The burden of proof lies on the individual member to establish self-acquisition, and there is no presumption in favor of tharwad property in the acquisition of properties in the name of a junior member of a tharwad.

C.S. Rajan, J.

In a suit for partition of properties belonging to a Marumakkathayam Nair tharwad, the lower Court held that item No. 3 in the plaint schedule was partible. Item No. 3 was purchased by the first defendant in her name. Still the lower Court found that the above item of property is a tharwad property. Therefore, the question is whether the property which stood in the name of the first defendant is really tharwad property and is liable to be shared among the members of the tharwad.

2. The facts of the case lie in a narrow compass. The plaintiffs who are the daughter and grandchildren of the first defendant filed the suit for partition of three items of properties of which there was no dispute with regard to item Nos.1 and 2. It was contended that defendants 1 to 7 are the mother and brothers respectively of the first plaintiff, and that item No. 3 is the self-acquired property of the first defendant which was obtained as per the assignment deed No. 1317 of 1958. The first defendant sold 75 cents of the above property to the second defendant who is the son of the first defendant in 1987. In Ext. Al partition deed executed on 18.2.1974 as well as in a much earlier partition deed executed on 20.12.61 (Ext. B2 ), item No. 3 property was not included. Therefore, it was strongly contended by the defendants that item No. 3 property was the self-acquired property of the first defendant.

3. Issue No. 2 which was the crucial issue to be decided as framed by the lower Court was as follows:

"Whether item No. 3 of plaint schedule is thavazhi property as alleged in the plaint?" After referring to the law on the point, the lower court found that the presumption of law is that all the acquisitions by a member of the family who live in commensality and possessing joint property are to be considered as tharwad or thavazhy property until the presumption is rebutted by evidence that it s a separate property. The onus is shifted to the individual member to prove it as self acquired one. The first defendant, being the senior most family member of the thavazhy, can acquire the property only for the thavazhy. This presumption by the lower court with regard to the legal nature of the self-acquired property of a junior member of the tharwad is assailed by the appellants. Therefore, it is necessary to consider the above legal point in detail.

4. The standard works which deal with the principles of Marumakkathayam Law, as administered in Kerala are Hie 'Principles of Marurnakkathayam Law' by Sri. M.P. Joseph and 'A Treatise on Malabar and Aliyasanthana Law' by Sri. P.R. Sundara Aiyar. The former mainly deals with the law available in erstwhile princely State of Travancore and the latter considers the law pertaining to the Marumakkathayam system of inheritance in Malabar.

5. In M.P. Joseph's book a number of decisions of the erstwhile Travancore High Court with regard to the acquisition of a junior member of Hie tharwad have been cited. In Krishnan Sankaran v. Itlup Clieria (2 T.L.R.2), a Full Bench consisting of four Judges (Ramachandra Iyer, C.J. and Ormsby, Kunjen Menoh and Kunji Raman Nair, JJ.) held that where the property stands in the name of a junior member a tharwad who was not in the management at the time of the acquisition, without further evidence as to how it has been acquired or possessed, it must be presumed that such property is the self-acquisition of the said junior member. In Velayudhan Malheven v. Rumen Mallieven (15 T.L.R.33), Justice Krishna Swamy Rao, C.J. and Cosby, J. held that the ordinary presumption of law is that the property acquired in the name of a junior member is his self-acquisition. The onus of proof with regard to the self-acquisition by a junior member was dealt with in Narayanan Ramen v. Govinden Kesaven (26 T.L.R.190 F.B.) by Hund, Sankara Menon and Muthunayagam Pillai, JJ. and Their Lordships held as follows:

"We are decidedly of opinion that the burden of proving that the property standing in nam