Decided on March 12,1953



Govinda Menon, J. - (1.) The learned Judge Krishnaswami Nayudu J. in his order of reference to a Bench, has detailed with sufficient particularity the facts of the case which need not again be restated now. As stated by him, the point for consideration is whether the gift contained by Ex. D. 1 dated 3-1-1898 enures for the tavazhi constituted by Tala, her children and their descendants in the female line, or whether it is only for Tala and her two daughters mentioned in the deed. It is now settled law that if a gift is made to an entity which constitutes a tavazhi as such, then the presumption is that the donor intends that the gift should have all the incidents of tarwad property attached to it. On a construction of Ex. D. 1 we are satisfied that the gift was intended to the tavazhi as such and not to any individual donee. Though the document starts by stating that the gift deed is in favour of Tala, in the operative portion there is clear indication that it was to Tala and her 'santanams' for the words used are "I have gifted to you and your 'santanams' the schedule mentioned properties, etc". Thereafter there is another provision which says that "you and your 'santanams' shall enjoy for ever in jenm the properties as I have enjoyed". The last sentence in the document which states that the 'santanams' at present are the girls Lakshmi and Kalyani, makes it clear that it was intended to be given to a group. Had it not been for the fact that the intention was to make the group as such the donee, there would have been no necessity to state that the 'santanams' at present are the girls Lakshmi and Kalyani. The donor certainly visualises a future in which there would be other 'santanams' who would also be members of the group and it could not have been his intention that such future members of the tavazhi are to be excluded from the enjoyment of these properties. Such being the case, it seems to us that the gift was to a tavazhi as such, for it is nobody's case that at the time the gift was made there were any persons other than Tala and her two daughters who constituted the Tavazhi.
(2.) Mr. Achuthan Nambiar for the appellants relies upon certain observations contained in a recent decision in -- 'Thathamma v. Thankappa', AIR 1947 Mad 137 at p. 145 (A), where Somayya J. makes the following observations : "We have no hesitation in saying that the whole question must be reviewed when the question directly arises for decision and is not covered by Section 48, Marumakattayam Act. A reasonable solution is to hold that except in cases governed by Section 48 of the Act, there is no presumption that the donees do not get absolute rights." With all deference to the learned Judges this is not stating Marumakattayam law as it is. Though the basis of the decision in -- 'Kunhacha Umma v. Kuttimammi Hajee', 16 Mad 201 (F. B) (B), is the judgment of the Judicial Committee in -' Sreemutty Soorjeemoney Dassee v. Denobundoo Mullick', 6 Moo Ind App. 526 (PC) (C) and -- 'Mahomed Shumsool v. Shewukram, 2 Ind App 7 (PC) (D) still, ever since the decision of the Full Bench in --'Chakkara Kanna v. Kunhi Pocker', AIR 1916 Mad 391 (FB) (E), it has been the recognised rule of law that where a person governed by the Marumakkattayam law makes a gift, or purchases property in the name of his wife and children, or children alone, then the presumption is that the donees take the property with all the incidents of Marumakattayam property. We do not think that decisions subsequent to the Full Bench have in any way made inroads upon that proposition. We have to take it that apart from Section 48, Madras Marumakattayam Act, the presumption has been correctly stated by the Full Bench in -- "AIR 1916 Mad 391 (FB) (E)". That being the case, there can be no doubt whatever that the donees in the present case take the gifted property with all the incidents of tarwad property.
(3.) But it is argued that the presumption can apply only in cases where the gift is made by a husband or a father to the wife or children and not where an uncle or a brother makes a gift to his niece and her children or to his sister and her children. In -- 'AIR 1916 Mad 391 (FB) (E), Sankaran Nair J. in his order of reference states how tavazhi properties come into existence. The learned Judge says: "Tavazhi literally means, 'tayar' mother, and 'vazhi', line, that is mother's line. Very often a woman & her descendants live apart from the tarwad house in a house of their own with properties belonging exclusively to their branch, the senior member amongst them having all the rights and obligations of the Karnavan of an ordinary tarwad. Such a branch or tavazhi is constituted or created by gifts from the father of the woman or by gifts from a favourite brother or maternal uncle, or, it may be, by the self-acquisition of any member of that branch which he would often reserve for the sole benefit of the members of his branch." At p. 400 of the report Srinivasa Ayyangar J. also makes observations regarding the origin and genesis of tavazhi properties. The learned Judge says: "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. The husbands of the female members and the children of the male members of a tarwad are not members of the tarwad. It is not uncommon for them to make gifts of properties to their wives, daughters or sisters and their children, and such properties are called Puthravakasam properties.";

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.