S. Padmanabhan, J.
1. C.M.A. was filed by the first defendant against an order appointing a receiver for the suit properties. Appeal was by the fourth defendant against the preliminary decree for parition and cross objection was filed by the plaintiffs challenging the decree, in so far as it went against them.
2. Parties are Marumakkathayee Nairs of the erstwhile Malabar area governed by the Madras Marumakkathayam Act. Ancestress was one Lakshmi Amma. First defendant is her son and second defendant her daughter. Second defendant was married in 1921 to Dr. Kunhikanna Menon, who was having lucrative medical practice. He died in 1941. First plaintiff and third defendant are their daughters and defendants 4 and 5 the sons. Plaintiffs 2 to 5 are the children of the first plaintiff and. defendants 6 to 14 are the children of the third defendant. Defendants 15 to 20 are alienees of some of the suit properties. Plaintiffs and defendants 1 to 14 are thus the members of the thavazhi of Lakshmi Amma and, excluding the first defendant, all others among them are membes of the thavazhi of the second defendant.
3. The fifteen items of immovable properties in plaint A schedule were obtained by the thavazhi of Lakshmi Amma on 19-6-1935 under Ext.A1 partition deed. There is no dispute that each among plaintiffs and defendants 1 to 14 is entitled to 1/19 share. Preliminary decree regarding A schedule properties in that manner is not under challenge.
4. There are fifty items of immovable properties in B schedule. Items 1 to 27 were obtained by the thavazhi of the second defendant under Ext.A2 partition deed on 16-6-1934. There is no dispute that each among plaintiffs and defendants 2 to 14 is entitled to 1/18. Preliminary decree to that extent is also not in dispute.
5. B schedule items 28 to 50 are subsequent acquisitions in the name of second defendant. Items 28 to 30 were acquired by her under Ext.A3 on 3-3-1936, Items 31 to 42 under Ext.A4 on 5-1-1938, Items 43 to 48 under Ext.A5 on 24-4-1939 and Items 49 and 50 on 18-6-1940 under Ext. A6. One of the disputes is whether they are acquisitions with thavazhi funds and as such belong to the thavazhi or whether they are acquisitons with her separate funds and as such belonged to her separately. Second defendant died after suit and the appellant laid claim under a will alleged to have been executed by her bequeathing major portions of the properties to him and some minor portions to defendants 3 and 6. Genuineness of the will was disputed by others. In an interlocutory application for recording the heirs of second defendant, evidence was taken on this matter and the trial Court entered finding against the genuineness of the will. Civil revision petition against that order was dismissed in limine, observing that whatever is stated in the order should not influence the court at the final stage.
6. Thereafter, no evidence was adduced to prove the will. The trial Court maintained its finding that the will is not genuine. B schedule items 28 to 50 were also found to be thavazhi acquisitions. All B schedule items were allowed to be partitioned in shares of 1/18. That part of the decree is under challenge in the appeal.
7. C schedule items are immovable properties, which belonged to Dr. Kunhikanna Menon. He bequeathed them to his wife and children under Ext.A7 in 1928. The dispute is whether these properties also are divisible in shares of 1/18 or only among the widow and children in shares of 1/5 under the proviso to Section 48 of the Madras Marumakkathayam Act. Trial court decreed only in shares of 1 / 5. That part of the decree is challenged in the cross objection.
8. C schedule items are movables, which belonged to the second defendant. Admitted and proved movables among them were ordered to be divided in shares of 1/5. That part of the decree is challenged in the appeal and cross objection. First defendant alone was held liable for mesne profits. In the cross objection, plaintiffs want mesne profits as against the appellant also. The share of deceased second defendant in A and B schedule items was ordered to be divided in the preliminary decree in shares of 1/17 and those in C and D schedules in shares of 1/5 among the children. That part of the decree is also under challenge in the appeal and cross objection.
9. The Civil miscellaneous appeal has only to be dismissed with costs. It is a frivolous appeal by the first defendant. Appointment of the receiver was for the entire suit properties. Among them, the appellant in the civil miscellaneous appeal claims share only in A schedule and that too only 1/19. He had no business to file an appeal against the order which is not challenged by the sharers. He obtained a stay also and continues in possession though he claims that he deposited the income.
