th defendant,  the  following  facts establish  that  the  said property  was  tavazhi  property  :  (i)  the  tavazhi   has properties yielding appreciable income from and out of which the  said property could have been purchased; (ii)  the  4th defendant  was  managing the properties of  the  tavazhi  on behalf  of the 1st defendant; (iii) he stood in a  fiduciary relationship  with  the  members  on  whose  behalf  he  was managing the properties; (iv) in every relevant  transaction the  1st defendant, the karnavati was made a party; and  (v) the 4th defendant has suppressed both 460 the  accounts of the tavazhi and his personal  accounts  and has failed to prove that he had any personal income from and out  of which he could have paid Rs. 14,000 odd towards  the purchase  of the said property.  The facts  certainly  shift the  burden  of  proving title to the property  to  the  4th defendant and he has failed to discharge the same.  From the aforesaid  facts we have no hesitation in agreeing with  the finding  of  the High Court that the said property  was  the property of the tavazhi. In the result, the appeal fails and is dismissed with costs. Appeal dismissed. 470