Subba Rao, J.

1. 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 Hindu law and Marumakkathayam law in that, the former is founded on agnatic relationship while the latter is based on matriarchate. The relevant principles of Marumakkathayam law are well settled and, therefore, no citation is called for. A brief survey will suffice.

7. A family governed by Marumakkathayam law is known as a tarwad: it consists of a mother and her children, whether male or female, and all their descendants, whether male or female, in the female line. But the descendants, whether male or female, or her sons or the sons of the said descendants in the female line do not belong to the tarwad - they belong to the tawards of their mothers. A tavazhi is a branch of a tarwad. It is comprised of a group of descendants in the female line of a female common ancestor who is a member of the tarwad. It is one of the units of the tarwad. It may own separate property as distinct from tarwad property. The management of a tarwad or tavazhi ordinarily vests in the eldest male member of the tarwad or tavazhi, as the case may be. But there are instances where the eldest female member of a tarwad or tavazhi is the manager thereof. The male manager is called the karnavan and the female one, karnavati. A karnavati or karnavan is a representative of the tarwad or tavazhi and is the protector of the members thereof. He or she stands in a fiduciary relationship with the members thereof. In such a system of law there is an inherent conflict between law and social values, between legal incidents and natural affection, and between duty and interest. As the consort or the children of a male member, whether a karnavan or not, have no place in the tarwad, they have no right to the property of the tarwad. Whatever might have been the attitude of the members of a tarwad in the distant past, in modern times it has given rise to a feeling of unnaturalness and the consequent tendency on the part of the male members of a tarwad to divert the family properties by adopting devious methods to their wives and children. Courts have recognized the difference between a joint Hindu family under the Hindu law and a tarwad under the Marumakkathayan law in the context of acquisition of properties and have adopted different principles for ascertaining whether a property acquired in the name of a member of a family is a joint family property or the self-acquired property of the said member.Under Hindu law, when a property stands in the name of member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law. But the said principle has not been accepted or applied to acquisition of properties in the name of a junior member of a tarwad (anandravan).It was held that there was no presumption either way; and that the question had to be decided on the facts of each case:see Govinda v. Nani, ILR 36 Mad 304: Dharnu Shetty v. Dejamma, AIR 1918 Mad 1367, Ahmad v. Manha Mammad Kunhi, AIR 1926 Mad 643 [LQ/MadHC/1925/437] and Thath Amma v. Thankappa, AIR 1947 Mad 137 [LQ/MadHC/1946/91] . But it is settled law that if a property is acquired in the name of the karnavan, there is a strong presumption that it is a tarwad property and that the presumption must hold good unless and until it is rebutted by acceptable evidence: see Chathu Nambiar v. Sekharan Nambiar, AIR 1925 Mad 430 [LQ/MadHC/1924/57] (2); AIR 1926 Mad 643 [LQ/MadHC/1925/437] and AIR 1947 Mad 137 [LQ/MadHC/1946/91] .

8. With this background let us look at the evidence in the case. The first question is, who is the manager of the tavazhi Kunchu Kutty Amma, the first defendant, is the common ancestor and the oldest member of the tavazhi; defendants 2, 3, 4, 5, and 6 are her sons; defendant 7 and plaintiffs 1, 11 and 18 are her daughters; plaintiffs 2 to 10 are the children of plaintiff 1; plaintiffs 12 to 17 are the children of plaintiff 11; and plaintiffs 19 to 24 are the children of plaintiff 18. The plaintiffs case is that the 1st defendant was the manager of the family and that she was managing the properties through her son, the 4th defendant, an advocate. The defendants version is that the 2nd defendant, the eldest male member of the tavazhi, was its manager till he executed a power of attorney in 1946 in favour of the 4th defendant. Though there is oral evidence in support of the respective versions, the documentary evidence clinches the matter is this regard. O. S. No. 65 of 1934 on the file of the Court of the Subordinate Judge, Palghat, was a suit filed by the members of the tavazhi for partition from the tarwad. There it was clearly stated in the plaint that the 1st plaintiff, i. e., the present first defendant, was the manager of the tavazhi and it was prayed therein that the tavazhi properties be delivered to her. Exhibits A-2 to A-5 are the pattas in respect of the properties allotted to the tavazhi; and they show that the pattas of the tavazhi properties were transferred in the name of the 1st defendant herein. Exhibits A-6 to A-10 are the surrender deeds executed by the tenants of the 1st defendant to her as the manager of the tavazhi; they relate to the year 1940. That apart, the 4th defendant himself made admission in the previous proceedings, both civil and criminal, to the effect that his mother was the manager of the tavazhi and that he was managing the properties on her behalf. In C. C. No. 376 of 1942, in the Court of the Sub-Magistrate, Alathur, he deposed as follows:

"My mother is the manager of my tavazhi. I am managing the affairs of my tavazhi on behalf of my mother. I am paying the Government assessment in respect of the paramba on behalf of my mother." (see Ex. A-12).

