KYPRETH MOITHIYAN KUTTY Vs. NATUKANDY PUTHIAPURAYIL MAMMALI

JUDGEMENT

(1.) The question argued in this second appeal is whether when a follower of Marumakkatayam 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 tenants-in-common.

(2.) Three cases have been cited to us as having a bearing on the question Kunhacha Umma V/s. Kutti Mammi Hajee (1892) I.L.R. 16 Mad. 201 : 2 M.L.J. 226 (F.B.), Chakkra Kannan v. Kunhi Pokker (1915) I.L.R. 39 Mad. 317 : 29 M.L.J. 481 (F.B.) and Imbichi Beevi Umma v. Raman Nair (1919) I.L.R. 42 Mad. 869 : 37 M.L.J. 220. It was laid down in Kunhacha Umma v. Kutti Mammi Hajee (1892) I.L.R. 16 Mad. 201 : 2 M.L.J. 226 (F.B.) that when a Marumakkatayam 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 of property held by a tarwad. It will be rioted 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 a subsisting tavazhi and it was held following the principle laid down by the Privy Council in Sreemutty Sourjemoney Dossee V/s. Denobundoo Mullick (1857) 6 M.I.A. 526 and Mahomed Shumsool v. Sheewukram (1874) L.R. 2 I.A. 7 (P.C.) 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 Koroth Amman Kutti V/s. Appu Nambiar (1906) I.L.R. 29 Mad 322, Pattathenuvath Pathumma V/s. Mannamkunniyil Abdulla Haji (1907) I.L.R. 31 Mad. 228 : 18 (P.C.), Kunhamina V/s. Kunhambi (1908) I.L.R. 32 Mad. 315, Katankandi Koma V/s. Siva Sankaran (1909) 20 M.L.J. 134, Chakkantavida Chakkan Abdulla V/s. Thazhath Cheekkootti (1910) I.L.R. 34 Mad. 245 : 20 M.L.J. 368, Ummanga V/s. Appadorai Pattar (1910) I.L.R. 34 Mad. 387 : 20 M.L.J. 218 and in spite of the adverse criticism 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 Full Bench decision in Chakkra Kannan V/s. Kunhi Pokker (1915) I.L.R. 39 Mad. 317 : 29 M.L.J. 481 (F.B.). 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 recognised 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; Chakkra Kannan V/s. Kunhi Pokker (1915) I.L.R. 39 Mad. 317 : 29 M.L.J. 481 (F.B.) is an authority for it. As pointed out by Sriniyasa Aiyangar, 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/s. Raman Menon (1900) L.R. 27 I.A. 231 : I.L.R. 24 Mad. 73 at 76 : 10 M.L.J. 245 (P.C.), Kenath Puthen Vittil Tavazhi v. Narayanan (1904) I.L.R. 28 Mad 182 : 14 M.L.J. 415 (F.B.) and <JGN>Krishnan</JGN> V/s. Damodaran (1912) I.L.R. 38 Mad. 48 at 53 : 24 M.L.J. 240 (F.B.). It is such a tavazhi that forms a corporate unit capable of holding property as such. Srinivasa Aiyangar, J., says in Chakkra Kannan V/s. Kunhi Pokker (1915) I.L.R. 39 Mad 317 at 335, 336 : 29 M.L.J. 481 (F.B.). These groups (that is, tavazhies) cannot, of course, be created by agreement of parties. 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.

(3.) I respectfully agree with these observations. It seems to me that it is not open to any man, by his own act, to create a corporate unit not known to law and enable it to hold property with the incidents confined to such recognised units only. It follows, therefore, we cannot recognise a body consisting of a woman and some of her children only as a tavazhi and if property is given to them they would take it as ordinary joint donees, in which each will be entitled, in the absence of any express provision to the contrary, to an equal share.