1. The plaintiffs in this case, thirty-four in number, claim that they belong to the same Marumakkattayam tarwad as the thirty-one defendants. The tarwad of the defendants is known as Mundancheri. The plaintiffs say that theirs is known as Mundancheri Puvvayil; that both tarwads really constitute a single Marumark kattnyam family; that many years ago some members of the Mundancheri house went away to live separately in the Puvayil house, and received an allotment of lands for their maintenance, and have since continued to live apart; that the remaining tarwad property remained as tarwad property belonging to both branches, though the expenses of the maintenance of the defendants' branch were met out of the property. According to them, the senior member of the whole family is styled Mundancheri Mutha Nair, the next in age Kozhiseri Nair, and the senior lady Mundancheri Amma. The plaint alleges that the 1st defendant became Mundancheri Nair and the karnavan of the whole tarwad in January 1902, and the 1st plaintiff, as the next senior, became Kozhiseri Nair but his right to that designation Was disputed by the second defendant, the second in age among the males of the defendants' branch. The professed object of the plaint is to recover on behalf of the common tarwad the value of an elephant, which the plaintiffs, say the defendants Nos. 1 to 3 unlawfully sold to a stranger, misappropriating the consideration received. The substantial object may be taken to be the establishment of their status as members of the Mundancheri tarwad to which the defendants belong. The defendants deny that the members of the two houses ever formed a common tarwad or owned any property in common; or that any property was allotted to the plaintiffs' family for maintenance by the Mundaneheri karnavan. They allege (see paragraph 12 of the 1st defendant's written statement) that 'even if it should appear that the plaintiffs and defendants are members of a tarwad with community of proprietary interest, as properties have been separately allotted to the plaintiffs' Puvayil tarwad, and the defendants' Mundancheri tarwad, as the management of affairs has been conducted separately, and as the incomes of the properties have not been mutually enjoyed, the plaintiffs have no right to any relief, unless it should appear that the elephant mentioned in the plaint belonged to the common tarwad.' This plea raises the question, whether, assuming that there is subsisting community of interest between the plaintiffs' and defendants' houses, and that the properties in the possession of the plaintiffs were allotted to their branch for maintenance as alleged by the plaintiffs, the defendants were, at any rate, entitled or not to enjoy the properties in their possession on account of their right to maintenance, and whether or not in consequence they were entitled to deal with the incomes of those properties according to their pleasure, so as to disentitle the plaintiffs to question the sale of the elephant, unless the plaintiff's could show that it was originally purchased out of the corpus and not out of the income of those properties; but this question has not been considered by the lower Court, nor was, it raised with sufficient clearness in the issues framed in the case. The defendants also deny that any to the members of the plaintiff's house was entitled to the titles of Mundancheri Mutha Nair, Kozhiseri Nair, or Mundacheri Amma, and contend that these designations can be claimed only by the members of the defendants' house. It is not quite clear from the evidence whether the titles are mere honorific names, or are real stanams in the legal sense of the term, with specific properties attached to them. The Subordinate Judge seems inclined to hold that they are real stanams, though it was not necessary for him to decide the question for the purposes of the suit. The substantial question we have to decide in the appeal is, 'what is the status of the plaintiffs and defendants with reference to each other?' The Subordinate Judge holds that the two families constitute a single tarwad with community of interest between them. It is admitted that there is community of pollution between the members of the two houses, This indicates descent from a common ancestor, but nothing more. On the other hand, the plaintiffs are admittedly unable to state who the ancestor was, or how long ago the separation between the residents of the two houses took place. It is conceded that there is nothing to show that there was any resumption of joint living after the original separation took place. It is further admitted that each house has managed its own concerns without any interference by the members of the other house. It would seem to be the case that for a good many years the two oldest males have belonged to the defendants' branch, but it is the plaintiff's case that this was not always so. According to them, one Teyyan Nair of their branch was Mutha