SA.No.278/1996

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** ## **TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932** **SA.No. 278 of 1996()** **------------------------------** **AS.224/1993 of ADL.SUB COURT, THALASSERY OS.509/1992 of PRL.MUNSIFF COURT,KANNUR** **....................** ## **DEFENDANTS , 38 AND 40 TO 42 APPELLANTS 1,2 AND 4 TO 6** **------------------------------------------------------------------------------------------** **1. SUMALINI, WIDOW OF NARAYANAN NAIR, THAYYAMPALLLI HOUSE, PALLIKUNNU, KANNUR 4.** **2. PUSHPAVALLI, D/O. NARAYANAN NAIR, OF DO. DO.** **3. PUSHPALATHA, D/O. NARAYANAN NAIR, OF DO. DO.** **4. PUSHPAKUMARI, D/O. NARAYANAN NAIR, OF DO.DO.** **5. DEVARAJ, S/O. NARAYANAN NAIR, OF DO. DO.** - **BY ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR** ## **RESPONDENT(S): PLAINTIFFS, DEFENDANTS 1 RO 33, 35, 36,39 AND THE LEGAL ---------------------------- REPRESENTATIVES OF THE 34TH DEFENDANT/ RESPONDENTS AND THE 3RD APPELLANT/ RESPONDENTS** - ***1. VASUPURATH THAYYAMPALLLI, SARADA AMMA, D/O. NARAYANI AMMA, THAYYAMPALLI HOUSE, PALLIKUNNU AMSOM, DESOM, KANNUR DISTRICT (DIED).(LR'S RECORDED)** **2. DO. JANAKI AMMA, D/O. YESODA AMMA, OF DO. DO.** - ****3 DO. LAKSHMI KUTTY AMMA, D/O. YESODA, PULLIAN MADAM, OF DO. DO. (DIED)(LR'S RECORDED)** ## **S.A. NO.278/1996** **4. V.RAGHURAMAN, S/O. LAKSHMI KUTTY AMMA, DEVELOPMENT OFFICER, RUBBER BOARD, MRITHULA, PALLIKKUNNU, KANNUR 4.** **5. GOPALAKRISHNAN, S/O. LAKSHMIKUTTY AMMA, 'ANJALI', PALLIKKUNNU, KANNUR 4.** **6. HARISANKAR, S/O. LAKSHMIKUTTY AMMA, MATHRUBHUMI CORRESPONDENT, KANNUR 2.** **7. V.PREMAVALLI, D/O. SHARADA AMMA, 485/ 6, ICF- SOUTH COLONY, MADRAS 38.** **8. SANTHA RATNAM, D/O. SARADA AMMA, SANTHA VIHAR, PANAPPANTHAL, PUTHUPARIYARM, PALAKKAD.** - *****9. CHANDRASEKHARN, S/O. SARADA AMMA, BUSINESS, 210, T.V.K. NAGAR, MADRAS 11. (DIED).** **10. RAMEHS KUMAR, S/O. SARADA AMMA, BUSINESS 512, MINT STREET, MADRAS.** **11. PREETHA, D/O. V.PREMAVALLI, 485/65, ICF-SOUTY BAZAR, MADRAS 38.** **12. PRASAD, D/O. V.PREMAVALLI, 485/65, ICF-SOUTH-BAZAR, MADARAS 38.** **13. V.P.MURALIDHARAN, S/O. JANAKI AMMA, L.D.CLERK, TALUK OFFICE, KANNUR.** **14. GEETHA, D/O. JANAKI AMMA, 272-A, RAILWAY COLONY, PALAKKAD.** **15. SREELATHA, D/O. JANAKI AMMA, KADEEJA QUARTERS, CHIRAKKAL, KANNUR DISTRICT.** **16. VASUPURATH PARUKUTTY AMMA, D./O. YESODA, SREEPURAM, VALAYANCODE, (VIA) PAYANGADI, KANNUR DISTRICT.** ## **S.A. NO.278/1996** **17. JAYAVALLI, D/O. PARUKUTTY AMMA, SREEPURAM, P.O. VILAYANCODE, VIA PAYANGADI, KANNUR DISTRICT.** **18. RAVEENDRAN, S/O. PARUKUTTY AMMA, BUSINESS , NO.5, TSS.H.ROAD, MADRAS 21.** **19. RADHALAKSHMI, D/O. PARUKUTTY AMMA, SREENILAYAM, VILAYANCODE P.O., KANNUR DISTRICT.** **20. UNNIKRISHNAN, S/O. PARUKUTTY AMMA, SREEPURAM P.O., VALAYANCODE, VIA PAYANGADI, KANNUR DISTRICT.** **21. MOHANAKRISHNAN, S/O. PARUKUTTY AMMA, BUSINESS, SREEPURAM, P.O. VILAYANCODE, VIA PAYANGADI, KANNUR DISTRICT.** **22. RAJESH, S/O. JAYAVALLI, SREEPURAM, P.O. JAYAVALLI, SREEPURAM, P.O.VILAYANCODE, VIA, PAYANGADI, KANNUR DISTRICT.** **23. REKHA, D/O. JAYAVALLI, OF DO. DO.** **24. RATHI, D/O. RADHALAKSHMI, OF DO. DO.** - ******25. VASUPURATH BHAVANI AMMA, D/O. YESODHA AMMA, BHAVANI NILAYAM, VILAYANCODE P.O., VIA, PAYANGADI, KANNUR DISTRICT (DIED).(LR'S RECORDED)** **26. VIJAYAKUMARI, D/O. VASUPURATH BHAVANI AMMA, NO.39, BALU MUDALI STREET, WASHERMENPET, MADRAS 21.** **27. MOHANAVALLI, D/O. BHAVANI AMMA, AMBIGAI, `4TH NAGAR, 9TH STREET, PLOT 104, THIRUVATTIYOOR MADRAS.** **28. SURESH KUMAR, S/O. BHAVANI AMMA, BUSINESS, VILAYANCODE P.O., VIA PAYANGADI, KANNUR DISTRICT.** **29. VASANTHA KUMARI, D/O. BHAVANI AMMA, 28/801, VASANTHAM, MAVOOR ROAD, CALICUT.** ## **S.A. NO.278/1996** **30. VIJAYARAGHAVAN, S/O. BHAVANI AMMA, EMPLOYED IN AIR FORCE, 46, WEU AE, C/O. 99 A.P.O.