G.KUMARA PILLAI,J. - (1.)THESE two appeals arise from a suit for partition of a Nambudiri illom.A.S.No.603 of 1953 is by defendant 2,and A.S.No.885 of 1953 by defendants 3,5 to 7,9,16,17,19 and 21 jointly.The illom sought to be partitioned in the suit is known as Kavumkara illom.It is situated in Kathirur Amsom,Pulliyot Desom.There was a contention in the lower court,which is repeated in this court by the appellants in A.S.No.885 of 1953,that the plaintiffs do not belong to this illom and are members of another Kavumkara illom which is situated in Manathana Amsom,Thondiyil Desom and that except attalatakkom rights(i.e .,rights of either of them to get the properties belonging to the other if the other family becomes totally extinct ),the two Kavumkara illoms have no community of interests with each other.Therefore,to avoid confusion the illom which is sought to be partitioned in the suit is referred to hereinafter as Pulliyot Kavumkara illom,and the illom to which,according to the appellants in A.S.No.885 of 1953,the plaintiffs belong referred to as Manathana Kavumkara illom.
(2.)IN the Pulliyot Kavumkara Illom there were admittedly two brothers,Narayanan who died about 1860 and Krishnan who died in 1875.Krishnan,who was the younger of the two brothers,had no issue.Narayanan had two sons,Cheria Narayanan who died in 1868 and Madhavan who died about 1893.The plaintiffs 'case is that defendants 2 to 9,16,17,19 and 21 belong to Cheria Narayanan 's branch,being his descendants and their wives and that defendant 1,plaintiffs and defendants 10 to 15 and 18 belong to Madhavan 's branch,being his descendants and their wives.Cheria Narayanan 's wife was Valia Devaki.They had a son named Valia Narayanan who died in 1925,and defendant 4,whose name was Cheria Devaki and who died during the pendency of the suit in the lower court,was Valia Narayanan 's wife.Valia Narayanan and defendant 4 had two sons,namely,defendant 2 whose name also is Narayanan,and Krishnan who died before the institution of the present suit.Defendant 3 is defendant 2 's wife,and defendant 8 is Krishnan 's widow.Defendants 2 and 3 have their sons,namely,defendants 5,6 and 7;and defendant 17 is defendant 5 's wife.Defendant 9 is the son of Krishnan and defendant 8,and defendant 16 is defendant 9 's wife.Defendants 19 and 21 are the minor sons of defendants 9 and 16.Plaintiffs claim that defendant 1 is the son of Cheria Narayanan 's brother,Madhavan,( who had died about 1893)and his wife whose name also was Devaki.Defendant 1 had three wives.Two of them are dead,and defendant 10 is his third and surviving wife.Plaintiff 1 and defendants 11,12 and 13 are the sons of defendants 1 and 10.Plaintiff 2 is plaintiff 1 's wife.They seem to have fallen out with each other during the pendency of the suit in the lower court,and plaintiff 2 was transposed,sometime after the institution of the suit,to the array of the defendants as defend -and 20.Defendant 14 is defendant 1 's son by one of his deceased wives,Nangili,and defendant 15 is defendant 14 's wife.Defendant 18,who was born after the institution of the suit and who also is now dead,was the son of defendants 14 and 15.By his other deceased wife,Lakshmi,defendant 1 had a son named Neelakantan who was senior in age to plaintiff 1.But he too was dead at the time of the institution of the suit.The following genealogical table will illustrate the plaintiff 's case regarding the relationship of the parties: Narayanan Krishnan Cheriya Narayanan wife,Valia Devaki Madhavan wife,Devaki Valiya Narayanan wife,Cheriya Devaki(D4 )(Died after suit) Cheriya Narayanan(D1 )(three wives) D2 wife,D3 Krishnan wife,D8 Lakshmi(died) D10 Nangeli(died) D5 wife, D17 D6 D7 Narayanan(D9)wife,D8 Neelakantan(died before suit) Plaintiff 1 wife,P2(Transposed as D20) D11 D12 D13 D 14 wife,D 15 D19(born after suit) D21(born after suit) D18(born and died after suit) Whenever it is necessary to refer in this judgment to defendant 1 and his wife and his descendants and the wives of those descendants as a whole,they will be referred to as defendant 1 's group or Madhavan 's branch;and whenever it is necessary to refer to the descendants of Cheria Narayanan and Valia Devaki(i.e.the grandparents of defendant 2)and the wives of those descendants,they will be referred to as defendant 2 's group or Cheria Narayanan 's branch.
