SIVASANKARAN Vs. LAKSHMI

JUDGEMENT

(1.) A short but interesting question of marumakkathayam law comes up for consideration in this second appeal.

(2.) A marumakkathayee Thiyya by name Kunhambu executed a will, Ext. A1, in favour of his five children then alive, born in his wife, Devaki, with the stipulation that the properties should be enjoyed as puthravakasam tavazhi properties in equal right without partition by the tavazhi constituted by the said children, children to be born thereafter in Devaki and the children and grandchildren (santhathi santhanangal) in the female line. There was a further provision restraining encumbering or alienating the properties. The plaintiff respondents are one daughter of Kunhambu and her children and grandchildren; and they have claimed partition of the properties on the per capita basis. Both the lower courts have allowed this claim; and in second appeal the counsel of the third defendant, one of the sons of Kunhambu, questions the correctness of this decision.

(3.) The argument of the appellant's counsel is that the bequest is to the five persons named in the will. In the alternative he contends that the bequest is to the tavazhi of Devaki, though her name is not mentioned as one of the beneficiaries; and that since the bequest is to that tavazhi as puthravakasam properties, the proviso to S.48 of the Madras Marumakkathayam Act must apply in partitioning the properties, in case the testator died after the Act came into force. This argument was advanced even before the lower appellate court with a request for remand of the case to find out whether the testator died before or after the promulgation of the Madras Marumakkathayam Act; and the request was refused by the lower appellate court. The lower appellate court expressed the view that even if the death of the testator was after the Act came into force, that would not make any difference in the result of the case.