10. The available movable alone were divided. Among them, the serious dispute seems to be only regarding a necklace. The dispute is whether it is 40 sovereigns or only 10 sovereigns. In the absence of evidence, 10 sovereigns alone were decreed to be partitioned. Appellant admits this. Movables were decreed to be partitioned only in shares of 1 / 5 between the children and that part of the decree does not require interference.
11. C schedule properties were bequeathed by the husband in favour of the wife and children in 1928 under Ext.A7 before the Madras Marumakkathayam Act came into force in 1933. But he died only in 1941 and the will came into operation only then. At that time, the Madras Marumakkathayam Act was in force and hence devolution could be only under its provisions. Unless a contrary intention appears from the will (there is no contrary intention in this case), the properties will have to be taken as thavazhi properties of the wife and children and the lineal descendants of the daughters in the female line. Partition is only under Chapter VI. In the event of such partition, as the proviso to Section 48 says, the property shall be divided only on stirpital principle, the wife and children getting equal shares. The descendants of daughters in the female line will get only from what their predecessor gets on stirpital division. This should be the principle of division regarding C schedule properties and the decision of the trial court in that respect is correct. It is true that the Madras Marumakkathayam Act has no retrospective operation and the stirpital division under the proviso cannot have operation regarding gifts, bequeaths or partition which took place before the Act, as held by a Division Bench of this court in Kunhamma alias Kalliani Amma v. Kunhiparvathi Amma, 1972 Ker LT 319. No such contingency arises in this case. As held by another Division Bench in Kunju alias Thankappa Menon v. Vesamma alias Kan-namma, 1969 Ker LJ 475, Section 48 enumerates only a rule of presumption regarding construction of documents, but the proviso deals with the mode of partition of the properties given as thavazhi properties. Applying the presumption under Section 48, when the properties are found to be thavazhi properties of the wife and children, the division among them could only be in accordance with the proviso, which enjoins stirpital principle to be adopted as distinguished from per capita applicable in other cases. It is really intended as a mode of partition in such cases and has to govern the parties.
12. 1 do not find any force in the contention of the plaintiffs, based on Section 4(2) of the Kerala Joint Hindu Family System (Abolition) Act, that the above proviso to Section 48 can no longer govern. It is true that Section 7 contains provision for repeal save as otherwise expressly provided. But such repeal cannot have any overriding effect on rights already accrued. The effect of Section 4(2) is only that joint tenancy is converted into tenancy-in-common as if a partition per capita has taken place among the members living and entitled to partition as on that date. It cannot have the effect of taking away the rights accrued under the proviso to Section 48 of the Madras Marumakkathayam Act. The members of each group, divided on stirpital basis and entitled to shares, could get shares only from the shares of the person through whom they could claim. The notional partition under Section 4(2) and conversion of joint tenancy into tenancy-in-common could only be subject to the proviso to Section 48 of the Madras Marumakkathayam Act. What the trial Court did is, therefore, correct.
13. Then the surviving questions are only regarding B schedule items and the liability for mesne profits. Learned counsel for the appellant drew my attention to the decisions in Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR 1954 SC 379, Mallapa Girimallappa Betgeri v. R. Yellappagouda Patil, AIR 1959 SC 906, Abhimanyu v. Kumaru, 1964 Ker LT 1083 and Vannarath Parvathi Amma v. Vannarath Lakshmi Amma, AIR 1975 Ker 147 in an attempt to convince me that the plaintiffs failed in establishing that thavazhi nucleus was available to the second defendant for the acquisition of B schedule items 28 to 50 and hence these properties will have to be treated as her separate properties. I do not propose to consider these decisions individually as it is not necessary. The principles laid down are identical.
