1. Plaintiff sues as Karnavan of Eranhipurath tarwad to recover the plaint properties from the 8th defendant. The plaint property was acquired in the names of Ooli Amma and Kelu Nair who is her eldest son by her second husband. Ooli Amma married twice and had some children by her first husband Rarappan Nair who divorced her. She afterwards married Raman Nair by whom she had a son Kelu Nair and other children.
2. The real question for decision is whether the plaint property belonged to Ooli Amma and all her children by both the husbands or whether it belonged to her and her children by her second husband alone. The main contention for the respondents is that there could be no separate tavazhi consisting of children by one husband alone. The facts as found are as follows :--The plaint property was acquired in the names of Ooli Amma and Kelu Nair, the son of Raman Nair. The learned Subordinate Judge does not believe plaintiff's evidence that the property was given to Ooli Amma by her first husband Karappan Nair and he also finds that it is not proved that it was given to her and her children by her second husband Raman Nair. It is however admitted that Raman Nair did give certain properties to his wife and his children by her as is evidenced by Exhibits XVI and XVII but the plaint property is not included in those documents. We therefore see that Ooli Amma had some properties which she got from her husband Raman Nair for herself and his children. As it does not appear that she had any other friends. The presumption would be that any additional property which she obtained was acquired out of the proceeds of the property she so held. The Subordinate Judge merely says that Rarappan Nair might have given something to Ooli Amma. This cannot be treated as a finding, but on the finding that the plaint property is not proved to have been given by Rarappan Nair, we are thrown back on the presumption that the property was acquired with the funds already in Ooli Amma's hands.
3. There remains the real question for consideration whether a separate branch of a tavazhi can be established consisting of a woman and her children by one husband to the exclusion of the children by another husband. When property is given to his family by a father, it is held with all the incidents of tarwad tenure. Kunhacha Umma v. Kutti Mammi Hajee I.L.R. (1892) M. 201, and this view is based on the presumed intention of the father to benefit his own children. If therefore the second husband gives property to his wife and his own children, it is difficult to presume that he intended also to benefit the children by the former husband or even children by a subsequent husband, in the absence of any expression of such intention. No doubt the word tavazhi may be, as suggested by Sankaran Nair, J., derived from tayar (mother) and vazhi (way) and it would naturally include all the descendants of that woman. But even though that is the real meaning of Tavazhi it has been held that branches of a tarward consisting of persons who have acquired separate property from their father arc constituted as Tavazhis by virtue of the possession of that property. If therefore the property was intended for that man's children alone, there is no reason for adding to the branch which is to enjoy that property, the children by another husband. The very fact that these tavazhis are very frequently called puthravakasam tavazhis leads to the inference that they are not merely descendants of female but also branches of the family which are benefited by a gift from their father and are thereby constituted as tavazhis. In this view there is no real difficulty in supposing that the tavazhi of a woman could consist of two branches, one branch made up of children by one husband and the other of children by another husband and each branch might own separate properties obtained from their respective fathers. This has been recognised by Sadasiva Aiyar, J., in Chakkara Kannanv Kunhi pokker I.L.R. (1915) M. 317 : 29 M.L.J. 481 and apparently is the view taken in Travancore. No doubt Sankaran Nair, J., in the same case at p.324 suggests that children born by another husband would benefit in the gift made by the first husband and he proceeds on the assumption that a tavazhi must consist of a woman and all her children by whomsoever begotten. Srinivasa Aiyangar, J. also assumes that a tavazhi must consist of a woman and all her children by the various husbands but he goes on to say ' it is certainly difficult to presume an intention in the first husband to grant the property to his wife's children by another husband. Such cases are likely to occur very rarely.' Neither of these learned judges has considered the possibility of branches within the tavazhi, and as pointed out by Sadasiva Aiyar, J., when there are branches within a tarwad, there is really no reason why their should not be similar branches within the tavazhi. If the possibility of that is conceded, then undoubtedly Ooli Amma and her children by Raman Nair would constitute a separate branch and we think that that was the effect of the gifts in their favour by Raman Nair. If that is so, plaintiff as the karnavan of the main tarwad would have no interest in the properties although he is a descendent of Ooli Amma by Rarappan Nair, and would have no right to interefere with the alienation of the property by members of the branch consisting of the children of Raman Nair.
4. A part from this point, there is the question of adverse possession. The plaint property has been dealt with ever since 1875 by the sons of Raman Nair although at the time these dealings took place there were members of the tarwad senior to them. In fact at one period, Kanaran Nair, son of Ooli Amma by Rarappan Nair was karnavan of the tarwad when the property was dealt with by the children of the other husband, and also later on Benares Govindan Nair was the karnavan and his claim in respect of other properties of the sub-tavazhi was disallowed in a suit brought by him. No doubt the learned Subordinate Judge has found that there was no adverse possession by this tavazhi. But in coming to this conclusion he has relied on a proposition for which there is apparently no support on the record for he, says, that ' it is not uncommon in Malabar to take demises in the names of junior members of the tarwad.' This may be correct, but it is not in evidence in this case and when it is remembered that the demise was taken in the name of a man who was not only a junior member of the main tarwad but also the Karnavan of a branch the case bears a somewhat different appearance. The dealing of this property by this tavazhi was to the knowledge of the plaintiff's predecessors and apparently of plaintiff himself, and consequently the fact that it has been so dealt with for the last 40 years would constitute adverse possession against the tarwad of which plaintiff is now the karnavan.
5. The appeal must accordingly be allowed and the suit dismissed with 8th defendant's costs throughout.