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Smt. Seetha and ors. Vs. Kayiyath Krishnan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 1012 of 1969
Judge
Reported inAIR1975Ker70
ActsMarumakkathayam Law
AppellantSmt. Seetha and ors.
RespondentKayiyath Krishnan and ors.
Appellant Advocate A. Achuthan Nambiar,; T.P. Kelu Nambiar,; N.K. Sreedhara
Respondent Advocate V.K.K. Menon,; C.J. Balakrishnan and; T.L. Viswanatha Iy
DispositionAppeal allowed
Cases ReferredKimhacha Umma v. Kutti Mammi Hajee
Excerpt:
property - partition - marumakkathayam law - second appeal relating to suit for partition - acquisition effected in name of 1st defendant alone without including any of children who were admittedly in existence at that time - no scope for invoking any presumption that property was intended to be taken by 1st defendant with incidents of tarwad property - suit property belonged exclusively to 1st defendant and tavazhi did not have any rights - order passed by court below liable to be set aside - appeal allowed. - motor vehicles act, 1988[c.a.no.59/1988] section 147 (1)(b)(i) [as amended in 1994]; [v.k. bali, cj, m.ramachandran & s. sirijagan, jj] third party risk gratuitous passengers - liability of insurance company held, gratuitous passengers in transport vehicles, including a.....balakrishna eradi, j.1. the question arising for decision in this case is whether under the customary maru-makkathayam 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 tava-zhi 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.....
Judgment:

Balakrishna Eradi, J.

1. The question arising for decision in this case is whether under the customary maru-makkathayam 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 tava-zhi 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, 1960 Ker LJ 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 Lekshmi Amma v. Anandan Nambiyar, 1973 Ker LT 753 = (AIR 1974 Ker 82) 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 1960 Ker LJ 161, observed as follow:--

'Prior to the Marumakkathayam Act, the position under the customary marumakkathayam law was, that a presumption of the thavazhi nature of the gift or bequest or acquisition would be raised only if the same was in favour, or in the name/names, of the wife and all the children, or of all the children alone, who by themselves constitute a tavazhi, A gift, bequest or acquisition in the name or names of the wife alone, or of the wife and one or more of the children alone to the exclusion of the others, would not give rise to such a presumption'.

Strictly speaking, the question whether any presumption as to the tavazhi nature of the acquisition arises where the gift, bequest or acquisition was in the name of the wife alone had not arisen in either of the aforementioned cases and the observations made by the two Division Benches on the said question are only in the nature of obiter dicta. In 1960 Ker LJ 161, the question that arose for decision was whether an acquisition made in the joint names of the wife and her adult children with funds provided by the husband should be presumed to be one in favour of the tavazhi consisting of the wife and all her children and descendants in the female line. Although the names of two minor children had not been included in the document of acquisition, the court found that the said omission was immaterial since by a subsequent document those minor children were also recognised as having rights in the properties and that the original acquisition itself had, therefore, to be treated as one by the mother and all the children with funds provided by the father. In view of the said finding there was really no necessity at all for the court to consider the question as to whether there is any scope for drawing a presumption regarding the nature of the acquisition in cases where the document evidencing the transaction is in the name of the wife alone or in the joint names of the wife and some alone of the children. Likewise, in 1973 Ker LT 753 = (AIR 1974 Ker 82), also the Division Bench was dealing with the case of a gift made by a person in 1902 in favour of his marumakkathayee vyife and all their children then existing. However, inasmuch as the two Division Benches have made some observations indicating divergent views on the above question, it was considered desirable to have an authoritative pronouncement on the question and hence this case has been placed before this Full Bench by the learned Judges before whom it first came up for hearing.

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 Mun-siff'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 Kayivath 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 immovable 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 plain-tiff 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.

