The plaintiff-appellant brings this suit for the recovery of an elephant and also certain documents in the possession of the defendants. The defendants are the children and the wives of one Moossankutty, the deceased younger brother of the plaintiff. The plaintiff bases his claim as karnavan of the tavazhi consisting of the children of one Asya, the mother of the plaintiff and Moossankutty and it is alleged that Moossankutty brought this elephant out of tavazhi property and consequently the karnavan is now entitled to possession. As regards the documents it is said that they relate to tavazhi property and that the plaintiff is the proper custodian.

The first argument advanced in appeal is with reference to the procedure adopted in the lower Court. The Subordinate Judge stated that the nature of certain properties situated in Chandranalloor was not in issue in the suit and he would not allow any further questions to be asked as to whether they were tavazhi properties or not. It is now stated that not only was oral evidence excluded but also documentary evidence. The plaintiff has filed a list of documents which he said were so excluded. When the Subordinate Judge gave this ruling, the case was proceeding and P. W. 2 was being examined. The documents now put forward by the plaintiff (with one exception) were not included in the list of documents filed by him, and at the time the order was made, those documents were in the District Munsifs Court and no application had been made by the plaintiff to secure their production. It was therefore too late for him to claim to exhibit these documents in the suit. So far as the oral evidence is concerned it can be of very little importance in determining the nature of these properties, and we do find that not withstanding the Subordinate Judges prohibition many questions were put to the witnesses on this very point and the answers have been recorded. We do not, therefore think it necessary to give plaintiff any further opportunity of adducing evidence which he was not prepared to do in the lower Court.

Coming to the merits of the case, it is argued that there is a very strong presumption that property standing in the name of a member of a Malabar tarwad belonged to that tarwad. The presumption has been laid down in Chethu Nambiar v. Sekharan Nambiar (47 M.L.J., 695) and Mari Veetil Chathu Nair v. Mari Veetil Mulamparol Sekaran Nair (I.L.R., 33 Mad., 250) with regard to karnavans, and undoubtedly, with regard to karnavans, the presumption is very strong, for they are in possession of the whole of the property of the tarwad and can deal with it as they like. A similar presumption is sought to be established with regard to anandravans. Ordinarily an anandravan has no private property, but is only a member of the tarwad which owns properties, but when we find that there is property in the name of anandravan and it is not shown that he has been in possession of tarwad funds, the presumption in favour of the property being tarwad property is very slight, and it is open to the anandravan to show he had private money out of which he could acquire the property.

For the plaintiff, it is now alleged that the deceased Moossankutty was managing tavazhi property, and I must now explain what this tavazhi is. The two brothers were members of a large tarwad and were also members of a tavazhi consisting of one Kalandar, their uncle, and his five sisters. There was either one or two other tavazhis in that tarwad. In the year 1895 or perhaps at the end of 1894, this tavazhi of the five sisters became split up into five tavazhis, and plaintiff now sues on behalf of the tavazhi consisting of the descendants of his own mother, Asya, and it is that tavazhi which will be referred to throughout in this case as the tavazhi. It is not disputed that that tavazhi had property. The putravakasam property consisted of Rs. 2,000 and two parambas. The plaintiffs case is that this Rs. 2,000 was invested by him in various kanoms and eventually was utilised for the purchase of the Chandranalloor properties. He does not produce any of the former kanom deeds to show that the final kanoms were redeemed at or about the time the Chandranalloor properties were purchased. On the contrary he files a document Ex. A, which throws very great doubt on his story. That document states that Rs. 1,500 out of the Rs. 2,000 were utilised in paying off kanoms, Rs. 300 are said to have been given to Kalandar himself and the remaining Rs. 2,000 are also accounted for. If the recitals in Ex. A are true, it is very clear that plaintiffs story is not true and the fact that he has not produced these prior documents go to show that his explanation is false. As regards the two parambas, one has been exchanged for what is now the tavazhi house, and the other one admittedly was in plaintiffs possession. Of this Puthravakasam property, it is not shown that any portion (except possibly Rs. 50) went to Moosan Kutty and the plaintiff himself says that these Rs. 50 were spent on dress. It cannot, therefore, have formed the nucleus for the subsequent acquisition of property.

