IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 AS.No. 151 of 1992() -------------------- OS.2/1986 of SUB COURT,LAKSHADWEEP CUM C.J.M., KAVARATTI .................... APPELLANT(S) IN A.S.:DEFENDANTS 2 TO 6 IN SUIT: ------------------------------------------------------------------------------ 1. KOLIKKAT AYYADA SAROMMABI, DAUGHTER OF T.P.POOKOYA, ANTHROTH. *2. PENTAMVELIPPURA SYEDMOHAMMED KOYA, S/O.MONTHRAPALLI NALLAKOYA, ANDROTH.( D I E D) LR'S A10 TO A15 ARE IMPLEADED: **3. PENTAMVELIPPURA ATTAKOYA, SON OF MONTHRAPALLI NALLAKOYA, ANDROTH.( D I E D) ***4. PENTAMVELIPPURA SAFIYABI, D/O.MONTHRAPALLI NALLAKOYA, ANDROTH. ( D I E D) – LR'S A 6 TO A9 ARE IMPLEADED: 5. PENTAMVELIPPURA SUHARABI, D/O...DO..IN ...DO.... (APPELLANTS 1 AND 3 TO 5 REPRESENTED BY POWER OF ATTORNEY HOLDER APPELLANT NO.2). A6 TO A9 ARE IMPLEADED: A6. MUHAMMED MUSTHAFA, PENTAMVELIPPURA, ANDROTH. A7. KHADEEJAMMABI, IN ....DO...DO.. A8. ISHOMMABI, IN ...DO...DO...... A9. MUMTHAZ, IN ...DO...DO..... ***THE ABOVE ADDL.A6 TO A9 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 4TH APPELLANT VIDE ORDER DTD. 27/05/05 IN I.A.NO.2242/04. Kss ...2/- ....2...... A.S.NO.151/1992 *A10 TO A15 ARE IMPLEADED: A10. C.K.BAMBATHI, 1ST WIDIOW OF LATE PENTAMVELIPPURA SYED MOHAMMED KOYA, CHEKKIKULAM, ANDROTH. A11. MARIYUMMA C.M., 2ND WIDOW OF ....DO...... RESIDING IN SHEKKUMMADA, ANDROTH. A12. RAHILABEE, D/O....DO... CHEKKIKULAM, ANDROTH. A13. HAJAROMMABI, ...DO...IN ..DO...DO.... A14. MUHAMMED KASIM, S/O...DO..IN ...DO... A15. MULLABI, D/O...DO.... RESIDING IN CHEKKUMMADA,ANDROTH. *THE ABOVE ADDL.A1O TO A15 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 2ND APPELLANT VIDE ORDER DTD. 27/05/05 IN I.A.NO.2243/04. BY MR..S.V.BALAKRISHNA IYER, SENIOR ADVOCATE, MR.K.JAYAKUMAR. MR.K.K.MOHAMED RAVUF. BY MR.C.S.ANANTHAKRISHNA IYER, SENIOR ADVOCATE, MR.P.B.KRISHNAN, MR.T.SETHUMADHAVAN BY MR..M.C.SEN, SENIOR ADVOCATE RESPONDENT(S): NO.1 IN A.S.-PLAINTIFF IN SUIT:RESPONDENTS 2 TO 4 IN A.S. - DEFENDANTS 7 TO 9 IN SUIT: ------------------------------------------------------------------------------------------- $ 1. MONTHRAPALLI PADIPPURA ATTAKOYA, S/O,.ARATHUPURA KOYAKIDAVE KOYA, ANDROTH.(D I E D) LR'S IMPLEADED: **2. MONTHRAMPALLI PADIPPURA SYEDMOHAMMED KOYA, S/O.PUTHIYAPENTAMVELI KOYA, ANDROTH.(DIED) ** IT IS RECORDED THAT THE 2ND RESPONDENT DIED AND THAT HIS ALLEGED INTEREST IN THE SUIT PROPERTIES IS REPRESENTED BY ADDL.R5 TO R7 IN THE PARTY ARRAY AS PER ORDER DTD.19/03/2007 ON MEMO DTD.31/05/05 , CF NO.6700/05. Kss ..3/- ....3.... A.S.NO.151/1992 $$ 3. MONTHRAPALLI KOYA, ANDROTH – (D I E D)-LR'S IMPLEADED: 4. MONTHRAPALLI ISABI, ANDROTH. ADDL.R5 TO R18 & ADDL.R19 TO 29 ARE IMPLEADED: $ LR'S OF DECEASED 1ST RESPONDENT: R5. MRS.P.V.P.PATHUMMA BI, AGED 48, W/O.MNTHRAPPALLI PADIPPURA ATTAKOYA, PENTHAMVELIPURA HOUSE, ANDROTH ISLAND. R6. DR.K.K.SYED KOYA, AGED 40, S/O.LATE MONTHRAPPALLLI PADIPPURA ATTAKOYA, KOLIKKAT HOUSE, ANDROTH ISLAND. R7. MRS.K.M.KUNHIBI, AGED 33, D/O.LATE MONTHRAPPALLI PADIPPURA ATTAKOYA, MAYAPURA HOUSE, ANDROTH ISLAND. ($ADDL.R5 TO R7 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT AS PER ORDER DTD. 27/6/97 VIDE C.M.P.NO.1812/96) R8. MONTHRAPPALLI PADIPPURA CHERIYA KOYA, RESIDING AT MECHERI, ANDROTH, LAKSHADWEEP. R9. MONTHRAPPALLI PADIPPURA MUTHUKOYA, RESIDING AT ....DO...DO... R10. MONTHRAPPALLI PADIPPURA SARAMMABI, ...DO..DO.... R11. MONTHRAPPALLI PADIPPURA MULLABI, ..DO..DO.... R12. MONTHRAPPALLI PADIPPURA SHEIKOYA, ...DO...DO... R13. MONTHRAPPALLI PADIPPURA KUNHIBI, ...DO...DO.... R14. MONTHRAPPALLI PADIPPURA MOHAMMED KHALEEL, ..DO..DO... R15. MONTHRAPPALLI PADIPPURA ATTABI, ..DO..DO... R16. MONTHRAPPALLI PADIPPURA MOHAMMED KASIM,...DO..DO.. Kss ...4/- ....4... A.S.NO.151/1992 R17. MONTHRAPPALLI PADIPPURA SHAMINA BEEGUM,...DO..DO.... R18. MONTHRAPPALLI PADIPPURA UMMABI, ...DO...DO...... R9 TO R18 REPRESENTED BY POWER OF ATTORNEY HOLDER THE 8TH RESPONDENT. ($ADDL.R8 TO R18 ARE IMPLEADED AS PER ORDER DTD. 26/09/1997 VIDE CM.P.NO.2356/96) $$ADDL.R19 TO R29 ARE IMPLEADED: R19. KAITHAT ASMABI, W/O.MONTHRAPPALLI KOYA, CHEMMACHERY, ANDROTH. R20. KAITHAT NUSAIBABI, D/O...DO... AND W/O.THANGA KOYA, ANDROTH. R21. KAITHAT PATHUMMABI, D/O...DO.. AND W/O. ATTAKOYA IN ..DO.. R22. KAITHAT MUTHUBI, D/O...DO.... & W/O. KOYA, UMMATHIYAPURA, CHEMMACHERY, ANDROTH. R23. KAITHAT KUNHIBI, D/O...DO... IN ...DO... R24. KAITHAT MOD SALEEM, S/O....DO...IN ...DO.... R25. KAITHAT MINNATH, S/O...DO.... IN ....DO.... R26. KAITHAT RASHEED KHAN, D/O...DO...IN ...DO... R27. KAITHAT NOORUL AMEEN, S/O...DO... IN ...DO.... R28. KAITHAT BEEBI, D/O...DO... IN ..DO.... R29. KAITHAT SHAHIDA, D/O...DO...IN ...DO...DO... ($$ADDL.RESPONDENTS 19 TO 29 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.3 AS PER ORDER DTD. 24/03/2009 IN I.A.NO.2303/2005) BY MR.