Govinda Menon, J.
1. Defendants 1 to 5 in O.S.No. 81 of 1951 on the file of the Sub-Court, Palghat, are the appellants in this appeal which arises out of a suit filed in forma pauperis for possession of the plaint A Schedule properties and all the improvements therein with mesne profits at the rate of 1000 paras of paddy and Rs. 150, from 1950-51 from defendants 1 to 3 and their tarwad assets as well as for recovery of cash and moveables or their value as shown in B Scheduleand also the documents and records of the deceased Govinda Nair and for accounting in respect of items 20 and 21 in the B Schedule and for ancillary reliefs. The first plaintiff is the widow and plaintiffs 2 to 4 are the minor children of one Patinhare Choorathil Govindan Nair who was a brother of the first defendant and the uncle of defendants 2 to 5. Defendants 6 to 8 are the tenants in possession of the suit properties. The allegations in the plaint are shortly these:
2. Defendants 1 to 5 at present constitute members of a tavazhi tarwad and the deceased Govindan Nair was the eldest male member of that tavazhi till he died on 16th February, 1950. The first plaintiff was married to him in 1945 when he was about 45 years of age having been born in 1900. Govindan Nair, the first defendant and their mother constituted the sole members of a tavazhi tarwad. After partition under Exhibit B-1 dated 10th April, 1916, this tarwad was allotted properties mentioned in E Schedule comprising three items of wet land less than one acre in extent, two items of seed bed and seven items of parambas including a Nalukattu house and site besides certain trees described in sheet 5 of Er. Schedule. At the time of the partition Govindan Nair was a minor and the management of the properties was in the hands of his mother but later on when he became a major he took up the management and was admittedly the karnavan of this tarwad till he died in 1950. It is the case of the plaintiffs that the properties mentioned by them in the plaint schedules were the self-acquisitions of Govindan Nair and as such under the Marumakathayam Act they are entitled to this same. Defendants 1 to 5 contended that Govindan Nair had no funds of his own out of which the properties could be acquired but that all the acquisitions made by him were out of the income realised from the tarwad properties which came into his possession as karnavan. It was further alleged that Govindan Nair's mother Kalyani Amma had separate properties of her own and from the time of his attaining majority Govindan Nair was managing both those properties. The learned Subordinate Judge framed three issues the first of which was ' Did the suit properties belong to deceased Govindan Nair as self-acquisitions or do they belong to the tavazhi of defendants 1 to 5 ?' The second was 'What are the movable properties and outstandings, if any, which form part of the separate estate of the deceased Govindan Nair'. The third issue related to the quantum of mesne profits. On issues 1 and 2 the learned Subordinate Judge found that the immovable properties consisting of 37 items in the plaint schedules belonged to Govindan Nair absolutely and were not tavazhi properties. With regard to moveables the learned Judge was of the opinion that the plaintiffs are entitled to recover items 1 to 9 in Exhibit A-10 or their value as well as a sum of Rs. 1425, covered by promissory notes, items 22, 24, 25 and 26 in Exhibit A-10 and a sum of Rs. 450 due from one Kesavan Nair and any other amount due to Govindan Nair in respect of the kuri conducted by him. He directed the quantum of mesne profits to be determined at the time of execution.
3. The decree directed that the defendants should surrender possession of the properties shown in the plaint A Schedule as well as movables mentioned as items 1 to 9 in Exihibit A-10. Defendants 1 to 3 were also directed to render an account of the amounts collected by them in respect of the amounts covered by promissory notes, items, 22, 24, 25 and 26 in Exhibit A-10 and on account of the kuri conducted by Govindan Nair with a capital of Rs. 66o. Aggrieved by that decision the defendants 1 to 5 have appealed to this Court.