** **31. VINOD, S/O. VIJAYAKUMARI, NO. 39, BALU MUDALI STREET, WASHERMENPET, MADRAS 21.** **32. VANITHA, D/O. VIJAYAKUMARI, OF DO. DO.** **33. VANAJA, D/O. VIJAYAKUMARI, OF DO. DO.** **34. MALINI, D/O. MOHANAVALLI, AMBIGAI, 14TH NAGAR, 9TH STREET, PLOT 104, THIRUVATTIYOOR , MADRAS.** **35. V.RAMAKRISHNAN, S/O. YESODA AMMA, PLOT NO.115, AMBIGAI NAGAR, WEST THIRUVATTIYOOR, MADRAS 19.** **36. SREEKUMAR, S/O. LEELA, BUSINESS, LEELAKRISHNA VIHAR, PUTHIYANGADI, CALICUT 21.** **37. MINI, D/O. LAEELA, OF DO.D OD.** **38. P.RADHA AMMA, W/O. KUNHIRAMAN NAIR, RADHA VIHAR, AMBIKA ROAD, PALLIKKUNNU, KANNUR 4. (DIED) (LR'S RECORDED)** - **@39. SATHI DEVI, D/O. RADHA AMMA, AMBRAHAM APARTMENTS, THONDUPURAMBIL HOUSE, KUSITHURUTHY ROAD, THEVARA, COCHIN.** **40. P.RADHAKRISHNAN, S/O. RADHA AMMA RADHA VIHAR, AMBIKA ROAD, PALLIKKUNNU, KANNUR 4.** **41. DHANALAKSHMI, D/O. RADHA AMMA, 35, PADMANABHA NAGAR, KARUMMARIAMMAN KOVIL, CHROMPET, MADARAS.** **42. MALLIKA, D/O. RADHA AMMA, RADHA VIHAR, AMBIKA ROAD, PALLIKKUNNU, KANNUR 4.** **@ RESPONDENTS 39 TO 42 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 38TH RESPONDENT AS PER ORDER DTD. 1.10.1996 IN MEMO CF.3373/1996.** ## **S.A. NO.278/1996** **43. V.P.ANANDAVALLI, W/O. BALAKRISHNAN NAIR, ABHIRAMAN, KIZHAKKEKATTIL HOUSE, PUTHIYANGADI , KOZHIKODE.** **44. V.P.BALANAND, S/O. BALAKRISHNAN NAIR, OF DO. DO.** **45. V.P.VASANTHAKUMARI, D/O. BALAKRISHNAN NAIR, OF DO. DO.** **46. V.P.MURALEEDHARAN, S/O. BALAKRISHNAN NAIR, OF DO. DO.** **47. V.P.SIVADASAN, S/O. BALAKRISHNAN NAIR, OF DO.D O.** **48. V.P.AMBIKA, D/O. BALAKRISHNAN NAIR, OF DO. DO.** **49. PUSHPARAJAN, S/O. NARAYANAN NAIR, THEYYAMPALLI HOUSE, PALLIKKUNNU, KANNUR 4.** - *****LR'S OF DECEASED 9TH RESPONDENT IMPLEADED.** **50. P.SHYLAJA, W/O. LATE CHANDRASEKHARN, HOUSE NBO.210, THIRUVIKKA NAGAR, SEMBIUM, MADRAS 11.** **51. P.MALINI, D/O.LATE CHANDRASEKHARN HOUSE NO.210, THIRUVIKKA NAGAR, SEMBIUM, MADRAS 11.** **52. P.SHALINI, D/O. LATE CHANDRASEKHARAN, HOUSE NO. 210, THIRUVIKKA NAGAR, SEMBIUM, MADRAS 11.** **53. P.SHEKHARAN, S/O. LATE CHANDRASEKHARAN, HOUSE NO.210, THIRUVIKKA NAGAR, SEMBIUM, MADRAS 11.** ## **S.A. NO.278/1996** *****ADDL. RESPONDENTS 50 TO 53 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED 9TH RESPONDENT AS PER ORDER DTD. 6.11.2009 IN IA. 714/2008.** ***IT IS RECORDED THAT IST RESPONDENT DIED AND RESPONDENTS 7 YO 10 ARE THE LEGAL HEIRS OF DECEASED IST RESPONDENT AS PER ORDER DATED 25.3.08 IN MEMO C.F. 1744/08. AND IT IS RECORDED THAT THE 3RD RESPONDENT DIED AND THE LEGAL HEIRS OF DECEASED 3RD RESPONDENT ARE RESPONDENTS 4 TO 6 AS PER ORDER DATED. 25.3.08 IN MEMO C.F. 1745/08, AND IT IS RECORDED THAT 25TH RESPONDENT DIED AND RESPONDENTS 26 TO 30 ARE THE LEGAL HEIRS OF DECEASED 25TH RESPONDENT AS PER ORDER DATED 25.3.08 IN MEMO C.F. 1732/08 VIDE SA.** **BY ADVS. SRI.T.G.RAJENDRAN, FOR R5-8,10-12,14,15,18.20 TO 23, 26 T0 37, 39, SRI.CIBI THOMAS 40 TO 48, 50 TO 52. R53 BY ADV. SRI. BY CIBI THOMAS.** **R6 BY SRI.O.RAMACHANDRAN NAMBIAR, SRI.GEEN T.MATHEW,** **SRI. CIBI THOMAS** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON 27/07/2010 DELIVERED THE FOLLOWING:** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 278 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of July, 2010. ## **JUDGMENT** Defendant Nos. 37, 38 and 40 to 42, who suffered a preliminary decree for partition and which was confirmed in appeal are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiffs plaint B and C schedule properties belonged to the tavazhy of Vasupurath Thayambally Tarwad, whose common ancestress was Lakshmi Amma. She had two children, Anandan Nambiar and Madhavi Amma. Madhavi Amma had four children by name Yeshoda Amma, Neelakandan Nair, Narayani Amma and Kunhiraman Nair. The plaintiffs and defendants 1 to 36 are the children and grand children of Yeshoda Amma and Narayani Amma. Plaint A schedule gives the genealogy. Madhavi Amma S.A.278/1996. 