Abdur Rahman, J.
1. This appeal arises out of a suit for partition and recovery of possession of two-thirds share in the property bequeathed by the plaintiffs' father Narayanan under a will dated the 21st January, 1921, Ex. A, to his wife and children, one of whom had been born at the time when the will was executed and the other was born later. The suit was brought as the property was alleged to have been owned by the plaintiffs as tenants in common with their mother who had no right to represent them as a Karnavathi in the suit (O.S. No. 203 of 1932) instituted on the basis of a mortgage executed in favour of the second defendant by their father. To this suit the plaintiffs' mother alone was made a party and the plaintiffs were not impleaded. It was decreed but it was contended in the present suit that the decree was not binding on the plaintiffs and their shares which were two thirds in the property bequeathed by their father remained unaffected by the decree and the purchase of the same by the decree-holder was invalid. The decree-holder assigned the property after his purchase to the three persons who were also made parties to the present action. This was decreed by both the Courts below and defendants 2, 5 and 6 have preferred the present appeal.
2. The interesting question whether a bequest by a father in favour of his wife and children constitutes a tenancy in common or whether they became joint tenants forming a group of tavazhi with the incidents of a Marurnakkathayam tarwad and continue to remain so even after the wife is married to another person subsequent to her first husband's death as a result of which there are fresh offspring has been debated before me in this appeal. Relying on the natural presumption that the bequest or gift must have been intended to be made by the father to his own children and not to the offspring of another marriage, the answer was given in two decisions of this Court that the latter, could not partake of any share or interest in the properties given by a person who was not their own father. But in arriving at this result two methods were adopted by the two division benches of this Court who decided those cases. Since the decision of the Full Bench in Chakkra Kannan v. Kunhi Pokker (1915) 29 M.L.J. 481 : I.L.R. Mad. 317 (F.B.) was to the effect that if the father gave a property to his wife and children they would take it or would in any case be presumed to do so as members of a tavazhi, unless, a contrary intention had been expressed by the donor or the testator and Mr. Justice Sadasiva Aiyar who had considerable experience of Malabar law and customs had observed in the Full Bench decision referred to above that in such cases two small tavazhis or groups might be taken to have come into existence, the members of one group not sharing with the members of the other--their mother being the common factor to both of them or perhaps even more, if she had married more than twice and had children by each marriage, a division bench of this Court (Imbichi Beevi Umma v. Raman Nair) : (1919)37MLJ220 , of whom Mr. Justice Phillips at least had large judicial experience in this presidency, took the same view as was expressed by Sadasiva Aiyar, J., in the above stated Full Bench case. Inasmuch as a tavazhi consists of a woman and all her children and the effect of holding that the tavazhi had come into existence would be to confer a share of the property given by a father to his wife and his offspring, on the offspring of another marriage, another division bench of this Court consisting of Krishnan and Venkatasubba Rao, JJ., held on the other hand that a tavazhi should be found not to have come into existence at all in these circumstances and the wife and children who took the property should be presumed to have taken it merely as tenants in common. But in both these decisions the property was given by the second husband of the woman and not by the first one. This to my mind makes a considerable difference as by remarrying, a woman cannot be found to have forfeited her right to the tavazhi--if one is held to have come into existence on the death of her first husband--and is not held to have been disjointed on account of a second marriage of the wife, in the absence of any authority which has not been, in spite of my asking for it shown to me. As the idea of a tavazhi was that the property would devolve on a woman and all her children, Mr. Pocker learned Counsel for the appellants was prepared to put the extreme contention that the children of the second marriage would enter into the group of the tavazhi that was already in existence and tried to steer clear of the decision in Moithiyan Kutty, Ayissa : (1928)55MLJ208 , by distinguishing it on the ground that the property in that case was left by the second husband to his own children.
3. The decision of this interesting question would have been essential only if I found that there was nothing in Ex. A which would lead me to hold that the property was not given by Narayanan to his wife and his own children as tenants in common or that in other words, there was nothing in the will to rebut the presumption as to the property having been given to a tavazhi raised in Chakkra Kannan v. Kunhi Pokker (1915) 29 M.L.J. 481 : I.L.R Mad. 317 (F.B.). A perusal of the deed would however show that the property in this case was undoubtedly given by Narayanan to his own wife and his children as tenants in common and he made it clear that it would devolve on nobody else. Had the property been given to the tavazhi as suggested by learned Counsel for the appellants, one should not have found the will to be in favour of the daughter Devu who was already born and 'to all the progeny that may yet be born to me of her'. This is not all. In the next paragraph of the will the testator makes it clear that the wife and children should remain in joint possession and enjoyment of all moveable and immoveable properties holding them directly themselves and causing them to be held as his legal representatives and heirs. What is more, the testator adds that his wife shall 'effect the collections of outstandings due to me in her own capacity and in her capacity as guardian of the children who have not come of age', it was suggested by Mr. Pocker that every mother is the guardian of her children in every tavazhi and the mention of that fact by the testator did not alter the position in any way. This appears to be incorrect. It is the manager of the tarwad alone 'and not each Karnavan or Karnavathi of the various tavashis inside the tarwad that would be the guardian of all the minors in the various groups or taval his existing in the tarwad (Kalliani Amma v. Govinda Menon (1911) 22 M.L.J. 23 : I.L.R. Mad. 648 and the appointment by Narayanan of his wife as guardian could not therefore be regarded as having been made in pursuance of the ordinary law prevailing amongst the Malabar families but on account of a special direction that he was giving as opposed to the custom. This was apparently done as the property was bequeathed by him to his own wife and his own children as tenants in common and as he wanted his wife to act as a guardian on behalf of the children irrespective of the fact that someone else would have been their legal guardian if one was not appointed by him. The succeeding sentence of the will makes it clearer still. It reads as follows:
No persons other than my wife and children have any right or claims to any of the moveable and immoveable properties or any of my future acquisitions, that I have hereby bequeathed to them.
4. If a tavazhi has to be understood as consisting of a mother and of her children and descendants in the female line as observed in Moithiyan Kutty v. Ayissa : (1928)55MLJ208 , the above mentioned provision of the will would come into conflict with the underlying idea of the tavazhi and indicate that the intention of the testator was not to bequeath the property to the tavazhi but to his own wife and his own offspring as tenants in common. That being my construction of the document, the mother could not have represented the plaintiffs in the previous litigation and the suits were rightly decreed. For the above reasons this appeal must fail and is dismissed with costs of respondents 1 and 2.
5. Leave to appeal refused.