4. Though the trial Court found that the acquisition in the name of the 1st defendant had been made with funds provided by her husband it took the view that 'the presumption recognised under the customary Marumakkathayam law as well as under the Marumakkathayam Act is only as regards acquisition by the husband in the name of his wife or children' and that 'there is no presumption regarding the acquisition by the wife with the funds of her husband'. On the basis of the said reasoning the trial court held that the plaint A Schedule property had to be treated as the self-acquisition of the 1st defendant and that the plaintiff's case that the benefit of the said acquisition enured to the tavazhi was not tenable. It had been stated before the trial Court by the counsel appearing for the plaintiff that the plaintiff did not want any relief in this suit in case the court was to find that the plaint property is not tavazhi property and that no adjudication need be made in this suit about the genuineness or the validity of the will set up by the contesting defendants. Hence, in the light of his finding that the plaint property was the self-acquisition of the 1st defendant the learned Munsiff dismissed the suit. The plaintiff carried the matter in appeal to the District Court, Kozhikode. The learned District Judge held that there was no legal basis for the distinction drawn by the trial Court between cases of gift or purchase made by a husband in the name of his wife and those where the purchase of the property was effected by the wife with money given by the husband. On a consideration of the evidence in the case the District Judge found that the plaint A Schedule property was actually acquired by Mannan in the name of his wife the 1st defendant. Relying on the observations in 1960 Ker LJ 161, that in the case of gifts by a marumakkathayee husband or father to his wife or children or to the wife and some of the children the customary law in Malabar was that the donees took the property with the incidents of tavazhi property, the District Judge held that the plaint A Schedule property must be deemed to have been impressed with the character of tavazhi property on the date of the acquisition and that the plaintiff being a member of the tavazhi is entitled to claim a partition. On the ques-ton as to the mode of division applicable to such Puthravakasam property acquired prior to the commencement of the Madras Marumakkathayam Act, the District Judge held that the division had to be effected on per capita basis. Accordingly, in supersession of the decree of the trial court, a preliminary decree for partition of the plaint schedule properties into 16 shares and allotment of one share each to the plaintiff and defendants 1 to 15 was passed. It is against the said decision of the District Court that defendants Nos. 4, 6, 8, 16 and 17 have preferred this second appeal.

5. Although the appellants had strongly contended before both the lower courts that even if the consideration for the acquisition under Ext. A-l might have been paid out of funds given to the 1st defendant by her husband Mannan the transaction cannot be regarded as a gift or purchase made by Mannan in the name of his wife, the 1st defendant, the said plea was not persisted in before us and counsel for the appellants frankly, and in our opinion rightly, stated that he did not find it possible to seriously urge the said contention before this court, particularly in the light of the finding of fact recorded by the learned District Judge that the purchase under Ext. A-l was really one made by Mannan himself in the name of his wife.

6. We can, therefore, proceed on the basis that the plaint A schedule property was purchased in the name of the 1st defendant by her husband Mannan. On the date of Ext. A-l all the children of the 1st defendant, namely, the plaintiff, defendants 2 to 8 and Kanakamma were already in existence but their names were not included in the document and the property was purchased in the sole name of the 1st defendant. The question is whether in such circumstances the customary marumakkathayam law of Malabar warrants any presumption being raised that the purchase made in the sole name of the wife was intended for the benefit of the tavazhi consisting of herself, all her children and lineal descendants in the female line.

7. The principles of customary marumakkathayam law governing the above aspect do not appear to have been completely uniform in the Travancore and Madras areas and this divergence is naturally seen reflected in the decisions of the respective High Courts wherein the customary law as followed in the particular region concerned has been judicially recognised and embodied. Since the case before us has arisen from the Malabar area the scope of the discussion in this judgment will be strictly confined to a consideration of only the relevant principles of customary. Marumakkathayam law which were applicable in the Malabar area. Hence we shall have no occasion to advert to the legal position which obtains in the Travancore or Cochin regions in respect of the aforesaid matter nor shall we be referring to the decided cases dealing with the customary law applicable in these regions.

8. The earliest decision of the Madras High Court which authoritatively recognised the existence of a presumption that property acquired by a marumakka-thayee by a gift or purchase should under certain circumstances be deemed to be held by the beneficiary subject to incidence of tarwad property is the Full Bench ruling in Kunhacha Umma v. Kutti Mammi Hajee, (1893) ILR 16 Mad 201 (FB). In that case one Taruvai. a Muslim governed by the marumakkathayam law, gifted certain properties in favour of his marumakkathayee wife Ayissumma and her children. The donor had expressed no intention as to how the properties should be held by the donees. The Full Bench held that the presumption is that the donor intended that the donee should take them as properties acquired by their branch with the incidents of tarwad property in accordance with marumakkathayam usage which governed the donees. The same principle was reiterated in the subsequent Division Bench rulings in Koroth Amman Kutti v. Perungottil Appu Nambiar, (1906) ILR 29 Mad 322, Pattatherurath Pathumma v. Mannamkunnivil Abdulla Haji. (1908) ILR 31 Mad 228 and Kalliani Amma v. Govinda Menon. (1912) ILR 35 Mad 648. The principle laid down in these decisions was that when a gift is made by a person in favour of a marumakkathayee woman and her children the law would raise a presumption that the donees are intended to take such properties as the exclusive properties of their tavazhi with the usual incidents of tarwad property.