In O. S. No. 154 of 1940 in the Court of the District Munsif Alathur, he deposed as D. W. 1 thus:

"My mother is the manager of the tavazhi". (see Ex. A-22).

Exhibits A-17 is the deposition of the present 4th defendants father in O. S. No. 237 of 1942, which runs thus:

"Plaintiff (present first defendant) is manager of her tavazhi. The properties in these two suits belong to that tavazhi."

In the cross-examination he further stated that he and his advocate son managed the tavazhi affairs and that the manager was the plaintiff, i. e., the 1st defendant herein. For the first time, the 2nd defendant came on the picture only when he gave a power of attorney to the 4th defendant describing himself as the manager of the tavazhi. The power of attorney is, dated July 5, 1946. Under the said power of attorney, the 2nd defendant, describing himself as the karnavan, entrusted the entire management of the tavazhi properties and the conduct of the suits relating thereto to the 4th defendant. Learned counsel for the respondents suggests that this power of attorney was given in connection with an earlier suit for maintenance in order to deprive the plaintiffs of their right to maintenance to some extent. The 4th defendant gave evidence in O. S. No. 51 of 1946 on the file of the Court of the Subordinate Judge, Palghat, and the deposition is marked as Ex. B-6; his cross-examination therein discloses that the power of attorney was executed only in a hurry for the purpose of that suit on a stamp-paper available with a third party and that the 4th defendant did not carry out any of the directions given thereunder. Except the fact that it was filed in that suit, the said power of attorney was not used or acted upon for any other purpose. The recital in the power of attorney that the 2nd defendant was the manager is inconsistent not only with the documentary evidence we have already considered, but also with the admission made both by the 4th defendant and his father.

9. The oral evidence adduced in the case does not, carry the matter further. The 4th defendants father asserts in the examination-in-chief that the 2nd defendant is the manager of the tavazhi, that the 1st defendant did not manage the affairs of the tavazhi at any time, that after partition he was collecting the rents and meeting the expenses of the tavazhi and the P. W. 1 (the present 1st plaintiffs husband) was also helping him. In the cross-examination he says that he maintained the accounts, but they were taken away by the 1st plaintiff. He admits that the 1st defendant filed O. S. No. 64 of 1954 as the manager of the tavazhi and that she was described as the manager in the surrender deeds. He further admits that though the 2nd defendant was the oldest male member of the tavazhi, he did look after its affairs. As stated earlier, this witness admitted in the earlier proceedings that the 1st defendant was the manager and the 4th defendant was conducting the affairs of the tavazhi on her behalf. This witness obviously is lying in the witness-box to support the case of his wife and son. In his evidence the 4th defendant also asserts that he did not manage the tavazhi affairs before the power of attorney was executed in his favour in July 1946. Apart from the admissions made by him in the earlier proceedings the diary kept by him and marked as Ex. A-16 belies his present version. It covers the period from April 2, 1939, to December 30, 1939. It contains some items admittedly relating to the management of the tavazhi property. His evidence is inconsistent with the documentary evidence produced in the case, with the admissions made by him earlier and with the entries found in the dairy maintained by him. We may at this stage mention that the fact that the learned Subordinate Judge accepted the oral evidence adduced on behalf of the defendants has no particular significance in this case, for the learned Subordinate Judge did not examine the witnesses in Court, but the oral evidence adduced in the earlier maintenance suit was marked by consent as evidence in the present case. The learned Subordinate Judge, therefore, was not in a better position than the High Court in the matter of appreciating the oral evidence as he could not have observed their demeanour. We, therefore, agree with the High Court, on a consideration of the documentary and oral evidence, that the 1st defendant is the karnavati of the tavazhi and her son, the 4th defendant, who is an advocate, has been managing the properties on her behalf.

