- (1.) THIS revision is directed against the order of the taluk Land Board, Palghat, dated 3 31976 made in ceiling case No. L. B. 235/73. In and by that order the Taluk Land Board has directed the revision petitioner to surrender an extent of 37. 18 acres of land, determined to be the extent of land held by her statutory family in excess of the ceiling area specified under the Kerala Land Reforms Act.
(2.) ON behalf on the revision petitioner it was submitted that the Taluk Land Board was in error in treating the properties gifted by madhava Kesava Menon, the maternal uncle of the revision petitioner, and the properties bequeathed by Kesava Menon, another maternal uncle of the revision petitioner, as exclusively belonging to the revision petitioner. The contention advanced before the Taluk Land Board, repeated before this Court, is that the properties gifted or bequeathed by a marumakkathayi in favour of his neice would not enure to the benefit of the donee or legatee individually, but they are intended to be enjoyed as sub-tarwad or tavazhi properties. The Taluk Land board did not accept this contention, and treated the properties as "self acquired properties" of the revision petitioner. Considering almost an identical case, Govinda Menon J. , speaking for the Court, in Kuttayi Lakshmi v. Puthia Purayil Mukundan (AIR. 1954 Madras 235) held as follows: "the question in most of the cases would be, what was the intention of the donor. If the donor does not specifically make it clear that individual donees are to take the gift as tenants in common, the natural presumption, which is in consonance with ordinary ideas and notions of people following Marumakattayam law, is that the intention of the donor was that those to whom he makes a gift of the property should hold the same as a group or entity with all the incidents of tarwad property attached to it. " In Sundara Iyer's Malabar and Aliyasanthana Law, while discussing this question, the learned author has stated as follows: "putting aside the case of a grant to a branch as such, and the case of a grant by a father to his wife and children merely or to wife and all the children then existing or after the death of the wife to all the children which is governed by the Full Bench in Chakkara Kannan v. Kunhi pokker (39 Madras 317) it can by no means be said to be clear under what other circumstances the inference will be made. However, the inference has been drawn in a case where the gift was by the uncle to his neices, the mother being dead (E. P. A 19 of 1916) Having regard to the usual origin of thavazhi property from fathers, uncles and brothers as stated by Mr. Justice Sankaran Nair in Chakkara kannan, v. Kunhi Pokker it would seem legitimate in all all those cases to, draw the inference. In fact, Mr. Justice Sankaran Nair states in his judgment in Krishnan Nair v. Damodaran (38 Mad. 48 at 56) that such property is intended for the woman and her children. " (Para-grap97 ). The decision in Kuttayi Lakshmi v. Puthia Purayil mukundan (AIR. 1954 Madras 235) has been relied on by the Full Bench of the travancore-Cochin High Court in Kalliani Amma v. Krishna Pillai (1956 KLT. 803 ). After quoting the passage from that decision extracted herein, speaking for the Full Bench, Varadaraja Iyengar J. has observed as follows: "applying the test laid down in the above cases, it seems to us that in the absence of and apart from the legislation which intervened the gift Ext. I would enure not to the donee 2nd defendant alone but to the thavazhi composed of herself and descendants in the female line how low so ever. " I have, therefore no hesitation in holding that the taluk Land Board was in error in concluding that the properties obtained under the gift deed and the will from the maternal uncles of the revision petitioner were for the benefit of the revision petitioner individually merely for the reason that the gift and bequest apparently were in her name. The real test is as to whether a contrary intention to demolish the presumption that when a marumakkathayi makes a gift of bequest in favour of a niece it enures to the benefit of her thavazhi, not to her exclusively, is contained either in express terms or by necessary implication in the deeds of gift and bequest. In order to enable the Taluk Land Board to decide this point on a careful consideration of the recitals in those documents, I set aside the impugned order, and direct the taluk Land Board to consider the question afresh after giving reasonable opportunity to the revision petitioner to state and prove her case.
(3.) THE counsel for the revision petitioner further submitted that the Taluk Land Board was not justified in not treating the properties as private forests, inasmuch as there is reference to permission under S. 3 of the Madras Preservation of Private Forests Act having been obtained from the Collector in the gift deed executed by Madhava Menon in the year 1958. This aspect of the matter also will be considered and appropriate orders passed by the Taluk Land Board. For the foregoing reasons the revision is allowed, the impugned order is set aside, and the matter is remanded to the Taluk Land Board for fresh disposal according to law and in the light of the observations contained herein, after recording a proper finding on the following questions: (1) Whether it was the intention of the donor or the testator to convey the properties involved, exclusively to the revision petitioner contrary to the presumption that it is for the benefit of the revision petitioner's tavazhi that the uncles made the gift or the bequest? (2) Whether the properties involved, to any extent, were of the category of private forest as on 211970?.;