9. Subsequently, the correctness of the Full Bench decision in (1893) ILR 16 Mad 201, was doubted by a Division Bench consisting of Sankaran Nair and Tyabji, JJ., who were inclined to take the view that there is no scope for applying any such presumption in cases where the female and her children in whose favour the gift or purchase is effected did not as on the date of the transaction already form a separate tavazhi living apart from the tarwad house in a house of their own with properties belonging exclusively to their branch. The learned Judges, therefore, referred the question to a Full Bench. That led to the leading pronouncement on the subject reported in Chakkra Kanna v. Kunhi Pokker, ILR 39 Mad 317 = (AIR 1916 Mad 391) (FB). The Full Bench took note of the fact that the decision in (1893) ILR 16 Mad 201, had been accepted as correct and followed in a large number of cases subsequently decided by the Madras High Court. Nevertheless in the light of the doubts raised by Sankaran Nair and Tyabji, JJ, in their order of reference the Full Bench re-examined the question in all its aspects and finally upheld the correctness of the principles laid down in Kunhacha Umma's case. The learned Judges held that the principle enunciated in Kunhacha Umma's case and in the subsequent cases following it that when a gift is made by a person to his marumakkathayee wife and children there is a presumption that the donees are intended to take the properties with the incidents of tarward property is based on a consideration of what were known to be the notions and wishes of persons in Malabar in the position of the donor and also the ordinary incidents of holding of property in that area. Sir John Walls, C. J., who wrote the leading judgment made it clear that the Full Bench was leaving open the question whether a gift with the incidents of tarwad property could be made to the mother and some of her issues only since no such question arose in the case before them.

10, The effect of the decisions so far referred to (inclusive of ILR 39 Mad 317 = (AIR 1916 Mad 391) (FB)) was only to lay down that when properties are gifted or purchased by a person in the names of his marumakkathayee wife and all the children or in the joint names of all the children born to the donor by a deceased marumakkathayee wife who by themselves constitute all the members of a tavazhi, there is a presumption that the donees take the property with the incidents of tarwad property. In none of those decisions has the above principle been extended to cases where the gift or purchase is made in favour of a wife alone or to one 0r more of her children leaving out some others. Although in (1908) ILR 31 Mad 228. the purchase of the property had been made only in the name of the life, the court found that the acquisition was actually intended for the benefit of not only the wife but also her children and it was on that basis that the presumption regarding the tarwad character of the property was held to be applicable.

11. Shortly after the Full Bench decision in ILR 39 Mad 317 - (AIR 1916 Mad 391) (FB), the question whether such a presumption would arise where the gift is in favour of the wife alone arose directly for consideration before a Division Bench consisting of Ayling and Seshagiri Aiyar, JJ., in Duja Bhandary v. Venku Bhandary. AIR 1916 Mad 825. The learned Judges held that in such a case there is no presumption that the donee, namely, the wife, takes the property with the incidents of tarwad property.

12. The next decision which requires to be noticed is that of Courts Trotter and Kumaraswanu' Sastri, JJ., in Kundan Kutty v. Parkum Natukandi, AIR 1917 Mad 726 (2). In that case certain properties were gifted by a person following the marumakkathayam law, in favour of his four nieces who were his sister's children. At the time of the gift, the donor's sister was dead and the donees were the only members comprising their tavazhi. On the question, whether the donees took the properties as te-nants-in-common or with the incidents of tarwad property the two learned Judges expressed divergent views. Coutts Trotter, J., held that the gift was to the four ladies absolutely and not as tarwad Property basing his judgment on the clause in the deed of gift conferring a power of alienation on the donees, which provision, according to the learned Judge, was wholly inconsistent with an intent-tion that the property should be held with the incidents of tarwad property. Kuma-raswami Sastri. J., took the view that since the document did not contain any express terms indicating that the donees were to take the property as tenants-in-common and not under ordinary marumakkathayam system, the principle enunciated in the Full Bench rulings in (1893) ILR 16 Mad 201 (FB) and Chakkra Kan-nan v. Kunhi Pokker, ILR 39 Mad 317 = (AIR 1916 Mad 391) (FB) was attracted and a presumption had to be drawn that the gift made in favour of all the members of a tavazhi was intended for the benefit of the tavazhi. In the course of the judgment the learned Judge, however, made certain observations which would indicate that he was inclined to extend the applicability of the presumption even to cases where the gift or ac-auisition is in the name of the wife alone or in favour of some of the children alone. The learned Judge said:

