The burden of proof lies with the party claiming tarwad properties, and substantial nucleus is necessary for acquisition from tarwad funds.

1. The suit (O.S. 588/1122, Munsiff's Court, Pathanamthitta) out of which this Second Appeal arises was brought by a member of an Ezhava tarwad consisting of 7 members, a mother, her three sons, one daughter and two grandchildren by that daughter. The plaintiff is the youngest of the sons. The 5th defendant is the eldest son and the 4th defendant is his younger brother. The remaining members of the tarwad are not on record. The 1st defendant is the wife of the 5th and defendants 2 and 3 are their daughter and son-in-law respectively.

2. The suit was for setting aside two documents, Ext. A dated 26.9.1114 which is a deed of sale executed by the 4th defendant in favour of his brother's wife, the 1st defendant and Ext. B dated 15th Thulam 1119 which is an Udampadi executed in favour of defendants 2 and 3 being a deed of settlement in their favour made for their marriage. These documents were sought to be set aside on the ground that the properties comprised therein belong to the tarwad of the plaintiff, that the documents are unsupported by consideration in so far as the tarwad is concerned, and that they were not executed for any necessity of the tarwad. The properties are claimed on behalf of the tarwad on the ground that they were purchased in the names of defendants 4 and 5 with tarwad funds. (See paragraph 3 of the plaint). Paragraph 6 of the plaint stated that the properties continue to be in the possession of defendants 4 and 5 on behalf of the tarwad despite the aforesaid documents and on that basis the only relief that was prayed for originally was the setting aside of the documents.

3. The 1st defendant and defendants 2 and 3 by separate written statements contended, inter alia, that the properties in question were the self-acquisitions of defendants 5 and 4, that the tarwad of the plaintiff had no manner of right to or possession of the properties, and that pursuant to the documents aforesaid the properties were in their possession. They also contended that the 5th defendant was living with and was in management of the properties of the 1st defendant and was in possession of the income derived from those properties until recently when he fell out with her and their children and filed O.S. Nos. 534 and 537 of 1122 in the Pathanamthitta Munsiff's Court, that the present suit is engineered by him through the plaintiff on account of that estrangement, that the tarwad of the plaintiff had no funds for the purchase of the properties and that the only property of the tarwad which was a house with a small slice of a paramba appurtenant thereto measuring 62 cents has been in the possession and enjoyment of the mother, her daughter, son-in-law, and grand-children. The plaintiff filed a written statement after the above defence was entered wherein he averred that the properties belonging to the 1st defendant, besides those obtained by her on partition in her tarwad were purchased for her by the 5th defendant from out of his own funds. The issues framed in the case were as follows:

(1) Has the plaintiff any right to the schedule properties?

(2) Is the plaintiff entitled to question the documents in favour of defendants 1, 2 and 3?

(3) Are the schedule properties the tarwad properties of plaintiff?

(4) To what relief is the plaintiff entitled?

(5) What is the order as to costs?

4. The plaintiff on whom the burden was cast on all the issues did not enter any protest to the burden having been so cast but on the other hand endeavoured to shoulder that burden by adducing oral and documentary evidence in the shape of Exts A to G and his own testimony as the only witness on his side. It seems to us that the plaintiff having accepted the onus and having a finding against him, is not entitled to turn round in a court of appeal and say that the onus is on the other side and that they have not discharged it. We do not however desire to rest our decision in this case upon that disability of the plaintiff. When upon the evidence adduced