Varadaraja Iyengar, J.
1. This appeal arises out of a suit for partition among the members of a Nair tarwad and the question is whether the only item of immovable property in respect of which the plaintiffs prayed for and Court below granted a preliminary decree for partition is at all tarwad property available for purpose of partition.
2. The tarwad consists of the plaintiffs 1 to 11 and defendants 1 to 6. The 1st defendant Raman Nair, is the Karanavan of the tarwad. The 2nd defendant Karthiyayani Amma is his sister and also the mother though by separate husbands, of the 1st plaintiff and the 3rd defendant. Plaintiffs 2 to 11 are the members of the thavazhi of the 1st plaintiff while the defendants 4 to 6 are the children of the 3rd defendant.
According to the plaintiffs' case, the defendants' 1 and 2, their mother Paru Amma and their elder brother Gopalan Nair who constituted in all the adult members of the tarwad in 1097, obtained Rs. 100 under Ext. A partition deed of that year in the main tarwad, in lieu of their tarwad's share and settled down as Kudikidappukars in the property nearby appertaining to the illom of P. W. 2, Gopalan Nair and the 2nd defendant also taking service in the illom.
The plaint A schedule property which was part of the property so occupied was subsequently taken on Verumpattom lease in two stages, viz., under Ext. B of 1106 and Ext. C of 1120 both in the name of the 2nd defendant. The present building in the A schedule property was put up by joint efforts of the members of the tarwad in or about 1106 in place of a prior one which happened to be destroyed in the floods.
However, claiming the A schedule property and the building therein to be her own the 2nd defendant executed Ext. III assignment deed in 1121 in favour of the 3rd defendant but the sale deed can-not bind the plaintiffs as wanting in authority. The suit was therefore laid as for partition of the plaintiff's 11/17 share, in the A schedule property without reference to Ext. III alienation and also in a schedule of movables to the plaint as B schedule, But these movables were found by the Court below to be non-existent and the plaintiffs having acquiesced in the finding, we are not concerned with them further more.
3. The suit was resisted by the defendants 2 And 3 on the footing that the plaint A schedule property was the separate property of the 2nd defendant having been acquired in her name by her third husband Kochukrishnan Nair deceased. The building in the A schedule had also been constructed by him for the 2nd defendant's benefit. According to the defendants there was no question of any un divided tarwad of the parties after Ext. A partition arrangement of 1098.
It was no doubt true that Rs. 100 was received thereunder in lump as compensation due to the tar-wad for its share. But Gopalan Nair and the 1st defendant had taken their share in the amount then and there and separated themselves away from the rest. The fact that the 2nd defendant's mother and children had been allowed to take residence with her and were further maintained by her could not invest them with any right in the A schedule property which belonged to her absolutely.
Ext. III assignment deed was in the circumstances unquestionable at the hands of the plaintiffs' thavazhee and the claim for partition whether ignoring Ext. III or otherwise 'was unsustainable. An alternative plea was also raised on the basis that along with Ext. III assignment deed in favour of the 3rd defendant, the 2nd defendant had executed Ext. II deed in favour of the 1st plaintiff assigning other property of hers constituting thereby a fair settlement aiming her children. So, if Ext. III gift was by some chance to be unsettled by the Court Ext. II should share similar fate, at least should be taken into consideration in the allocation of the plaintiffs' shares.
4. The Court below found that the A schedule property was not acquired by Kochukrishnan Nair as pleaded by the defendants 2 and 3 but was a tarwad acquisition and that Ext. III was incompetent and could not bind the plaintiffs. It found specifically that from 1098 the 2nd defendant, her mother and brothers and her children were living as a sub-tarwad and the building in the A schedule item and the improvements thereon were the sub-tarwad properties of the plaintiffs and defendants.
A preliminary decree for partition of the plaintiffs' 11/17 shares in the A schedule property and ignoring Ext. III alienation for the purpose, was therefore granted.. The Court below did not consider the alternative plea set up by the defendants 3 and 3 in regard to the inclusion of Ext. II property in such partition, apparently because the point was not seriously pressed at any stage.
5. The only question that arises for consideration in this appeal is as to whether A schedule property bad been roperty found by the Court below to be the joint property of the parties. This depends in turn on the real nature and scope of Exts. B and C deeds of acquisition. And except that they stand in the name of the 2nd defendant, the evidence in the case shows practically one way, viz., in support of the plaintiffs' case of tarwad acquisition.
We have first the clear assertion of the jenmi of the properties covered by Exts. B and C, as P. W. 2 that his illom had helped the family to settle down in the property concerned under oral lease to begin with, and later granted Exts. B and C registered Verumpattom deeds in favour of the family though in the 2nd defendant's name.
The Marayam of 30 paras of paddy under Ext. B represented only the paddy earned by the members of the family under a Kuri and left with the illom previous to Ext. B date during the life time of Gopalan Nair. P. W. 2 was positive that Kochukrishnan Nair the husband of the 2nd defendant did not contribute anything towards the taking of the lease deeds, The criticism directed by the learned counsel for the appellants on P. W. 1's evidence that it was partial to the plaintiffs has no real basis and does not commend to us.
