The presumption of acquisition under the Travancore Nair Act and its applicability to properties acquired by a female during coverture must be decided based on the evidence adduced, without the aid of the presumption recognized in earlier decisions.

1. These appeals arise from the decree in a suit for cancellation of certain decrees and execution proceedings and partition and recovery of the plaintiffs' 2/5th share in the properties with mesne profits. The plaintiffs and defendants 7 and 8 are the children of the 6th defendant Kesavan Pandalai who died in the year 1108. Defendants 4 and 5 are members of the 6th defendant's tarwad. The properties in Schedule A appended to the plaint were acquired in the name of the 6th defendant in 1091. The properties in Schedules B and C are Michavarom Otties acquired in the 6th defendant's name in 1098 and 1099 respectively. According to the plaintiffs all these properties belonged to their sub-tarwad, having been acquired by Kesavan Pandalai for the sub-tarwad. The 6th defendant had executed some hypothecation bonds on which the creditors obtained decrees and purchased the properties in execution. The properties in schedule A were hypothecated to the 1st defendant on 12-1-1098, who sued in 0. S. No. 268 of 1100, obtained a decree and purchased the properties in court sale. Subsequently he sold the properties to the 2nd defendant. The 6th defendant had also executed two chitty hypothecation bonds to the 3rd defendant and his Karanavan Ayyen Sankaran on 4-1-1098 and 23-4-1099 hypothecating A and B schedule properties as security for the prize amount of a ticket subscribed by him in the chitty conducted by them. Another chitty hypothecation bond was executed by her in their favour on 30-10-1099 in respect of a chitty subscribed by defendants 4 and 5. Three decrees viz., O. S. Nos. 492 of 1106, 4 of 1106, and 23 of 1106 were obtained by the 3rd defendant and his Karanavan on the basis of these bonds. In execution of the decree in O. S. No. 4 of 1105, the properties in B schedule were sold and purchased by the decree-holders. The validity of these hypothecation bonds, the decrees obtained thereon and the execution proceedings were questioned by the plaintiffs on the ground that the properties belonged to the sub¬tarwad, that the bonds were not supported by consideration and tarwad necessity, that the decrees were not properly obtained against the sub-tarwad and that the plaintiffs and defendants 7 and 8 were not impleaded in the suits of execution proceedings. On these allegations they prayed for a decree for declaration that the properties belonged to their sub-tarwad, and for partition and recovery of their 2/5th share, after cancelling the decrees and execution proceedings in respect of such share. They also claimed mesne profits. Defendants 1, 2,3 and 9 contested and their contentions were more or less similar. According to them the properties were acquired by the 6th defendant/the sub-tarwad had no rights over the same and the decrees and execution proceedings Were valid. Even if funds for the acquisition of the properties were provided by Kesavan Pandalai, it was solely for the benefit of the 6th defendant and the properties were always treated as the separate acquisitions of the 6th defendant. The trial court found that the properties were acquired by Pandalai for the benefit of his wife and children who were entitled to the same as tenants-in-common, that the decrees and execution proceedings were not binding on the plaintiffs who were not made parties to the same, and that the plaintiffs were entitled to 2/5th share in the properties. The decrees and execution proceedings were cancelled to this extent and the plaintiffs were given a preliminary decree for partition and recovery of 2/5th share of all the properties. Defendants 2,16 and 17 of whom the latter two claimed as donees of the 2nd defendant have preferred A. S. No. 3 of 1956 from the decree while the 9th defendant who claimed under the 3rd defendant is the appellant in A. S. No. 38 of 1956 (T).

2. The question for decision in both the appeals is whether the plaintiffs have any right to the properties included in the suit. As stated earlier the view taken by the t