Decided on February 07,1955

UNNAMAN Respondents


- (1.) DEFENDANTS 1 to 5 in O. S. 121 of 1123 are the appellants. That was a suit for partition filed by two sons of Ayyappan an ezhuva against their two brothers for partition of their father's properties. Five items of immovable property were sought to be divided besides certain movables. The third item was admittedly divisible. Contest was entered regarding the four others. The first two items were held by the father on kanom under the Desamangalam Mana. Ext. D is the kanom deed in favour of Ayyappan of the year 1097. The kanom was renewed in the name of the first defendant who is the eldest son under Ext. C in the year 1105. This renewal refers in terms to the earlier demise in favour of Ayyappan. There was a further renewal in the year 1118 under Ext. II but that does not refer to the demise in favour of the father but refers to the renewal of the year 1105. The first defendant claimed these two items as exclusively belonging to him on account of the two renewals made in his name under Exts. C and II. The court below found against the plea. Items 1 and 2 were held by the father on kanom and the claim of the first defendant to exclusive title on account of renewals taken in his name can hardly be sustained. The appeal fails in so far as these items are concerned.
(2.) THE claim regarding items 4 and 5, however, stands upon a different footing. THEy are held on verumpattom tenure under the desamangalam Mana. THE prior lessee was one Makku. THE lease to Makku was of the year 1066. This is the common case of both parties. THE plaintiff's case is that the Mana evicted Makku and leased the properties afresh to Ayyappan. THE case of the contesting defendants, on the other hand, is that the first defendant took an assignment of the leasehold from Makku at about the year 1116 and attorned to the Mana the next year under Ext. I dated 8. 3. 1117. Ext. I distinctly recites that its executant, namely, the first defendant, got the leasehold on assignment from Makku, the original lessee. THE jenmi Mana has accepted that version. Ext. I is produced in court by the Mana. THE first defendant assigned his rights under Ext. I to his wife, the third defendant under Ext. IV in the year 1119. THE Mana issued receipt for pattom in her name afterwards, (Ext. V ). THE reason why the court below found that items 4 and 5 belonged to all the four brothers is that "there is a presumption that properties acquired by the eldest member of the family is family property". No attempt was made in the trial court by the plaintiffs to prove their case of a fresh lease by Ayyappan after evicting Makku. THE view of the court below cannot be sustained. THEre is no attempt made to prove any custom prevailing among the community to the effect that the properties inherited by the sons are held by them as members of a family. In the absence of proof of custom, though Makkathayee Ezhuvas are generally governed by Hindu law as customary law, certain features of the Hindu Law, namely, the pious obligation of the son to discharge father's debts and the right of the son by birth to property held by the father, have been held not to apply. (10 Cochin 90 (F. B.) 37 Cochin 340 and 40 Cochin 179 (F. B. ). In the absence of proof of any custom, it has to be taken that the sons of Ayyappan, the two plaintiffs and defendants 1 and 2, are co-owners and are not members of a family. If a co-owner in possession of co-ownership property acquires other property even with the use of co-ownership funds in his possession the acquisition will not perforce become co-ownership property. THE acquirer's obligation will only be to account for the co-ownership funds utilized by him. In this respect a co-owner's position is different from that of a manager of a Hindu family, whether father or not. THE conclusion reached by the court below that items 4 and 5 are divisible cannot, therefore, be upheld and the appeal is allowed as regards them. The other question raised in the appeal relates to the direction in the preliminary judgment of the court below that the debt evidenced by Ext. D contracted by deceased Ayyappan should be shared equally by the four sons. The first plaintiff took an assignment of that debt in 1102 under Ext. E. The only point urged on behalf of the appellants is that the claim to recover the debt from the hypotheca has got barred by limitation, the suit having been filed only in the year 1123, more than 12 years after Ext. E. It appears that the plaintiffs were in possession of the house and paramba which were charged for the debt under Ext. D. As often as they, i. e. the plaintiffs were here they were in occupation of the house inclusive of the year 1121 and they were out of occupation only on those occasions and periods when they were away from the State in Singapore or other places. In the circumstances and on the evidence we are satisfied that the discharge of debt by the first plaintiff by taking an assignment of it under Ext. E was at the instance and on behalf of all the brothers and they are bound to contribute their quota of the debt. We, therefore, direct that the principal amount of Rs. 56 under Ext. D be shared and borne equally by all the four brothers and that the shares of all of them be charged upon items 1 and 2 which have been decreed to be divisible. No other point was raised in the appeal which is allowed in part in the manner and to the extent indicated above. Under the circumstances we make no order for costs. Partly allowed.;

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