K. Vinod Chandran, J.@mdashThe plaintiff is in appeal from the concurrent findings of the Courts below. The plaintiff claimed setting aside of certain documents by which properties allegedly belonging to the joint Hindu family of Udayamangalam Illom were alienated and sought for partition. The plaintiff claimed that he belonged to the Illom, governed by the Aliyasantana Law and traced his descent to one Suryan Namboothiri. Suryan Namboothiri had two sons - Krishnan Namboothiri and Neelakantan Namboothiri. Neelakantan Namboothiri married outside the community. Krishnan Namboothiri married Uma Antherjanam and a son born to them was named Suryan Namboothiri (This is the Suryan Namboothiri referred to hereinafter). Suryan Namboothiri married Sreedevi Antherjanam, the 1st defendant, and two sons - Sankaranarayanan, the 2nd defendant and Suryan were born to them. Sankaranarayanan''s wife Devi is the 4th defendant. Sankaranarayanan''s brother Suryan died in the year 1991 and his wife Easwary is the 3rd defendant. The plaintiff is the son of defendants 2 and 4.
2. The plaint schedule property has a total extent of 1 acre and 37 cents, comprised in Survey No. 79/3 (1 acre), Survey No. 87/4 AB (23 cents) and Survey No. 87/9 (14 cents), all situated in Kothakulangara South Village. Exhibit A1 dealt with 1.37 acres, being 23 cents acquired by deed No. 3156/1116 M.E., 1.00 acre by deed No. 954/1113 M.E. and 14 cents by Purchase Certificate No. 2757/1956. According to the plaintiff, in addition to the plaint schedule property, the Illom owned around 40 acres of land, which were lost to the Illom by the decree in O.S. No. 1442 of 1106 M.E. Out of the 1.37 acres, 34 cents was sold by Exhibit A3 to one Krishhan Nair, by Suryan Namboothiri in 1984. Exhibit A3 disposes off 34.105 cents, being 5.105 cents acquired by Deed No. 954/1113 M.E., 23 cents by Deed No. 3073/1118 M.E. and 6 cents by Purchase Certificate No. 2757/1956 issued by the Land Tribunal. The legal representatives of the said Krishnan Nair were impleaded as defendants 5 to 7. In the year 1985, by Exhibit A1 Will, Suryan Namboothiri bequeathed 1.37 Acres in favour of his wife, the 1st defendant. The 1st defendant by various documents, Exhibits A4 to A8, A11 and A12, alienated the said properties in favour of defendants 8 to 13.
3. The plaintiff contended that the said properties sold and bequeathed by Suryan Namboothiri, the plaintiffs grandfather, did not belong to his grandfather as such and belonged to the Illom. It was the specific contention that though the acquisition of the plaint schedule properties were in the name of Suryan Namboothiri, it was made possible only by the income derived from the family properties of the Illom and, hence, it inures to the benefit of the joint family and by virtue of the provisions of Joint Family System (Abolition) Act 1976, the plaintiff is entitled to 1/5th share in the plaint schedule property along with defendants 1 to 4. The plaintiff prayed for setting aside of various documents by which defendants 5 to 13 acquired rights in the respective parcels of land and sought for partition among the members of the Illom to which the plaintiff belonged.
4. The 1st defendant appeared and filed a Written Statement, asserting her rights flowing from Exhibit A1 Will. Defendants 2 to 4 remained ex parte. Defendants 8, 12 and 13 together and defendants 10 and 11 together filed separate Written Statements. They claimed that the properties were not joint family properties and were acquired by Suryan Namboothiri in his individual capacity, which he was competent to bequeath in favour of his wife. The contesting defendants prayed for dismissal of the suit.
