Rajamannar, C.J. - (1.) The substantial question in these two appeals relates to the construction of a will dated 12-12-1922 executed by one Pottichi Kolanthan. On the date of the will, his wife, Ayeessa, and the seven children born of her were alive. The material clause of the will for the purpose of these appeals is Clause 3 which runs as follows : "Subsequent to my death (1) Abupaker, (2) Ameena, (3) Mammad, (4) Pathumma, (5) Ummar, (6) Alikkunhi and (7) Assan, children born to me in Ayikkarekath Pudiya Purayil Ayeessa of Taliparamba nagaram and the male and female children now bom and may be bom in future to the females among them should hold the properties mentioned in the schedule in their possession as tavazhi property with joint rights and enjoy the same as I am enjoying, with right, liberty and authority to effect alienation or transfer, but, each of them should not individually saddle the properties with debts or alienate the same."
(2.) The appellants contend that under this clause, the bequest is to the tavazhi consisting of Ayeessa and her male and female children and the male and female children that may be bom in future to the females among them. The contention of the respondent, on the other hand, is that the bequest is to the seven named children of the testator who took the property bequeathed as tenants in common. Several decisions have been cited to us in which documents of gift and wills have been construed. But ultimately the decision of this case depends entirely on the language of Clause 3 of the will cited above.
(3.) It is now well established that apart from any presumption laid down by Section 48, Marumakathayam Act, which will not apply to this case, a person can make a gift or bequest in favour of persons constituting a tavazhi and that the property bequeathed to them will be taken by them and enjoyed as tavazhi property. The donees or the legatees are not constituted members of a tavazhi because of the gift or the bequest. The gift or bequest is made to members who actually constitute a tavazhi.;