KUNJU ALIAS THANKAPPA MENON Vs. VESAMMA ALIAS KANNAMMA

JUDGEMENT

(1.) THE devolution under the Madras Marumakkthayam Act(Act XXII of 1933 as amended)of a Puthravakasam bequest is the question before us.The testator is one Narayana Menon,a Marumakkathayee.By the will Ext.A -1,he bequeathed the scheduled properties to his wife Lakshmi and his children born to her(who have been mentioned by name in the document)and those if any,yet to be born and also to the children to be born to his daughters.The persons named in the will and those to be born in future as indicated in the document are to possess and enjoy the properties equally( oruEpael eekvwM vc / )The learned Subordinate Judge on a construction of the document has been persuaded to the conclusion that the bequest is to enure to the Thavazhi of the wife and that the members constituting her Thavazhi are to take the properties with all the incidents of tarwad property including right to demand partition and liable to partition on 'per capita 'basis.This view of the learned Judge is challenged before us basing mainly on the proviso to S.48 of the Madras Marumakkathayam Act.The section lays down: - "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 property 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 Chap.6,the property shall be divided on the stirpital principle,the wife being entitled to a share equal to that of a son or a daughter." The learned Judge has correctly found that the legatee under Ext.A -1 is the Thavazhi of the testator's wife,but he has gone wrong in his assumption that in the event of partition,the rule to be followed is 'per capita 'i.e .,individual partition by which the property is to be divided equally amongst all the members of the Tavazhi,in existence at the time of partition.In other words,according to the learned Judge,the property would devolve not only on the members of the Thavazhi in existence at the time of the testator's death,but also on those born subsequently.This conclusion was reached by the learned Judge on a construction of the provision in the will that the property shall descend on future born children also i.e .,children to be born to the testator's daughters.From this provision in the will,an inference was drawn by the learned Judge that the testator's intention was that the property should be enjoyed as an item of tarwad property subject to partition on 'per capita 'basis as provided in Chap.6 of the Act.The mode of division contemplated in Chap.6 is 'per capita 'among all the members of the tarwad or thavazhi,in existence at the time,But the position is different in the present case.Here we are confronted with a Makkathayam or Puthravakasam bequest i.e .,property bequeathed by a Marumakkathayee in favour of his wife and children to be enjoyed by them in the female line,The devolution of such a property is controlled by the Proviso to S.48.Such property shall descend on the legatees not in the same way as an item of tarwad property would devolve,on the members constituting the tarwad.In the event of partition the stirpital principle would have to be followed in the case of Puthravakasam property.It is no doubt true that the testator has evolved his own method of devolution in the will but in giving effect to his formula,the law governing the parties would have to be borne in mind.In other words,no member of a Marumakkathayam tarwad can create a thavazhi 'ad hoc 'or by act of parties.In the present instance,the will takes effect on the death of Narayana Menon,that is to say,succession opens on his death.Those members of the tavazhi who are alive at the time the succession opens,will alone be entitled to the property.Narayana Menon cannot make a bequest to be enjoyed by his children by the female line in perpetuity.In the case of tarwad property,every member gets a right in the property by birth.But in the case of Puthravakasam property,the gift or bequest can enure only to the members of the tavazhi in whose favour the gift or bequest is made and under S.48 such gift or bequest will be presumed to be one made in favour of the tavazhi. "Property given by the father to a Marumakkathayam mother and children is ordinarily known as Makkathayam property.In British Malabar it is called Puthravakasam.The ordinary presumption in case of such gifts is that the donees take the property with the incidents of Tarwad property;the right of management of the gift property is vested in the senior male member among the donees.Persons subsequently born into the Tavazhi are entitled to be maintained.But they have no right to claim partition."( The principles of Marumakkathayam Law by M.P.Joseph.). To the same effect is the observation found in Sundara Aiyar's book on 'Malabar and Aliyasanthana Law.'At page 168,the learned author observes:"When there is a gift by a father in favour of his wife and children there is a presumption that the property is intended to be for the benefit of the branch to be held with the incidents of Tarwad property........." ;. In Rugmini Amma v.Madhava Mannadiar(AIR 1947 Mad.137 ),the learned judge has observed: "Section 48 applies only to cases of gifts to or purchases by a person in the name of(1)the wife alone or(2)the wife and one or more of his children by such wife together.....The presumption will arise only if the gift was in favour of the wife and children or in favour of all the children who by themselves form a tavazhi."

(2.) IN the present case there cannot be any doubt,on a reasonable construction of Ext.A -1 that the intention of the testator was that the property should be enjoyed as tavazhi property.The document reads: ...[VERNACULAR TEXT COMITTED]... His idea therefore was that his wife and all his children and grandchildren(only in the female line)should enjoy on an equal footing.No doubt in the case of a will the testator's intention should be given full effect to;but if as in the present case a mode of succession or devolution is envisaged in the will,that scheme of evolution can be given effect to,only if it is in conformity with the existing law.We have already seen from S.48 of the Act that a Makkathayam or Puthravakasam gift or bequest can descend on the donees or legatees only on'stirpital basis.'To this extent S.48 must be understood as carving out an exception to the rule of succession or partition contemplated in Chap.6 of theAct.

(3.) THE bequest in the present case having thus devolved on the thavazhi,the rule of partition can only be 'per stirpes 'as indicated in the proviso to S.48.The learned Judge's finding,therefore,that the division shall be on 'per capita 'basis will have to be vacated.The property will devolve on 'per stirpes 'basis,on the members of the tavazhi who were alive at the time of the testator's death.The result will be that the plaintiffs will get the share in the plaint A schedule items 1 to 30.