Defendants 2,3,5 to 7,9,16,17,19 and 21 contended that Cheria Narayanan 's brother,Madhavan,had died issueless,that defendant 1 was not that Madhavan 's son but the son of another Madhavan who belonged to Mana -thana Kavumkara illom which had no community of interests with the Pulliyot Kavumkara illom except an attalatakkom right,and that defendant 1 's group therefore belonged to Manathana Kavumkara illom and were not members of Pulliyot Kavumkara illom and could not claim partition of the properties of the latter illom.According to them,the members of the Pulliyot Kavumkara illom were only the descendants of Cheria Narayanan and Valia Devaki and the wives of those descendants(i.e .,defendant 2 's group ),and no one else was entitled to the properties belonging to Pulliyot Kavumkara illom.On the question of the status of defendant 1 's group the lower court found that the case of defendants 2,3,5 to 7,9,16,17,19 and 21 was not true and that defendant 1 was the son of Cheria Narayanan 's brother,Madhavan,of Pulliyot Kavumkara illom,and the plaintiffs and other members of defendant 1 's group also belong to Pulliyot Kavumkara Illom and are entitled to claim partition of the properties belonging to that illom.The correctness of this finding is challenged in A.S.No.885 of 1953 by defendants 3,5 to 7,16,17,19 and 21;and they urge in that appeal that this finding should be reversed and it should be held that the members of defendant 1 's group belong to Manathana Kavumkara illom,and are not the descendants of Cheria Narayanan 's brother,Madhavan of Pulliyot Kavumkara illom,and do not belong to that illom.Although numerous other grounds had also been taken in the appeal memorandum in A.S.No.885 of 1953,the appellant 's learned counsel,Shri Kuttikrishna Menon,pressed at the time of the hearing only four more points besides the question of the status of defendant 1 's group.Those points were: (i)the rights of defendants 16 and 17 to claim shares in the partition of the illom,which was disputed by the plaintiffs on the ground that they were married by their husbands subsequent to the institution of the suit and which has been denied by the lower court; (ii)special rights claimed by defendants 4,8,9 and 16 to certain properties as being the self acquired properties of defendant 2 's deceased brother,Krishnan,which they contended belong to them alone as his heirs; (iii)the direction in the decree for partition of movables;and(iv)special rights which defendant 2 's group claim to certain properties as being the separate or self acquired properties of their common ancestor,Cheria Narayanan. - The contentions of the parties in respect of these points will be stated when they are dealt with.

(3.)IN A.S.No.603 of 1953 Shri V.P.Gopalan Nambiar,the learned advocate who appeared for defendant 2 appellant,pressed only three points,namely,( 1)that some of the plaint items are the separate or self acquired properties of defendant 2 and his father and(2)that even if defendant 1 's group had any right to those properties,they had lost their rights by adverse possession and limitation,and(3)that the directions for partition of movables is unsustainable. [Paras 5 to 36(xx)inclusive which deal with the discussion of evidence in the case have been omitted.After analysing the evidence in the case their Lordships have held that the plaintiffs are members of Pulliyot Kavumkara illom and are entitled to claim partition of the properties belonging to that illom;that defendants 16 and 17 are entitled to get shares;that the direction in the lower court 's decree regarding partition of the movables and 2nd defendant 's liability to produce them and account for the shares of the other members in the movables has to be deleted;that the lower court was perfectly right in rejecting the claim of the appellants to certain properties as the self acquired and separate properties of Cheria Narayanan;that the lower court 's finding that the jenmom right in plaint B Schedule items 112,381 and 414 was not the separate properties of the 2nd defendant 's father and belongs to the common illom has to be confirmed;that plaint B schedule items 270,271 and 406 belong absolutely to defendant 2 and that his claim in A.S.No.603 of 1953 to the other properties mentioned in paragraph 25 has to be rejected. - - Editor]. 36.