MADHAVI Vs. KUMARAN

JUDGEMENT

(1.) THIS second appeal is by the res­pondents -defendants.The suit was for partition.The plaint schedule property was gifted in the year 1104,jointly by two brothers Sankaran and Govindan in favour of Devaki,the widow of their elder brother Sami,and her two children Madhavi and Kumaran.The parties are Marumakkathayee Thiyyas.After some time Devaki died and on her death her rights devolved on the two children Madhavi and Kumaran.As,Kumaran was not allowed to share the income from the property,the suit was instituted by him for partition.He claimed one half on the basis that by the death of Devaki the property devolved absolutely on himself and his sister Madhavi in equal shares.Defendants 2 to 7 are the children of Madhavi.The defendants contended that the property was intended to be enjoyed by the donees with the incidents of tarwad or tavazhi property,and as such the children of Madhavi are also entitled to share in the property.The learned Munsiff upheld the contentions of the defendants and passed a decree as if the property is an item of tarwad property,allowing partition on percapita basis,the plaintiff getting 1/8.The plaintiff appealed and the learned Subordinate Judge of Tellicherry set aside the decree of the court below and in its place passed a preliminary decree allowing partition into two equal halves as between the plaintiff and Madhavi.The defen­dants,have therefore come up in second appeal.

(2.) THE fact is not disputed that the donors Sankaran and Govindan were governed at the time,by the marumakkathayam system of inheritence and when a marumakkathayee exe­cutes a puthravakasom gift,the property gifted will have to be taken by the donees with all the incidents of tarwad property.In the present case,the donees(barring the widow who is dead)are the children of the donors 'deceased brother.The Madras High Court in Kunhacha Umma v. Kutti Mammi Hajee, I.L.R.16 Mad.201,stated the law of devolu­tion of a puthravakasom gift thus:"

(3.) VIDE Janaki v. Krishnan Nambissan, 1958 K.L.T.516.On the above reasoning we have no doubt,in our mind,that the gift is perfectly valid and the donors were competent to execute it conferring the pro­perty on the donees as an item of tavazhi property.