Nair for some time, and the Subordinate Judge infers from the language of Exhibit II that this contention is probably correct. But we are unable to see anything either in Exhibit II, or in Exhibit XXXVII, which contains language similar to Exhibit IT, to justify this view. The reference to Teyyan Nair as one who died as Mundancheri Mupil Nair lends absolutely no support to any such inference. If Teyyan Nair was really a member of the plaintiffs' branch, then it is significant that there is absolutely nothing to show that he ever managed the properties not set apart for the maintenance of the plaintiffs' branch which he would be entitled to do according to the plaintiffs' case. Again, there was one Kannu Nair of the plaintiffs' branch who is said to have been Kozhiseri Nair, or the holder of the second stanam. It is not suggested that he ever succeeded to the management of the property in the defendants' possession, but perhaps no valid inference could be drawn from this circumstance against the plaintiffs' case as Kannu Nair might have died before he could become the eldest member. At all events, there is on the record no documentary evidence indicating any interference by either of the branches in the management of the other's properties. Each branch has admittedly been in the full enjoyment of different sets of properties till recently, as if there were two different tarwads to all intents and purposes. Some attempt was made by the plaintiffs in the lower Court to show that one or two of the managers of the Mundancheri tarwad made additional contributions for the expenses of the plaintiffs' branch and for re-building a part of their residence, but this attempt completely failed, and the Subordinate Judge has not placed any reliance on this fact. In these circumstances, the onus lies heavily on the plaintiffs to adduce satisfactory evidence that community of property was maintained between their house and that of the defendants at the date of this suit, if it existed at all at any time that we know of. Mere lapse of time, no doubt, cannot destroy it, but lapse of time without any apparent exercise of proprietary right is a very cogent circumstance against its continued existence, and the presumption against it must tell with increasing pressure according to the length of the time that has thus elapsed, see Moore's Malabar Law page 19. At least one hundred years have elapsed in this case after the separation. This suit is admittedly the first attempt made by the plaintiffs' branch to assert a right to the properties in the possession of the defendants' house. What then is the evidence that the plaintiffs have adduced to rebut the presumption in this case. It is almost exclusively confined to the conduct of three individuals who were karnavans of the defendants' house, named Ittirassan Nair, Kombi Nair and Sankaran Nair, the immediate predecessors of the first defendant in the management of the Mundancheri house and its properties. We shall presently consider the probative value of the evidence adduced of such conduct. Before we do so, we may mention that we attach very little weight to the evidence adduced to show that the tali tying marriage ceremonies of the girls of both the Puvayil and Mundancheri houses more than once took place together at the Mundaucheri house. The evidence may be true, but it is no proof of any; community of interest between the two houses. It is a matter of common knowledge that girls of divided branches of a tarwad are often married off together in the same house. A tali kattu marriage is an expensive ceremony not undertaken except at long intervals of time and the occasion is availed of for the benefit of as many girls as possible, sometimes including even comparative strangers. Nor are we prepared to attach much significance to the evidence regarding members of both the houses joining at the funerals of some of the members of the plaintiffs' family. Assuming that it is true that the 1st plaintiff's mother and grandmother were cremated at the cemetery used by the defendants' branch (regarding which the evidence is discrepant), we do not think that this leads to any definite inference. The plaintiffs' own evidence goes only to show that the cremation took place somewhere near the Mundancheri house. We can find nothing improbable in a family cemetery being used in common by the members of all the divided branches of a once united tarwad, though it may be in the actual possession and under the control of one of such branches. Sentimental considerations would generally lead to the continued use of the place by all without objection by any one. The most damaging evidence against the plaintiffs is the way in which both branches have dealt with the property in their respective possession. The Subordinate Judge finds, and it is practically admitted before us, that the course of dealings is in accordance with what one would expect if complete separation had taken place