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE, BY ADV. SMT.PRABHA R.MENON THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON 24/03/2009 DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NOS.820 /2003, 5816/1997 AND 5665/92 IN A.S.NO.151/1992 DISMISSED 24/03/2009 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== A.S. NO.151 OF 1992 =========================== Dated this the 24th day of March, 2009 JUDGMENT Defendants 2 to 6 in O.S.2/1986 on the file of Sub Court, Lakshadweep, Kavaratti Island are the appellants. First respondent is the plaintiff and respondents 2 to 4 are defendants 7 to 9 in the suit. First defendant in the suit had died during the pendency of the suit itself. Appellants 2 and 4 died when the appeal is pending. Appellants 10 to 15 and 6 to 9 were respectively impleaded as legal heirs of deceased second and fourth appellant. First respondent also died and respondents 5 to 18 were impleaded as his legal heirs. Suit was filed by first respondent to set aside Ext.A4 gift deed executed by deceased first defendant in favour of second defendant, the third appellant. Plaint schedule properties are A.S. 151/1992 2 comprised of 15 items. The case of the first respondent was that the plaint schedule properties belonged to Biyyammada tharwad and plaintiffs and defendants 1 to 7 are the members of Biyyammada tharwad. It is the case that there were originally three thavazhies in the tharwad namely Biyyammada, Pokker Kadiyammada, Monthrappalli. Later Monthrappalli sub divided into Monthrappalli and Monthrappallipadippura. The tharwad properties were never divided among the members. But as per maintenance arrangement the thavazhies were permitted to take usufructs from the coconut trees set apart to each of the thavazhies. But none of the branches had a right to assign the property. As per the arrangement, if there is extinction of any one branch of the tharwad, properties set apart for their maintenance would revert back to the other branches. It was contended that Biyyammada branch became extinct and the properties set apart to that branch reverted back to the remaining three branches and Pokker Kadiyammada branch also became extinct and the properties set A.S. 151/1992 3 apart also reverted back to the other two branches. When Attakoya, a member of Monthrapalli branch executed Ext.A12 gift deed in favour of his wife and children, O.S.6/1982 was instituted before Sub Court, Kavaratti to set aside the gift deed. Under Ext.A9 judgment the gift deed was set aside and later the judgment was confirmed by this court. The deceased first defendant executed Ext.A4 gift deed in favour of second defendant who in turn alienated it in favour of defendants 3 to 6. Ext.A4 is invalid as the first defendant has no right of alienation. It was contended that under Ext.A1 and A2 razis it was agreed between the different branches of the tharwad that the branches have no right of alienation and have only right to take usufructs and on extinction of the branch the properties set apart for the maintenance of the respective branch will be reverted back to the remaining branches. A decree for declaration that Ext.A4 has no legal effect and is not valid and binding on the first respondent's branch or the properties was sought. A decree for injunction A.S. 151/1992 4 restraining defendants from dealing with the property in adverse to the interest of the tharwad was also sought. 