1. In Appeal No. 59 of 1905, the plaintiffs appeal from the decree of the Subordinate Judge dismissing their suit for the removal of the 1st 'defendant from the position of karnavan and for other relief.
2. The first question is whether a suit will lie to remove the 1st defendant. Though the Subordinate Judge finds that the plaintiffs and the 1st and 2nd defendants form a separate tavazhi, it is not found and it does not seem to have been alleged by the plaintiffs that their ascendant Lakshmi Kattilamma severed all connection with the Ramath tavazhi of her own tarwad and we have not been shown any evidence to prove that she did so. Therefore, we must take it that it has not been shown that the plaintiffs and the 1st and 2nd defendants form a separate tavazhi or branch tarwad and consequently their group has no karnavan of its own in the strict sense of the word. This follows from the opinion expressed in Koroth Amman Kutti v. Perungottil Appoo Nambiar 29 M.K 322 and it seems clear that a gift of property to a lady and her children cannot have the effect of depriving the karnavan of her tarwad of his right for relieving him of his duties in regard to the donees; i.e., of setting up a new karnavan in his place. But according to Kunchacha Umma v. Kutti Mammi Hajee 16 M.K 201, the property given is held by the donees with the usual incidents of tarwad property in accordance with Marumakatayam usage and among the usual incidents of tarwad property are undoubtedly impartiality except with the consent of all the owners and management by the eldest male. The correctness of the view that these incidents are applicable in the case of property given to a lady and her children who do not form a separate tavazhi seems to be disputed in Section A. No. 784 of 1905 but we feel bound by the decision of the Full Bench, to apply to the property in this case every ordinary incident with which tarwad property is held. It follows that the 1st defendant's right to manage the property like that of Sankara Biaman before him had its foundation in his position as eldest male members of the group or tavazhi and that no member of the group had the right to call for a partition against his will. In these circumstances it is clear that unless fraud and mismanagement are to go practically unchecked, there must be in the hands of the junior members of the group some remedy against misconduct of the managing member, and this remedy is to be found, we think, in the suit for the removal of the eldest male from the position of manager; for, so far as the management of the property goes, the eldest male stands in the position of karnavan sufficiently, at any rate, to warrant the application in his case of the remedies for misconduct which are commonly applied in the case of the karnavan of a tarwad. And we may remark that in assimilating to this extent the position of the 1st defendant to that of the karnavan of his tarwad, we, in no way, interfere with the position of the latter, for it is not suggested that a tarwad karnavan has any right to manage the self-acquisitions and separate property of the junior members to the tarwad. In our opinion the suit for the removal of the 1st defendants lies. The next question for decision is whether the 1st defendant ought to be removed from his position, and we think there can be no doubt that the decision must be against him. It is clear that about the year 1897 or 1898 after he had for a few years managed the property as eldest male member, he attempted by transfer of the Kuditala to the name of the 2nd defendant and by a Will executed by her, to oust the plaintiff altogether from the property: his case and the only case now made on his behalf, (for it was not contended that the Subordinate Judge was wrong in deciding that the Will and transfer proceedings were principally his work) is that he bona fide believed that his mother as the last survivor of the donees under the gift, was entitled as absolute owner to all the property given, and to all the property acquired by means of the property given. The Subordinate Judge is of opinion that this contention cannot prevail and we agree with him. It is impossible to be have that the 1st defendant honestly thought that Rukumini's children were excluded by the death of their mother in the life-lime of his mother. He has, therefore, endeavoured in conjunction with his mother to deprive the plaintiffs of property which he knew belonged to them and which he was managing on their behalf, and it is clear that, that being so he ought no longer to remain in the position of manager. The next question is whether the mortgagees under the mortgages which form the subject of the 7th issue were put in possession of the mortgaged property, the contention of the defendants being that if they were so let into possession, the suit for a declaration that the mortgages do not bind the plaintiffs will not lie as being opposed to Section 42 of the Specific Relief Act? The evidence of transfer of possession is very weak, and it is easier to accept evidence that there has been no change of tenants since the mortgages: it is not likely that the tenants would have vacated their holdings without, and there is not a single instance of any proceedings in ejectment, nor any evidence (indeed it is not alleged) that the old tenants or any of them attorned to the mortgagees. We think, therefore, that there is no satisfactory evidence that the 3rd to 6 th defendants ever took possession under their mortgages, and that being so, the suit for a declaration is good. It was hardly contended that the mortgages were such as to bind the family and we agree with the Subordinate Judge that the evidence is insufficient to support them. The next question for decision is whether items Nos. 22 to 29 of the suit property are the property of the family or not. The parties have done little to help the Court to arrive at a satisfactory conclusion. They