KUTTAN Vs. VELUMPI VELUTHA
LAWS(KER)-1963-11-34
HIGH COURT OF KERALA
Decided on November 19,1963

KUTTAN Appellant
VERSUS
Velumpi Velutha Respondents


Referred Judgements :-

AMINA BEEVI V.VASUDEVAN [REFERRED TO]


JUDGEMENT

- (1.)In this appeal by defendants 2 to 4, from a decree in a suit for partition, the main point urged relates to the devolution of the property of an Ezhava female who died before the Ezhava Act came into force. The suit was instituted by several plaintiffs out of which the first and the 11th plaintiffs and defendants 1 to 5 are the children of one Nangeli Velumpi. Plaintiffs 1 and 11 who are daughters of Nangeli Velumpi have children of their own and the first plaintiff claimed for her thavazhi 10/40 shares in the plaint property and the 11th plaintiff claimed 25/40 shares in the plaint property. This claim has been decreed.
(2.)On behalf of the appellants, counsel contended that according to the principles of Marumakkathayam Law before it was modified by any legislation, a thavazhi of a woman meant herself and her children but not her children's children in the female line. It is admitted that on the death of Nangeli Velumpi in 1097, her properties devolved on her thavazhi. For the proposition that this thavazhi can consist only of her children, plaintiffs 1 and 11 and defendants 1 to 5, reliance was placed on the decision in Amina Beevi v. Vasudevan ( 1956 KLT 117 F. B.). Dealing with the question of a gift by a marumakkathayee mother to her daughter, it was held that the presumption is that the gift enured to the benefit of the subtarwad of the donee. Reference was made by counsel for the appellant to the statement in paragraph 18 of the Judgment to the effect.
"In the present case, there is nothing to show that the intention of the fourth defendant's mother in making the acquisition in the name of the fourth defendant was that the property should belong to the fourth defendant absolutely and not to the thavazhi consisting of herself and her children."

Based on the underlined portion, it was argued that the Court has proceeded on the basis that the thavazhi of a female consists of only her children. I think this argument is fallacious. In that case, the fourth defendant had only children. Admittedly there was nothing in the Judgment to indicate that the fourth defendant's children had children and that the Court intended to exclude such children's children from the thavazhi.

(3.)Similar is the ruling in Krishnan Nair v. Damodaran Nair (ILR XXXVIII Madras 48). What was held therein is that the self acquisition of a female member of a Marumakkathayam tarwad does not lapse on her death to her tarwad, but descends to her thavazhi, which will be her issue, if she has any, and in the absence of the issue, will be her mother and her descendants. It is suggested that "her issue" mentioned in the Judgment excludes descendants other than the children, like children's children. I am unable to accept this contention. On behalf of the respondents, my attention has been invited to a decision in Divakaran v. Mani ( 1954 KLT 812 ) and the observation therein supports the view that even before the passing of the Ezhava Act, Act III of 1100, the Marumakkathayam Law thought of a thavazhi as consisting of a female and her children howlowsoever in the female line. In paragraph 3 of the Judgment, it is mentioned:
"Relying on the ordinary connotation of the term 'tavazhi' in Marumakkathayam Law the appellant's learned counsel contends that the tavazhi on which the properties devolve under S.18 is the intestate female's thavazhi consisting of her sons and daughters and her daughter's descendants in the female line, and that the children of her sons and other descendants in the male line would not be included in that 'thavazhi'."

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