'As regards the distinction sought to be drawn where the gift is to a person and his children and where no reference to the children is made though it is no doubt true that in several of the cases that have come up for decision to the High Court the gift was to a person and his children or santanams, the decisions do not turn on the presence or absence of reference to issue in the deed but on general considerations of the nature of the estate which a marumakkathayam donor intended to confer.'

Those observations were undoubtedly obiter, since the case before the learned Judge was not one involving the interpretation of a gift or purchase made in the sole name of a wife or in the names of the wife and some only of her children.

13. Subsequently, the said question directly arose for decision before Devadpss, J., in Kaliani Amma v. Kar-thiyani Amma. AIR 1927 Mad 299 In that case some property had been purchased by a person in the sole name of his wife who was a follower of marumakkathayam law and the contention was raised that the donee must be presumed to hold the property as tavazhi property. The learned Judge after adverting in detail to all the earlier decisions including the observations of Kumaraswami Sastri, J., in AIR 1917 Mad 726 (2) held that although a presumption of tavazhi character would be raised in cases where the gift is in favour of the mother and children there is no scope for applying any such presumption where a person makes a gift or buys property in the name of his wife alone at a time when there are children by the wife. The above decision of Devadoss, J., was confirmed by Reilly and Anantakrishna Aiyar, JJ., in Letters Patent Appeal No. 376 of 1926 (Mad). The learned Judges of the Appellate Bench observed thus:--

'We cannot differ from the learned Judge's decision in this case unless we are prepared to say--as we are invited for the appellant to say--that, whenever a gift of immovable property is made, to a marumakkattayi woman or immovable property is bought in her name by her husband and no explicit words are used to show that she is to have an absolute title to the property, a presumption must be raised that the property is to be that of the tavazhi consisting of her and her children. We are not prepared to say that there is necessarily such a presumption and no decision goes so far. (1916) 32 IC 107 on which Mr. Unikanda Menon relies, is not a similar case to this as there the gift was to all the children of a particular woman.'

The same question was again, raised before a Division Bench of the Madras High Court in Thata Amma v. Thankappa. AIR 1947 Mad 137. The learned Judges exhaustively reviewed the earlier case-law on the subject and expressed their complete agreement with the decision of Reil-ly and Anantakrishna Jyer, JJ., confirming the view taken by Devadoss, J., in AIR 1927 Mad 299. Somayya, J., speaking on behalf of the Division Bench held thus:--

'The decision of Kumaraswami Sas-tri, J., is explained as one being a case of a gift to all the children of a particular woman. All the children of a particular woman would, in case she is dead, be all the members of a tavazhi and if the gift was to all the members of the taya-zhi, then there might be a presumption that it is to be held as tavazhi property. That was how the decision of Kumaraswami Sastri, J., is understood by Reilly and Anantakrishna, Aivar, JJ. We think that this is the correct view to take. These are all the decisions that have been brought to our notice and we cannot say on these decisions that where a property is gifted to the wife alone or to some of the children alone there is the presumption that the donee takes it with the incidents of tarwad property. 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.'

14. The only other ruling of the Madras High Court on this subject which remains to be noticed is Bhaskaran v. Kavunni, AIR 1954 Mad 987, decided by a Division Bench consisting of Subba Rao and Panchapakesa Ayyar, JJ. The learn-ed Judges have succinctly summarised the legal position in the following terms:--

'It would be seen from the aforesaid decisions that the following principles are well settled: (i) that a person governed by Marumakkattayam law can make a gift to an entity called a 'tavazhi'. in which case the members of the said 'tavazhi' take the property with all the incidents of 'tarwad' property; (ii) when a gift is made to a wife and her children or to all the children or the entire group constituting the 'tavazhi,' a presumption is drawn that the gift is for the 'tavazhi'; and (iii) if the gift is to a wife or only to some of her children, there is no scope for invoking any presumption; but the question falls to be considered in each case on the facts whether the gift was intended for the 'tavazhi' or for the donees absolutely or for the donees as Joint tenants.'