The other property belonging to the tavazhi is property which belonged to Kalandar, and it came to the tavazhi on the partition in 1894-189

5. According to the plaintiff, Moossankutty was managing all this property from the time of Kalandars death in 1882, but unfortunately he made an earlier statement in which he said that the management was carried on after Kalandars death by himself, one Anderman and one Kunhi Pari. Even if Moosankutty was managing from 1882 to 1895, he was not managing the plaintiffs tavazhi property, for at that time the property left by Kalandar belonged to the tarward. It is suggested that it belonged to the combined tavazhi of the five sisters and no doubt, Ex. K shows that they were in enjoyment of it, but it can in no sense, be deemed to be the property of the present suit tavazhi. All this is proved with reference to this property is that in 1883 Moossankutty got the benefit of a sum of Rs. 100 lent by Kalandar, Ex. J, and in 1893, the benefit of another Rs. 200 which belonged to Kalandar, Ex. G. He also leased out one of the parambas at a rent of four annas, Ex. L. (1) in 188

3. If he really wrongly received these monies it is incredible that, when the sisters divided Kalandars properties in 1895 long after he had received this benefit he would not have been made to refund the amounts but was allowed to misappropriate this money. This being so, there is really no definite evidence to show that Moossankutty was in possession of tavazhi property.

The plaintiff alleges that after the tavazhi was formed, Moossankutty managed the tavazhi properties either by himself or jointly with the plaintiff. Plaintiff admits keeping accounts for the tavazhi properties but he is unable to produce even a single account book. Some have apparently been eaten away by white ants and some are missing. Reliance is placed, in the absence of these accounts, on certain documents which go to show that Moossankutty was managing tavazhi properties. The arguments addressed to us on behalf of the appellant have been based largely on inferences to be drawn from these documents but they have entirely ignored the plaintiffs own explanation of the documents. If the inferences were such that no other inference could be drawn from the documents, no doubt, a great deal of weight might be attached to the arguments, but in as much as it has been pointed out to us for the respondents than an entirely different conclusion can be drawn which is compatible with the plaintiffs own statement, this conclusion which has been adopted by the lower Court must be accepted. We can see no reason for adopting the appellants contention here. The documents have been dealt with in detail in the Lower Courts judgment and it is unnecessary to repeat all the arguments therein put forward.

It is argued that there is no evidence that Moossankutty has any funds of his own. This again ignores the plaintiffs admission that Moossankutty traded from a very early date, that he was a competent business man, that he took the lease of a ferry for some years and that he was kariasthan of the Kalakat Illom, to which the Chandranalloor properties belonged, and it appears that it was while he was kariasthan that the Chandranalloor properties were acquired. It is quite clear from the documents that Mossankutty has been dealing with the properties as his own from a very early date and it also appears that the plaintiff has treated a large number of items as his own from a very early date and it also appears that the plaintiff has treated a large number of items as his own jenm as opposed to the jenm of his tavazhi. It is unnecessary in this suit to decide which properties belonged to the tavazhi, which properties belonged to Moossankutty or which properties belonged to the plaintiff or jointly to both brothersa matter which we are informed is in issue in another suit, but it is abundantly clear that Moossankutty was in a position to make acquisitions of his own and it is not shown in this suit that he was possessed of tavaz hi properties which must have formed the nucleus of the subsequent acquisitions.

We come then to the evidence in regard to the purchase of the elephant. The plaintiff says that he sent 12 Bharams of pepper to Moossankutty and that this was sold and the elephant bought. This entry is said to find a place in plaintiffs account book, but unfortunately that account book, is not here and there is, therefore, nothing to support his story; on the contrary an adverse inference has to be drawn against him on account of the non-production of this account. On the other hand, the defendants filed the sale deed under which the elephant was bought and accounts which show that Moossankutty was all along paying for the keep of the elephant and issuing orders to the elephant keepers. The depositions of two deceased gentlemen, Inspector Chekkutty and vakil Achutayya, do not carry the plaintiffs case any further. The evidence that the elephant was purchased by Moossankutty for himself is very strong and we must accept the finding of the Lower Court that it was purchased by him out of his own funds.

The documents of which possession is now sought appear to be those handed over to the defendants by the police after the conclusion of criminal proceedings between the parties. No evidence as to the details of the documents has been adduced and we are not in a position to say whether the properties to which they relate belong to the plaintiffs tavazhi or to some one else. We understand that the question whether they are tavazhi properties is in issue in another suit. As the custody of the documents must ordinarily follow the ownership of the property referred to therein, we do not think that, in this suit, it is possible to pass any order with regard to them.

The appeal is accordingly dismissed with costs.