have produced no accounts and but little oral evidence beyond the assertion of the 2nd defendant that the acquisition was made from gifts made to her by her husband. It was doubtless in the power of the plaintiffs to produce the accounts of the Aramana, for their father was the Raja at the time of the suit, and though the accounts of Sankara Ejaman should prima facie be in the possession of the 2nd defendant or 1st defendant, the Subordinate Judge points out that the plaintiffs summoned a man in their own pay to produce them but did not examine him. In these circumstances the absence of accounts cannot at any rate lead to any presumption in the plaintiffs' favour. The Subordinate Judge has probably underestimated the income of the family, and there is evidence that the family was maintained principally by the Rajas and not out of their, own income, so that it is not possible to say that they could not have acquired properties worth Rs. 18,000: on the other hand, the 2nd defendant's husband Ramavarma was a wealthy man after he succeeded Ravi Varma in 1895 and there is every probability that he made gifts to his wife as 'he alleges. There is thus not much help to be obtained from a consideration of the resources of the parties, and seeing that the property now in question was acquired in the names of the 1st and 2nd defendants together, there is no strong presumption in favour of the family derivable from the fact that the 1st defendant was the managing member, such as might have arisen if the acquisition was in his name alone. Now items Nos. 22 and 23 were acquired in the life-time of Sankara Ejaman and if they were acquired for the family his name should have appeared in the conveyance. The presumption is, therefore, that they were not acquired for the family and there is no satisfactory evidence to rebut this presumption. We cannot in these circumstances differ from the Subordinate Judge in respect of these two items.
3. Item No. 27 was acquired in the name of the 2nd defendant alone while her husband was alive and there is nothing to suggest that it was acquired for the family. Here too we must accept the Subordinate Judge's finding. The remaining items Nos. 24, 25, 26, 28 and 29 were acquired after the death of Sankara Ejaman and the case is, therefore, not so clear in regard to thems: but the 2nd defendant's husband was senior Raja from 1894 to 1899 a period during which all these items except one (item No. 29) were acquired. And items Nos. 24, 25 and 26 were acquired before the date of the 2nd defendant's Will (Exhibit J) and, therefore, so far as the evidence shows, before the 1st defendant and the 2nd defendant had made up their mind to deprive the plaintiff of their property. In the absence then of any satisfactory evidence for the plaintiffs, we must hold that the Subordinate Judge has rightly accepted the 2nd defendant's evidence that items Nos. 24, 25 and 26 were her own acquisitions. We cannot attribute any weight to the statement in the Will that this property was acquired from the profits of other property which the 2nd defendant claimed as her own but which the Subordinate Judge finds belonged to the family. That statement does not amount to an admission that these items belonged to the family, and as the Subordinate Judge points out, it cannot be true.
4. Item No. 28 was acquired in February 1898 while Rama Varma was alive and item No. 29 in 1900 after his death. Before 1898 the 1st and 2nd defendants were setting up their exclusive title to the whole property and were in possession of the family funds; there can thus be no presumption in their favour that they would not have used family property for the purpose of acquiring property for themselves, and there can be little doubt that the family funds might by that time have been sufficient for acquisition of this property. In the circumstances it lies on the 1st and 2nd defendants to show that they did not acquire this land at the expense of the family, and there is no evidence in their favour beyond the assertion of the 2nd defendant and this we cannot accept as sufficient to discharge the burden. We think, therefore, that items Nos. 2i and 29 must be held to be the property of the family.
5. The plaintiffs have not asked for any declaration in respect of items Nos. 22 to 29,but we have followed the Subordinate Judge in deciding the question whether they belong to the family in the hope that our decision may prevent farther litigation in the family in regard to them, and for purposes of the account to be rendered by the 1st defendant.
6. Appeal No. 26 of 1904 is an appeal by the 2nd defendant from the same decree. It is in form an appeal for costs but it raises the question whether items Nos. 13, 16, 18, 19 and 20 of the property in suit belong to the 2nd defendant alone or to the family. The appeal is for costs only because the plaintiffs did not ask for a declaration or other relief in respect of this property, but, though the appeal for costs cannot succeed, we have deemed it desirable here, as in Appeal No. 59 of 1905, to record our decision on the question raised as to the ownership of the property. The Subordinate Judge has decided that all this property belongs to the family, but we think on insufficient grounds. Tie takes the statement of the 2nd defendant until the death of Sankara Ejaman the management of the property given by the father was being looked after by him and never by me as evidence that property, which he finds was given by the father but which she alleged was given by her husband, was in the management of Sankara Ejaman and so was family property. But it is clear from other portions of the 2nd defendant's deposition that by property given by the father she means the property given to all the children and the statement on which the Subordinate Judge relies cannot properly be taken as an admission that any property other than that was managed by Sankara Ejaman.
