1. The question argued in this second appeal is whether, when a, follower of Marumakkathayam law makes a gift of property to his wife and children, she having already children living by a former husband, the donees take the property with the incidents of tarwad property such as impartibility attached to it, or only as ordinary donees each entitled to an equal share as tenant-in-common.
2. Three cases have been cited to us as having a bearing on the question: Kunhacha Umma v. Katti Mammi Hajee  16 Mad. 201, Chakra Kunnan v. Kunhi Pokker  39 Mad. 317, Imvichi Beevi Umma, v. Raman Nair  42 Mad. 869. It was laid down in 16 Mad., that when a Marumakkathayam man's property is given to his wife and children without any expression of intention how they were to enjoy it, they must be held to have taken it with the incidents off property held by a tarwad. It will be noted that in this case the wife and children constituted a tavazhi consisting of a woman and all her children and there was not the complication of some of her children not being included as in the present case. The gift was to subsisting tavazhi and it was held following the principle laid down by the Privy Council in Sreemuthy Sourjemoney Dossee v. Denobundoo Mullick  6 M.I.A. 526 and Mahomed Shumsool v. Sherukhan  2 I.A. 7, that in considering a man's intention his ordinary notions regarding property should be borne in mind. This case was accepted and followed in a number of cases: see Konath Ammankutti v. Appu Nambiar  29 Mad. 322, Pattatheruvath Pathumma v. Mannan Kunniyil Abdulla, Hajee  31 Mad. 228, Kunhamina v. Kunhambi  32 Mad. 315, Katankandikona v. Sivasankaran : (1910)20MLJ134 , and Chakkantavida Abdulla v. Cheekkooth  34 Mad. 245 Ummanga v. Appudorai Pattar  34 Mad 387, and in spite of the adverse criticizm of Sir Sankaran Nair, J., and of the difficulties pointed out by him in the application of the principle laid down in it, in his order of reference, it was affirmed and followed again in the Fall Bench decision in Chakra Kunnan v. Kunhi Pokher  39 Mad. 317. We must, therefore, accept it as good law. But the question we have to decide in the present case is essentially different, it being in reality whether, a tavazhi can be constituted by a woman and some of her children, only, they being children of one father, others being excluded and whether such a group of members is a recognized group in Malabar law entitled to hold property with the special incidents of tarwad property. A tavazhi as known to Malabar law has no doubt been recognized as having such a right; Chakra Kunnan v. Kunhi Pokker  39 Mad. 317, is an authority for it. As pointed out by Srinivasa Ayyangar, J., in that case it is not the giving of property by a person to his wife and children that constitutes a tavazhi but there being a tavazhi already they take the property with the incidents of tarwad property. Are we then to extend the principle to the case of a group of persons consisting of a woman and her children by one husband only when she has other children who are not included? A tavazhi has been always understood as consisting of a mother and all her children and descendants in the female line, see Raman Menon v. Raman Menon  24 Mad. 73, Kenathi Puthen Vittil Tavazhi v. Narayana  28 Mad. 182, Krishnan v. Demodaran  38 Mad. 48. It is such a tavazhi that forms a corporate unit capable of holding property as such. Srinivasa Ayyangar, J., says in Chakra Kunnan v. Kunhi Pokker  39 Mad. 317 at p. 336:
These groups (that is tavazhis) cannot of course be created by agreement of parties
3. And he again observes
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.
4. I respectfully agree with these observations. It seems to me that it is not open to any man, by his own act, to create a corporate unit not known to law and enable it to hold property with the incidents confined to such recognized units only. If follows, therefore, we cannot recognize a body consisting of a woman and some of her children only as a tavazhi, and if property is given to' them they would take it as ordinary joint donees, in which each will be entitled in the absence of any express provision to the contrary to an equal share.
5. It is argued, however, that a tavazhi of a mother and her children by a father, not including her other children has been recognized by Sadasiva Iyer, J., in Chakra Kunnan v. Kunhi Pokker  39 Mad. 317, and by a Bench in Imvichi Beevi Umma v. Raman Nair  42 Mad. 869. The point that arose for decision in the latter case was whether a woman's son by a first husband took any interest in. property gifted by her second husband to her and her children. The learned Judges held that there was no scope for any presumption that the second husband intended to benefit his wife's children by another man, her first husband, and, therefore, the plaintiff in that suit who was such a child had no right to sue for such property, even though he was the eldest male member of the tavazhi as a whole I respectfully agree with the decision. There was however no question in the case as to how the children of the second husband took the property gifted, whether with or without the incidents of tarwad property. It is true that there are some observations in the judgment which would imply that the learned Judges thought that a woman and her children by one husband, to the exclusion of those by another, could constitute a tavazhi by themselves holding property jointly. With all respect to them I think that when they speak of a tavazhi they are not giving it the proper legal connotation. A group of persona following Marumakkathayam may hold property jointly as any other group may do, but they do not thereby become a tavazhi and such property does not get the incidents of tarward property attached to it. The head-note in the case merely repeats the observations of their Lordships. Those observations are clearly obiter dicta and I do not feel myself bound by them in consequence. The observation of Sadasiva Iyer, J., is also an obiter dictum. The reason given for it, namely, that we can have tavazhies and sub-tavazhies under them and so on is not a reason for saying that a mother and some of her children alone can constitute a tavazhi. In each case whether of tavazhis or sub-tavazhis or tavazhis which are sub-tavazhis of them they will be found to consist of a mother and all her children and descendants in the female line.