2. Defendants 1 to 4 and 6 originally filed a joint written statement and thereafter defendants 1 to 6 filed an additional written statement. They contended that no tharwad by name Biyyammada exists and the plaint schedule properties are not the properties of Biyyammada tharwad. Plaint allegation that the Monthrapalli and Monthrapallipadippura are the branches of the Biyyammada tharwad was also denied. It was contended that first respondent being a junior member of the tharwad is not entitled to institute the suit and the allegation that other members of Monthrapalli branch are not showing interest to protect the property is false and the suit should have been for recovery of possession of the properties and the suit as framed is not maintainable. It was also contended that the properties belonged to Monthrapalli tharwad and under Ext.B10 partition deed dated 7.2.1980 the A.S. 151/1992 5 properties were divided and first defendant executed Ext.A4 gift deed in favour of second defendant and second defendant alienated the property to defendants 3 to 6 and portions of the properties were given to the Government and compensation was received by them and ExtA4 gift deed was known to the plaintiff earlier and hence suit is barred by time. It is therefore contended that first respondent is not entitled to any relief in the suit. 3. Learned Sub Judge framed the necessary issues. On the side of first respondent he was examined as PW1 and Exts.A1 to A12 were marked. On the side of defendants, second respondent was examined as DW1 and Exts.B1 to B42 were marked. Learned Sub Judge on the evidence found that the properties belong to Biyyammada tharwad which originally, consisted of three thavazhies and subsequently one thavazhy was sub divided and though under the maintenance arrangement each thavazhi is entitled to enjoy the respective portions of the property, there was never an A.S. 151/1992 6 outright partition and on the extinction of one branch the thavazhi properties reverted back to the remaining thavazhies and first defendant is not entitled to alienate the property under Ext.A4 and Ext.A4 is not valid and binding on the tharwad properties. A decree was granted declaring that Ext.A4 has no legal force and is not binding either on the plaintiff or the plaint schedule properties and defendants 2 to 6 were restrained from committing any acts of waste or from alienating the properties. The appeal is filed challenging the decree. 4. Learned counsel appearing for appellants and learned senior counsel appearing for respondents were heard. 5. The following points arise for consideration. 1. Whether plaint schedule properties originally belonged to Biyyammada tharwad and whether Monthrapalli and Monthrapallipadippura are the A.S. 151/1992 7 sub thavazhies of the tharwad. 2. Whether there was any partition of tharwad properties and whether plaint schedule properties are the exclusive properties belonging to Monthrapalli thavazhi. 3. Whether first defendant is entitled to alienate the tharwad properties by executing Ext.A4 gift deed in favour of his wife and children and whether it is valid and binding on the tharwad or tharwad properties. 4. Whether the decree in Ext.A9 judgment in O.S.6/1982 is binding on the defendants and whether the claim of the defendants based on the right derived under Ext.B10 partition deed is barred by principles of A.S. 151/1992 8 res judicata or estoppel. 5. Whether first respondent being a junior member is entitled to institute the suit when Ext.A4 is not challenged by the karnavan or other members of the tharwad. 6. The plaint schedule properties are in Anthroth Island. It is one of the ten inhabited islands of 37 islands situated adjoining the malabar coast and known as Lakshadweep. The inhabitants are the descendants of the migrants from the Malabar, particularly Kolathunadu parts of the present Kannur District. As the migrants were followers of marumakkathayam law the same system was followed by the inhabitants but with modification as they were later converted to Muhammadanism. R.H. Elly's in his book Laccadives Islands and Minicoy stated that under the influence of Arab traders, islanders converted to Muhammadanism probably in the 14th century and still the inhabitants followed marumakkathayam A.S. 151/1992 9 system of inheritance which their forefathers had brought to the island at the time of migration. On the law of inheritance the learned author states:- “The island law is a curious mixture of the ordinary Muhammadan Law with the Marumakkathayam Law of Malabar. Property is