LEKSHMI AMMA Vs. ANANDAN NAMBIAR

JUDGEMENT

(1.) THIS Second Appeal is by Defendants 1 to 4 and 6 to 18 in O. S. No. 394 of 1963 Munsi-ff's Court. Badagara which was a suit for partition. The properties sought to be partitioned were sifted by one Chathappa Kurup under Ext. B-1 dated 17-1-1902 in favour of his wife Parukutty Amma and his children then, existing by her, namely Ananthan Nambiar (the plaintiff) Lekshmi Amma. Chindan Nambiar and Krishnan Nambiar. Ext. B-l contained a provision that the income from the properties was to be utilised also for the support of the children to be born to the donor by Parukuttv Amma. The plaintiff was rarepared to concede a share to naravanan Nambiar, the 4th Respondent who was the subse-quently born child. Thus a 1/5th share for each of the five children was claimed on the ground that the division had to be on the stirpital principle in accordance with the proviso to section 48 of the Madras Marumakkathavam Act 1933. Supplemental Defendants 6 to 19 were the descendants of the 1st Defendant and it was claimed by them and by Defendants 1 to 4 that the properties belonged to the tavazhi constituted by the plaintiff and Defendants l to 4 and 6 to 19. Both the courts below upheld the plaintiff's claim for partition and decreed the suit as prayed for.

(2.) IN Second Appeal, it was con-tended that the gift deed Ext. B-l enured to tavazhi of Parukuttv Amma and her children and the lineal descendants in the female line; that being a gift executed prior to the Madras Marumakkathavam Act, 1933, neither the main nart of Section 48, nor the proviso thereto had application, and that division had to be on a per capita basis. The courts below on a construction of Ext B-l held that Chathappa Kurup intended to benefit only his wife and his children through her, and not the lineal descendants in the female line, and that therefore the property belonged only to the plaintiff and Defendants 1 to 4, and that Defendants 6 to 19 had no rights therein.

(3.) WE cannot sustain the conclusion of the courts below on the construction of exhibit B-l. The gift was to the wife and all the then existing children of Chathappa kurup. It provides that the income is to be enjoyed by the donees and by any children born thereafter to the donor by Parukutty Amma. The document contemplated a living in commensality by all the donees. (Original in Malayalam omitted -- Ed.) It is well settled that a gift or bequest in favour of the wife and all the children, is presumed to be on behalf of the tavazhi. Disagreeing with the courts below, we have no hesitation to hold that Ex. B-1 enured for the benefit of the puthrava-kasam tavazhi of Parukutty Amma and her children.