GOPALAN NAMBIAR Vs. KUNHI AMMA

JUDGEMENT

(1.) Can a woman and her children born to her by more than one husband and governed by Madras Marumakkathayam Act, 1933 take property obtained by gift as a tavazhi is the question that is raised in this Second Appeal. Learned counsel for the appellant contends that if the children are born to the woman by several husbands, property obtained by the wife and all the children together cannot be taken as property of a tavazhi; further, even if this is possible such property must be divided on a stirpital basis between the wife and children and by the several husbands. The sustainability of this contention is the matter for consideration here.

(2.) One Narayanan Nambiyar, son of Lakshmi Amma, the common ancestress of plaintiffs and defendants bequeathed plaint B schedule properties by a will dated 2-5-1959 to his mother, his brothers and sisters and the descendants of his sisters. Based on this bequest, plaintiffs have filed the suit for partition claiming 8/33 shares. This is resisted by the first defendant who is one of those whose names are mentioned as legatees in the will. According to him the will must be construed as having provided for a bequest in favour of the persons named therein. If so, according to him he will be entitled to 1/10th and the property will have to be divided into 10 shares. Though that was the stand taken earlier, the stand now taken is different. Narayanan Nambiyar was born to Lakshmi Amma by a husband through whom only one other child was born. Some of the others were born to another husband of Lakshmi Amma and yet others by the 3rd husband of Lakshmi Amma. It is therefore said that Narayanan Nambiar's bequest must be construed as a 'puthravakasam' bequest and if so construed the children of Lakshmi Amma through the father of Narayanan Nambiar must get one share and the children of Lakshmi Amma through the two other husbands must get one share each. That is how the plea of stirpital division is urged.

(3.) Ext. A-1 is the will, the construction of which is called for. If it is possible for a bequest to be made in favour of tavazhi consisting of a woman and all her children born through more than one husband, then it cannot be said on the terms of Ext. A-1, that it was not a bequest to such a tavazhi. The terms of the document are clear. It mentions all the brothers and sisters of Narayanan Nambiar and the sisters' children then living. It directs them to enjoy properties on his death as a tavazhi. It provides that the subsequently born children of the members of the tavazhi will also be in the group. It refers to the brothers and sisters as "'GtIm-Z-c-k-tlm-Zcw'' and very clearly indicates that by the bequest all the lineal descendants in the female line of Lakshmi Amma are to be benefited and they are to hold and enjoy the property as a tavazhi. Therefore there would be no difficulty in construing Ext. A-1 as a bequest to a tavazhi and if that be the construction plaintiff's claim for partition would be sustainable.