15. It will be seen from the foregoing discussion that as per the rulings of the Madras High Court the principle was Iwell settled that if the gift or acquisition is not in favour of the entire group constituting a tavazhi but only in the sole name of the wife or in the joint names of wife and some alone of her children leaving out the others there is no scope forinvoking any presumption that the pro-perty is to be taken by the donee ordonees with the incidents of tavazhi pro-perty. '

16. After the formation of the Kerala State, the same question came up for consideration before this Court in an Appeal -- A. S. No. 795 of 1952 (M) --transferred to this court from the file of the Madras High Court. The Division Bench consisting of Kumara Pillai and Vaidialingam, JJ., which heard the appeal followed the decision in AIR 1947 Mad 137, and held that under the marumak-kathayam law prevalent in Malabar before the enactment of Madras Marumak-kathayam Act it is only in cases where a gift or purchase is effected by a person in favour of his marumakkathayee wife and children, or all the children by a deceased wife who by themselves would form a tavazhi, that there is a presumption that the gift or acquisition was intended for the benefit of the tavazhi as a whole -- See Lekshmi Amma v. Anan-dan Nambiar, 1958 Ker LT (S. N.) 30. Thus the principle that had stood well settled by a long series of decisions of the Madras High Court commencing from (1893) ILR 16 Mad 201 (FB), decided in 1892 and ending with AIR 1954 Mad 987, was accepted and declared bv this court also to be the rule of customary maru-makkathayam law applicable in respect of the Malabar area.

17. Ordinarily one would not expect any further doubts to arise in regard to a matter so firmly settled by a long catena of rulings and even if it appears that there are grounds justifying a rethinking on the subject courts would be extremely reluctant to disturb the current of judicial decisions spreading over more than half a century and to upset a rule which had been followed as good law during the said period thereby unsettling rights and titles. We do not think that any conscious attempt in that direction has in fact been made by the learned Judges in the decision, in 1960 Ker LJ 161, some of the observations in which have necessitated the reference of this case to a Full Bench. The question that arose before the Division Bench (M. S. Menon and T. K. Joseph. JJ.) in that case was whether certain properties acquired under a sale deed Ex. B-1 in the names of one Kunji Amma and such of her children who had attained majority on the date of the document were to be presumed to belong to the tavazhi of Kunii Amma or whether they belonged exclusively to the persons in whose names the document stood as tenants-in-common. According to the findings of the lower Court the funds utilised for the acquisition had been supplied by the husband of Kunji Amma. The parties were Nairs belonging to the Malabar area. Though the names of two minor children of Kunji Amrna were not included in Ext. B-1 this court felt that the said omission was immaterial in view of a subsequent document Ext. P-2 by which the minors were also recognised as having interest in the properties purchased under Ext. B-l, The Division Bench therefore held that 'Ext. B-l must therefore be treated as an acquisition of property by Kunji Amma and all her children with funds provided by Gopala Menon' (husband). In view of the finding that the purchase was one effected by the husband in favour of his maru-makkathayee wife and all her children it was manifestly a case Where a presumption that acquisition was for the benefit of the tavazhi had to be raised under the decisions of the Madras High Court which had been followed by this Court in 1958 Ker LT (SN) 30. This was all that was necessary for the purposes of the said case. A careful reading of the judgment also confirms that nothing more was intended by the learned Judges than to follow the principle laid down in the Madras decisions regarding the presumption to be drawn when property is gifted or purchased by a person, in the names of his marumakkathayee wife and her children and to apply the said principle to the case before them. Though on the facts of the case the Division Bench was not called upon to consider the question whether any presumption is to be raised where the acquisition is made in the name of the wife alone or in the ioint names of the wife and some alone of the children leaving out certain others, a general observation of a preliminary nature was made by Joseph. J., in the following terms:--

'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,'