5. The plaintiff was examined as P.W. 1 and P.W. 2 was an alleged friend and contemporary of Suryan Namboothiri. P.W. 3 was the son of Neelakantan Namboothiri, the paternal uncle of Suryan Namboothiri. The 1st defendant was examined as D.W. 1 and one Poulose was examined as D.W. 2. 21 documents were marked on the side of the plaintiff and a Commission was also taken out. The Commission was taken out for the purpose of noticing some constructions made in the property which, at present, may not be relevant, since the question to be decided first is the entitlement to partition of the properties.
6. The Courts below concurrently found that the documents produced on the side of the plaintiff did not disclose the status of Suryan Namboothiri as the "Karanavan" of the Illom. The provisions of the Kerala Nambudiri Act, 1958 were relied on to find that the Karanavan being the senior-most male member, the uncle of Suryan Namboothiri, Neelakantan Namboothiri, was entitled to that status. Suryan Namboothiri not having been vested with the powers of Karanavan, it was held that there was nothing to probabilise or to support the plaint averments that the plaint schedule properties were purchased with the income derived from the properties of the joint family. The trial Court''s finding that the plaint schedule property was not partible and was not joint family property was confirmed by the first appellate Court. The first appellate Court found that there was no joint family property creating a nucleus from which a corpus of funds was derived from which consideration can be found to have been paid for the acquisition of plaint schedule properties.
7. The substantial questions of law raised by the appellant in the memorandum of appeal are re-framed as under:
(i) Whether the Courts below were justified in relying upon the provisions of the Kerala Nambudiri Act, 1958, more specifically Sections 2(c) and 10, to hold that Suryan Namboothiri cannot be said to be the "Karanavan" of the joint Hindu family comprising the Illom; merely because there was no document evidencing relinquishment by Neelakantan Namboothiri, who was the eldest male member of the family; when the facts proved the contrary?
(ii) Whether the Courts below, in the facts and circumstances of the case, ought to have found from the evidence on record that in fact Suryan Namboothiri had been managing the properties of the Illom and based on such finding ought not the Courts below have presumed the existence of a joint family nucleus; the income derived from which was used for the acquisition of properties in the individual name of Suryan Namboothiri?
(iii) Ought not the Courts below have found that the joint family nucleus having been established by the evidence and the Karanavanship and managership of joint family properties too established by the conduct of the parties, especially Suryan Namboothiri, the burden of proof cast on the plaintiff is discharged and the onus shifts to the defendants to prove separate income having been used for acquisition of properties in the name of Suryan Namboothiri?
8. I have heard the learned counsel for the appellant Sri. P. Viswanathan and learned Senior Counsel Sri. S.V. Balakrishna Iyer for respondents 10 and 11.
9. Sri. P. Viswanathan, the learned counsel for the appellant, would contend that Suryan Namboothiri had no assignable rights with respect to the plaint schedule properties and Exhibit A3 sale deed as also exhibit A1 Will can only be considered as assignments of the interest of Suryan Namboothiri in the plaint schedule property, as a member of the Illom. It is contended that Udayamangalam Illom had around 40 acres of property and the rent deeds produced by the plaintiff, being Exhibits A9, A10, A13 to A18, would demonstrate that Suryan Namboothiri, on attaining majority, had been managing the affairs of the Illom. Neelakantan Namboothiri, his uncle, had married outside the community and the oral evidence of his contemporary P.W. 2 and his own son P.W. 3 would clearly show that he, though being the eldest male member of the family, was not managing the affairs of the Illom. Exhibits A19 to A2 I have been pressed into service to further demonstrate that though the said Neelakantan Namboothiri was shown as "Karanavan" in Exhibit A19 plaint, the said suit was not contested, resulting in an ex parte decree. This again points to Neelakantan Namboothiri''s inertia and lack of interest in managing the Illom properties, is the contention.