2 died about 70 years ago. All the persons who have been mentioned above have been residing in the tavazhy house. A portion of the plaint schedule is being used as burial ground for the tavazhy members. Plaint B schedule property has always been treated as the tavazhy property and it has been dealt with as such. Till the death of Narayani Amma, she paid the building tax and land tax. Thereafter the plaintiffs paid the same. Neelakandan Nair died in 1953. Defendants 37 to 42 are the wife and children of the plaintiff's brother Narayanan Nair, who died in the year 1992. Defendants 37 to 42 are claiming that plaint B schedule property is the self acquisition of Neelakandan Nair and on his death it devolved on his legal heirs. Such a claim may not be accepted because the plaint B schedule property has devolved on the tavazhy and the members have treating the property as such. Seeking partition of the property, they claimed that 11/43 shares be alloted to plaintiffs 1 and 2 and defendants 5 to 13 jointly. S.A.278/1996. 3 3. Defendants 1 to 4 supported the plaintiffs and claimed their share as 4/43. 4. Defendants 11 and 13 also jointed hands with the plaintiffs. Defendants 37, 38 and 40 to 42 contested the suit. They disputed that the plaint B and C schedule properties were tavazhy properties and were enjoyed as tavazhy properties. There were never any tarwad or tavazhy in existence as alleged in the plaint. The property is the self acquisition of Neelakandan Nair and on his death it devolved on his legal heirs. It is incorrect to say that the property has been treated as tavazhy property. After the death of Neelakandan Nair, his wife and children have been residing in the property. They have not been impleaded and therefore the suit is bad for non-joinder of necessary parties. They claimed that they were occupying the building as legal heirs of Neelakandan Nair. They prayed for a dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of S.A.278/1996. 4 P.Ws.1 and 2 and the documents marked as Exts.A1 to A26 from the side of the plaintiffs. The defendants had D.W.1 examined and Exts.B1 to B10 marked. 6. On an evaluation of the evidence in the case, the trial court accepted the case put forward by the plaintiffs and passed a preliminary decree for partition. The trial court also found that plaint C schedule property is not available for partition. 7. Defendants 37 to 42 carried the matter in appeal as A.S.224 of 1993. The appellate court on a consideration of the evidence on record confirmed the preliminary decree passed by the trial court. Hence this Second Appeal. 8. In this second appeal, the following questions of law have been raised: _“(i) Whether a property standing in the name of a junior member of a tavazhi can be presumed to be the property of the tavazhi, without thee being any pleadings or evidence to the effect that the_ S.A.278/1996. 5 _junior member had sufficient tavazhi nucleus with him to acquire the property?_ _(ii) Whether the lower appellate court was right in allowing I.A. No.2404 of 1995 filed by the 13[th] defendant to receive additional documents, without insisting for proof of the documents?_ _(iii) In view of the nature of the contentions raised by the parties and the issues raised in the suit, whether the lower courts are right in presuming title in favour of the plaintiffs without there being any legal evidence adduced by the plaintiffs?_ _(iv) Whether the lower courts are right in casting the burden on the defendants to disprove the case of the plaintiffs, when the case of the plaintiffs itself stands not proved?