On reading the judgment as a whole it appears 'to us to be clear that the said statement would never have been intended bv the learned Judges to be treated as a considered pronouncement by them of the law on the point, much less the enunciation of a principle of customary law at 'variance with what had been laid down in a long series of rulings of the Madras High Court. However, as often happens, doubts and controversies began to be raised based on the above observation contained in the judgment of the Division Bench and it became the epicentre for rumblings and tremors tending to disturb the stability of the principle which stood well settled in respect ot the Malabar area. The case before us provides a typical illustration of this, the court below having misconstrued the above observations in 1960 Ker LJ 161, as a pronouncement of the Division Bench laying down that even in respect of transactions of gift or purchase effected by a person in the sole name of his marumakkathayee wife or in the names of his wife and some only of the children a presumption has to be drawn that the acquisition is Intended for the benefit of the tavazhi consisting of the wife and all her children.

18. In our view, it is impossible for any one who has carefully perused the whole judgment in 1960 Ker LJ 161, to labour under any such misapprehension. In para. 14 of the judgment the learned Judges have categorically stated that since the case before them involved only the construction of a gift in favour of a wife and all her children, it was unnecessary for them to examine the correctness of the principle laid down in AIR 1947 Mad 137, that no presumption will arise where property is gifted to the wife alone or to some of the children alone. We shall read that passage:--

'Another decision relied on by the respondents is Thatha Amma v. Rugmini Amma. (1946) 2 Mad LJ 175 = (AIR 1947 Mad 137). After an exhaustive review of the decisions on the point it was held that where property is gifted to wife alone or to some of the children alone there was no presumption that the donees took it with the incidents of tarwad property, as it could not be presumed to be a gift to the entire thavazhi and that the presumption would 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 thavazhi. It was further held that the position would be the same in the case of acquisitions by father in the name of one or more children. We have already held that though Ext. B-l was taken only in the names of Kunji Amma and her adult children, the minors who were omitted were acknowledged later as forming the group which obtained rights under the deed. It is therefore unnecessary to examine this decision further.'

We fail to see how in the face of this categorical statement by the learned Judges of the Division Bench that no opinion was being expressed by them on the said question of applicability of the presumption in respect of gifts and acquisitions made in the name of the wife alone or in the names of the wife and some alone of the children, the decision could still be construed as containing a pronouncement on that question at variance with what had been laid down in AIR 1947 Mad 137.

19. The ratio of the decision in 1960 Ker LJ 161. was only that a presumption regarding the tavazhi character of the acquisition was attracted in the case of the transaction of purchase evidenced by Ext. B-1 which though expressed to be only in favour of Kunji Amma and her major children leaving out the two minors was found to be really a gift in favour of the mother and all her children, the minors having been subsequently acknowledged as forming part of the group which obtained rights under the deed. In so holding the Division Bench was only giving effect to the principle laid down in the Madras decisions. The preliminary observation at page 164 of the report which has given rise to the present controversy did not form part of the ratio decidendi. The summary given therein regarding the effect of the decisions of the Madras High Court is, if we may say so with respect, inaccurate. It was not the law in Madras that in the case of gifts by a person to his maru-makkathayee wife or children or to the wife and some of the children the sift would enure to the tavazhi. As noticed already, the principle consistently laid down in the rulings of the Madras High Court was that a presumption regarding the tavazhi character of the acauisition would arise only when the gift or purchase is in favour of all the members of the entity constituting a tavazhi, such as the wife and all her children or all the children by a deceased wife. To obviate all further doubts on the point, we make it clear that the above observation of the Division Bench in so far as it has purported to summarise the legal position emerging from the decisions of the courts in Madras is not a correct statement of the law.

