Full Judgment Text
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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