regarded as either ancestral or self acquired. Ancestral property is known as Velliaricha (literally Friday property), pronounced Belliaricha on the Amindivis. Self acquired property is known as Tingalaricha (literally Monday property) on the Malabar islands and as Belaricha on the South Kanara islands. The reason for applying these terms to the different kinds of property is quite unknown. Velliaricha property is governed by the ordinary A.S. 151/1992 10 Marumakkathayam Law i.e., descent is through a sister's children, while Tingalaricha property passes to a man's own children under the ordinary Muhammadan Law. The distinction as may be imagined leads to innumerable disputes which are often very difficult of decision. On the Amindivis, if a man has no sons he can constitute his Belaricha property the Belliaricha property of his daughters who become a tarwad within the tarwad so far as hereditary rights to that particular property are concerned. On the Amindivis ancestral property can be the subject of a mortgage but the right of redemption is reserved to the reversioners at the rate of Re.1 per tree.” A.S. 151/1992 11 The Gazetteer of India-Lakshadweep by N.S.Mannadiar deals with the property and inheritance at page 97 and 98 as follows:- “Property in the islands is either ancestral or self acquired. Ancestral property is known as Velliazhcha (literally Friday property) pronounced as Belliazhcha in the Amindivis. Self acquired property is known as Thinkalazhcha (literally Monday property) on the Laccadives and Belasha on the Amindivis. Ancestral or Tarwad property is governed by the Marumakkathayam Law of inheritance prevalent on the Kerala coast. However there is no codified law and the practices are governed by customs which differ from island A.S. 151/1992 12 to island. Broadly speaking, property right descends through the female line, the male members having only right for sustenance during their lifetime. The property is enjoyed by the joint family, consisting of brothers, sisters and sister's children. The children are not entitled for any share in the joint family property of their father. The property is managed by the eldest male member known as Karnavan. He is responsible for the upkeep of the trees in the land and for effecting improvements to the tarwad properties. He can mortgage the Tarwad property for debts incurred and can also repay debts from the income therefrom. A.S. 151/1992 13 He has, however, no right to alienate or sell any portion of the joint family property. The Tarwad properties can be partitioned only with the consent of all members of the Tarwad. However, there are local variations in the criteria for partition. In Kavaratti and Agatti, for example, all the members of the joint family are eligible for one share. In Androth and Kalpeni, on the other hand, division of properties is between branches or tavazhis of the family. A tavazhi does not possess the right to mortgage or sell the Tarwad property so divided and has only the right to enjoy the income from property during the lifetime of the members of the A.S. 151/1992 14 tavazhi. Self-acquired or personal property is governed by Muhammadan Law of succession. Here also there are variations in different islands.......” 7. A learned single Judge (as His Lordship then was) in S.A.96/1986 had considered the question of inheritance in the island. It was a suit in respect of the properties in Amini islands. It was held that properties in the islands were of two categories and they are known as Belliazhcha and Belazcha properties and the people of Amini group of islands followed this practice and even then parties entered into absolute partition deeds and it has become a custom and practice among the islanders and it cannot be said that it was never the practice in the Island to have absolute partition. 