10. Sri. Iyer, learned Senior Counsel, would, however, contend that the plaintiff has been skirting the issue by producing irrelevant documents while purposefully suppressing the documents by which Suryan Namboothiri acquired the plaint schedule property. A plain reading of Exhibit A1 Will would indicate that Suryan Namboothiri had acquired 1.28 acres in Survey No. 79/3 and 23 cents in Survey No. 87/4 AB by sale deeds and 14 cents by virtue of a valid Purchase Certificate. Similarly, Exhibit A3 too spells out the documents by which Suryan Namboothiri acquired the properties alienated therein. So much is clear from the recitals in Exhibits A1 and A3 and none of the documents so mentioned have been produced. The documents respectively were of the year 1113 M.E. and 1116 M.E. and of the year 1956 (1121 M.E.). Exhibit A9 is a contemporaneous document executed in the year 1113 M.E. and Exhibit A10, a prior document executed in 1111 M.E. When certified copies of prior and subsequent documents have been produced in evidence,. the plaintiff chose not to produce the documents by. which Suryan Namboothiri acquired plaint schedule properties, evidently shutting out the best evidence possible.
11. But for Exhibits A9, A10, A16 to A18, all the rent deeds produced by the plaintiff is of the year 1121 M.E., long after the acquisition of the plaint schedule properties. Exhibit A10 is a release deed, which finds mention in Exhibit A9 and the later document, Exhibit A9, also speaks of a settlement having been arrived at with respect to the Illom properties in the year 1111 M.E. itself. Exhibits A9, A10, A16 and A18, contemporaneous to the acquisition of the plaint schedule properties, show acquisition by Suryan Namboothiri in his personal capacity. It is also pertinent that Exhibit A17 dated 10.10.1113 M.E. clearly belies the contention of the plaintiff that Neelakantan Namboothiri has been excluded from the Karanavanship, since he along with Suryan Namboothiri are the persons in whose favour the rent deed is executed by the lessee. There is no pleading to the effect that Neelakantan Namboothiri has married out of the community and, hence, is excluded from the Karanavanship; nor is such exclusion sanctioned by the Nambudiri Act or by the Travancore Malayala Brahmin Regulation, 1106, hereinafter referred to as "the Travancore Regulation". At the time of acquisition of the properties, i.e., 1113 M.E. and 1116 M.E., what is applicable would be the Travancore Regulation. In any event, Regulation 9 therein as also Section 10 of the Nambudiri Act specifically provides for relinquishment of Karanavanship by a registered document; and only by that. That admittedly not having been executed, there is no question of Suryan Namboothiri acting as the Karanavan and in any event, there is absolutely no nucleus of joint family evidenced in the case. On the contrary, the evidence is that the properties of Illom were lost by reason of the Illom being not able to comply with the commitments of the family and properties were lost by virtue of legal proceedings and even by revenue sale. Suryan Namboothiri infact had acquired such properties of the Illom sold to third parties and the evidence clearly proves separate income of Suryan Namboothiri as deposed by his wife D.W. 1.
12. The learned counsel for the appellant/plaintiff would rely on
13. Now to the decisions cited on behalf of the defendants. A plain reading of the decisions cited by the appellant/plaintiff itself would show that the initial burden to establish an adequate nucleus out of which acquisitions were capable of being made, is on the plaintiff and is one of fact depending on the nature and context of the nucleus; as laid down in
14. What is evident from the decisions cited above is that irrespective of the status of the member of the joint Hindu family as a Karanavan or otherwise, any properties acquired with the funds derived from the income generated out of the joint family property and any acquisition made with such funds would inure to the benefit of the joint family, irrespective of the fact that the deed of acquisition was in his personal capacity. The existence of a nucleus or a corpus of funds is the primary criterion, but the same is not the sole criterion, because there should be sufficient surplus as a result of the nucleus to apply for further acquisitions. The nature and relative value of the nucleus along with the reasonable expenses that would be incurred for the maintenance of the family would be the most relevant aspect towards this end. The burden of establishing the said nucleus and the surplus income available for application for further acquisitions is on the person who asserts the nature of the property to be joint family property. There should be a clear nexus established with respect to the joint family nucleus and the further acquisitions. The presumption, hence, would be available only when it is shown that there was surplus income available for further acquisitions. If that is established, then the onus to prove, that despite such surplus income being available, what was applied for further acquisition was not that surplus, but the personal income of the persons who made such acquisition, is on the member claiming separate ownership and possession of property. Keeping this in mind, the evidence as analysed by the Courts below is to be examined.