14. When a property stands in the name of a joint tenant, whether he is a managing member or only a junior member, the presumption is that it belongs to him, whether the membership is of a joint family or marumakkathayam tharvad. The initial burden is on the person who asserts that it is a joint tenancy asset to prove it. He will have to establish that there was sufficient joint tenancy nucleus available to the member from which the acquisition could have been made irrespective of the question whether the acquirer had separate funds or not. If the acquirer had no separate funds and if joint tenancy nucleus was sufficiently available, the position is all the more good. On the initial discharge of burden that sufficient joint tenancy nucleus was available to the acquirer, the burden shifts to the party alleging self acquisition to establish that the acquisition was without the aid of joint tenancy nucleus. Sufficiency of the evidence is a question of fact. When the, acquisition is by a managing member, the presumption may be greater. If joint tenancy nucleus was available in sufficiency from which the acquisition could have been made, the burden is on the acquirer to show that it was not utilised and he had separate funds which were utilised.
15. We are having only the evidence of the first plaintiff as PW1 and those of defendants 1 and 4 as D.Ws. 1 and 2. P.W. 1 said that the huge income of A and B Schedule properties was available to the second defendant, who had no other means of income. D.Ws. 1 and 2 would say that second defendant got Rs. 2,000/- and fifty sovereigns of gold ornaments at the time of her marriage, which could have been utilised for the acquisition. On his own showing, D.W. 1 was a minor in 1921 when the marriage of second defendant took place. D.W. 2 was born only later and he cannot have any direct knowledge on any of these matters. There is nothing to show that second defendant was given Rs. 2,000/- and fifty sovereigns of gold ornaments. For 15 years from 1921 to 1936, there is no evidence that she had any such funds from which she could have made the acquisitions. The acquisitions under Exts. A3 to 6 started only in 1936 and ended in 1940. That was after large volume of properties were obtained under Exts. A1 and 2 partition deed in 1934 and 1935 and before the husband, who had lucrative practice died in 1941.
16. It is admitted that during the period when the husband of the second defendant was alive, he met every household expenses even for the thavazhi members and the second defendant never had to spend anything. That explains the acquisitions from 1936 to 1940 and absence of acquisitions from 1941, during which period she did not have the income of the husband. First defendant is a person who is sailing with the appellant and interested in helping him. He now says that Exts. A1 and 2 properties were outstanding with tenants and hence no income was available. But there is no such case in the written statement and Exts. A1 and 2 proceed as if the properties were in direct possession. There is no evidence that they were with tenants. He admitted that income from A schedule properties was about 800 paras of paddy per year and B schedule properties 500-600 paras of paddy. He said that he was taking income and managing on behalf of the second defendant and after appropriating his share of the income of A schedule properties, he was giving the entire balance to the second defendant. The total cash paid under Exts. A3 to 6 will only be a little above Rs. 3,000/-. Balance amounts were only adjustments and reservations. Evidently, these payments could have been made from the income of thavazhi properties. It is, therefore, clear that from 1934, sufficient income came to the second defendant out of thavazhi properties. Coupled with that, there is absence of evidence regarding any separate income of second defendant. The entire income was available for acquisition because the husband met all other expenses. Position is, therefore, clear.
17. Except the joint written statement filed along with the appellant, there is nothing to show that second defendant ever asserted any separate right over B schedule items 28 to 50. The case of the plaintiffs is that the joint written statement was filed without the knowledge and consent of the second defendant and her signatures in it are forgeries by the appellant. Appellant as D.W. 2 practically admitted that the signatures of the second defendant in the written statement are fprgeries by him. Though in chief examination he said that second defendant had swelling in the hands and hence he assisted her in signing, his cross examination is a practical admission that signatures were forged by him. He was an Advocate for about ten years and now he is employed. A perusal of the signatures in the written statement purporting to be those of the second defendant shows that they have no comparison with her admitted signature in the vakalath. Signatures in the written statement are bold and in entirely different letters. It is clear that the joint written statement is only by the appellant. The contentions cannot be taken as those of the second defendant.
18. Till the marriage of the first plaintiff and third defendant, all were residing in the same house with the second defendant. Third defendant was well married and she is in the States. First plaintiff was then married and she was in Bombay with her husband. Thereafter, defendants 2 and 4 alone were in the house and one Govindankutty Menon was residing along with them to assist the second defendant. When plaintiffs returned from Bombay after the retirement of thehusband of the first plaintiff, they started residence in the first-floor of the same house along with defendants 2 and 4 and Govindan-kutty Menon went away. Kitchen was in the ground-floor alone, which was occupied by defendants 2 and 4. The appellant (D4) was employed in Thrisaur. He used to go early morning and return only in the night. Second defendant was practically an invalid, who could not even move out without the assistance of somebody else. Case of the plaintiffs is that they were looking after her and she could not have done anything or even admitted any stranger inside the house without their knowledge or assistance. These are facts not in serious dispute. There is also no evidence to show that second defendant was in any way unfavourably inclined towards the plaintiffs or had any reason for special preference to the appellant.