( xxi) Items 79 and 94: These items are illom paramba and some lands within it.Defendant 2 claims that the family house in it has been renovated,other extensive new constructions have been made,and also kuzhikoors(improve -ments)made in these properties by his father with his own funds and that he is entitled to a special right in these items on account of the above constructions and improvements under the will,Ext.B2,executed by his father.Although the lower court had found Ext.B2 will to be genuine it refused defendant 2 's.special claim in respect of these items on the ground that the case that defendant 2 's father had made these new constructions and improvements with his separate funds was false.According to the lower court,there is no evidence at all to prove that defendant 2 's father had a separate pepper business of his own,and had separate funds.In paragraph 27 above we have already found that Ext.B2 will is not genuine.The special claim made by defendant 2 under the will cannot therefore be allowed.Further,we agree with the lower court 's observation that there is no reliable evidence in the case to show that defendant 2 's father had a separate business of his own.We have already said that the account book I(Ext.B261)produced by defendant 2 as the account book of his father for the pepper business cannot be genuine.We may also say in this connection that the allottee of tarwad properties for maintenance,whether a member a branch,cannot claim special right in respect of improvements made by him or the branch in the said properties(see Kunjunni Pillai v.Bhaskaran Pillai,1954 KLT 340 ).In the present case the illom paramba was allotted for the maintenance of Cheria Narayanan 's branch under Ext.B79 in 1881 and so,defendant this father,Cheria Narayanan,was not entitled to claim any special right in respect of the improvements made by him in that property subsequent to that karar. 37.For the reasons stated above,we hold that plaint B schedule items 270,271 and 406 belong absolutely to defendant 2 and that his claims in A.S.No.603 of 1953 to the other properties mentioned in paragraph 25 above has to be rejected. 38.Relying upon Assankutti v.Mammad(1939 Madras 295)it was contended on behalf of defendant 2 that,even though the acquisitions made in his name during this period might have been made with illom funds,the acquisitions themselves cannot be considered to be illom properties and all that the other members of the illom can contend is that the amounts with which those acquisitions have been made in his name should be treated as loans advanced by the illom to him and that he is to make good to the illom the said amounts.Venkataramana Rao,J .,who decided 1939 Mad.295 has said in that case: The learned District Judge has mis -directed himself to the presumptions of law which should govern this case.There is no presumption that when a family is joint,it possesses any joint property or that all the property possessed by it is joint property.When a property stands in the name or is in the possession of a member of a family,it is incumbent upon those who assert that it is joint family property to establish it.Where it is proved or admitted that a family possesses sufficient nucleus with the aid of which the member might have made the acquisition.the law raises a presumption that it is joint family property and the onus is shifted to the individual member to establish that the properly was acquired by him without the aid of that nucleus.Whether the presumption should be raised and the burden of proof should be shifted at all and what weight should be given to the said presumption depend on the facts and circumstances of each case.The presumption aforesaid is one which the law raises where nothing is known except the bare fact of a nucleus and the acquisition.But there are cases where the presumption is not allowed to be raised.For example,in ILR 1937 Mad.990(Bengal Insurance and.Real Property Co.Ltd.Calcutta v.Velayammal)the question was whether the money due under a Life Insurance Policy belonged to the member who insured it or to the joint family and the contention -;raised on behalf of the joint family was he had enough joint family money in his hands wherewith he could have paid the premia.It was held in that case that as he had also money available from private sources to enable him to pay the premia,the presumption is that the assured paid the premia out of his own money and it was his separate property.Where,again with the consent of the members of the family an individual member including a manager is allowed to have separate trade and acquire properties,the presumption ought to be that the property acquired in the name of the individual member is separate property eventhough he might have moneys of the joint family in his hands.It is not enough to show that he had family money in his hands wherewith the acquisition might have been made.It is not even enough to show that the family moneys were utilised in the business.When members of a family allow a manager or an individual member to acquire property separately with full knowledge that he has joint family moneys in his hands,it may we will be that the family allowed him to use those moneys,but profits or property acquired therefrom for himself cannot be claimed as joint family property,though the member may be accountable to the the moneys so utilised.Such moneys would be in fact advances loans made by the members of the family to the individual member or the manager.In this case the individual members including every successive manager were allowed to carry on their own trade. The facts of the present case are entirely different.Defendant 2 nor any member of the illom had any trade or independent business,and