1. The gift by Mammi (Ex. A) under which items 1 to 4 were held by Biyathumma, is a gift to his wife and his three surviving daughters to be enjoyed by them and their female descendants hereditarily, males being excluded.
2. It was not contended on either side that the condition of enjoyment can stand so far as it excludes males altogether, and the gift must, therefore, be taken as a gift without that condition to Kunhi Pathumma and her three daughters.
3. Biyathumma having survived her mother and sisters, the question now is, whether she had a right to give the property to her own descendants or whether the plaintiffs who are descendants of one of her sisters, Uppennu, have joint rights in it and the gift is consequently bad and must be set aside.
4. It is contended, on the one hand, that the property became the absolute property of Biyathumma, as the survivor of the four donees, or if the donees held as tenants-incommon, the gift cannot be set aside, because Biyathumma was competent to transfer her own interest.
5. On the other hand it is contended that the donees must be taken to hold the property with the ordinary incidents of Tarwad property and that Biyathumma had no interest which she could transfer to her descendants. To this it is replied that the intention of the donor must be looked to determine the incidents of the property held under the gift and that here the donor's intention was clearly not to give the property with the incidents of Tarwad property but to create a perpetual succession confined to females, a course of devolution equally unknown to Marumakatayam and to the Muhammadan Law, though from the District Judge's judgment it seems that attempts to create a similar course are not unknown in Malabar.
6. The intention of the donor was beyond any doubt, to provide for his wife and daughters and their female descendants; his attempt to carry into effect this intention fails, so far as the attempt is to effect the exclusion of males altogether, but that does not affect the intention. There is nothing to indicate any intention to exclude the female descendants of any of the donees in any event, and we shall be doing that which the donor never intended, were we to decide that the descendants of one daughter are excluded by the death of their ancestor before her sisters and we have the authority of the Privy Council for declining to presume a gift creating a joint tenancy in the English sense, Jogeswar Narain Deo v. Ramchandra Dutt L.R., 23 IndAp 37. The donees are followers of Marumakatayam Usage and the gift is but for one condition, an ordinary gift from a husband to his wife and her descendants such as we find commonly in Malabar Tarwads; the one unusual condition is the exclusion of males from the enjoyment, but that is not a condition of any real importance; the inclusion or exclusion of males makes no difference to the devolution of the property, unless there is a partition or it happens that the last surviving member of the group is a male, the difference is only in the number of mouths to be fed. It seems, therefore, to us that the lower Courts have taken the right view of the gift; it was intended to create a sort of tavashi as the District Judge puts it, and a tavashi not differing in regard to the course of descent from an ordinary tavashi so long as there remained any female descendants of any of the donees.
7. We find it easier to attribute this intention to the donor than to believe that he intended the donees to take as tenants-in-common, the share of each to descend to the female descendants, respectively, of each. If it had been his intention to give each a share exclusively, we think he would have probably given separate plots to each donee.
8. We cannot, simply because the donor attached to the gift a condition of enjoyment to which effect cannot be given, infer that he intended to depart entirely from Maruma-katayam Usage. Seeing that, as we have already observed, the gift, but for that condition, is entirely is accordance with that Usage.
9. In this view of the case, Biyathumma had no interest, in items 1 to 4 of the property given, which she was competent to give away.
10. Items 5 to 7, which were the acquisitions of Kunhi Pathumma, descended at her death, if the decisions are right, to her Tarwad. The Karnavan has not claimed them and they have been held by Biyathumma. But the District Munsiff finds, and the District Judge does not differ, that she held them for the tavashi. There is nothing to suggest that she held them adversely and there is evidence that she maintained the plaintiffs. If then Karnavan had lost his right, it is the tavashi, not Biyathumma alone, that has acquired them.
11. In our opinion the decision of the Courts below is right and we dismiss the appeal with costs.