_ _(v) When it is shown that the Jema of the plaint schedule property stands in the name of a junior member of a marumakkathayam tavazhi, whether the lower courts were right in presuming that the acquisition is on behalf of the tavazhy?_ _(vi) Whether the lower courts are right in holding that the plaintiffs' right in any, over the plaint schedule property is not barred by ouster, adverse possession and limitation?_ S.A.278/1996. 6 _(vii) Whether the computation of shares made by the lower courts is correct and legally sustainable? (viii) Whether the lower courts are right in decreeing the suit when there was no legal evidence adduced by the plaintiffs in support of the prayers in the plaint?”_ 9. Learned counsel for the appellants pointed out that the property exclusively belonged to Neelakandan Nair and the finding of the courts below that his property is a tavazhy property is incorrect. Drawing attention of this court to Exts.B1 and B2, which are the extracts of the Atangal register, it was pointed out that the name of Neelakandan Nair alone appears in the Atangal register and that shows that it is the self acquisition property. Learned counsel pointed out that at that time there were other senior most members in the family and there is no justification for Neelakandan Nair acquiring the property on behalf of the tavazhy. When it is shown that the acquisition stands in the name of a junior member of the so-called tavazhy, the S.A.278/1996. 7 burden is on those persons to assert that it is the tavazhy property. There is no such proof in the case on hand. Merely because some members of the family have stayed in the house, that does not form the house a tavazhy house, nor the property a tavazhy property. Learned counsel contended that the plaintiffs were unable to trace acquisition either by the senior most member of the tarawad or the tavazhy and the only piece of evidence which shows the manner in which the property was acquired are Exts. B1 and B2. According to the learned counsel, there is no presumption of an acquisition by a member of the tarawad enuring to the benefit of the tavazhy. Learned counsel also raised a point that the mere suit for partition is incompetent. According to learned counsel, since the title of the plaintiffs had been disputed by the appellants, it ceased to be a mere suit for partition and it was incumbent on the part of the plaintiffs to seek a declaration regarding the nature of the property. In support of his contention, learned counsel relied on the decision reported in **Kunhikuttan Nair v.** S.A.278/1996. 8 **Devaki Amma** (1968 K.L.T. 568). Therefore it is contended that the suit should fail. 10. Learned counsel appearing for the respondents on the other hand pointed out that may be that there is want of evidence regarding the actual acquisition of the property. But the facts disclosed from evidence would clearly show that plaint B schedule has always been treated as tavazhy property. The pleading is clear to the effect that the members of the tavazhy have been treating the residential house as a tavazhy house and the members of the tavazhy have been residing there and enjoying the property. The fact that a portion of the plaint B schedule is used as a burial ground of the tavazhy members is a clear indication that the property is being treated as a tavazhy property. Even though there is absence of evidence to show that the acquisition was for an on behalf of the tavazhy, if it is shown that the conduct of the members was such that the property was treated as tavazhy property, that would be sufficient. Learned counsel pointed out that the specific S.A.278/1996. 