1. The only question in this case is whether the property standing in the name of the 1st defendant is her absolute property or property belonging to her and her children. Both the Lower Courts have found that the property was the absolute property of the 1st defendant. This is a question of fact and the finding of both the Courts is on the evidence in the case. But Mr. Ramachandra Aiyar for the appellant contends that the presumption of law that property given to the mother by the father is for the benefit of herself and her children has not been kept in view by the Lower Courts in considering the evidence in this case. Reliance is placed by him upon two decisions of the Travancore Chief Court for the position that there is a presumption in such cases that the property is the property of the mother and the children. Tn Narayanan v. Parvathi Nangali (1062) 5 TLR 116. it was held that
Gifts by the father known in Travancore as Makkathayam, and in British Malabar as Puthravakasam are ordinarily intended to benefit all the children of the donor by the same mother, and the properties which form the subject of gift, though usually registered or acquired in the name of the mother, are held by the mother and children in common under the management of the mother or the next senior competent male or female among the donees.
2. In Panapilla Janakipilla Narayani Pilla v. Kanakku Krishnan Narayanan (1082) 22 TLR 278 (FB). it was held by the majority of a Full Bench of the Travancore Chief Court that
property obtained on gift from a stranger by a female member of a Malabar tarwad descends on her death to the sub-tarwad to which she belonged in prefer ence to the main tarwad.
3. There is a presumption that in the case of gifts to the mother and children the gift enures for the benefit of the family including the mother and her children. But the question is whether there is such a presumption in the case of a gift to the mother alone.
4. In Pattatheruvath Patkumnta v. Mannamkunniyil Abdulla Haji 18 MLJ 16 there was a finding by the District Judge which was concurred in by the learned Judges who decided that case that though the property was purchased in the name of the mother it was intended for her children as well. In Naku Amma v. Raghava Marion ILR (1912) Mad 79 on the evidence it was found that the gift was for the benefit of the mother and her children.
5. Mr. Ramachandra Aiyar relies upon an observation of Miller, J., at page 82:
Apart from any other consideration, if I had Ex. XVIII and nothing more before me, 1 should be inclined to hold that it was intended by the donor as a putravakasam gift, a gift for the benefit of Nak'u Amma and her children in the absence of words to show that he intended to give an absolute estate.
6. Ex. XVIII was the deed of gift and in the absence of words to indicate the intention of the donor that the donee was to have an absolute interest in the property, the learned Judge was prepared to hold that the gift was, for the benefit of the mother and her children. In Kuyyattjl Kundan Kutty v. Vayalpath Parkum (1915) 32 IC 107 Kumaraswami Sastri, J. observed at page 109:
It may now be taken as settled law that where a person following the Marumakkathayam Law gives properties to his wife and children or to his children alone also following the same Law, the presumption is that he intended the donees to take the properties with all the incidents of tarwad property.
7. This passage is relied upon for the position that when property is acquired by the father in the name of the mother alone there is a presumption that the father intended that the property should be for the benefit of the mother and children. These cases do not support the contention of Mr. Ramachandra Aiyar. Each case has to be considered in the light of the circumstances attendant upon the transaction. Where the gift is made to the mother and the children, there is no question as to the intention of the donor; where the gift is to the children, there also, there cannot be much doubt. But where a man gives some property to or buys some property in the name of his wife there is no presumption that he intends that she should not have absolute interest in the property but that she should hold it for the benefit of herself and her children.
8. In this case the kanom right was acquired by the 1st defendant with the funds supplied by her husband. There is nothing in the deed itself to show that she was a person other than an ordinary assignee of a mortgagee's right. The mere fact that her husband found the money for the assignment or transfer of the mortgagee s right is not by itself sufficient to throw the onus upon the 1st defendant to show that the property is her absolute property and does not belong to the tarwad. It is for persons who want to make out something different from what appears from the documents to show that the intention of the 1st defendant's husband was to benefit not only the 1st defendant but her children as well. The cases Chakkra Kannan v. Kunhi Pokker ILR (1915) M 317 : 29 MLJ 481 (FB) and Nara-samma Uegadthi v. Billa Kesu Pujari : (1913)25MLJ637 were decided upon the recital in the documents and the circumstances attendant on the transactions. In Duja Bhandary v. Venku Bhandary (1915) 31 IC 854 it was held that a permanent lease in favour of the lessor wife was for her benefit alone as the deed did not contain words conveying an interest to the children. I do not think that there is any authority to support the position taken up by Mr. Ramachandra Aiyar that where a person makes a gift to, or buys property in the name of, his wife, when there are children by the wife, there is a presumption that the property given to her or acquired in her name should be for the benefit of herself and her children. Both the Lower Courts have on the evidence on record come to the conclusion that the property is the absolute property of the mother and that conclusion is right.
9. The second appeal fails and is dismissed with costs.