1. This suit is brought to recover with mesne profits possession of the properties described in the plaint from the possession of the defendants on the allegation that they are tarwad properties. The plaintiffs and the defendants are all members of a Marumakkatayam tarwad called 'Appatta.' The 1st defendant is the present karnavan of that tarwad and the other defendants also belong to the tarwad. The plaintiffs who are some of the members of the tarwad are the appellants before me. The defendants against whom reliefs are claimed in this suit are also members of a tavazhi in the tarwad called Kuttierigandi tavazhi. The lower Courts have found that though the existence of the tavazhi was denied such a tavazhi does exist as a separate body in the tarwad with a separate karnavan and owning separate properties. The members of the tavazhi claim the suit properties as theirs except items 1 to 12 and 14 which are admitted to be tarwad properties. The second appeal has been argued before me only with reference to items 27, 28, 29, 34, 35, 37 and 38 and items 1 to 6 and the improvements on items 8, 9 and 10. As regards items 27 and 23 the evidence is that they were originally acquired on an otti right in the name of one Ukkandan Nambiar by the then karnavan of the tavazhi. Imbichunni Nambiar, and that in 1889 the jenm right was acquired by Imbichunni Nambiar himself, part of the consideration of the jenm right being the otti amount which had previously been advanced. Imbichunni Nambiar being the Karnavan of the tavazhi at the time there is a presumption in favour of holding that he acquired the properties for the tavazhi. The lower Court has also found that the claim of the tarwad even if it had any at any time, is clearly barred by limitation as from 1889 onward the defendants' tavazhi has been in possession.
2. As regards item 29 that was acquired by Ukkandan Nambiar in 1071 (1896) under Exhibit FF. At that time he had become the karnavan and manager of Kuttierikandi tavazhi. So the learned Judge was right in holding that in the absence of evidence to the contrary, the presumption was in favour of the view that the property acquired by him was acquired for the tavazhi and with the tavazhi funds. And this presumption must prevail unless the person who avers that the property is self acquisition proves that fact by evidence.
3. Items 34 and 35 were purchased in Court auction in 1889 by Kelappan Nambiar, the previous karnavan of this tavazhi, and the tavazhi has bean dealing with these items as pointed out by the learned Judge ever since as their property.
4. Items 37 and 38 were also acquired by the same person Kelappan Nambiar. Kelappan Nambiar himself was a party to the karar, Exhibit QQ, and admitted that these properties belonged to the tavazhi and were acquired with the help of the other tavazhi members and with tavazhi funds. Therefore it is clear that these properties belong to the tavazhi.
5. A point of law was raised before me that the self-acquisitions of a junior member of a tarwad lapsed to the tarwad on his death and not to the tavazhi even though he is a member of the tavazhi also. That was so laid down in Govindan Nair v. Sankaran Nair (1908) 32 Mad. 351.
6. That case has no application hare. It is only of importance to show the lower Court's statement in paragraph 4 that the self-acquisition of the junior members of the tavazhi lapsed to the tavazhi and not to the tarwad is not correct.
6. As regards items 1 to 6: they are admittedly tarwad properties and they are in possession of some of the members of the Kuttierikandi tavazhi, hut the members of the Kuttierikandi tavazhi are also members of the tarwad and they are entitled to be in possession of the properties of the tarwad until and unless the karnavan of the tarwad asks for the return of their possession from them. But in this case the karnavan is not suing and as the plaintiffs are junior members and belong to another tavazhi it is not open to them to set aside any arrangement that the karnavan has made for the purpose of the enjoyment of the tarwad properties by the junior members. In the case of items 1 to 6 even the plea that the junior members were setting up adverse possession of the jenm title against the tarwad has not been established and, therefore, there is no ground for recovering the properties from these junior members of the tarwad; it is, therefore, clear that the suit for recovering items 1 to 6 cannot stand.