9 averment to the above effect remained un-controverted in the written statement filed by the contesting defendants. If that be so, those allegations will be deemed to have been admitted. In support of his contentions, learned counsel relied on the decisions reported in **Sushil Kumar v. Rakesh Kumar** (AIR 2004 SC 230), **Badat & Co. v. East India Trading Co.** (AIR 1964 SC 538). According to learned counsel, the claim that the entry in the revenue records is sufficient to confer title cannot be accepted. It is pointed out that it is well settled that the entries in the revenue records do not confer title to the person concerned. In support of his contention, learned counsel relied on the decision reported in **Nirman Singh v. Lal Rudra Partab** (AIR 1926 PC 100), **State of H.P. v. Keshav Ram** (AIR 1997 SC 2181), **Corporation of Bangalore City v. M. Papaiah** (AIR 1989 SC 1809). According to learned counsel, both the courts below have considered the evidence in detail and have come to the conclusion that plaint B schedule is a S.A.278/1996. 10 tavazhy property. Therefore according to learned counsel, no interference is called for. 11. One fact is very evident. There is no clear evidence as to the manner of acquisition. There is no evidence to show in what way and whom the property was actually acquired. Defendants 37 to 42 in the written statement had clearly stated that Neelakandan Nair had acquired the property and that was his self acquisition. It was pointed out by them that the property belonged exclusively to Neelakandan Nair. There is no averment in the plaint as to what was the tavazhy or the tarwad in existence at the relevant time, and there is no pleading as to who had acquired the property on behalf of the tarwad or tavazhy. 12. Before going further, the genealogy appended to the plaint may be looked into. It is very evident that at the time when Neelakandan Nair had said to have acquired the property as per Exts.B1 and B2, he was the junior member of the so-called tarwad as the case may be. The S.A.278/1996. 11 allegation in the plaint is that being a tavazhy property, defendants 37 to 42, who are not members of the tavazhy are not entitled to any share. 13. According to defendants 37 to 42 on the death of Neelakandan Nair, his legal heirs partitioned the property in the year 1992 and subsequently the property came to devolve on defendants 37 to 42. According to them, when Neelakandan Nair died defendant No.37, who was his daughter had to go along with her husband to his place of employment and at that time the sister of Neelakandan Nair, Narayani Amma was requested to look after the property. That is how the contesting defendants explained as to how Narayani Amma came into possession of the property. It is true that from the evidence it appears that Narayani Amma had paid the tax from 1972 onwards. Ext.B3 shows that the legal heirs of Neelakandan Nair partitioned the properties. It could not be said that the plaintiffs were unaware of the contentions put forward by S.A.278/1996. 12 the contesting defendants. Still they chose not to make the legal heirs of Neelakandan Nair as parties to the suit. 14. As pointed out by the learned counsel for the appellants, the title to the property was put in dispute by the contesting defendants. They had pointed out that the property exclusively belonged to Neelakandan Nair and the tavazhy had no right over the same. In the decision reported in **Kunhukuttan Nair v. Devaki Amma** (1968 K.L.T. 568) it was held as follows: _“Partition means only separation of one's share from the joint possession of the tarwad Partition stricto sensu presupposes unity of title in the plaintiff and the defendants. The determination of disputes titles to particular properties is not, strictly speaking, part of a claim to partition, though it may be very intimately connected with it. When the 2[nd] defendant claims certain properties as his own and the other parties assert them to belong to the tarwad, a dispute on title arises, and that cause of action is distinct from one in partition simpliciter.”