Decided on August 13,1974



- (1.) These two appeals arise out of Land Acquisition Reference No. 85 of 1965 on the file of the Second Additional Sub Court, Trivandrum. Plaintiffs 12 to 18 are the appellants in A. S. No. 596 of 1969, and plaintiffs 4 to 6 are the appellants in A. S. No. 607 of 1969. The reference before the learned Subordinate Judge was under S.20 and 32 of the Land Acquisition Act for enhancement and apportionment of the compensation awarded by the Land Acquisition Officer in respect of land, 5.51 acres in extent, comprised in Sy. No. 2621/62 of Kadakompally Village, acquired for the purpose of Rocket Launching Station. The appeals, however, are confined to that part of the judgment which relates to the apportionment of the compensation amount.
(2.) These appeals happened to be placed before us on a reference by Gopalan Nambiyar and George Vadakkel JJ., who expressed a doubt whether the legal position in regard to the incidents of a Makkathayam gift in the erstwhile Travancore is as stated in Ext. P3 judgment relied on by the court below. The observation on this point in Ext. P3 judgment of a Division Bench of this Court, in the constitution of which Bench one among us (Govindan Nair J. as he then was) was a party, reads as follows: "......... The question is whether a gift of properties by a Marumakkathayee to a woman would enure to the benefit of her children by him and by her previous husband or whether only to her children by him. This has been answered from very early times by holding that the gift will enure only to the benefit of the woman and her children by the donor. We are not persuaded that at this distance of time we should reconsider the question ........." S.41 of the Travancore Nair Act, 1100 (M.E.) provides: "Property acquired by gift or bequest from the father or husband before Regulation.1 ' of 1088 came into force shall, for the purpose of this Chapter, in the absence of evidence to the contrary, be treated as the tarwad property of the donees or devisees and of their thavazhee."
(3.) The law in Travancore appears to have always been that there arises a presumption that a ' Makkathayam gift made by a Marumakkathayee father is for the benefit of all his children. In Mariamma Rachel v. Narayana Pillai 2 TLJ 15 the observation is: "......... No man can reasonably be called upon to provide for the offspring of his wife by some third party. It is extremely unlikely that the idea of making provision for the possible issue of his widow by a future union would be entertained by even the most philanthropic persons ......... The law so far has only recognised a sub tarwad formed by the grant of property to a marumakkathayam female by her husband for the benefit of her children by him ........." This position has been reiterated by P. K. Narayana Pillai J. in Pappi Nangiaramma v. Kunji Nangiaru 23 TLJ 344 in the following words: "......... Suppose a husband gives property to a Nair lady and her children by him, there cannot be any doubt, that the property so given will be Makkathayam property or Putravakasom property as it is called in Malabar. Suppose further that the lady is married by another husband and other children are born. They will belong to the same Tavazhi but why should their addition to the Tavazhi affect the rights of the children by the previous husband and the mother, inter se, as such rights stood in law when the gift was made. In such a case, one section of the Tavazhi will hold the property unmodified by the extension of the Thavazhi by subsequent additions. The children born to the subsequent husband cannot possibly have any right to property granted by previous husband." The question was more fully considered in a still later decision reported in Devaki v. Velayudhan 1948 TLR 584 at 590 which reads as follows:- "It has been held in certain cases that a woman can give rise to two tavazhis, under . certain circumstances. It has been held that where a Marumakkathayam husband makes a" gift of properties to his wife and children there is no presumption that he intended to benefit her children by a former or subsequent husband in the absence of any expression of such intention. The above rule is now well established and it is not necessary to cite the cases which have laid it down. ........ The principle that where a Marumakathayam husband makes a gift of properties to his wife or his wife and children, the presumption is that the properties are to be enjoyed with the incidents of tarwad property, has its origin in the rule that when ascertaining the intention of the donor, the law governing the parties is one of the circumstances to be taken into account. The above presumption need not be tacked on to the conception of a tavazhi. In such cases as the children by another husband cannot have been in contemplation of the husband who makes the gift these children have to be excluded from the operation of the same ..." The position in regard to what is known as 'Puthravakasam gift' does not appear to have ever been different in the area falling in erstwhile Malabar. It was held by a Full Bench of four Judges of the Madras High Court as early as in 1893 in Kunhacha Umma v. Kutti Mammi Hajee ILR 16 Madras 201 that in the case of a gift or bequest by a person in Malabar in favour of his wife and children who were governed by the Marumakkathayam law, the presumption is that the donor intended that the donees should take the properties as exclusive properties of their own branch with the usual incidents of tarwad properties in accordance with the Marumakkathayam usage.;

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