20. In R. Gopala Menon v. Rug-mani Amma, 1969 Ker LR 1, a Bench of this Court (Raman Nayar, C. J., and V. R. Krishna Iyer, J.). had again occasion to consider directly the question whether in the case of an acquisition made by a husband in the sole name of his marumak-kathavee wife there is any presumption under the customary marumakkathayani law applicable in Malabar that the acquisition is for the benefit of the tavazhi of the wife. Relying on the decisions of the Madras High Court in AIR 1947 Mad 137, and AIR 1954 Mad 987. and also on the Division Bench ruling of this court in A. S. No. 795 of 1952 (M) (Lekshmi Amma v. Anandan Nambiar. 1958 Ker LT (SN) 30), wherein the Madras decisions had been followed, the learned Judges held that it is only in cases where a gift or acquisition is made by a person in favour of his wife and all his children by her or in favour of all his children who by themselves form a tavazhi that there is a presumption under the Malabar law that the acquisition is for the benefit of the tavazhi as a whole. The decision in 1960 Ker LJ 161, was cited and relied on by the appellant before the Division Bench as an authority supporting his contention that even in the case of an acquisition by a person in the name of his wife alone there is a presumption under the marumakkathayam law applicable in Malabar area that the property is to be taken by her with the incidents of tar-wad property. The learned Judges, if we may say so with respect, rightly, rejected the said contention and pointed out that in Prabhakara Menon's case 1960 Ker LJ 161 despite the fact that the document of acquisition stood only in the names of his wife and her major children the court had found that since by a subsequent deed the minor children, had also been subsequently recognised as having rights in the property treating them as part of the group in whose favour the property was acquired the original transaction itself had to be treated as one in favour of the wife and of her children and it was only on that basis that the presumption was held to be applicable.

21. In Illikka Mammad v. M. Usuf, 1971 Ker LR 222 the question arose whether in respect of a transaction of gift made by a Mappila of North Malabar governed by the marumakkathayam law in favour of his daughter, there is a presumption that the donee is to take the property with the incidents of tarwad property. The gift was given by way of Stridhanam on the occasion of the daughter's marriage and the document contained a recital that the property was to be enioyed by the donee and the children to be born to her. Our learned brother Poti, J., referred to the said provision contained in the document and observed that 'in view of this even the question whether in the case of a gift in favour of a female member alone it would enure to the tarwad may not strictly arise in this case'. Nevertheless the said question also was considered by the learned Judge. After referring to the rulings of the Madras High Court in Koroth Amman Kutti v. Perugottil Appu Nambiar, (1906) ILR 29 Mad 322, Pattatherurath Pathumma v. Mannamkunniyil Abdulla Hail, (1908) ILR 31 Mad 228. Kailiani Amma v. Govinda Menon, (1912) ILR 35 Mad 648, and Komhammad Kutti v. Cheria Mam-mad, AIR 1924 Mad 787, the learned Judge observed that 'cases in which gifts are seen executed in favour of female members alone have been construed as cases of gift in favour of the tavazhis, both in the Travancore area as well as in Malabar'. With respect, we are constrained to point out that this observation in so far as it refers to the state of the case-law in respect of the Malabar area is not correct. In (1906) ILR 29 Mad 322, the gift was in favour of one Uni-chira and her children and we find nothing in the said decision which lends any support to the proposition that even in the case of an acquisition in the sole name of a woman a presumption is to be drawn that the property is to be held by her on behalf of her tavazhi. Similar is the position in regard to the scope of the decision in (1908) ILR 31 Mad 228. Although in that case only the wife's name had been included in the document of acquisition, it was found by the court on a consideration of the evidence that the real intention of the donor was that the prooerty should be taken by the wife and her children and it was specifically on that basis that the learned Judges held that the case was governed by the Full Bench ruling in Kimhacha Umma v. Kutti Mammi Hajee, (1893) ILR 16 Mad 201, and the presumption stood attracted. The following passage extracted from the judgment makes the position clear:--

''In the present case, though the property was purchased in the name of the mother Ayissa, the District Judge holds, we think, rightly, that it was intended for her children as well. If so, according to the decision of the Full Bench, the land became the exclusive property of Ayissa and her children with the incidents of tarwad property'.