excepting the petty salary he was receiving as a clerk in Government service,defendant 2 had no independent means at all.Nor is this a case in which the other members of the illom had allowed him to use the illom funds for making acquisitions in his name.The illom funds were in the hands of defendant 2 's father who was the karnavan of the illom,and he made the acquisition in defendant 2 's name with those funds.The mere fact that the properties were acquired in the name of defendant 2 will not in these circumstances prove that the acquisitions were not joint property and that the funds with which they were acquired were only loans advanced to him from the illom.One feature of these acquisitions is that in most cases either the whole consideration or the major art of it was adjusted towards the discharge of earlier transactions with the family and that there was no,or only very little,cash payment at the time of the acquisition.The theory of a loan made by the family to defendant 2 at the time of the acquisition for making it has,therefore,no basis at all in this case.As pointed out in Mayne 's Hindu Law,at page 363: Where it is shown that there was sufficient coparcenery property with the aid of which the acquisition could have been made,the presumption that it is joint property is not rebutted by showing that it was purchased in the name of one member of the family or that there are receipts in his name respecting it,for all that is perfectly consistent with the notion of its being joint family property ;. 39.The last point urged by the appellant 's counsel in A.S.No.603 of 1953 was that defendant 2 has perfected title by adverse possession to all the properties claimed by him as the self acquisitions of himself and his father.The I argument was that he was holding these properties as his separate properties to the exclusion of the other members of the joint family for over 12 years and also dealing with them by executing lease deeds etc .,as his separate properties,and so,the rights of the illom in respect of them are barred by limitation.Marupats executed by leases in defendant 2 's name as well as pattas issued in his name for some of the properties have also been produced to prove his exclusive possession and dealings with those properties.It is unnecessary to refer here in detail to the various rnarupats and pattas,for they do not show anything more than that the lease deeds executed by the lessees were taken in defendant 2 's name and the pattas were also issued in his name.So far as actual exclusion of the other members of the illom or of defendant 1 's branch from possession and enjoyment of these properties is concerned,there is,however,no evidence.Neither the pattas nor the marupats by themselves constitute proof of the exclusive possession of the properties by defendant 2.Where the purchase for the joint family was in the name of one member of the family it was only natural to take in his name the patta and marupats also.The reasoning in the passage quoted in the preceding paragraph from Mayne 's Hindu Law,page 363,that receipts in respect of the property being in the name of the member of the family in whose name it was purchased is perfectly consistent with the notion of its being joint family property,applies with equal force to marupats and pattas taken in his name.A similar contention that the patta evidenced exclusive possession by the person in whose name it was issued as against the other members of the joint family was considered and repelled by the Privy Council in Nirman Singh v.Lal Rudra Partab(AIR 1926 PC 100)wherein it has been observed: It is an error to suppose that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined.They are nothing of the kind,as has been pointed out times innumerable by the Judicial Committee.They are much more in the nature of fiscal inquiries instituted in the interest of the I State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. xxxx xxxx xxxx xxxx Orders in mutation proceedings are not evidence that the successful applicant was in possession as sole legal owner in a proprietary sense,to the exclusion,for example,of all claims of the other members of the family as coowners or for maintenance or otherwise,as revenue authorities have no jurisdiction to pronounce upon the validity of such a claim. The present is a much stronger case,for from the evidence in this case it does not appear that there was any contest at all before the revenue authorities in the proceedings for issuing pattas,and it would appear that pattas were issued as a matter of course in the name of defendant 2 in whose name the properties were purchased.The purchases being for the joint family the pattas taken in pursuance of them have also to be held to be for and on behalf of the joint family.Likewise,the mere fact that the member of the joint family in whose name the properties were purchased was in possession of the properties or was leasing them by himself would not amount to proof of exclusion of the other members of the joint family.It