Achuthan Nair versus Chinnamu Amma and Others

A suit wa<> tiled by the some members of a malahJr tavazl:i again9t its manager anc.l olhers for n"taintcnance and other relicf9. The !ppellant was the 4th defendant in the suit while his mother was the Isl defendant. 1be srud lavaJzj owned a nun1bcr of properties. In 1he plaint it was alleged that a certain property called the chalakk<>dc property was lhc property of the ta1,:az/Jl and therefore the plaintiffs \'ere entitled to n1aintenance from its income also. According to the plaintiffs the 1st defendant W39 the karnnvati or manager of the t(n•azhi_ property and the 4th defendant wu the de facto manager. The defendants denied that the said chalakkode property belonged to the tava;:hi but alleged that it was purcha.'iCd from and out of the prh·ate funds or defendants I and 4. The trial court ac· cepted the defendants' case and gave a decree to the plaintiffs witf>out taking into consideration the income from the chalakkode property. Tbe High Court. bov.:cvcr, laking into account the relevant pref)umprion~ under Marumak.kath1yam knv by v.:hich the parties \Vere governed hchi that the said property belonged to the hn•ar.hi and order the trial court to fix the rate of maintenance after taking into :iccount the income from it. lbe 4th defendant. :iftrr oht:iining a c!rtific:itc frC'lnl the High Court preferred an appeal to :his < 'L'Urt. The plaintiffs, the first defendant, and O'lher delcn· dants \vcrc in1plcadcd 3.i rcpoodants in the appeal.

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On behalf of the appellant ii w;is urged : (I) The !st and 4th defendants were not managf!1' of the ta1·azhi propnic-.; (2) Even if thy were, the!~ ,~·as no prcsumj"Jlion under the ~falahar La\v that the properties acquired in their nan1e-s were tavazhi propc:tie.; (3) Even if there wu such a presumption the appellant had proved by relev::int evidence that !he chah;,kkode propcr:y IA'aS the sclf-acouired properly of lhc 1st defendant and himself.

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HELD : (i) A family governed by Marumakkathayam law is known as a tarwad; it con.<tists of a mother and her children, \'hether male or female, and all their descendants \Yh-:thcr male or female, in the female line. A tavaz.hi is a branch of a carwad. 1·hc management of a tarwad or tavazhi ordinarilv rests in the eldest male memher of the tart:ad pr tava:hi. But there· <ire inc;t<1nC~ 'vhcre the eldest female member is the manager. The male n1anag:er i~ c~11lc<l the karnavan and the female one Karnavnti. I-le or 5he 9tands in a fiduciary relationship \vith the members of the tarwad or tavn,hi as the case may be. [457 E-H]

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(ii) Under Hindu law when i1 is .proved r admilled that .a family possessed sufficient nucleus \'1th the aid of. which a memer might. ha~ n1aJe an acquisition of property, there anse~ a presumption that tt IS joint family property and the onus is. $hif1ed I~ the _individual ~ember to establish that the properly was acqwred by him wrthout the aJd of the said nucleus. But the said principle has not been accepted or applied to acquisition of properties in the name Clf a junior member of a tarwad

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ACHUTHAN v. CHINNAMU (Subba Rao. J.)

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455

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A (anandravan). It has been held that there is no presumption either way, and that the question has to bo decided on the facts of each case. [458 C-E]

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Further, the settled law is that if a property is acquired in the name of the karnavan ther·.e is a strong preswnp:ion that it is tarwad property and that the presumption must hold good unless it is rebutted by acceptable evidence. [458 E-F]

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B Govinda v. Nani, (1913) 36 Mad. 304, Dhamu Shetty v. Deiamma, AJ.R. 1918 Mad. 1367, Soopiadath Ahmad v. Mammad Kunhi, A.I.R. 1926 Mad. 643, Thata Amma v. Thankappa, A.l.R. 1947 Mad. 137 and Chathu Nambiar v. Sekharan Nambiar, A.LR. 1925 Mad. 430, approvod.

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(iii) On the evidence it was clear that the lst defendant was tl)e karnavati of the tavazhi and her son the 4th defendant an advocate, had lx.>en managing the properties on her behalf. If that was so, so far as c the 1st defendant was concerned there was a strong presumption that the said property \Vas 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 \Vas the same; though in la\v 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 relationo;,hip V.lith the men1bers of the tavazhi. Irre9peetive of D any presun1ption the said circumstances had to be taken into account in coming to thei conclusion whether the property was tavazhi or not. [459 A-D] (iv) In regard to the Chalakkode property, so far as the lst dcfcndaat was concerned the ~trong 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 dis· E charge the same. [459 F-G; 460 A]

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The High Court was therefore right in con1ing to the conclusion that the property in question was tavazhi property. CIVIL APPELLATE JUR!SDfCTION : Civil Appeal No. 273 of 1963.

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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. Thiagaraja11, for the appellant.

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A. V. Viswanatha Sastri and V. A. Seyid Muhammad, for respondents Nos. I to 24.

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The Judgmen~ of the Court was delivered by

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Sobba 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.

