(KYPRETH) MOITHIYAN KUTTI Vs. (NATUKANDY) PUTHIAPURAYIL MAMMALI

JUDGEMENT

(1.) The question argued in this second appeal is whether, when a, follower of Marumakkathayam law makes a gift of property to his wife and children, she having already children living by a former husband, the donees take the property with the incidents of tarwad property such as impartibility attached to it, or only as ordinary donees each entitled to an equal share as tenant-in-common.

(2.) Three cases have been cited to us as having a bearing on the question: Kunhacha Umma V/s. Katti Mammi Hajee [1893] 16 Mad. 201, Chakra Kunnan V/s. Kunhi Pokker [1916] 39 Mad. 317, Imvichi Beevi Umma, V/s. Raman Nair [1919] 42 Mad. 869. It was laid down in 16 Mad., that when a Marumakkathayam man's property is given to his wife and children without any expression of intention how they were to enjoy it, they must be held to have taken it with the incidents off property held by a tarwad. It will be noted that in this case the wife and children constituted a tavazhi consisting of a woman and all her children and there was not the complication of some of her children not being included as in the present case. The gift was to subsisting tavazhi and it was held following the principle laid down by the Privy Council in Sreemuthy Sourjemoney Dossee V/s. Denobundoo Mullick [1854-57] 6 M.I.A. 526 and Mahomed Shumsool V/s. Sherukhan [1874] 2 I.A. 7, that in considering a man's intention his ordinary notions regarding property should be borne in mind. This case was accepted and followed in a number of cases: see Konath Ammankutti V/s. Appu Nambiar [1906] 29 Mad. 322, Pattatheruvath Pathumma V/s. Mannan Kunniyil Abdulla, Hajee [1908] 31 Mad. 228, Kunhamina V/s. Kunhambi [1909] 32 Mad. 315, Katankandikona V/s. Sivasankaran [1910] 20 M.L.J. 134, and Chakkantavida Abdulla V/s. Cheekkooth [1910] 34 Mad. 245 Ummanga V/s. Appudorai Pattar [1910] 34 Mad 387, and in spite of the adverse criticizm of Sir Sankaran Nair, J., and of the difficulties pointed out by him in the application of the principle laid down in it, in his order of reference, it was affirmed and followed again in the Fall Bench decision in Chakra Kunnan v. Kunhi Pokher [1916] 39 Mad. 317. We must, therefore, accept it as good law. But the question we have to decide in the present case is essentially different, it being in reality whether, a tavazhi can be constituted by a woman and some of her children, only, they being children of one father, others being excluded and whether such a group of members is a recognized group in Malabar law entitled to hold property with the special incidents of tarwad property. A tavazhi as known to Malabar law has no doubt been recognized as having such a right; Chakra Kunnan V/s. Kunhi Pokker [1916] 39 Mad. 317, is an authority for it. As pointed out by Srinivasa Ayyangar, J., in that case it is not the giving of property by a person to his wife and children that constitutes a tavazhi but there being a tavazhi already they take the property with the incidents of tarwad property. Are we then to extend the principle to the case of a group of persons consisting of a woman and her children by one husband only when she has other children who are not included? A tavazhi has been always understood as consisting of a mother and all her children and descendants in the female line, see Raman Menon v. Raman Menon [1901] 24 Mad. 73 (76), Kenathi Puthen Vittil Tavazhi V/s. Narayana [1905] 28 Mad. 182 (188), <JGN>Krishnan</JGN> V/s. Demodaran [1915] 38 Mad. 48 (53). It is such a tavazhi that forms a corporate unit capable of holding property as such. Srinivasa Ayyangar, J., says in Chakra Kunnan V/s. Kunhi Pokker [1916] 39 Mad. 317 at p. 336: These groups (that is tavazhis) cannot of course be created by agreement of parties

(3.) And he again observes I am also of opinion that some only of the members of a tavazhi cannot form a corporate unit capable of holding property as such.