CHIRUTHA ALIAS KALLIANI Vs. ANANDAN

JUDGEMENT

(1.) THE suit out of which this Second Appeal has arisen was for partition of the tavazhi comprising the plaintiff and defendants 1 to 64. In the original plaint there were 58 items of landed properties, but 13 of them have been omitted in the amended plaint filed on July 22 ,1952. Of the 45 items scheduled in the plaint, the courts below have concurrently found items 33 to 45 to belong either to the wife or to a son-in-law of the 1st defendant and not to the tavazhi and therefore excluded them from the scope of the suit; and passed a preliminary decree for partition of items 1 to 32 among the plaintiff and defendants 1 to 64 excepting defendants 7, 8, 26, 27, 43, 44 and 60. This second appeal is by the legal representatives of the 1st defendant challenging that decree.

(2.) KARINCHI, the ancestress of the tavazhi and mother of the 1st defendant, was married twice. By the first husband she had a daughter chappila whose descendants are defendants 2 to 16 in the case. By the second husband Bappu she had four children, Chathu, Kunhacha, Kunhimanni and the 1st defendant. Chathu died in 1907. The descendants of Kunhhacha are defendants 17 to 54 and those of Kunhimanni are the plaintiff and defendants 55 to 64.

(3.) THE nature of a gift from father to children, or from husband to wife and children, among parties following Marumakkathayam law had been the subject of discussion in several decided cases. Such a gift is called puthravakasom property in Malabar, and Makkathayam property in Travancore. In kunhacha Umma v. Kutti Mammi Haji (16 Madras 201), a Full Bench of four judges held the legal presumption to be "that they should take them as properties acquired by their branch or as exclusive properties of their own branch, with the usual incidents of tarwad property in accordance with Marumakkathayam usage which governed the donees. " THEre was no complication in that case of the woman having children by another husband.