10. If that be so, so far as the 1st defendant is concerned, there is a strong presumption that the said property was acquired from and out of the funds of the tavazhi; and, so far as the 4th defendant is concerned, in the circumstances of the present case the position is the same; though in law he was not the manager, we find he was in de facto management of the tavazhi properties and, therefore, in possession of the tavazhi properties, its income and the accounts relating to those properties. Being in management of the properties, he stood in a fiduciary relationship with the other members of the tavazhi. Irrespective of any presumption, the said circumstances must be taken into consideration in coming to the conclusion whether the said property is tavazhi property or not.

11. Let us now trace the title of the Chalakkode property. Chalakkode property originally belonged to Cheerath tarwad, i. e., the tarwad of the 4th defendants father and 1st defendants husband. One Velu obtained a decree in S. C. No. 126 of 1933 on the file of the Subordinate Judge, Palaghat, against the said tarwad. On April 11, 1944, the said decree was assigned under Ex. B-2 to defendants 1 and 4 for a sum of Rs. 1,500. No cash was paid towards consideration, but a promissory note was executed for the said amount. The assigned decree was put in execution and the Chalakkode property was brought to sale and was purchased in the court-auction again in the names of defendants 1 and 4 for a sum of Rs. 1,010. Exhibit A-12 is the sale certificate. It shows that the said amount was set off against the amount due under the decree. It also discloses that the sale was subject to two encumbrances of Rs. 10,000 and Rs. 1,500, respectively. These encumbrances were discharged by payments made on March 25, 1946, and March 11, 1946, respectively. It is seen from the said narration of facts that Rs. 14,010 was spent for securing the said property. Who paid the said amount Is it the tavazhi, the 1st defendant or the 4th defendant alone

12. It cannot be disputed that the tavazhi has sufficient properties and from its income the Chalakkode property could have been purchased. The 4th defendants father in his evidence admits that the tavazhi got properties under the partition decree in O. S. No. 64 of 1934 on the file of the Court of the Subordinate Judge, Palaghat, and even before that it was in possession of Kollengode properties and that the first defendant and one Padmanaban Nair were collecting rents of the Kollengode properties. The 4th defendant in his earlier deposition admitted that the tavazhi got an income of 9000 paras of paddy. There is also evidence in this case that the 1st defendants had no personal income other than the income from the tavazhi and her husband did not give her any money. In Exhibit B-7 her husband says that the 1st defendant did not use any money given by him for the purchase of any property and also admits that there are no records that the 1st defendant had any funds of her own before the partition. Therefore, if the case of the 4th defendant was true, he should have funds money to the extent of Rs. 14,000 from his personal income. He comes with a definite case. His case falls under two parts. The first part is that he took on lease the entire Chalakkode lands from the mortgagee and he was making a profit of 1300 paras of paddy every year. The second part of his case is that he was paying subscription to a kuri (chit) started by one Ramaswamy Iyer and got Rs. 13,000 from the kuri. Let us now test the truth of this case. In 1937 under Ex. B-12 the 4th defendant obtained a lease of a portion of the Chalakkode lands from his father. He says that he was getting a profit of 200 paras of paddy out of those lands. He surrendered his leasehold in favour of the mortgagee and executed a fresh lease under Ex. B-13 in respect of the entire Chalakkode lands. He says in his evidence that he was making a profit of 1300 paras of paddy every year out of the lease. Except his assertion in his evidence there is nothing on record to disclose the income he was getting from the said lease and whether any part of the said income was available for either discharging the promissory note or the encumbrances. Indeed, it is admitted in the cross-examination that he did not actually cultivate the lands but the 6th defendant was cultivating them. His father in his evidence deposes that the 4th defendant did not actually cultivate the lands but the 6th defendant had been cultivating the lands under the 4th defendant and paying 910 paras of paddy to the 4th defendant, who used to pay the same to him and that the 4th defendant had no profits under the said transactions. This covers the period before he surrendered the lease to this father. This evidence establishes that he had no profits till that date. As regards the income from the lands and the profits realised by him after he took a lease of the lands from the mortgagee, he could have produced the accounts to substantiate his case; but, on the other hand, he says in his evidence:

"I used to keep accounts from 1944 onwards. I was in Madras in 1941-42. I had private income then. I did not keep any accounts till 1944. My account books kept after 1944 will show my private income. Those account books are not produced. My private accounts show my private income and expenses. The income from Chalakkode lands will not find a place in my private accounts which show only my profession income."