It is not therefore right to treat the decision in Pattatherurath Pathumma's case (1908) ILR 31 Mad 228 as an authority laying down that whenever a gift is made by a person in favour of his marumak-kathavee wife the law will raise a pre-sumption that the property is to be taken by her on behalf of her tavazhi. No doubt such a construction was placed on that decision by Wallace, J., in AIR 1924 Mad 787. That was because the learned Judge omitted to take note of the crucial fact that even though the document of acquisition in Pattatherurath Pathumma's case mentioned only the wife's name the court had treated the purchase as one made for the benefit of the wife and all her children. In the same judgment Wallace, J., has, if we may say so with respect, committed a similar mistake in regard to the scope of the decision in (1912) ILR 35 Mad 648. also. In that case certain, properties were gifted by one Go-vinda Menon in favour of his wife Ammu Amma making it clear in the document that the property was to be held and enjoyed perpetually by herself and her 'Santhanams'. The Bench which decided the case treated the transaction as evidencing a gift in favour of the wife and children of the donor and consequently held that the presumption would apply. Wallace, J., however, construed this decision also as having laid down that the presumption would be attracted even in cases where the property is gifted in favour of a marumakkathayee wife alone. The decision of Wallace, J., in Kunhammad Kutti's case AIR 1924 Mad 787 is manifestly inconsistent with the principles laid down in the Full Bench ruling in ILR 39 Mad 317 = (AIR 1916 Mad 391) and the subsequent rulings in AIR 1927 Mad 299 (confirmed on appeal by Division Bench in L. P. A No. 376 of 1926); AIR 1947 Mad 137, and AIR 1954 Mad 987, and hence it cannot be regarded as good law. It is unfortunate that the later rulings of the Madras High Court in AIR 1947 Mad 137 and AIR 1954 Mad 987, as also the two Division Bench rulings of this court in 1958 Ker LT (SN) 30, and 1969 Ker LR 1, wherein these Madras decisions have been cited and followed by this court were not brought to. the notice of Poti, J. The observations of Poti, J., to which we have made reference were based largely, if not wholly, on the dictum laid down by Wallace, J., in AIR 1924 Mad 787, and in view of what we have said about the decision in Kunhammad Kutti's case AIR 1924 Mad 787 we are constrained to hold that the said observations in 1971 Ker LR 222, cannot be regarded as a correct statement of the legal principle applicable in respect of the Malabar area.

22. It now only remains for us to refer to a recent decision of a Division Bench of this court (Gopalan Nambiyar and Viswanatha Iyer, JJ.), in 1973 Ker LT 753 = (AIR 1974 Ker 82). Though the question as to the applicability of the presumption in respect of transactions of gift or purchase in the name of the wife alone or in the joint names of the wife and some alone of the children did not directly arise for decision in that case the learned Judges made a passing reference to the said aspect also and expressed the view that a gift, bequest or acquisition in the name of the wife alone, or in the names of the wife and one or more of the children alone to the exclusion of the others, would not give rise to such a presumption. We fully agree with the said statement of the law,

23. The conclusion that emerges from the foregoing discussion is that under the rules of customary marumak-kathayam law which were applicable in Malabar prior to the introduction of the Madras Marumakkathayam Act, it is only in cases where the gift or acquisition is made in favour of a marumakkathayee woman and all her children or in the names of all the children who by themselves constitute a tavazhi (the mother being dead) that a presumption would arise that the acquisition is for the benefit of the tavazhi. There is no scope for raising any such presumption in cases where the gift, bequest or acquisition is in favour of the wife alone or of the wife and some of the hildren alone leaving out the others. The underlying principle is that the presumption would be attracted only in cases where the transaction is in favour of all the members of a group who constitute a natural tavazhi capable of acquiring and holding property.

24. Applying the aforesaid principles to the present case it has to be held that since the acquisition under Ext. A-1 was effected in the name of the 1st defendant alone without including any of the children who were admittedly in existence at that time, there is no scope for invoking any presumption that the property was intended to be taken by the 1st defendant with the incidents of the tarwad property. The lower court wrongly treated the decision in 1960 Ker LJ 161, as an authority laying down that the presumption would apply even to such cases and proceeded to hold on that basis that the property acquired under Ext. A-l must be taken to belong to the tavazhi of the 1st defendant. In the light of our conclusion that there is no scope for applying any presumption in cases of this kind the above finding entered by the District Judge cannot be sustained. We hold that the suit property belonged exclusively to the 1st defendant and that the tavazhi did not have any rights therein.

25. Since it was agreed before the court below and also before us that in the event of the court holding that the plaint property does not belong to the tavazhi the suit need only be dismissed and that the questions relating to the succession to the estate of the 1st defendant who died pending suit need not be gone into in this suit, we need only set aside the decree passed by the court below and dismiss the plaintiff's suit. Accordingly the second appeal is allowed, the decision of the learned District Judge is set aside and the decree passed by the trial Court dismissing the suit is restored. The appellants will get the costs of this second appeal from the contesting respondents. The parties will bear their respective costs in both the lower courts.


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