(1.) The question arising for decision in this case is whether under the customary marumakkathayam law which obtained in the Malabar area prior to the passing of the Madras Marumakkathayam Act there is a presumption that in the case of a gift, bequest or acquisition made by a person in the sole name of his marumakkathayee wife or in the joint names of the wife and one or more of her children to the exclusion of some others the benefit of such transaction is to enure to the tavazhi consisting of the wife and all her children together with the lineal descendants in the female line. This case has been referred to a Full Bench because of an apparent conflict between the views expressed on the said question in two Division Bench rulings of this court. In Prabhakara Menon v. Gopala Menon and others 1960 KLJ 161 a Division Bench consisting of M. S. Menon, J. (as he then was) and T. K. Joseph, J. while dealing with a case from the Malabar area observed that "in the case of gifts by a Nair husband or father to his wife or children or to the wife and some children the courts in Travancore and Madras have been taking the view that the gift would enure to the tavazhi. In Lakshmi Amma v. Anandan Nambiar 1973 KLT 753 which was also a case from Malabar, a Division Bench consisting of our learned brothers Gopalan Nambiyar and Viswanatha Iyer, JJ., after referring to the earlier case law on the subject including the decision in Prabhakara Menon v. Gopala Menon and others 1960 KLJ 161 observed as follows:
(2.) Before entering on a discussion of the question of law raised in the case it is necessary to set out in brief the facts of the case in so far as they are relevant for our present purpose. This second appeal arises out of a suit for partition filed by the 1st respondent herein in the Munsiff's Court, Kozhikode as O.S. No. 125 of 1965 of that court. The appellants before us are defendants Nos. 4, 6, 8, 16 and 17. The plaintiff and defendants Nos. 2 to 8 are the children of the deceased 1st defendant by her husband Kayiyath Mannan. Defendants 14 and 15 are the children of one Kanakamma a deceased daughter of the 1st defendant. The 15th defendant died pending the suit and her two minor children were brought on record as her legal representatives. They are defendants Nos. 16 and 17. The parties belong to the Thiyya community of North Malabar following the marumakkathayam law.
(3.) The immoveable property described in the plaint A schedule was acquired in the name of the 1st defendant as per the sale deed Ext. A-1 dated 24th October, 1923 with funds supplied by her husband Mannan. The case of the plaintiff is that the plaint property belongs to the puthravakasam tavazhi consisting of the 1st defendant and all her descendants in the female line and it is on the said basis that the plaintiff has claimed the relief of partition. The appellants herein who were the contesting defendants before the Trial Court put forward the plea that the plaint A schedule property belonged exclusively to the 1st defendant, that it had never been enjoyed or dealt with as tavazhi property and that the 1st defendant who died pending the suit has left a will bequeathing the properties in favour of defendants 4, 6 and 8 and hence the plaintiff has no right whatever to claim a partition of the suit items.