7. Item No. 13 was acquired in 1878 after the death of the 2nd defendant's father and mother and before the accession of h~7 husband. The document is in the 2nd defendant's name but the money was actually paid by Sankara Ejaman. The evidence does not show that in 1878 the 2nd defendant's husband had any considerable wealth, and, we are unable to differ from the finding of the Sabordinate Judge that this item though for some unexplained reason standing in the 2nd defendant's name was acquired for the family. The fact that certain leases in the life-time of Sankara Ejaman were in the name of 2ad defendant does not carry the case further; the name in the leases may have followed that in the mortgage-deed.
8. Items Nos. 16 and 18 were acquired in the life-time of Lakshmi Kattilamma the (2nd defendant's mother) and if as is probable and as is found by the Subordinate Judge, they were acquired by gifts from Venkajesh Varma, there is a strong presumption that had they been intended for the family they would have run in the name of Lakshmi Khattilamma and her children like other nearly contemporaneous gifts. The Subordinate Judge is unable to find any sufficient reason why these gifts, if not gifts to the 2nd defendant alone should appear in her name alone, but apparently relying on the statement to which we have before referred, has decided in favour of the plaintiff's contention. We do not agree with him.
9. Items Nos. 19 and 20 were acquired after the death of Lakshmi Kattilamma but during the life-time of Ventcatesh Varma. Here again except the misconstrued statement of the 2nd defendant there seems to be nothing satisfactory to support the Subordirate Judge's finding. He refers to two instances in one of which property stood in the name of Sankara Ejaman (in Exhibit D. 4) while in the other Rukmini appears as the owner (Exhibit C). In the first case there may be reason to suppose that property standing in the name of the managing member was intended for the family but in the latter there seems nothing to support an inference that item No. 17, the property in question, did not belong to Rukmini alone. The Subordinate Judge does not find it necessary to decide that point. These two instances do not, therefore, support the decision while it is probable as the Subordinate Judge finds that Venkatesh Varma and not the 2nd defendant's husband found the money for the acquisition of items Nos. 19 and 20 it is also probable that, if he had intended them as gifts to his children, he would have had all the names or at any rate Sankara Ejaman's name entered in the documents. We find that items Nos. 19 and 20 are the property of the 2nd defendant.
10. But this appeal for costs cannot succeed for though in respect of some of the property we differ from the Subordinate Judge, the 2nd defendant has undoubtedly attempted to deprive the plaintiffs of property in which they have as great an interest as she has, and she was rightly made to pay her own costs. The result is that Appeal No. 26 of 1905 is dismissed.
11. In Appeal No. 59 the decree must be reversed and in lieu thereof a decree made reiro1 nig the 1st defendant from the position of manager appointing the 1st plaintiff in his place and prohibiting the 1st and 2nd defendants from interfering with his management; declaring the mortgages questioned in paragraph 14 (e) of the plaint not binding on the plaintiffs or their family property, and directing the 1st defendant to render an account of his dealings with all the family property from the beginning of the year 1897 the year in which it is clear that the 1st and 2nd defendants mixed the property of the latter with the family property and attempted to exclude the plaintiffs from both. The 1st and 2nd defendants must pay the plaintiffs' costs of this appeal and in the lower Court.
12. The 1st defendant's memorandum of objections is dismissed with costs.
13. Our findings as to the ownership of the property with which we are concerned in the appeals are the following: Items Nos. 13,28 and 29 belong to the family; items Nos. 16,18, 19, 20, 22, 23, 24, 25 and 26 do not belong, to the family.
14. In Appeal No. 220 of 1905. We do not follow the Subordinate Judge's reasoning in this case. There is nothing to show that it was necessary to alienate family property to repair a house. The appeal must be allowed and the plaintiff given a decree for recovery of the property with mesne profits at Rs. 4 a year and costs throughout, to be paid by the 1st and 2nd defendants.
15. In Appeal No. 221 of 1905. We have found in Appeal No. 59 of 1905, that it is not proved that the mortgagee obtained possession of the property. We, therefore, allow the appeal and dismiss the suit with costs throughout.