_ S.A.278/1996. 13 15. In the light of the above decision, there seems to be some force in the contention raised by the learned counsel for the appellants. Going by the said decision, when the title is put in dispute, the suit ceases to be one merely for partition and it becomes necessary for the person who claims partition to establish that they had pre-existing title to the suit property. 16. There is also no averment in the plaint that the tavazhy or tarwad had any nucleus, with the help of which Neelakandan Nair acquired the property. There is also no claim in the plaint that the acquisition by Neelakandan Nair was for and on behalf of the tavazhy or tarwad. What the plaintiff contended is that by long course of conduct the property had been treated as tarwad property and therefore the property has acquired the characteristics of a tavazhy property. 17. The contesting defendants placed considerable reliance on Exts.B1 and B2, which are the entries in the Adangal register. Exts.B1 and B2 contained S.A.278/1996. 14 the name of Neelakandan Nair. However, learned counsel for the respondents in this appeal had placed reliance on the decisions made mention of and it was pointed out that the entries in the revenue records are not evidence of title. 18. In the decision reported in **Nirman Singh v. Lal Rudra Partab** (AIR 1926 PC 100) it was held as follows: _“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 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.”_ 19. In the decision reported in **State of H.P. v. Keshav Ram** (AIR 1997 SC 2181) it was held as follows: S.A.278/1996. 15 _“........ But at any rate such an entry in the Revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs. “_ 20. It is normally understood that mere entries in the revenue records are not sufficient to confer title on the person concerned. However, learned counsel appearing for the appellant relied on a decision reported in AFA 120 of 1991, wherein this court had occasion to consider this aspect and it was held as follows: _“As we have already stated, the plaintiffs have not produced any deed of acquisition. In Sukhdev Singh v. Maharaja Bahadur (AIR 1951 SC 288) the apex court had considered the evidentiary value of the entires in the Settlement Register and found that the same is a prima facie evidence of title and when no better evidence is forthcoming, they can well be accepted as proof of title. The principle laid down in Sukhdev Singh's case was followed by this Court in Narayanan Nambiar v. Raman Chettiar (1969 KLT 449) and held that the entries in the Settlement Register are prima facie evidence of_ S.A.278/1996. 16 _title and they can well be accepted as proof of title.”_ 21. Whatever that be, the entries in the settlement register or the Atangal register as the case may be cannot be simply brushed aside especially when there is no evidence from the side of the plaintiffs regarding title to the suit property. In the absence of any other document, going by the dictum laid down by the decision of the Division Bench of this court, it may have to be said that Neelakandan Nair had title to the suit property. 22. As already noticed, there was a specific allegation in the plaint that plaint B schedule property is a tavazhy property and according to learned counsel for the respondents in the appeal, that has not been denied at all. In the decision referred to by the learned counsel for the respondents, it is observed that when the allegations in the plaint are not specifically denied they will be deemed to have been admitted. The allegations relied on by the learned counsel for the respondents are i) the members S.A.278/1996. 