1. There are two Nair houses, Edoli and Edasseri; they are both branches of the Manholi house. There are properties belonging to the Manholi house as well as to the Bdoli and Edasseri branches. The question in contest in the suit was whether the property in dispute belonged to the Manholi house or to the Edoli branch. Defendants Nos. 1 to 4 are the demisees under a kanon which was made by Chennan Nair, who admittedly belonged to the Edoli branch. The plaintiff is the present senior member of that branch. It is also admitted that Chennan Nair was not at the time of the demise (Exhibit A) the Karnavan of the Manholi house. The contention of the defendants is that, the property was demised by Chennan Nair on behalf of the Manholi house. There is no presumption when a junior member makes a demise that he does so on behalf of the tarwad. The onus, therefore, of proving that Chennan Nair acted on behalf of the tarwad is on the defendants. The learned Judge in the lower Appellate Court apparently placed the onus on the plaintiff, for he says ' the plaintiff has, in my opinion, failed to prove that the property in suit belongs to the Edoli Tavazhi and that he has a right to maintain the suit.' It is, no doubt, true that he records a finding that the property belongs to the Manholi house, but the judgment leaves room for doubt whether the Judge would have come to this conclusion on the evidence in the case apart from his view as to the onus. Moreover, in answer to the plaintiff's contention that from the year 1876 the property has been demised by members of the Edoli branch, the Judge observes 'this can hardly be the case as the Edoli Tavazhi, it appears, only came into existence about 30 years ago.' The Judge apparently makes this observation as to the time when the Edoli Tavazhi came into existence from the finding of the District Munsif's Court of Calicut in Original Suit No. 245 of 1901--Exhibit B. But it is, to say the least, doubtful whether that observation can be treated as evidence in this case, for there bath branches were fighting in the same interest to defeat a creditor, who had attached certain properties as belonging to the Edasseri branch. besides, the observation itself seems to show that the members of the Edoli and Edasseri Tavazhis dealt with each other as members of a common undivided Tarwad only till 1867, and that till about 1879 the outside public treated the Edoli and Edasseri Tavazhis having community of interest with each other. This seems to show that as between the members of the family themselves, the two branches did not treat each other as persons having a community of interest after 1867. At any rate, we cannot treat this observation as affording any substantial basis for the Judge's view that the Edoli Tavazhi came into existence only from 1879. Here, again, it is true that the 5th defendant states in his evidence that the kanom of 1876 was made' by the Karnavan of the Manholi house, that is to say, that the Chennan Nair who made the demise was the Karnavan of the whole house and, therefore, not a member of the Edoli branch. But when a conclusion is, based on documentary evidence as well as the statement of a witness and the documentary evidence is found not to support the conclusion, it is not safe to assume that the Court of fact would have come to the same conclusion apart from 'that document. The Judge has not referred to two documents which appear to be of the same importance, Exhibits G and G1, which show that a decree obtained against Chennan Nair the demisor. was discharged, not by the Karnavan of the Manholi house but by the plaintiff, the, Karnavan of the Edoli branch. The only' material documentary evidence on the side of the defendants to support the view that the property belongs to the Manholi house is the fact that the patta for the plaint lands stands in the name of the 5th defendant and the plaintiff jointly. We must hold that the judgment is vitiated by the errors we have pointed out, and we must request the present Disrict Judge to return a fresh finding on the 4th issue. If he finds that issue in the plaintiff's favour, he will also record findings on the 2nd and 3rd issues. The findings will be on the evidence on record and will be submitted within one month from the re opening of the Court after the Christmas holidays. Seven days will be allowed for filing objections.
2. In compliance with the above order, the District Judge of South Malabar submitted the following
It is directed by the High Court that a finding be returned on the 4th issue in the suit, viz., Is not the plaintiff entitled to maintain the present suit as he is only an Anandiravan in the tarwad?'
The jenmi of the property in dispute, Chathanath Nambudri, demised it to Chennan Nair in 1876 and the subsequent renewal is in his name. It is not disputed that Chennan Nair was junior to the 5th defendant nor that plaintiff is the representative of Chennan Nair and head of the Edoli branch of the Mancholi tarwad of which the 5th defendant is the Karnavan. If the property belongs to the Edoli branch, plaintiff admittedly has the right to sue. But the contention of the 5th defendant in the suit is that the property belongs to Manholi and that that Chennan Nair demised it on behalf of the tarwad. The burden of proving these contentions is upon the 5th defendant, bat no documents have been produced to show that the title to the property is with the Manholi house and the only documentary evidence to support this contention is the patta which stands in the name of the 5th defendant and the plaintiff jointly. There is nothing to show the state of affairs with regard to the property before 18/6, but it is possible that the property was once common property of the Manholi tarwad. It has been found (vide Exhibit B) that a division has occurred in the Manholi tarwad and that by lapse of time the community of interest, which once linked as two branches, the Edasseri and Edoli Tavazhis, has been severed. It is probable that when this separation took, place the Edoli branch took some of the tarwad property as its share. There is documentary evidence (vide Exhibits G and G1) on the side of the plain, tiff to show independent dealing by the Edoli branch with property part of which was common tarwad property. It is unlikely that the Karnavan of the Manholi tarwad, if he had any claim to the property so dealt with, would not have been made a party to those proceedings. For the 5th defendant reliance is placed on the written statement of the present plaintiff in Original Suit No. 466 of 1901 (Exhibit Das an admission that Chennan Nair granted the demise (Exhibit A) on his own account and that the tarwad was not concerned in the transaction. But it is probable that this plea was made by the plaintiff to support the 5th defendant with whom he was then colluding, and it may be noted that such pleas previously put forward by the plaintiff were unsuccessful and apparently made to defeat creditors. The plea of the 5th defendant in the present suit that the demise was taken benami in the name of Chennan Nair for the Karnavan of the Manholi tarwad appears to have no satisfactory evidence to support it. The prior demise, of which Exhibit A is a renewal, is dated 1876 and no evidence is forthcoming to show that any previous demise stood in the name of a Karnavan of the Manholi tarwad. On the other hand, the Edoli Tavazhi would appear to have held possession of the property in dispute since 1876. Stress was laid by the Vakil for the 5th defendant on the fact that plaintiff does not make his claim in the plaint as Karnavan of the Edoli tavazhi, but if there has been division, it does not matter whether the plaintiff describes himself as Karnavan of Manholi or Edoli, and in paras, 3 and 4 of the plaint I find that reference is simply made to ' the tarwad ' of the plaintiff. On consideration of all the real evidence available, my finding on this issue is that it has not been proved that the property in dispute belongs to the Manholi tarwad and that plaintiff is entitled to maintain the suit.
2. On the 2nd and 3rd issues, viz.:
(2) to what rent is the plaintiff entitled, and
(3) who are liable for the payment of rent, findings are also required. There is no dispute as to the amount of rent, and 1 find on the second issue that the plaintiff is entitled to the rent Maimed by him. On the third issue, the 1st defendant pleaded certain payments to Koru Nayar (5th defendant), but it has not been shown that the 1st defendant paid rent to the 5th defendant after due inquiry believing that the rent was due to him and the plaintiff cannot be held to be bound by these payments. The 2nd defendant disclaimed all responsibility for the land and the plaintiff, who abandoned his claim against him in the lower Court, has not clearly proved that he is liable for any rent. The 3rd and 4th defendants, who are subtenants under the 1st defendant, do not deny their liability. I find, therefore, on the 3rd issue that the 1st, 3rd and 4th defendants are liable for the rent due to the plaintiff.
This second appeal coming on for final hearing after the return of the finding from the lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following