between the branches; and, in our opinion, it is entirely inconsistent with the hypothesis of any subsisting co-parcenary. The plaintiffs' branch divided itself into three families in 1876. The nature of the arrangement made at this separation does not appear and no document is produced evidencing it, but each of the sub-branches seems to have dealt with the property taken by it as if it had unrestricted power of disposition over it. The 1st, 2nd and 4th plaintiffs respectively are the senior male members of the three branches. Exhibits LXIII, LXV, LIV, L, LVII, LVIII were executed by the first plaintiff's subbranch. Some of them were executed by several members of that family, without any one of the other sub-branches taking part in them, and in Exhibit LIV, the absence of one of the members of that sub-branch is expressly referred to. Exhibit LVII is a renewal of an older kanom granted by the plaintiffs' branch. Exhibits LV and LIX are mortgages executed by several members of the 4th plaintiff's branch. Exhibit LXI was a mortgage executed by the 2nd plaintiff on behalf of his branch. Exhibits LXIV, LX and LXII show that each of the three sub-branches executed a mortgage of its properties to the same creditor. Some of these alienations are of more importance than others and they extend from 1884 to December 1904 shortly before the institution of this suit. Their combined effect is to show that the plaintiffs' branch conceived itself to be entitled to dispose of the properties in its possession at the pleasure of its own members, and the defendants allowed it to have its own way. The defendants' branch made similar alienations of the properties in its possession (see Exhibits III, IV, XIII, XIV, XV and LXXIV). Exhibit III is a usufructuary mortgage of 1848 signed by six members of the defendants' house, and Exhibit IV is a jenm deed of 1847 executed by eight persons consisting of four males and four females. It is stated that the male members of the defendants' branch were all senior to any of the males of the plaintiffs' branch. No such statement, however, is made with regard to the females. In any case it is remarkable that it was not considered desirable to associate in these alienations a single member of the plaintiffs' branch though they were living separately from the defendants. Mr. Ramachandra Aiyar attempted to show that one Uni Krishnan Nair of the plaintiffs' branch was senior in age at the time of the execution of Exhibit IV to some of its male executants of the defendant's branch, but this we think the evidence does not establish. The point is, however, not very material. Mr. Rosario contended that the karnavan and the senior anandravan alone, or even the karnavan by himself, would be competent to execute a valid jenm deed for proper tarwad necessity. Assuming that this contention is right, we cannot ignore the fact that the parties did not act on the at footing, as many as six persons having taken part in the mortgage-deed, Exhibit III, and eight persons in the jenm deed, Exhibit IV. The parties have not adduced evidence as to the purposes for which these various alienations were made by each of the branches, but they certainly show that neither branch imagined that it was competent to interfere in the affairs of the other branch. A tavazhi which receive an allotment of property for its maintenance would ordinarily have no power to encumber it; the alienations made by the plaintiff's branch and the acquiescence therein by the defendants' branch are, therefore, of special importance. It is not suggested that any power of disposition was conferred on the plaintiffs' branch at the time of the alleged original allotment, and if so, what the nature and limits of the power were. Mr. Rosario is, no doubt, right in his contention that, where community of property is proved to exist, the failure of a branch of a tarwad to object to alienations by another branch cannot destroy or affect that right. But where no substantial evidence of such community is forthcoming, and the parties have lived and behaved like members of divided families, and no satisfactory explanation is adduced of acquiescence in such alienations, the inference is almost conclusive that the branches are no longer parts of a joint family. The right to interdict alienations is of the essence of joint right and the non-exercise of such right without any reason shown for it is crushing evidence of the absence of any joint right.
2. We proceed now to deal with the evidence of the conduct of Ittirassan, Kombi and Sankaran, on which the conclusion of the Subordinate Judge is mainly based, and on which Mr. Rosario strongly relied at the hearing of the appeal. We may premise, that till 1880 there is no evidence of conduct referred to as supporting the plaintiffs, and that the two branches, notwithstanding the subsequent conduct relied on, have continued to deal with the properties in their possession as if they were their own.