4. There can be no doubt whatever that when Govindan Nair became the karnavan both defacto and dejure on his attaining majority in 1918 he had no source of any income other than from the properties which the family got under Exhibit B-1. According to P.W. 1 the lands were fetching an income of 100 paras of rent per year whereas P.W. 2 stated that the tarwad was getting no paras of paddy and that the lands would fetch 250 paras of paddy if cultivated. It is the common case of both the parties that Govindan Nair was cultivating those lands and had not leased them out on rent. But the plaintiffs contend that Govindan Nair was conducting a number of kuris and had also trade in yarn and other kinds of business and that it was from the income he got from his private business that he acquired the properties. The properties now in dispute were acquired during the course of about four years. Under Exhibit B-13 dated 16th November, 1934, items 35 to 37 were acquired for a sum of Rs. 160. Under Exhibit B-11 dated 8th June, 1936, items 5 to 32 were acquired for Rs. 2,200. Under Exhibit B-10 dated 7th May, 1937, for a consideration of Rs. 1,400 items 1 to 4 were acquired. Exhibit B-12 dated 23rd November, 1938, is in respect of items 33 and 34 for a consideration of Rs. 1,500 and lastly we have Exhibit B-15 dated 7th May, 1937, relating to items 35 to 37 for Rs. 150. It will, therefore, be seen that during the course of these four years Govindan Nair acquired properties for more than Rs. 4,000 and the question for consideration is how he got the capital. The defendants contend that both Kalyani Amma and the first defendant were living with their husbands away from the tarwad house and that during the course of nearly 20 years Govindan Nair was alone in the family house cultivating the family properties and enjoying the usufruct out of them and saving as much as possible. He did not have to spend anything towards the maintenance of other members of the tarwad who either lived with their father or had joined their husbands and were living with them. It is seen from Exhibit B-4, the karar entered into by the members of the family of defendants that the first defendant was residing at Kozhikode with her husband in 1926 and that was the reason why she could not sign the document at the time of its execution. Mr. M.K. Nambiar further contended that Exhibit B-6 shows that in 1919 both Kalyani Amma and Govindan Nair had started a kuri with a capital of Rs. no, and not Govindan Nair alone. The other documents on which learned Counsel relied are Exhibits B-7, B-8 and B-9 of which Exhibit B-7 is a petition by Govindan Nair for being appointed as a stamp-vendor on 27th of April, 1942. Exhibit B-8 dated 7th July, 1942 and Exhibit B-9 dated 28th August, 1946, are notices sent by Govindan Nair to his jenmi complaining against the latter's refusal to receive michavaram not only of the admitted tarwad properties but also in respect of the properties now in dispute.
5. From these, it is contended that during the lifetime of Govindan Nair he did not make any distinction between his own personal properties and those of the tarwad. In the main the argument of the learned Counsel is that Govindan Nair did not have any income except that derived from the tarwad properties and if that is so, there was sufficient nucleus from and out of which all these properties could have been acquired.
6. On the other hand the respondents' counsel urges that there is no clear evidence that the members of the tarwad lived away from the tarwad and that Govindan Nair did not maintain them out of the tarwad income. It is contended that the presumption regarding acquisitions made by a karnavan of a tarwad that they are tarwad properties cannot be made applicable to the present case. In Gopalan Nair v. Lakshmi (1955) M.L.J. 36 a Bench consisting of both of us (Govinda Menon and Ramaswami, JJ. after discussing the law regarding the presumption in regard to the acquisitions made by the karnavan of a tarwad laid down that the mere fact that a person happens to be the eldest member of a Marumakathayam or Aliyasanthana tavazhi or tarwad would not enable the Court to presume that all the properties standing in his name are the joint family properties; but if there is evidence to show that at the time the individial became the seniormost member of the tavazhi or tarwad he had to manage sufficient property belonging to the joint family group as to leave a surplus income then it can be presumed that the subsequent acquisitions were made in a representative capacity and not in his individual capacity.
7. At page 38 there are the following observations:
But where there is a group of persons constituting a natural tavazhi or tarwad all working together harmoniously and engaging themselves in the pursuit of agriculture together or where the family is a trading one and all the members of the family take some part or other in the family business then even if the acquisitions were made in the name of the karnavan they should be deemed to belong to the entire group. It is not the fact of one being the seniormost member of the family that is crucial in the decision regarding the nature of the property acquired but the deciding faelor is the possession of funds belonging to the family from which the acquisition is made and ever in the case of Anandravans any possession of sufficient family funds out of which the acquisitions could be made raises the presumption that the acquisition has been made for the benefit of the family.