It is not possible to believe that if he was really a lessee under the mortgagee, the income from the lands would not have found a place in his accounts. There is much to be said in favour of the suggestion that the lease was only a benami for his father, that he was never in possession of the property and, therefore, his accounts would not show his income from the said property. We, therefore, hold that he was not the real lessee and that even if he was, it has not been established that he made any appreciable income from the said property to enable him to save substantial amounts therefrom. Let us now test the veracity of the second part of his version. The said property was purchased in the names of the 1st and the 4th defendants: see Ex. A-12. On January 12, 1944, Ramaswamy Iyer started a kuri consisting of 32 tickets, including the stakeholders ticket, of Rs. 1,000 each for a total amount of Rs. 32,000. Each ticket was divided into two half-tickets of Rupees 16,000 each. The ticket for Rs. 32,000 was purchased in the name of the 1st defendant. On January 8, 1946, in regard to the half ticket, the 1st defendant and the 4th defendant received Rs. 13,000. In regard to the further instalments to be paid by them, they executed a mortgagee in favour of the stakeholder mortgaging the Chalakkode property. This document establishes that defendants 1 and 4 received Rs. 13,000 on January 8, 1946. But that in itself does not establish that the subscriptions to the kuri were paid by the 4th defendant from his personal income. Indeed, the fact that the ticket was purchased in the name of the 1st defendant indicates that it was for the tavazhi. Being the de facto manager, the 4th defendant presumably joined in the execution of the mortgage deed. The 4th defendant could have proved that the subscriptions were paid from his personal income by producing the relevant accounts. But he says in his evidence:

"My private accounts will not show the payment of kuri subscription in the Rs. 16,000 kuri of Ramaswami Iyer. The kuri receipt for Rs. 1,717-0-7 is in the name of my mother first defendant. There is no voucher or bank account to show that I paid Rs. 1,717-0-7 as kuri subscription. M. N. Ramaswami Iyer is not summoned as witness to prove that I paid the subscription."

This evidence is destructive of the 4th defendants version. He has accounts, but those accounts do not contain any entry in regard to the payment of the subscription to the kuri. They would not contain such an entry for the obvious reason that the entry must have been made in the tavazhi accounts; but the tavazhi accounts were suppressed on the specious plea that they were taken away by the 1st plaintiff, for which suggestion there is no justification. The bare assertion to that effect by the 4th defendants father cannot be accepted.

13. Learned counsel for the appellant strongly relied upon the evidence of the 1st plaintiffs husband in support of his contention that the plaintiff has failed to prove that the consideration for the purchase of the said property passed from the tavazhi. But a persual of his evidence shows that he does not know anything about the tavazhi matters, though he married a member of the tavazhi. He is ignorant of the tavazhi affairs. Both the Courts rightly ignored his evidence.

14. To sum up: the tavazhi has properties yielding appreciable income from and out of which the Chalakkode property could have been purchased. The 1st defendant was the karnavati of the tavazhi and the 4th defendant was managing the tavazhi properties on behalf of his mother, the 1st defendant. The assignment of the decree in execution whereof the said property was purchased was taken in favour of both defendants 1 and 4, the de jure and the de facto managers, respectively. The sale certificates for the same were issued in the names of both of them. The ticket for the kuri was admittedly taken in the name of the 1st defendant and it is admitted by the 4th defendant that his accounts would not disclose that he paid the subscription to the kuri.So far as the 1st defendant is concerned, the strong presumption against her exclusive title has not been rebutted by any evidence at all: as regards the 4th defendant, the following facts establish that the said property was tavazhi property: (i) the tavazhi has properties yielding appreciable income from and out of which the said property could have been purchased: (ii) the 4th defendant was managing the properties of the tavazhi on behalf of the 1st defendant: (iii) he stood in a fiduciary relationship with the members on whose behalf he was managing the properties: (iv) in every relevant transaction the 1st defendant, the karanavati, was made a party; and (v) the 4th defendant has suppressed both the accounts of the tavazhi and his personal accounts and her failed to prove that he had any personal income from and out of which he could have paid Rs. 14,000 odd towards is the purchase of the said property. The facts certainly shift the burden of proving title to the property to the 4th defendant and he has failed to discharge the same. From the aforesaid facts we have no hesitation in agreeing with the finding of the High Court that the said property was the property of the tavazhi.

15. In the result, the appeal fails and is dismissed with costs.

16. Appeal dismissed.