3. Ittirassan's conduct in Original Suit No. 158 of 1880 is the earliest piece of evidence in the plaintiffs' favour. A decree had been obtained by a creditor against Parvati Amma of the plaintiffs' branch in execution of which he attached some property in Parvati's possession belonging to a temple. Ittirassan, the karnavan of the Mundancheri house, instituted the suit (a claim previously preferred by him having been dismissed on the ground of delay) to set aside the sale which had been held in pursuance of the attachment. He alleged in his plaint, Exhibit A, that the temple belonged to his tarwad, that Parvati held the property as an allotment for maintenance to her branch without the right to alienate it. Parvati was impleaded as the 2nd defendant in that suit and, although she claimed a mortgage right over the property, she admitted that the two houses formed a single tarwad and said,--'No lands have boon set apart for the maintenance of myself and members of the family', and that the suit was instituted with a view to avoid giving maintenance--an allegation contrary to the plaintiffs' present case. The auction-purchaser, who was the third defendant in the suit, contended that there was no community of interest between the plaintiffs' and 2nd defendant's houses, and the third issue framed in the suit raised that question. Thus, that issue was fought out between a third party and Ittirassan. The Subordinate Judge holds that that suit was instituted by Ittirassan rut of sympathy for his Puvayil kinsmen and not for the benefit of his own tarwad; the 1st plaintiff's own evidence and his previous admission contained in Exhibit VII show that it was he that induced Ittirassan to launch the suit. In the circumstances, we can attach no weight to Ittirassan's admission as against the members of his family. Both the District Munsif, Mr. Chandu. Menon, and the District Judge, Mr. Wigram, held it proved in that case that community of property subsisted between the Puvayil and Mundancheri houses (Exhibits Dl and E). The judgment of the Appellate Court was based mainly on two documents filed as Exhibits B and C in that suit. It is unfortunate that neither of these documents is now available. Exhibit B dated 1856 is described as a decree, and Exhibit C is a vakalat on stamp paper presented by Mundancheri Kannachan Nair and 17 others before the Subordinate Court of Calicut, dated 21st April 1848.' The District Munsif's judgment made no reference to the decree. Exhibit C was referred to as showing that Parvati's grandmother and Parvati herself sued jointly with Mundancheri Nair and the plaintiff in the suit in a matter relating to the common interest of the tarwad. What that matter was does not appear. If it related to one of the temples that belonged to the original tarwad, it is quite possible that, notwithstanding the separation of the branches, both of them would continue to have rights over the temple, but it would not follow that any co-parcenary subsisted with reference to strictly tarwad properties. The Munsif's judgment was, however, based chiefly on the evidence of three witnesses whom he caused to be summoned, apparently to clear up doubts which he himself entertained. The depositions of two of them are filed as Exhibits X and Y. One of them, the deponent in Exhibit X, is still alive and has been examined as the plaintiffs' second witness. Their evidence was merely opinion evidence, and the plaintiffs' second witness in his present deposition admits that his opinion was based merely on the fact that the members of both houses joined together in performing ceremonies. Exhibit Y, the deposition in that case of Govinda Pisharodi, who is now dead, is not admissible in evidence. It could not be admitted, under Section 32 Clause (5) or (6) of the Evidence Act as the statement was made post litem (sic). See 11 Cl. and F. p. 85 and Taylor on Evidence, paragraphs 632-3. Neither is it, in our opinion, admissible under Section 33 of the Act. Parvati was a party adverse to Ittirassan in that suit with respect to the matter to which the statement related, and that suit cannot be regarded as one between the parties to the present suit. See Taylor on Evidence, paragraph 469. In any event, his evidence is of very small value. On appeal Mr. Wigram rested his conclusion on Exhibits B and C. He was doubtful whether Parvati was a party to those documents, bat he was of opinion that the names of her mother (who was not referred to by the Munsif) and her grand-mother were mentioned in those documents. In the absence of those documents we are unable to say what properties they related to, or to assume that they related to tarwad properties. The defendants have had no opportunity of explaining the circumstances, if any, appearing in those documents against them. Moreover, the very property which was the subject-matter of that litigation was, as pointed out by the Subordinate Judge, subsequently alienated by the plaintiffs' branch as if it were its own without any protest by the plaintiff in that suit. The auction-purchaser, who was a stranger, had apparently no means of proving his case, although very important documents in his favour, Exhibits III and IV in this suit, were presumably within the knowledge of both Ittirassan and Parvati, who had apparently combined to defeat the purchaser. In the light of the subsequent conduct of the parties, we are unable to attach much weight to Exhibits Dl and E.