In a subsequent case in Appeal No. 1001 of 1952 to which one of us (Govinda Menon, J.) was a party the question arose with regard to the acquisitions made in the name of the karnavan of a tarwad. We may here quote the observations made in that Judgment:
Therefore despite the fact that acquisitions of items 6 to 15 and the improvements made thereon must be traced to the source of tarwad funds, are we justified in holding that these items should be deemed to be joint family properties The presumption of the joint nature of the properties as laid down in Chathu Nambiar v. Sekharan Nambiar : (1924)47MLJ695 and Soopiadath Ahmed v. Irimbantakath Manha Mammad Kunhi (1925) 23 L.W. 575 cannot be said to apply to all cases. Here is a case where the eldest member of the family having funds of the family in his possession has utilised the same for the acquisition and improvement of other properties. In our opinion, the mere fact that there was such utilisation of family funds for the acquisition of other items of properties would not be sufficient to impress completely the family character on the new acquisitions. Very much will depend upon the labour, ingenuity, intelligence and shrewdness displayed by the manager of the family in acquiring new items and making improvements thereon. A capable manager by the utilisation of his intelligence and energy would properly invest the tarwad funds and thus augment the properties to a large extent. At the same time an inefficient man in the same situation may not be able to achieve the same result. If a junior member of the family after receiving education at the family expense acquires properties by his own intelligence and efforts such acquisitions are held to be his own. We see no reason why a manager who augments the family assets by his own intelligence and exertions should not also have some share in the new acquisitions for himself. Had it not been for the fact that the defendant in this case was a prudent and an industrious person it would not have been possible for the acquisition of items 6 to 15 and for effecting improvement. If on the other hand, he had spent away the surplus income in his hands without properly investing them on income yielding properties, the plaintiffs could not ask him to account for such income unless it is shown that he has misappropriated them and that too will be in a suit to remove him from management. In these circumstances the fact that the defendant had been prudent and careful and had not dissipated the income should not be considered as a blemish on his management and a charge laid at his door. It seems to us, therefore, that in the circumstances of this case the defendant is entitled to have some recompense for all his arduous exertions and labour in the matter of acquiring new items of properties and thus augmenting the family income. In our view the proper decision would be to allow the defendant a half share in items 6 to 15 and leave the other half to be treated as joint family properties acquired out of the surplus, income from items I to 5.
In our opinion the inference to be drawn from these two decisions is that if the karnavan of a tarwad had sufficient nucleus in his possession then the presumption is that the propertoes acquired by him must be joint family properties. Even in such a case some compensation should be paid for the diligence, skill and labour put forth by the karnavan in the acquisition of properties and in Appeal No. 1001 of 1952 in the circumstances of that case we came to the conclusion that the division of the assets between the members of the tarwad and the karnavan who was responsible for the acquisitions must be in equal shares. Exhibit B-1 dated 10th April, 1916, contains a stipulation that
if any member had self-earned properties or if they earn any properties in the future and if those properties belong to a female member, then the same shall be enjoyed by her children and grand-children and if the properties belong to a male member, then the same shall be enjoyed by his sisters and their children.
8. Mr. M.K. Nambiar contends that even if Govindan Nair had acquired the items now in dispute by his own exertions still he had agreed to treat them as tarwad properties and therefore it must be presumed that even at the time of the acquisition Govindan Nair's idea was to treat them as joint family properties. Something may be said in favour of this contention as showing a consciousness on the part of the members of Govindan Nair's tarwad not to treat the acquisitions as separate properties distinct from the family corpus. It is also urged that he married the first plaintiff only in 1945 when he was nearly 45 years of age and since the acquisitions were made earlier he would have no animus or intention to deal with them in any capacity other than as karnavan of the tarwad. As against this Mr. Kutti Krishna Menon points out that Govindan Nair had no nucleus out of which any acquisitions could be made. But wherefrom he raised funds to purchase the suit items worth more than Rs. 4,000 during the course of four years has not been satisfactorily explained. On this part of the case the evidence let in on both sides is far from satisfactory. First plaintiff as P.W. 4 cannot be expected to know anything about the acquisitions made by her husband, at a time when she had not become his wife because she married him only seven years after the last acquisition was made. P.W. 2 who is a neighbour of the deceased Govindan Nair claims to know him and his affairs but in