SANKARANKUTTY NAIR Vs. LAKSHMIKUTTY AMMA

JUDGEMENT

(1.) THE only question urged by learned counsel for the appellants in these two connected appeals is that Ext. Al gift by deceased achuthan Nair to his wife, the first plaintiff should be interpreted as a gift in favour of the tavazhi or the first plaintiff and her defendants by virtue of the provisions in S. 48 of the Madras Marumakkathayam Act. THE trial court accepted the plea that the gift enures for the benefit of the tavazhi. THE lower appellate court; 854 mohammed v. chakkappan (Kochu Thommen J.) 1983 has taken a different view on interpretation of the document as a gift in favour of the first plaintiff alone, and her children are held not entitled to any right in Ext. Al property. S. 48 of the Madras Marumakkathayam Act is extracted below: "48. Where a person bequeaths or makes a gift of any property to, or purchases any property in the name of his wife alone or his wife and one or more of his children by such wife together, such properties shall unless a contrary intention appears from the will or deed of gift or purchase or from the conduct of the parties, be taken as tavazhi property by the wife, her sons and daughters by such person and the lineal descendants of such daughters in the female line: Provided that in the event of 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 gift Ext. Al is in the name of the first plaintiff alone. It contains the following recital: Learned counsel for the respondent submits that the absolute right to effect alienations conferred on the donee would clearly indicate a "contrary intention" within the meaning of S. 48 of the madras Marumakkathayam Act. In the decision of the Supreme Court in Gopala Menon v. Sivaraman Nair reported in AIR. 1979 SC. 1345, construing a similar expression in a will the Supreme Court stated thus at page 1346: "the property will be tavazhi property in the hands of the wife, "unless a contrary intention appears from the Will". Clause. 5 of the Will contains an expression of such an intention because it provides in terms that the property shall be taken by Sreedevi Amma as her own property with the power of alienation". THE power of alienation conferred on the legatee is construed by the Supreme Court as indicating a contrary intention within the meaning of S. 48 of the Act. It is clear from the passage quoted above that the donor had conferred an absolute power of alienation on the donee , the first plaintiff and the power of alienation thus conferred would render the gift one in favour of the first plaintiff alone and not to the tavazhi of herself and her descendants. Both the second appeals fail and are accordingly dismissed. THEre will, however, be no order as to costs. . .