Decided on March 12,1963



- (1.)DEFENDANTS 2, 3, 5 and 7 to 9 are the appellants and the plaintiff and defendants 1, 4 and 6 are the respondents. The suit was for partition. The first respondent, the plaintiff, claimed an one-third share in the plaint property. This property was gifted (the parties had treated Ext. P-1, the document in question, as a gift deed and we too proceed on that basis)in favour of one Lekshmi Amma, the mother of the first respondent, defendants 1 and 2 and a deceased brother of theirs, Kochunarayana Pillai, who died in 1117. Ext. P-1 is the gift deed and is dated 26th Edavam 1087. This gift deed was executed by two members of the Thannippilly Tarwad. The second defendant is the sister of the first respondent, the first defendant and the deceased kochunarayana Pillai. DEFENDANTS 3 to 5 are the children of the second defendant and defendants 6 to 9 are the children of the fifth defendant.
(2.)THE first respondent contended that the above gift deed enured to the benefit of the three sons and daughter, the second defendant, of Lekshmi Amma. Lekshmi Amma, the mother, and Kochunarayana Pillai having died before the Nayar Act of 1088 (Act I of 1088) came into force, it was urged that the plaintiff and defendants 1 and 2 were each entitled to a third share in the property. Defendants 1 and 4 remained ex parte. Defendants 2, 3 and 5 to 9 by means of a joint written statement, urged that the gift enured to the benefit of the tavazhi of the said Lekshmi Amma and that the first respondent was, therefore, entitled only to a tenth share in the plaint property. This contention was negatived by the court below and a preliminary decree for a third share was passed in favour of the first respondent.
In this appeal, it was contended that this decree is unsustainable and that the contention of the appellants that the gift enured to the benefit of the tavazhi of Lekshmi Amma should have been accepted. This is the main question that arises for decision in this appeal.

Before dealing with this question, it is necessary to state a few more facts. Though there has been no issue framed as to whether the donee under Ext. P-1 was a relation of the donors, there are indications from the address given by the plaintiff himself in the plaint and from certain documents that the donee belonged to the same tarwad as that of the donors though to a different branch. However, there being no issue and there being no finding, we will proceed on the basis that the donee is not a near relation of the donors. It is, however, clear that the donors and the donee were marumakkathayees governed by the principles of Marumakkathayam law. The gift was executed on 26th Edavam 1087 i. e. , before the Nayar Act I of 1088 came into force. There was no statute governing these gifts before Act I of 1088 came into operation. The question has, therefore, to be decided on the basis of the principles of Marumakkathayam law and on an interpretation of the rulings rendered by the courts from very early times regarding the construction of such gift deeds.

(3.)AS early as the decision in Narayanan v. Nangali 5 tlr. 116 it has been ruled that the intention underlying such gifts was "that the donees should enjoy the property in common by taking the usufructs of the property jointly, and that the property should in all respects, be subject to the incidents of other similar properties Held by them as members of the tarwad " The gift in question in that case was by the father in favour of the mother. The principle of that decision has been extended to a case of gift in favour of any one of the children. Kunji Kalliani v. Kunhipennu lekshmi 11 TLR. 139, Mathevan Kunju Kunju v. Raman Krishnan 13 TLR. 72, padmanabhan v. Kumaran 18 TLR. 215, Koshy Thoma v. Narayanan Krishnan 22 TLR. 239. (F. B.)
In a Full Bench decision in Chakky Karumby v. Kochittan Raman 26 TLR. 11, a gift by a brother in favour of his two sisters was held by the Full Bench to constitute a gift in favour of the tavazhi of the two sisters. The observations of Muthunayagam Pillai, J. , in that decision are apposite: "the presumption in such cases, is 'that the donor's views were what might be expected of him as a follower of the Marumakkathayam law and as affected by the ordinary sentiments and wishes of a member of the malayalee community, and that the presumption therefore should be that he intended that his donees should take his properties as properties acquired by their branch as the exclusive properties of their own branch, with the usual incidents of tarwad property in accordance with Marumakkathayam usage which governed the donees (A. S. No. 375 of 1082 F. B. ). " The question was considered again by the travancore-Cochin High Court, a few years back in Amina Beevi v. Vasudevan 1956 klt. 117. It was held that the presumption was applicable to a case of a gift by a Marumakkathayee mother to her daughter. So also in Pachy versus Manuel 24 tlj. 1257 a case of a gift by two brothers in favour of their two sisters who are governed by the Marumakkathayam law, K. Parameswaran Pillai, J. , observed: "the question is whether that presumption is restricted to the case of gifts made by a father, or whether it can be extended to gifts made to others by persons following the Marumakkathayam law. I am of opinion that the presumption is not so restricted in its operation. The notion of separate property is not very familiar to Marumakkathayees and properties are held and enjoyed jointly by them. Tenancy-in-common is a later development and it has been finally adopted only by the Nairs, Nanjinad Vellalas and ezhavas by Legislative enactments relating to these communities. Ordinarily, therefore, when a father or near relation makes a gift of property to certain marumakkathayees the intention of the donor is that they should enjoy the property not as their separate property but as joint tenants with the incidents of Marumakkathayam law attaching thereto. There are not many decided cases on the point but such decisions as the reports contain are all in favour of this view. "


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