15. The thrust of the argument addressed on behalf of the appellant/plaintiff is that Exhibits A9, A10, A13 to A15, A17 and A18 being rent deeds executed with respect to the Illom properties in favour of Suryan Namboothiri would clearly demonstrate the status of Suryan Namboothiri as Karanavan of the family and if not to that extent, at least as Manager of those properties dealing with the nucleus of the joint family property. But, as noticed earlier, Exhibits A13 to A15 and A18 are rent deeds, more particularly renewal of leases, effected long after the acquisition of the plaint schedule properties. Exhibit A17 belies the relinquishment of the status of Neelakantan Namboothiri in so far as he is also one of the persons in whose favour the said deed has been executed. Exhibits A9, A10 and A17 are contemporaneous to the acquisition of plaint schedule property. Exhibits A10 and A9 specifically speak of execution in favour of Suryan Namboothiri in his personal capacity. Exhibit A9 is the only document in which consideration by way of cash is dealt with and all others indicate consideration in kind. It is also relevant that Exhibit A9 speaking of a consideration of 98 British Rupees, speaks of a settlement deed of 1083 of 1111 M.E. of the Illom properties. The rent deeds of 1121 M.E., in any event, would only indicate the affairs of the Illom being managed by Suryan Namboothiri subsequent to his acquisitions. The acquisition admittedly is of a prior period, i.e. In 1113 M.E., and 1116 M.E. The Purchase Certificate is also of the year 1121 M.E., but with respect to a proceeding initiated as 2757 of 1956. There is nothing to show that Suryan Namboothiri had been managing the affairs of the Illom in 1113 M.E. In fact, Exhibit A17 of 1113 M.E. is executed in favour of Neelakantan Namboothiri and Suryan Namboothiri.
16. Looking at the oral evidence, P.W. 1 admits that Neelakantan Namboothiri was the Karanavan and that he is unaware of the consideration with respect to the properties acquired by Suryan Namboothiri. P.W. 1 reiterates that the 1st defendant''s husband, Suryan Namboothiri, has purchased many properties in his personal capacity and he is unaware of, from where, he got amounts to make such purchases. P.W. 2 purportedly was examined to prove that though Neelakantan Namboothiri was the eldest male member, Suryan Namboothiri was infact managing the affairs of the Illom as Karanavan. Needless to say, no amount of oral evidence could upset the clear mandate, in the Travancore Regulation as also Nambudiri Act; of a registered instrument for relinquishment.
17. A glance at P.W. 2''s evidence would indicate that the family was in utter penury. Suryan Namboothiri was spoken to of being a "Santhi" in a temple. The income was said to have been meagre, which hardly sufficed for looking after the family. The evidence of the plaintiffs own witness would show that there would have been no surplus income derived from the nucleus of the family property. Exhibit A16 would indicate that due to the incapacity of the family to pay the revenue dues, properties were brought to sale by the revenue authorities and Suryan Namboothiri acquired the same from the purchaser in revenue auction. Exhibit A18 also indicates another purchase by Suryan Namboothiri of the properties of the Illom sold in Court auction.
18. The best person to have spoken about separate income, if any, of Suryan Namboothiri would be his own wife, the 1st defendant. She was examined as D.W. 1, an 82 year old woman who confessed to be illiterate. While contending in the chief examination that her husband had no personal properties, in the same breath she asserted her rights over the house and properties bequeathed to her by Exhibit A1 Will. In cross examination, she specifically speaks of Suryan Namboothiri having acquired properties in 1113 and 1116 M.E. She also speaks of her husband having bank deposits for a very long time and remembers her husband, having brought home money, withdrawn from the bank account. The joint family nucleus having surplus income not being established; the burden of the plaintiff was not discharged. An enquiry into how Suryan Namboothiri had money in his hands is not warranted. The defendants too had no burden to establish it; the plaintiff having failed to discharge his burden.