8. A learned single Judge in A.S.341/1983 considered the question whether properties of one branch on extinction would revert back to the A.S. 151/1992 15 remaining branch and whether members of a branch had a right to alienate the tharwad properties. After considering the law of inheritance, it was held:- “7. Even after the long lapse of years the islanders continue to follow the old Marumakkattayam law. In most cases there were no outright partition and the properties are allotted to various branches for enjoyment. This customary practice has been approved by various courts and it assumed the character of the part of the law of the islanders. Various documents produced in this case also would convince that the islanders followed this customary practice in a very strict manner. Whenever the tarwad property is assigned to third parties, the members of the branch family would raise objection and seek cancellation of the transfer. Many A.S. 151/1992 16 such transactions were set aside by the Amin, who had been discharging the judicial power in the earlier times. So it is clear that a branch family was not competent to transfer the Velliazcha properties to third parties disregarding the rights of the reversioners.” In Buhari Koya and other v. Kasimkoya Haji and others (ILR 1979(1) Kerala 730) which relate to the properties of Amini Island it was held that the custom in the Amini Island of obtaining concurrence of the reversioners before converting Belliazha properties into Belasha properties of a branch has its origin in the concept that the properties belong to the common tarwad and are in the possession of the branches, the constituent units of the tarwad and the custom of getting concurrence of the reversioners is intimately connected with the right of reversioners to get the properties in case a branch becomes extinct. Holding that the right of a branch to deal with the A.S. 151/1992 17 properties is thus circumscribed by theright that the reversioners have in the properties and a branch which is in possession of the properties of the tarwad holds them only subject to the right of the reversioners to object any alienation made without their concurrence and such concurrence is necessary to conserve the interest of the other branches which constitute the common tarwad.On the facts of that case it was found that there is no evidence whether the properties in the gift deed executed by the first defendant therein are Belliazcha properties which Beredem Branch got from Asaroda tarwad as a branch of that tarwad or whether they are properties acquired exclusively by the Beredem branch of that Tarwad and the first appellate court was justified in remanding the suit to thetrial court to find out whether the properties registered in the name of the first defendant included in the impugned gift deed really belong to Asaroda tarwad or whether the items are acquired exclusively for the benefit of Beredem Branch. After the remand and subsequent disposal A.S. 151/1992 18 of the suit and appeal, it was again challenged before this court in S.A.144/1983. This court found that though it was sufficiently established that at the time of separation Beredem Branch obtained some Belliazhcha properties from the main tarwad, but to show which are those properties and which properties were acquired by Beredem Branch, there is no evidence. The learned single Judge held that difficulty of proving a matter is not a sufficient ground for exonerating a party from the onus of proving something, which is necessary for him to get a decree, and difficulty in adducing evidence may be a ground for some relaxation in the nature of proof that will have to be insisted and as plaintiffs are the persons who approached the court with an allegation that plaint schedule properties are Belliazhcha properties obtained from the main tarwad and so first respondent had no right of alienation and plaintiffs will have to adduce at least some evidence on which the court could act upon for the purpose of finding whether the suit properties are Belliazcha properties obtained from A.S. 151/1992 19 Asaroda tarwad. Eventhough it was found that there was no evidence to show that any of the properties were separately acquired by Beredem Branch, based on the finding that the burden of proof is not on the defendants but on the plaintiffs and simply because there are items of documentary evidence to show that first defendant and his mother admitted that Velliazcha properties were obtained from the main tarwad it may not be possible to find that any particular property was so obtained. It was therefore held that in the absence of evidence claim of the plaintiffs cannot stand. 