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Chalakaran Kuttayi Lakshmi and anr. Vs. Chalakaran Puthia Purayil Mukundan Karnavan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 76 of 1949
Judge
Reported inAIR1954Mad235; (1953)2MLJ545
ActsMalabar Law
AppellantChalakaran Kuttayi Lakshmi and anr.
RespondentChalakaran Puthia Purayil Mukundan Karnavan and ors.
Appellant AdvocateA. Atchuthan Nambiar, Adv.
Respondent AdvocateK. Kutikrishna Menon and ;E. Balakrishna Eradi, Advs.
DispositionAppeal dismissed
Cases ReferredKoran v. Govindan Nambiar
Excerpt:
.....marumakattayam law - presumption would be that intention of donor was that those to whom he makes gift of property should hold same as group or entity with all incidents of 'tarwad' property attached to it. - - 1 we are satisfied that the gift was intended to the tavazhi as such and not to any individual donee. though the document starts by stating that the gift deed is in favour of tala, in the operative portion there is clear indication that it was to tala and her 'santanams' for the words used are 'i have gifted to you and your 'santanams' the schedule mentioned properties, etc'.thereafter there is another provision which says that 'you and your 'santanams' shall enjoy for ever in jenm the properties as i have enjoyed'.the last sentence in the document which states that the..........that being the case, there can be no doubt whatever that the donees in the present case take the gifted property with all the incidents of tarwad property.3. but it is argued that the presumption can apply only in cases where the gift is made by a husband or a father to the wife or children and not where an uncle or a brother makes a gift to his niece and her children or to his sister and her children. in -- 'air 1916 mad 391 (e), sankaran nair j. in his order of reference states how tavazhi properties come into existence. the learned judge says:'tavazhi literally means, 'tayar' mother, and 'vazhi', line, that is mother's line. very often a woman & her descendants live apart from the tarwad house in a house of their own with properties belonging exclusively to their branch, the senior.....
Judgment:

Govinda Menon, J.

1. The learned Judge Krishnaswami Nayudu J. in his order of reference to a Bench, has detailed with sufficient particularity the facts of the case which need not again be restated now. As stated by him, the point for consideration is whether the gift contained by Ex. D. 1 dated 3-1-1898 enures for the tavazhi constituted by Tala, her children and their descendants in the female line, or whether it is only for Tala and her two daughters mentioned in the deed. It is now settled law that if a gift is made toan entity which constitutes a tavazhi as such, then the presumption is that the donor intends that the gift should have all the incidents of tarwad property attached to it. On a construction of Ex. D. 1 we are satisfied that the gift was intended to the tavazhi as such and not to any individual donee. Though the document starts by stating that the gift deed is in favour of Tala, in the operative portion there is clear indication that it was to Tala and her 'santanams' for the words used are 'I have gifted to you and your 'santanams' the schedule mentioned properties, etc'. Thereafter there is another provision which says that 'you and your 'santanams' shall enjoy for ever in jenm the properties as I have enjoyed'. The last sentence in the document which states that the 'santanams' at present are the girls Lakshmi and Kalyani, makes it clear that it was intended to be given to a group. Had it not been for the fact that the intention was to make the group as such the donee, there would have been no necessity to state that the 'santanams' at present are the girls Lakshmi and Kalyani. The donor certainly visualises a future in which there would be other 'santanams' who would also be members of the group and it could not have been his intention that such future members of the tavazhi are to be excluded from the enjoyment of these properties. Such being the case, it seems to us that the gift was to a tavazhi as such, for it is nobody's case that at the time the gift was made there were any persons other than Tala and her two daughters who constituted the Tavazhi.

2. Mr. Achuthan Nambiar for the appellants relies upon certain observations contained in a recent decision in -- 'Thathamma v. Thankappa', AIR 1947 Mad 137at p. 145 (A), where Somayya J. makes the following observations :

'We have no hesitation in saying that the whole question must be reviewed when the question directly arises for decision and is not covered by Section 48, Marumakattayam Act. A reasonable solution is to hold that except in cases governed by Section 48 of the Act, there is no presumption that the donees do not get absolute rights.'

With all deference to the learned Judges this is not stating Marumakattayam law as it is. Though the basis of the decision in -- 'Kunhacha Umma v. Kuttimammi Hajee', 16 Mad 201 (B), is the judgment of the Judicial Committee in -- 'Sreemutty Soorjeemoney Dassee v. Denobundoo Mullick', 6 Moo Ind App. 526 (PC) (C) and -- 'Mahomed Shumsool v. Shewukram, 2 Ind App 7 (PC) (D) still, ever since the decision of the Full Bench in --'Chakkara Kanna v. Kunhi Pocker', AIR 1916 Mad 391 (E), it has been the recognised rule of law that where a person governed by the Marumakkattayam law makes a gift, or purchases property in the name of his wife and children, or children alone, then the presumption is that the donees take the property with all the incidents of Marumakattayam property. We do not think that decisions subsequent to the Full Bench have in any way made inroads upon that proposition. We have to take it that apart from Section 48, Madras Marumakattayam Act, the presumption has been correctly stated by the Full Bench in -- 'AIR 1916 Mad 391 (E)'. That being the case, there can be no doubt whatever that the donees in the present case take the gifted property with all the incidents of tarwad property.