is well settled that the sole occupation of the joint property by some of the members will not amount to ouster of the other members or adverse possession against them until there has been a disclaimer of the plaintiff 's title by the assertion of a hostile title and notice thereof to the plaintiff either direct or to be inferred from notorious acts and circumstances and that in order to constitute exclusion within the meaning of Article 127 of the Indian Limitation Act there must be something to indicate that the plaintiff abandoned his claims to enjoy the family property or that the defendants to his knowledge excluded him from enjoyment(see Mitra 's Limitation Act,1952 Edition,page 615 ).The question has been considered by the Privy Council in Radhoba v.Aburao(AIR 1929 P.C.231 ).At pages 236 and 237 of the report in that case their Lordships have said: There is no definition of the word 'exclusion 'in the Limitation Act,and it is obvious that the question whether a person has been excluded from joint family property,must depend upon the facts of the particular case,which is under consideration.It was admitted in argument by the learned counsel for the defendants that an intention to exclude is an essential element.Their Lordships are of opinion that the above mentioned admission is correct,and that it is necessary for the Court to be satisfied that there was an intention on the part of those in control and possession of the joint family property to exclude Nana. X X X X The mere fact that during the time that Nana was living with his maternal uncle the 'members of the joint family did not subscribe towards his maintenance,education or marriage expenses does not,in their Lordships 'opinion,having regard to the facts of this case,prove that those in control and possession of the joint family property intended to exclude him from his share of the joint family property.It is consistent with the evidence that the members of the joint family,who were in control and possession of the joint property,though willing to allow Nana to be maintained at the expense of his maternal uncle,never did anything to indicate to Nana or anyone else that they intended to exclude him from his share in the joint family property ;. (Italics ours) In the present case there is absolutely no suggestion that defendant 2 had denied the rights of the illom to the properties standing in the names of himself and his father,much less that he had done so to the knowledge of defendant 1 's branch.No doubt,in the earlier litigations,defendant 2 's father and his branch had contended that defendant 1 and his branch did not belong to Pulliyot Kavura -kara Illom.But all those litigations had ended in favour of defendant 1 's branch and ultimately,Ext.A11 compromise petition was filed by defendant 2 's father admitting the status of the members of defendant 1 's branch as members of the illom.Subsequent to this,there were two maintenance allotments,Exts.B80,and B81,in 1925 and 1934,to both of which defendant 2 himself was a party admitting the status of the members of defendant 1 's branch as members of the illom and their claim to the joint family properties.At no subsequent date was there any denial of the claims and rights of defendant 1 's branch so clearly admitted by defendant 2 and the members of his branch.In the circumstances,we hold that the plea of adverse possession and limitation also has to be negatived. 40.In the result,we hold that (1)plaint B schedule item 331 was the separate property of defendant 2 's brother,Krishnan,and it belongs after his death only to defendants 8,9 and 16 and not to the illom and is not,therefore,partible in this suit; (2)plaint B schedule items 270,271 and 406 are the separate properties of defendant 2 and do not belong to the illom and are not partible in this suit; (3)in respect of plaint B schedule item 62 Krishnan had a special right to the extent of the Kuzhikanam right evidenced by the assignment,Ext.B171,taken in his name and the said item is partible in this suit only subject to that special right which has to be reserved in favour of defendants 8,9 and 16; (4)the plaintiffs have not proved the existence of any movables liable to be partitioned and so there are no movables to be partitioned and defendant 2 is not liable to produce any movables for partition or account for the same; (5)defendants 16 and 17 also are entitled to share in the illom properties;and plaintiff 1 and defendant 20(i.e.plaintiff 2)are entitled to get in partition 2/17 share of the partible properties and defendants 1 to 17 are each entitled to 1/17 of 15/17 of the said properties,and the partition has to be effected grouping the shares in accordance with the provisions of the Madras Nambudiri Act. And we direct that the decree of the lower court be modified in accordance,with the above findings and to the extent necessitated by them and confirmed in other respects.The two appeals are allowed to the above extent and dismissed in - other respects.Parties will bear their costs in this court.