There is then the evidence of P. W. 1 the daughter of the 2nd defendant's mother's sister who was a party to Ext. A partition and who in fact paid the Rs. 100 as compensation for the plaintiffs' tarwad's share thereunder in support or the plaintiff's case. And above all, there are the admissions of the 2nd defendant herself as P. W. 3 that subsequent to Ext. A in 1097 the tarwad members settled down as a group in P. W. 2's Illom property and carried on as such, for the future, though she would quality the same by adding that Gopalan Nair was not in residence in tire A schedule property but would only occasionally go there.
She could not deny however that Gopalan Nair and herself were entertained in service in the Illom and when Gopalan Nair died, she it was that collected the perquisites due to the family from certain temple service. The' marriages of the children of the 2nd defendant were conducted in the house in that property. There is finally no positive evidence in the case to show that Kochukrishnan Nair was in a position to contribute anything substantial towards making this acquisitions or improving them.
On the other hand there is at least the attestation of the 1st plaintiff's husband in Ext. C lease. On the whole we are not impressed that the 'defendants 2- and 3 have made out any circumstance tending to throw doubt on correctness of the finding of the Court below in this matter.
6. Learned Counsel for the appellants strongly urged that the plaintiffs had not established the existence of any nucleus of tarwad property, sufficient to enable the acquisition of the A schedule property, for and on behalf of the tarwad and there was accordingly no reason to depart from the ordinary or normal presumption under law that property standing in the name of an individual is exclusively his own.
Learned counsel said that the Rs. 100 received under Ext. A was not shown to have been utilised by the 2nd defendant for purpose of either taking B and C lease deeds or in the effecting of improvements thereon; in any event, it was too small in comparison with the value of the property concerned. And he stressed that the 2nd defendant's generous attitude towards her mother and children should not be allowed to be exploited by them.
It seems to us however that the principle applicable to a case of this kind is one of earnings effected by the joint labour of the members of the tarwad as a whole, rather than the existence of a nucleus of tarwad property contributing to the acquisition of fresh property on behalf of the tarwad. In our judgment, the existence of an original nucleus, upon whose absence very considerable reliance was placed by the appellants' learned counsel, is not essential and all that is necessary is, that the persons acquiring jointly stand in the relation of the members of an undivided tarwad.
Such persons by living, messing and worshipping together and throwing all the property acquired jointly into one common stock manifest their intention to deal with one another and outsiders as members of an undivided tarwad. The fact that the property is acquired in the name of one member alone and that, a junior member, is a matter or absolute indifference once the family is proved to bejoint.
Here, the 2nd defendant's mother had got very old and the 2nd defendant was her only daughter. There was nothing improper in choosing the 2nd defendant's name for the purpose of making acquisition on behalf of the mother's thavazhi. The cases referred to by the learned counsel viz., Govindan Nair v. Seetha Amma, 39 Cochin LR 43 (A), Sankunni Nair v. Lekshmikutty Amma, 36 Cochin LR 523 (B), deal with the principles governing puthravakasam property and have no applicability in this case, in view of our finding that the 2nd defendant's husband did not acquire the property.
The case which may more properly be referredto is the one reported in Ouseph v. Govinda Menon, 28 Cochin LR 9 (C), where the question was as tothe nature and incidents of acquisitions of propertyby members of a tarwad out of their earningseffected by their joint labour.
The learned Judges referred to the presumption available under Hindu Law, that in the absence of evidence of an intention to the contrary, the acquisitions by the joint labour of persons constituting the members of a joint family living in commensality, are the joint family properties of such family and went on to hold that the nature and incidents of tarwad property being identical with those of the joint Hindu family property, in most respects, the rule of presumption as above must apply also to Murumakkathayam tarwads.
We respectfully agree. It follows, therefore, that the A Schedule property has properly been found to be the tarwad property of the parties and therefore available for partition as prayed for in the plaint, notwithstanding Ext. III alienation by the 2nd defendant.
7. Learned Counsel for the appellants then pressed for our consideration the alternative contention raised by the defendants 2 and 3 in their written statements on the basis of Ext. II assignment deed in favour of the 1st plaintiff. But his parties do not seem to have ever been serious about it. No issue was sought on it nor does the Court below refer to it. We decline in the circumstances to go into it.
Besides, Ext. II was produced for registration and obtained back by the 2nd defendant alone and it is not clear whether the 1st plaintiff has accepted Ext. II or assuming she accepted it, how far she intended to waive her right in the A schedule property in consequence. There is also the circum-stance that the plaintiffs 2 to 11 are not to any extent beneficiaries under Ext. II and obviously are not bound by it. Learned counsel says that the 1st plaintiff has accepted Ext. II and also disposed of the properties covered thereby hut this circumstance, even if true, is in no way conclusive in the matter.
8. In the result the decree of the Court belowis confirmed and this appeal is dismissed with costs.