KUNHAMMA ALIAS KALLIANI AMMA Vs. KUNHIPARVATHI AMMA

JUDGEMENT

(1.) A marumakkathayee husband executed a gift deed in favour of his wife and children; and the lower courts including a judge of this Court in second appeal have held that the properties were given to the wife and children as a tavazhi. (On this question there is no dispute now ). The dispute in the appeal is whether the properties have to be partitioned per capita or per stirpes. All the lower courts have held that the partition should be per capita. The gift was in 1894.

(2.) THE proviso to S. 48 of the Madras Marumakkathayam Act of 1933 reads: "provided that in the event partition of the property taking place under Chapter VI, the property shall be divided on the stirpital principle, the wife being entitled to a share equal to that of a son or daughter. ". THE question is whether this proviso applies to the case before us. As we have indicated already, the decision of the lower courts is that, since the gift was several years prior to the coming into force of the madras Marumakkathayam Act, the division is per capita and not per stirpes.

(3.) WE shall also refer to one decision of a Division bench of the Madras High Court in this connection, viz. , Krishna v. Thala (53 l. W. 452 ). In the last paragraph of this decision it is observed