3. But it is argued that the presumption can apply only in cases where the gift is made by a husband or a father to the wife or children and not where an uncle or a brother makes a gift to his niece and her children or to his sister and her children. In -- 'AIR 1916 Mad 391 (E), Sankaran Nair J. in his order of reference states how tavazhi properties come into existence. The learned Judge says:

'Tavazhi literally means, 'tayar' mother, and 'vazhi', line, that is mother's line. Very often a woman & her descendants live apart from the tarwad house in a house of their own with properties belonging exclusively to their branch, the senior member amongst them having all the rights and obligations of the Karnavan of an ordinary tarwad. Such a branch or tavazhi is constituted or created by gifts from the father of the woman or by gifts from a favourite brother or maternal uncle, or, it may be, by the self-acquisition of any member of that branch which he would often reserve for the sole benefit of the members of his branch.'

At p. 400 of the report Srinivasa Ayyangar J. also makes observations regarding the origin and genesis of tavazhi properties. The learned Judge says:

'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. The husbands of the female members and the children of the male members of a tarwad are not members of the tarwad. It is not uncommon for them to make gifts of properties to their wives, daughters or sisters and their children, and such properties are called Puthravakasam properties.'

4. In Sundara Ayyar's Malabar Law, at page 170, the learned author also discusses this aspect of the question and he says:

'However, the inference has been drawn in a case where the gift was by the uncle to his nieces, the mother being dead. (See 'Letters Patent Appeal No. 19 of 1916'). Having regard to the usual origin of tavazhi property from fathers, uncles and brothers as stated by Sankaran Nair J. in 'AIR 1916 Mad 391 (E)', it would seem legitimate in all those cases to draw the inference.'

There are also other decisions which hold that when the donor is the uncle or brother, still if the donee forms a natural group according to Marumakaftayam law, then the presumption is that the gift is to a tavazhi.

5. In -- 'Kundan Kutti v. Parkum', AIR 1917 Mad 726 (F), the document which was the subject matter- of construction was a gift made by an untie to his nieces. Kumaraswami Sastri J. in that case held that where an uncle following Marumakattayam law makes a gift to his nieces who are children of the same mother and there is nothing in the deed to indicate that an absolute inalienable estate was intended to be conferred on the donees, then the property was intended to be given as putravakasam property and that it should devolve as tavazhi property. At page 729 of the report the learned Judge says:

'It has been argued by Mr. Sundaram thatthe principle enunciated by the Full Bench in-- '16 Mad 201 (B) and -- 'AIR 1916 Mad 391 (E)' does not apply to cases where (1) the donor is not the father and (2) where the deed of gift is not expressly to the donee and his or her children. I find it difficult to see why any such distinction should be drawn. The decision in -- '16 Mad 201 (B)' proceeded on the general principle enunciated by the Privy Council in -- '6 Moo Ind App 526 (PC) (C)' and -- 2 Ind App 7 (PC) (D)' and if the ordinary notions and wishes of the donor may not improperly be taken into consideration in construing the nature of the estate intended to be conferred, there is no reason why the same test should not be applied to a gift by an uncle as to a gift by a father. The 'ratio decidendi' of the decisions seems to be that a Hindu ordinarily intends to confer on the donee such an estate as the donee would take under the personal law governing him. The degree of propinquity is, therefore, immaterial and affords no test. The case may be different where a donor not following Marumakattayam law gives properties to those who do, but it is unnecessary to express any opinion in this appeal. It is sufficient for the purpose of this case to state that where a Marumakattayam donor gives properties to the children of the same mother or to a member of a tavazhi without any express indication that an absolute alienable estate was granted, the presumption is that the donor intended to confer only an estate with all the incidents of tarwad property.'

It is, therefore, clear that if the donees constitute a natural group according to the Marumakattayam law capable of acquiring and owning property, there is no reason why the presumption in -- 'AIR 1916 Mad 391 (E)' should not be applied to them. Nobody can dispute the fact that a tavazhi as such can purchase property so that the future members born in that group will have rights in the property by right of birth. If such a group can acquire, hold and dispose of the property, there is no reason why the same group cannot take a gift from a near relative. The question in most of the cases would be, what was the intention of the donor. If the donor does not specifically make it clear that individual donees are to take the gift as tenants in common, the natural presumption, which is in consonance with ordinary ideas and notions of people following Marumakattayam law. is that the intention of the donor was that those to whom he makes a gift of the property should hold the same as a group or entity with all the incidents of tarwad property attached to it.

6. Mr. Achuthan Nambiar has referred to a decision of Wadsworth J. reported in -- 'Koran v. Govindan Nambiar', AIR 1939 Mad 479 (G). That was a case where three sisters following Marumakattayam law acquired properties in their names with funds provided by their brother. The question was whether such property was held as tenants in common or whether the three brothers held them as joint tenants. The lower Courts held that the sisters were joint tenants so far as the property was concerned with rights of survivorship and that on the death of any one of them the proprietary rights of the deceased came by survivorship to others. There was no question that the sisters as such formed a tavazhi. It is not known whether the three sisters had any other brothers orsisters who, along with them, would have constituted a tavazhi. The learned Judge disagreed with the view of the lower Courts that when the gift was in the names of the three sisters jointly there was a presumption that they take as joint tenants with rights of survivorship which idea was foreign to Indian conditions and amounted to importing into India the English rule of conveyancing which cannot be applied to India. We do not see how the observations of Wadsworth J. can be made applicable to the present case, especially since the question there turned upon the fact as to whether the sisters held the property as tenants in common or as joint tenants.

7. In our opinion the learned SubordinateJudge has correctly interpreted the document asa gift in favour of a tavazhi as such and theorder of remand is right. The civil miscellaneous appeal is dismissed with costs.


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