19. The appellant/plaintiff, but for asserting the nature of the plaint schedule property to be joint family property, has not established the same. Admittedly the acquisition of the plaint schedule properties were made in the years 1113 M.E. and 1116 M.E. by Suryan Namboothiri in his personal capacity. The deeds by which such acquisitions were made, though specifically indicated in Exhibit A1 Will, have not been produced by the plaintiff. The plaintiff, to establish his claim that Suryan Namboothiri was managing the affairs of the Illom as the Karanavan of the Illom, has produced certified copies of the rent deeds of the year. 1121 M.E., which is long after the acquisitions made in 1113 M.E. and 1116 M.E. The contemporaneous document, Exhibit A17, of the year 1113 M.E. shows Neelakantan Namboothiri, the eldest male member of the family, receiving rents. It is the specific case of the plaintiff that Udayamangalam Illom, in addition to the plaint schedule properties, owned about 40 acres of property, which were lost by virtue of the decree passed in O.S. No. 1442 of 1106 M.E. The date of the decree or the date of such dispossession is not evident from the materials produced. In 1106 M.E., Suryan Namboothiri was definitely a minor. He attained majority only in the year 1109 M.E. or 1110 M.E. as is evidenced by Exhibit A 10. The acquisition of properties were long after 1106 M.E., the year of the suit; in the years 1113 M.E. and 1116 M.E. Whether there was any family property available at the time of acquisition itself is doubtful. The rent deeds produced by the plaintiff itself would show Suryan Namboothiri purchasing properties of the Illom; which, the Illom was dispossessed of by revenue sale and by Court auction. The status of Suryan Namboothiri as a Karanavan of the Illom definitely cannot be inferred by reason of the specific mandate in the Nambudiri Act as also the Travancore Regulation. Admittedly Neelakantan Namboothiri was the eldest male member who was entitled to be the Karanavan of the Illom as per the statutory provisions. There is no registered instrument by which the ''Karanavan'' relinquished his claim. There is also nothing on record to indicate that contemporaneous to the acquisition of the plaint schedule properties, i.e., during 1113 M.E. and 1116 M.E., the properties of the Illom were managed by Suryan Namboothiri. The status of a Karanavan or even the conduct of managing the Illom properties leading to an inference of Karanavan is totally absent from the materials on record. In the context of the clear evidence of the penury in which the family was wallowing as is spoken to by P.W. 2 and indicated by the recitals in Exhibits A9, A10, A16 and A18, there is no corpus of funds, that is to say any nucleus established in the facts of the case much less any surplus income available for application towards further acquisition of property. Dispossession of properties of the Illom by Court sale, revenue sale, etc. is very clear from the records. There can be no presumption that the acquisitions made by Suryan Namboothiri were with the surplus funds available in the income derived from the family property when there is no evidence for such nucleus at all. The plaintiff has completely failed in discharging the burden and cannot contend shifting of the onus to the defendants to prove separate income of Suryan Namboothiri. The mere membership in the joint family cannot lead to a conclusion that all acquisitions made by a member would inure to the benefit of the joint family property. This Court is of the opinion that there is total lack of evidence regarding the nucleus of joint Hindu family or even any income generated from the joint family property much less any surplus income. Suryan Namboothiri''s status as a member of the Illom alone cannot be relied upon to find that the property acquired by him would inure to the joint family and hence is partible. The findings of the Courts below are unassailable. The questions of law raised are answered against the appellant.
The Second Appeal fails and is, accordingly, dismissed with costs throughout.