4. The respondent next relies on the conduct of Kombi Mutha Nair, the successor of Ittirassan, in Original Suit No. 226 of 1891 (Exhibits FF and GG), Original Suit No. 326 of 1895 (Exhibit G) and Original Suit No. 405 of 1896 (Exhibit H) and in the jenm registration proceedings (Exhibit N). We shall first refer to Original Suit No. 226 of 1891. The patta for some of the lands in the plaintiffs' possession had for a long time stood in the name of Kosshiseri Nair. The defendants, who have persistently ignored in this suit the existence of any community of interest between the two branches at any time, contend that this Kozhiseri Nair was an entire stranger, it being a fact that there is a Kozhiseri Nair a stranger unconnected with the parties. The Subordinate Judge did not accept this contention, and we see no reason to differ from him. The probabilities are that before the separation the patta stood in the name of Kozhiseri Nair, the second stani, and continued to do so afterwards. The Revenue authorities transferred the patta to the name of Kombi Nair the then holder of Kozhiseri Nair's stanom. The plaintiff's took advantage of the opportunity, owing probably to their possession. The Revenue Officers naturally collected the revenue from Kombi Nair notwithstanding his objection (Exhibit R), and although he protested against the transfer of the patta to his name. Original Suit No. 226 of 1891 was instituted by him to recover from the plaintiffs' branch the revenue that he had paid to Government. The defendants in that suit contended that they and Kombi Nair belonged to one undivided tarwad, and that there was no cause of action against them. The first issue raised that question, but the Munsif considered it unnecessary to decide it. The District Judge in A.S. No. 31 of 1905 in another suit similar to O.S. No. 226 also declined to decide that question. Both Courts held that the plaintiffs' branch was bound to pay the revenue, and the Munsif decided the suit in Kombi's favour. Now, in the course of that suit, Kombi Nair's Pleader made a statement, marked GG, in which he stated 'there is community of interest between the two houses.' This is strongly relied on by the plaintiffs. It does not appear that the plaint signed by Kombi Nair contained any statement to this effect. The admissibility of this statement was impugned before us on the ground that the Pleader's signature is not to be found in it, but Exhibit GG is only a copy of his statement, and we think we may take it that the original must have been signed by the Pleader. Assuming that the Pleader had authority to make the statement, it has to be remembered that Kombi was then only a junior member of the tarwad. His admission, even if admissible against the other members of his family, is not of much value.
5. Original Suit No. 326 of 1895 was instituted by some of the junior members of the plaintiffs' branch against the senior and other members of that branch for recovery of maintenance. Kombi Nair, who had then succeeded to the karnavanship of the Mundancheri house, was impleaded as first defendant on the ground that he was the manager of the entire tarwad, but no relief was claimed against him. He disclaimed all liability for the plaintiffs' claim, and stated that, properties had been already allotted for the maintenance of the plaintiffs' branch. The Munsif held that Kombi was an unnecessary party to the suit. The plaintiffs in this suit rely on Kombi's statement, that property had been allotted to the Puvayil house for maintenance, as corroborating their case, but this is not an admission that after the allotment or at the time of that suit community of property existed between the two branches.
6. Original Suit No. 405 of 1896 was also a suit in which the dispute was between members of the plaintiffs' branch. Kombi who was made the 1st defendant in that suit also did not put in an appearance. No inference of any admission can be made from his non-appearance. There was next a suit by a stranger, Original Suit No. 194 of 1901, against the members of both the plaintiffs' and the defendants' branches in connection with a kuri started by Kombi, who had died before the suit was instituted. The suit was dismissed on a technical point, but it should be noticed that in the written statement. Exhibit VI, put in by the present 1st defendant and 17 other members of the defendants' family, they distinctly denied any community of interest between them and the members of the plaintiffs' branch, who were defendants Nos. 19 to 38 in that suit. Exhibit VI was really the first statement in a Court of Justice of the junior members of the defendants' family of their legal position with regard to the plaintiffs' family, and it is one of complete denial of the plaintiffs' right.
7. In the meanwhile, Kombi had claimed, when the registration of jenm titles and the issue of pattas in Jenmis names was carried out in Malabar under the recent Jenm Registration Act, that the jenm of the lands in the possession of the plaintiffs' branch should be registered in his name (Exhibit N dated July 1897), and a similar petition was put in by his successor Sankaran in 1900. The request was acceded to. The plaintiffs' branch, then refused to pay the revenue, the 1st defendant had to pay it, and it would appear that he instituted a suit to recover the amount from the plaintiffs. He promptly put in petitions, Exhibits LIII and LII, stating that his own branch had no jenm right over the properties in the plaintiffs' possession, that there was no community of interest between the two houses and that the patta for those lands should be transferred to the name of Appu Kuttan Nair of the plaintiffs' house. The Revenue Department has not yet granted his request owing to the opposition of the plaintiffs. He then put in a petition relinquishing the lands, but this, too, was not accepted (see Exhibit U). The Revenue authorities are apparently awaiting the result of this suit before finally deciding on the course to be adopted with regard to the lands in the plaintiffs' possession.
