Under Marumakkathayam law, there is a strong presumption that a property acquired in the name of the manager of a tavazhi is the property of the tavazhi.

Judgment

SUBBA RAO, J. : This appeal by certificate raises the question whether a certain property, described as Chalakkode property, is the property of the Tavazhi of which the appellant and his mother are members or the separate property of the appellant.

2. Plaintiffs in O. S. No. 108 of 1948 in the Court of the Subordinate Judge, Palghat, and the defendants in the said suit are members of a Malabar tavazhi; originally it was a branch of a tarwad, but separated itself from the said tarwad on July 13, 1934 under a decree in a partition suit. The said tavazhi owns a number of properties. The plaintiffs filed the suit against the tavazhi, represented by its manager and others, for arrears of maintenance due to them and for other reliefs. In the plaint it was alleged that the said Challakkode nilam property was the property of the tavazhi and, therefore, they were entitled to maintenance from the income of the said property also. The defendant in their written-statement denied that the said property was the property of the tavazhi, but alleged that it was purchased from and out of the private funds of defendant 1 and her son, defendant 4. One of the issues raised was whether the property referred to in paragraph 5 of the plaint was tavazhi property from which maintenance could be claimed. The learned Subordinate Judge held that the said property did not belong to the tavazhi but it was the personal property of defendants 1 and 4. In the result in giving a decree for maintenance, he did not take into consideration the income from the said property. On appeal a Division Bench of the Madras High Court, having regard to the relevant presumptions under the Malabar law, held that the said property belonged to the tavazhi; in the result, it allowed the appeal and remanded the suit to the Court of the Subordinate Judge for fixing the rate of maintenance after taking into account the income from the said property also. The 4th defendant, after obtaining the certificate from the High Court, has preferred the present appeal to this Court against the judgment of the said Court. In this appeal, the plaintiffs, the first defendant and other defendants have been impleaded as respondents.

3. The only question in the appeal is whether the said property is the property of the tavazhi or is the self-acquired property of the first respondent and her son, the present appellant.

4. Mr. N. C. Chatterjee, learned counsel for the appellant, contends that the first and the fourth defendants are not the managers of the tavazhi properties; even if they are, there is no presumption under the Malabar law that the properties acquired in their names are tavazhi properties, and that even if there is such a presumption, the appellant has proved by relevant evidence that the Challakkode property is the self-acquired property of himself and the 1st defendant.

5. Mr. A. Viswanatha Sastri, learned counsel for the respondents, argues that the 1st defendant is the karnavati of the tavazhi, that she was managing the tavazhi properties during the crucial period with the active help of her son, the 4th defendant-appellant, that there is presumption under the Marumakkathayam law that a property acquired in the name of a manager of tavazhi is the property of the tavazhi, and that the said presumption has not been rebutted by any acceptable evidence. Further, he contends that the same presumption should be invoked in the case of the 4th defendant-appellant, who was in de facto management of the said properties during the crucial period and that he had kept back all the relevant accounts and failed to rebut the said presumption.

6. To appreciate the scope of the said presumption it is necessary to notice briefly the relevant legal incidents of "tarwad" under the Marumakkathayam law. The said law governs a large section of people inhabiting the West Coast of South India. "Marumakkathayam" literally means descent through sisters children. There is a fundamental difference between H