6. On the view I take, it follows that, however clear the intention of the donor might have been in the present case, he had no power to constitute a tavazhi of his wife and his own children leaving out her other children and attach to the properties gifted by him the incidents of tarwad property. The evidence as to his intention is, therefore, of little importance. The donees must be taken to have obtained the properties as partible properties in ' the position of tenants-in-common. The plaintiff's assignors, therefore, had an assignable share in them. There must be findings on issue 1, 2nd part, and issue 2, before disposing of the case. The learned District Judge will submit such findings on the evidence on record in six weeks from this day. ten days will be given for objections.
Venkatasubba Rao, J.
7. The question raised by this second appeal is of some importance and not covered by authority. The case was argued on the footing that there was a gift of certain properties made by a man to his wife and children by that wife. The parties are governed by the Marumakkathayam law and at the time of the gift there were children in existence of the lady in question by a former husband. The short question to be decided is: Do the donees take the property subject to the incidents of ordinary tarwad or tavazhi property...one such incident being impartiality? The Marumakkathayam law recognizes a tarwad as a unit and a tavazhi being a sub-division of a tarwad, the Courts have also recognized it as a legal entity. The common feature of a tarwad as well as a tavazhi is, that each of these consists of a female and her descendants in the female line. The Marumakkathayam law says that property held by a tarward or tavazhi is subject to certain incidents. In Run-hacha Umma v. Kutti Mammi Haji  16 Mad. 201, it was held that when a piece of land was given by a husband to One of his wives and her children and they were subject to the Marumakkathayam law, it must be presumed that they took the land with the incidents of property held by a tarwad. In that case, the property was given to a tavazhi, a unit known to law, for the donees were the woman and all her descendants. In the present case, at the time of the gift, the lady had children by her former husband who would be members of her tavazhi, but who were not among the donees. The gift was thus made not to a tavazhi but only to a few members of it. The contention that a woman's children by a particular husband can form a tavazhi is opposed to the basic principle of the Marumakkathayam law, which recognizes the mother and not the father as the source of the line of descent. A tavazhi, any more than a tarwad, cannot be created by act of parties, and it follows from this, that a man at his option cannot constitute his wife and some of her children into a tavazhi.
8. The fact that the group consists of every one of his children begotten on her is an irrelevant detail in this connexion, as under the Marumakkathayam law, descent cannot be traced, as I have said from the father. The incidents of tarwad property will, therefore, attach only to a gift made to all the members of the tavazhi including the children by other husbands in existence at the time. Machikandi Chakkarakaman v. Varayalanakandi Kundhi Pokker  39 Mad. 317, merely affirms the principle laid down in Kunhacha Umma v. Katti Mammi Hajee  16 Mad. 201 and is not an authority for the position contended for the respondent. Nor does Imbichi Beevi Umma v. Eranhib Purath Raman Nair  42 Mad. 869 support this contention. A female by name Goli Ammal married twice and had children by her first husband Rarappan Nair; she afterwards married Raman Nair by whom she had a son Velu Nair and other children. A gift was made by Raman Nair in favour of his wife Goli Amma and his children by her. Goli Amma's son by her first husband sued as karnavan of the main tarwad claiming an interest in the properties, the subject of the gift. It was held that where a husband gives property to his wife and children there is no presumption that he intended to benefit her children by a former husband. This is the point decided and I entirely concur in the decision. The case itself is, therefore, not an authority for the respondent's contention, but he relies upon certain obiter dicta in that case as well as in Chakra Kunnan v. Kunhi Pokker  39 Mad. 317 already referred to. I do not feel bound by these observations and I must express my most respectful dissent from them.
9. Each of the donees in the present case, can, in this view, assign his share and the plaintiff, as transferee, is entitled to maintain the action. I, therefore, agree in the order contained in my learned brother's judgment.
10. Note:- On return of the finding the case was posted before Venkatasubba Rao and Reilly JJ. who set aside the judgments of the lower Courts and passed a decree in favour of the plaintiffs on 3rd February 1928).