8. One remark may be made with reference to Kombi's statement in the suit of 1895 and Ittirassan's statement in the suit of 1880, supposing it to have been made bona fide, as well as with regard to Exhibits X and Y. There was no formal document evidencing the separation of the two branches, at whatever time it took place. Although each branch managed its own affairs and dealt with the properties in its possession in any manner it pleased, and although the legal inference from the conduct of both branches might be that community of interest between the branches, if it ever existed at all after the separation of the plaintiffs, had ceased, it is perfectly possible that a lay mind might be under the impression that the co-parcenary union would subsist in some attenuated form in the absence of a dissolution of it by a formal instrument between the parties. Such opinions of members of the family cannot affect their status, see Sri Raja Lekhshmi Devi Garu v. Sri Raja Surya Narayana Dhatrizu Bahadur Garu 20 MP. 256 : 24 I. 4. 118. It is important to note that Kombi Nair repudiated any liability which might result from community of interest and the tarwad did the same by Exhibit VI. Kombi might have honestly believed that, as there was no formal conveyance or deed of partition vesting the jenm right in the plaintiffs' branch of the lands in its possession, he was entitled to be recognized as jenmi and to have the registry in his name. We do not think that he intended to assert any actual proprietary right over those properties. He must have known that the plaintiffs had heavily encumbered them, and he had never objected to their doing so. It is clear to our minds that, apart from any vague conception of the existence of coparcenary right, both branches thought, until shortly before the institution of the suit, (hat each was entitled to enjoy the property in its own possession with absolute powers of disposition. The documents we have already referred to appear to us to be conclusive on this point. We abstain from expressing any opinion on the rights of the parties with respect to properties vested in the temples of the family, as they might not stand on the same footing as real tarwad properties. The conduct of Ittirassan and Kombi has, no doubt, made the decision of the question at issue between the parties difficult; but, after careful consideration of the admitted, facts and the whole of the evidence put before us, we have come to the conclusion that on the date of this suit and at the time of the sale of the elephant which has given rise to this litigation there was no community of interest between the plaintiffs and the defendants.
9. We have already observed that the Subordinate Judge has not dealt with the question whether, assuming that there is community of interest between the parties, the defendants' contention is not well-founded that the properties in their possession must be taken to have been allotted to them for their enjoyment, that the plaintiffs could not, therefore, make any claim with respect to the income arising from those properties or to what was purchased out of such income, and that, as the plaintiffs did not allege that the elephant was purchased out of the proceeds of the corpus, their suit must fail. The District Court in Exhibit IX stated that it was undisputed that both branches had the properties in their respective possession allotted to them for enjoyment. The Munsif who disposed of Original Suit No 226 of 1891 took the same view. It is highly improbable that an arrangement, under which there was an allotment to one branch only and the rest of the properties was to remain common property with the management shifting to the eldest member of both branches, would remain in force for any considerable time. Exhibits LXXII AND LL also show that this was not the arrangement which the plaintiffs first thought of putting forward. We are of opinion that at the time of separation the understanding must have been at any rate, that the tarwad properties in the possession of the defendants' branch should be enjoyed by them for their maintenance. On this ground also the suit must fail.
10. We should point out that the defendants in the suit in order to defeat the plaintiffs' claim have gone too far in denying all connection between the two houses. The title of Kozhiseri Nair does appear to have been held by at least one member of the plaintiffs' family. When a tarwad of position separates into two branches, it is not likely that honorific titles would be appropriated to one branch only or that the uraima right over all the temples would be given over to it. The circumstance that the members of the defendants' branch have for a long time been senior in age to those in the plaintiffs' house has enabled the defendants to put forward these contentions with some plausibility; unless, however, the holders of the titles are entitled to hold any properties in virtue of their position the question would not be of any legal importance. It is unnecessary to consider the other questions raised in the case. In the result, we reverse the decree of the lower Court and dismiss the suit with costs in both Courts.