17 have been residing in the tavazhy house, ii) the house and the property have been treated as tavazhy property, iii) a portion of the property had been used as a burial ground of the tavazhy members. 23. True, there is no specific denial of the above allegations. But it was pointed out by the learned counsel for the appellants that the specific plea put forward was that it was the exclusive property of Neelakandan Nair and that is sufficient to controvert the above allegations. It was specifically pointed out by the contesting defendants that after the death of Neelakandan Nair the property was partitioned by his legal heirs. 24. One must remember that the definite stand taken by the contesting defendants is that when Neelakandan Nair died, defendant No.37, who was his daughter could not remain at home to look after his property as she had to go along with her husband to his place of employment. As per the case put forward by the contesting defendants it was under those circumstances that Narayani S.A.278/1996. 18 Amma was put in possession. It is significant to notice that this claim by the contesting defendants is not seriously disputed by the plaintiffs. If as a matter of fact it was so, then the mere fact that Narayani Amma and her children thereafter resided in the house in the property, it is extremely doubtful whether the house could be treated as a tavazhy house and the property as a tavazhy property. 25. True, P.W.1 says that the property is the tavazhy property and all the members of the tavazhy are entitled to a share therein. She says about the residence and about the burial ground. It is interesting to note that the husband of the 37[th] defendant is none other than the brother of the first plaintiff. In her evidence she says that Neelakandan Nair was the karanavan of the tavazhy and so also Kunhiraman Nair. This assertion of P.W.1 does not find a place in the plaint. Narayanan Nair and the 37[th] defendant returned home on the request made by the plaintiffs and others. P.W.1 had to concede that at the relevant time defendants 37 to 42 alone were residing in the house and S.A.278/1996. 19 that they were not, according to the plaintiffs, members of the tavazhy. It came out from her evidence that one of the members of the tavazhy is working in the Taluk Office. 26. 11[th] defendant is examined as P.W.2. He was in the Taluk Office. In cross-examination he had to say that there is nothing to show that he was born in the socalled tavazhy house. He is unable to give details regarding the acquisition etc of the property. His version is that Neelakandan Nair and Kunhiraman Nair together put up the house now found in the property. This is also a fact which does not find a place in the pleadings. Both P.Ws. 1 and 2 admitted that the Jama stands in the name of Neelakandan Nair, and there is no explanation for the same. The evidence of P.W.2 also discloses that at the relevant time, Kammran Nair was the karanavan. However, he is unable to explain as to how at that point of time the property came to be acquired in the name of Neelakandan Nair. 27. The plaintiffs claim that the common ancestress was Lakshmi Amma. There is nothing to 20 S.A.278/1996. indicate that either she had acquired the property or the property had devolved on her. Normally when a property became the tavazhy property, either the senior most member of the tavazhy has to acquire the same or the tavazhy has to receive it on partition or the acquisition of the property was by using the nucleus of the tavazhy etc. None of these factors figure in the pleadings of the plaintiffs. There is also no case that the doctrine of blending is applicable to the case. 28. Learned counsel appearing for the respondents then contended that the issue involved has to be decided on preponderance of probabilities. In support of his case he relied on the decisions reported in **M. Krishnan v. Vijay Singh** ((2001) 8 SCC 645) and **Edayath Moidu v. Kunhavulla** (2007(3) KHC 631). In **M.Krishnan's case** it was held as follows: _“The onus of proving the allegations beyond reasonable doubt, in a criminal case, is not applicable in the civil proceedings which can_ S.A.278/1996. 