19. From what I have stated earlier, it is clear that B schedule items 28 to 50 are also thavazhi acquisitions and even the second defendant never raised any claim against that. She was the Karanavathi of the thavazhi and the managing member as there was no major male member. Her management through the first defendant is not in dispute also. If so, the question of genuineness of the Will itself may not arise for consideration because she had no right to dispose of the properties by a Will or otherwise, as they were undivided thavazhi properties. Still, for the sake of finality, the genuineness of the Will -has also to be considered.
20. The propounder of the Will has not only to prove it as provided in Section 68 of the Evidence Act, but he has also to adduce evidence to explain all the suspicious circumstances in order to remove any doubt that is likely to linger in the mind of the Court. Not only the sound state of mind of the testator, but the fact that the document is the last Will and testament of the testator, according to her free Will uninfluenced by other sources will have to be established. Except examining the two attesting witnesses in the interlocutory application, which was rejected, no other evidence was even attempted during trial. The two witnesses are evidently the henchmen of the appellant. They say that after getting thei Will written by a document writer, the testator called them by sending the maidservant and they went to the house. The testator was then sitting alone in her armchair with the Will kept concealed behind her back. It was taken out and given and one of them read it. They said all signed in the presence of each other Though the Will contains three signatures of the testator, they have spoken to only one signature. Without proof of all the signatures, proof of execution of the Will itself is not complete.
21. There are many neighbours, including a practising lawyer, who is a close neighbour. None of them was informed. Two henchmen of the appellant, who were working in an office half-a-mile away, alone were selected. The maid-servant, who was sent to fetch them, was not examined. The person, who prepared the Will, was not examined and it is not known under what circumstances the Will was prepared and by whom or under whose directions. It is not explained why and under what circumstances the plaintiffs, who are among the legal heirs, were disinherited and undue preference was given to the appellant, especially when plaintiffs are not in sound financial position. No reason to disinherit the plaintiffs was shown.
22. Plaintiffs who were the only other inmates of the house, without whose knowledge the two witnesses could not have got entry into house, were unaware of the execution and it is not explained how this became possible. The Will could have been written and executed only with the knowledge and assistance of somebody else. For that, there is no evidence. In the normal course, the Will could have come into being only at the instance of the appellant. But the appellant pleads ignorance of it and he claims knowledge only from the second defendant. That knowledge is of doubtful correctness. He says that he got the Will from the box of the testator. He has no other knowledge regarding execution. The office of the Sub Registrar is in the adjacent premises. Though Will is not a document compulsorily registrable, the possibility is that if it was genuine, it would have been registered. The signatures in the Will do not have any semblance to the admitted signatures of the testator. The fact that appellant himself is not prepared to own his part in the execution of the Will is also a suspicious circumstance. The evidence of the two witnesses appear to be artificial. The admission of the appellant that he forged the signatures of the testator in the written statement is another suspicious circumstance. That means, the execution of the Will is clouded with many suspicious circumstances. In all probability, the Will must be a creation of the appellant. The trial Court was fully justified in rejecting it apart from the fact that second defendant has no right to execute such a Will and she was not in a disposing mental state.
23. The trial Court went wrong in exonerating the appellant from the liability for mesne profits. That mistake has also to be corrected. Defendants 15 to 20 did not come forward to support the alienations in their favour. Alienations are evidently invalid and they cannot stand. Ignoring those alienations, partition could be had.
While dismissing the appeal and the civil miscellaneous appeal with costs to the contesting respondents, the memorandum of cross-objections is allowed in part and the appellant is also held liable for mesne profits. In other respects, the decree and judgment of the trial Court will stand. It is made clear that the stirpital division of C schedule properties will be subject to the right of the lineal descendants entitled to share in each group.