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PlainHffs in 0.S. No. 108 of 1948 in the Court of the Subocdinate Judge, Palghat, and the defendants in the said suit are members of a Malabar tavazhi ; originally it was a branch of a

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456

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[1966] I S.C.R.

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SUPREME COUllT REPORTS

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tarwad, but separated itself from the said tanvad 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 ta mzhi 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 Chalakkodc 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 writlen-statement denied that the said property was the property of the tarnzhi, but alleged that it was purchased from and out of the private funds of defendants 1 and her son, defen;iant 4. One of the issues raised was whether the property referred to in paragraph 5 of the plaint was ta..azhi 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 Rench of the Madras High Court, having regard to the relevant presumptions under the Mabhar law, held that the said property beonged to the tarnhi; in the result, it allowed the appeal and remanded the suit to the Cotrt1 of the Subordinate Judge for fixing the rate of maintenance after taking into account the income from the said pcoperty 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 implcaded as respondents.

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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.

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Mr. N. C. Chatterjee, learned counsel for the appellant, contends that the first and the fourth defendants arc not the managers of the tavazlri properties; even if they are, there is no presumption under the Malabar law that the properties acquired in their names arc ra1•azhi 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 I st defendant.

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Mr. A. Viswanatha Sastri, learned counsel for the re,nondents, argues that the !st 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-

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ACHUTHAN v. CHINNAMU (Subba Rao, J.)

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457

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} I ., \

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A !ant, that there is presumption under the Marumakkathayam 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 the

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B said property during the crucial period and that he had kept back all the relevant accounts and failed to rebut the said presumption.

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To appreciate the scope of the said presumption it is neces-

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sary to notice briefly the relevant legal incidents of tanvad under

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c the Marumakkathayam law. The said law governs a large section of people inhabiting ~he West Coast of South India. "Marum a k- kathayam" 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 rele-

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D van~ principles of Marumakkathayam law are well settled and, therefore, no citation is called for. A brief survey will suffice.

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A family governed by Marumakkathayam Jaw is known as a

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tarwad : it consists of a mother and her children, whether male or female, and all their descendants, whether male or female, in

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E 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

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F 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

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G 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

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H 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

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[1966) I S.C.R.

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SUPREHB COURT REPORTS

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members of a tarwad in the distant past, in modern times it has gi\·en 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. Court~ have recognized the difference between a joint Hindu family under the Hindu law and a rarwad under the Maruma.kkathayam 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 membr. Under Hindu law, when a properly stads in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law. But the said principle has no~ 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 : sec Go'inda v. Nani;(') Dharnu Shetty v. Dejamma;(') Snopiadath Ahmad v. Mammad Kun/ti;(') and Thatha Amma v. Thankappa.(') But it is settled law that if a property is acquired in the name of tho karnavwr, there is a strong presumption that it is a tanvad property and that the presumption must hold good unless and until it is rebutted by acceptable evidence : see Chathu Nambiar v. Sekharan Nambiar;(') Soopidath Ahmad v. Mammad Kunhi;(') and Tha!ha Amma v. Thankap11a.(')

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[His Lordship then discussed the oral and documentary evidence and proceeded : )

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We may at this stage mention that the fact that the learned Subordinate Judge accepted the oral evidence adduced on behalf of the defendant~ 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. The learned Subordinate Judge, therefore, was not in a better position than the High Court in the matter of appreciating the oral evid·

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(I) (1913136 Mad. 304. (2) A.LR. 1918 Mad. 1367. (l) A.l.R. 1926 Mad. 643. (4) A.l.R. 1947 Mad. 137.

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(5) A. '. R. 1925 Mad. 430.

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ACHUTHAN v. CHINNAMU (Subba Rao,!.)

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459

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A 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 karnavatl of the tavazhi and her son, the 4th defendant, who is an advocate, has been managing the properties on her behalf.

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B 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, c 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 D or not

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[After tracing the title of the Cha/a/code property His Lordship concluded : ]

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To sum up : the tavazhi has properties yielding appreciable income from and out of which the Chalakkode property could E have been purchased. The 1st defendant was the karnavati 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 wa~ purchased was taken in favour of both defendants 1 and 4, the de iure and the de facto managers respectively. The sale certiF ficates for the same was issued in tb.e names of both of them. The ticket for the knri was admittedly taken in the name of the 1st defendant and it is admitted by the 4th defendant that his account~ would not disclose that he paid the subscriptions 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 G 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 fiduciarjr relationship with the memH bers on whose behalf he was managing the properties; (iv) in every relevant transaction the 1st defendant, the karnavati wa~ made a party; and (v) the 4th defendant has suppressed both

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[1966) l S.C.R.

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460 SUPRl!MB COURT RBPORTS

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the accounts of the tavazhi and his personal accounts and has A 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 B the said property was the property of the tavazhi.

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In the result, the appeal fails and is dismissed with cost5.

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A ppea/ dismissed.

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Achuthan Nair v. Chinnamu Amma and Others

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Achuthan Nair v. Chinnamu Amma and Others

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