21 _be decided merely on the basis of the probabilities with respect to the acts complained of_ .” ## In **Edayath Moidu's case,** it was held as follows: _“Similarly, when evidence in rebuttal of a presumption is to be looked for in a civil case, that evidence must be of such value which cannot but lead to conclusion that the probability of the case arrived at on the basis of the presumption cannot continue to hold on the face of the evidence that would stand up in rebuttal of the presumption raised. In a civil case, inference of facts in issue has to be drawn on preponderance of probabilities, on a balance of evidence on the record.”_ 29. It was emphasized that the members of the family have been residing in the same house and that a portion of the B schedule had been treated as the burial ground. Therefore even assuming that Neelakandan Nair had acquired the property, by passage of time and conduct of the members of the tavazhy, it had acquired the characteristics of a tavazhy property and therefore there S.A.278/1996. 22 was no reason to interfere with the findings of the courts below. 30. There is much to be said on either side. However, the fact remains that the entires in the Atangal register stand in the name of Neelakandan Nair. As of now, there is nothing to show that Neelakandan Nair was ever the senior most member of the tarwad or tavazhy. There is nothing to show that he had ever managed the property of the tavazhy. There is also nothing to show that the acquisition was for and on behalf of the tavazhy. As already noticed, there is no case that Neelakandan Nair had used of nucleus of the family to acquire the property. 31. Learned counsel appearing for the respondents has sought to produce a document before this court in support of his contention that the property is tavazhy property. 32. On going through the lower appellate court judgment, it is found that the lower appellate court has not seriously considered the issues arising in the suit and it has S.A.278/1996. 23 simply adopted the findings of the trial court. The lower appellate court does not appear to have considered the rival contentions in the proper perspective and has simply extracted the pleadings and then in one paragraph reached the conclusion that since the trial court has considered all the materials and reached the conclusion that it is the tavazhy property, the appellate court confirms the same. That is thoroughly unsatisfactory. The various aspects put forward by the parties have been referred to above. There can be no dispute regarding the fact that all those matters require serious consideration at the hands of the courts. Since the lower appellate court has not considered all these matters, it is felt that a reconsideration of the issues is necessary at the hands of the lower appellate court. In the result, this appeal is allowed, the impugned judgment and decree are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the S.A.278/1996. 24 lower appellate court on 12.8.2010. The lower appellate court shall make every endeavour to dispose of the appeal as expeditiously as possible, at any rate within a period of six months from the date of appearance of the parties. There will be no order as to costs. The office shall send back the records forthwith. **P. BHAVADASAN, JUDGE** sb.