9.S.A.96/1986 was decided by thiscourt subsequently on 14.6.1991.It was a suit for declaration that the plaint A and B schedule properties are Velliazhcha properties of the tarwad of plaintiffs and defendants and defendants are not entitled to alienate the properties.Thesaid properties are in Kiltal Island.Plaintiffs and defendants were members of Moosapathode Tarwad in Kiltan Island. Plaintiffs claimed that the parties are followers of customary Marumakkathayam law and A.S. 151/1992 20 properties are Belliascha properties which cannot be alienated by members of one branch. It was resisted by the defendants contending that there was absolute partition in the tarward by metes and bounds and therefore their properties could be alienated. Finding that in the Island properties are of two categories known as Belliazcha and Belazcha properties and people of Amini Island of which Kiltan Island is a part, followed this practice and even then parties often enter into absolute partition deeds and that has also become a custom and practise, it was held that it cannot be said that it was never the practice in the Island to have an absolute partition. The finding of the trial court and the first appellate court that there was an absolute partition of the family properties was upheld. As regards the plaint B schedule property the finding of the courts below that it is Velliazhcha property and was not divided among the members of the tarwad was confirmed, rejecting the case of the defendants that as there is no evidence to hold that it is a A.S. 151/1992 21 Velliazhcha property it is to be treated as Velazcha properties. 10. The same learned Judge (as His Lordship then was) disposed A.S.341/1983 on 31.5.1993. That appeal was against the judgment in O.S.2/1972 of Sub Court, Kavaratti. That suit was for recovery of possession of 33 items of properties on the strength of reversionary rights based on the customary marumakkathayam law of Islanders. Plaintiffs contended that they are members of Monthrapallipadippura, a branch of Biyyamada tarwad and there was no outright partition of Biyyamada Tarawad and properties were given to the branches for enjoyment and after the death of last surviving member of Biyyammada Tavazhy the properties set apart for the enjoyment of that branch was reverted. So also after the death of the last surviving member of Pokker Kadiyammada, their properties also reverted back. Recovery of possession was sought on the strength of the reversionary right. Defendants resisted the suit contending that Biyyamada, Pokker Kadiyammada, A.S. 151/1992 22 Monthrapalli and Monthrapalli Padipura are independent tarwads and not tavazhies of Biyyammada tarwad and the plaint schedule properties are Thingalazcha properties of Pokker Kadiyammada tarwad and the suit is not maintainable. The learned Judge found that Biyyammada is the tarwad and the other four are not independent tarwads but tavazhies of the same tarwad and the finding of the trial court that Pokker Kadiyammada tavazhy is a branch of Biyyammada tarwad is correct. It was also found that there are no documents to show that the 33 items of plaint schedule properties belonged to Biyyammada tarwad and were given to Pokker Kadiyammada tavazhy or that the properties were the self acquired properties of Pokker Kadiyammada tavazhy. Considering the absence of evidence proving the acquisition of the properties it was held:- “Absence of separate documents showing the acquisition is clear indication that these A.S. 151/1992 23 properties originally belonged to common family. If these properties were not tarwad properties, Muthukoya could have got possession of these items only by two modes of acquisition,i.e by inheritance or by assignment from 3rd parties. In either case there must be some document to show that mode of acquisition. If it was a sale deed, there must be a document to evidence that transaction, wheres in the case of family properties which were being enjoyed by customary practice and till the resurvey operations there were not tangible documents to evidence the title of these properties.” (underline supplied). A.S. 151/1992 24 Based on the said finding this court confirmed the findings of the trial court that all the thirty three items are