7. It is finally urged that item 32 has been lost sight of by the lower Appellate Court in its judgment though it was admitted to be tarwad property. But on looking at the statement in paragraph 37 of the Munsif's judgment, it is clear that the plaintiff's claim for items 30 to 33 was given up before him. That must be the reason why nothing has been said by the appellate Court as regards item 32.
8. The last contention is as regards the improvements on items 9, 10 and 11. It is urged that those improvements ware made by one karnavan Nambiar, a junior member of the tarwad and that therefore on his death these improvements should be taken to have lapsed to the tarwad under the ruling in Govindan Nair v. Sankaran Nair (1908) 32 Mad. 351. But unfortunately for this argument the man who made the improvements had made a gift of his property before his death under Exhibit XLIV to his brothers and other members of his tavazhi. That claim also fails. There does not seem to be any valid ground for the second appeal which fails and must be dismissed with costs.
9. The memorandum of objections refers to items 7, 9, 10 and 11. The Munsif dismissed the suit as regards them also, but the Subordinate Judge has given a decree to the plaintiffs for possession of those properties on payment of the value of improvements and the value of improvements has been assessed by him. These properties are admittedly tarwad properties just as items 1 to 6 are, which have been already dealt with in the appeal. The only difference between items 1 to 6 and these items is that in a karar entered into by the members of the Kuttierikandi tavazhi a statement was made that they were the jenm properties of the tavazhi, whereas, with regard to items 1 to 6, there was no such statement.
10. The Subordinate Judge has held that because the jenm title of the tarwad was denied by the members of the tavazhi the properties should be taken away from them and he has decreed possession in favour of the plaintiffs. It must be borne in mind in this connection also that the karnavan of the tarwad does not seek to recover possession of these properties. The question then is whether the fact that in the karar the members of the Kuttierikandi tavazhi made a statement denying the jenm title of the tarwad is a sufficient ground for differentiating between items 7 and 9 to 11 and the other items of the tarwad property.
11. I am inclined to think that it is not. In the written statement filed by the defendants they unconditionally admitted that these properties also belonged to the tarwad and have withdrawn from the position they took up in the karar. They have only claimed in the case the value of the improvements on these items which they said belonged to the tavazhi. Now that doing so there is no reason for thinking their being continued in possession of these properties would in any way work to the prejudice of the tarwad. It might be that because the jenm title of the tarwad wag denied in the Karar the plaintiffs were right in bringing the matter into Court but when once the defendants admitted the jenm title of the tarwad there is no further reason to take away the possession of the properties from the defendants. They as members of the tarwad are quite as entitled to be in possession of these properties with the permission of the Karnavan of the tarwad as the plaintiffs themselves are who are only other junior members of the tarwad. It would be open always to the Karnavan to get possession of these tarwad properties from the plaintiffs if he wants them. But I do not think the plaintiffs should be allowed to insist upon a decree being given for the delivery of these properties to them on behalf of the tarwad. I am inclined to think that the reasons given by the Munsif are correct and that the Subordinate Judge should not have interfered with his decree. The Subordinate Judge has treated the defendants as if they were tenants under the Karnavan of the tarwad of these properties and has hold that the denial of the title of the tarwad in the Karar has worked a forfeiture of any right they have in the property. This view is clearly incorrect as it was not the case of the plaintiffs or any one else that the defendants were in possession of these properties as tenants. In fact, on the evidence referred to by the District Munsif it is clear the plaintiffs were not able to say in what capacity the defendants were in possession. The defendants themselves have had possession of these properties with the permission of their Karnavan for their own maintenance after paying the Government revenue and other incidental expenses, and it is clear also that they have considerably improved the properties. Under those circumstances it seems to me that the memorandum of objections must be allowed and the decree giving possession of the properties to plaintiffs should be set aside. As regards costs of the Memorandum, as the defendants did once deny the tarwad title I do not think that any costs should be given to them. I direct each party to bear their own costs so far as these items are concerned not only in the Memorandum of objections but in both the Courts below.