cross-examination he had to admit practically his ignorance in most of the details regarding Govindan Nair's transactions. He could not say wherefrom he got money for making the acquisitions from one Manida Mudali. He could not say whether there were any accounts for the timber business carried on by Govindan Nair. He also stated that he had not seen any document in respect of his yarn business. His deposition betrays complete ignorance and lack of knowledge about Govindan Nair's affairs. P.W.1 is a neighbour of the deceased Govindan Nair and even he is not in a position to throw much light about Govindan Nair's financial affairs and the acquisitions he made. But it is urged on behalf of the respondents that all the accounts maintained by Govindan Nair along with other documents were in the house at the time of his death but after the first plaintiff and her children left that house and went away, the documents came into the possession of the second defendant who prevented the Court Commissioner from even taking an inventory. That being the case every presumption must be made against the defendants and that the Court must come to the conclusion that Govindan Nair had no sufficient funds from which he could have made the acquisitions. We have carefully perused the evidence of P.Ws. 1, 2 and 4 on the side of the plaintiffs and D.Ws. 1 to 3 on the side of the defendants and, in our opinion, the oral evidence on either side is hardly convincing. A mere reading of the evidence of P.Ws. 1 and 2 would show that they were not acquainted with the details of Govindan Nair's business affairs. At the same time it must be remarked that D.Ws. 2 and 3 are also in the same position. In these circumstances it has become difficult to find out how Govindan Nair could have acquired the properties. If as a matter of fact he had conducted such a large number of kuris and saved money therefrom it could have been possible to examine some of the subscribers to the kuris and similarly it must have been possible to let in some evidence to show that Govindan Nair had timber trade and Yarn business. Nothing of that sort has been done and no such evidence is placed before the Court. The defendants have also not let in specific evidence regarding the acquisitions which Govindan Nair could have made out of the family income. The evidence available shows that Govindan Nair had been cultivating lands. There is no knowing as to how he could have come by the properties.
9. In this connection we have to remember that the law regarding acquisitions by heads of tavazhis and tarwads has undergone a slight change since the decisions in Chathu Nambiar v. Seknaran Nambiar : (1924)47MLJ695 and Soopiadath Ahmed v. Irimbantakath Manha Mammad Kunhi (1925) 23 L.W. 574. According to these decisions the entire acquisition is to be deemed to be family properties. In a case where a tavazhi in a main tarwad consisting of a lady and her children gets some properties from the husband and father and the same is augmented by the senior member of that group by his own exertions there can be no difficulty in holding that all the acquisitions must belong to the tavazhi especially so where there is main tarwad from which the members of this tavazhi could have received their maintenance and other expenses. In Malabar a lady having children in ordinary upper middle class families generally gets some properties known as Putravakasam from her husband or somehow acquired in the name of her eldest son and if such a person by his own exertions improves them and augments them he cannot later on claim them as his self-acquisitions. Even in cases where the nucleus is small, on account of a variety of reasons if the property gets augmented the eldest member of such a tavazhi cannot claim them as his own self-acquisitions. As laid down in Appeal No. 1001 of 1952, he can claim compensation for his intelligence, industry and labour in improving and augmenting the familyp roperties. In the present case we are completely in the dark as to how Govindan Nair could have got Rs. 4,000 and odd and acquired the several items during a course of about 4 years of his management, except by inferring that he must have been a careful person who improved the little nucleus that came into his hands and raised funds out of it. Mr. Kutti Krishna Menon contends that the plaintiffs are not in a position to let in any evidence and, therefore, we must presume that there was no nucleus. That there were parambas which the tavazhi got at the partition cannot be denied, and even if Govindan Nair could not have saved much from cultivating the lands he must certainly have got something from the parambas land from cultivation. Moreover Govindan Nair at the time of his starting the kuri had the good will and reputation of his tarwad behind him. Otherwise nobody would have joined the kuri started by a man of no means. Considering all these circumstances, it seems to us that the principle enunciated in Appeal No. 1001 of 1952 ought to be applied to the facts of the present case. We, therefore, hold that the plaintiffs are entitled to a half share in all the properties which have been decreed in their favour by the lower Court and they will also be entitled to a half share in the mesne profits from those properties. They will also be entitled to their full costs in the Court below and to half the cost in this appeal. The decree of the lower Court will be modified in the light of what we have stated above and a preliminary decree for partition will be passed.