Decided on November 25,1974

Smt. Seetha And Ors. Appellant
Kayiyath Krishnan And Ors. Respondents


- (1.) The question arising for decision in this case is whether under the customary maru-makkathayam law which obtained in the Malabar area prior to the passing of the Madras Marumakkathayam Act there is a presumption that in the case of a gift, bequest or acquisition made by a person in the sole name of his marumakkathayee wife or in the joint names of the wife and one or more of her children to the exclusion of some others the benefit of such transaction is to enure to the tava-zhi consisting of the wife and all her children together with the lineal descendants in the female line. This case has been referred to a Full Bench because of an apparent conflict between the views expressed on the said question in two Division Bench rulings of this court. In Prabhakara Menon v. Gopala Menon, 1960 Ker LJ 161, a Division Bench consisting of M. S, Menon, J. (as he then was) and T. K. Joseph, J., while dealing with a case from the Malabar area observed that "in the case of gifts by a Nair husband or father to his wife or children or to the wife and some children the courts in Travancore and Madras have been taking the view that the gift would enure to the tavazhi. In Lekshmi Amma v. Anandan Nambiyar, 1973 Ker LT 753 = (AIR 1974 Ker 82) which was also a case from Malabar, a Division Bench consisting of our learned brothers Gopalan Nambiyar and Viswanatha Iyer, JJ., after referring to the earlier case-law on the subject including the decision in 1960 Ker LJ 161, observed as follow:-- "Prior to the Marumakkathayam Act, the position under the customary marumakkathayam law was, that a presumption of the thavazhi nature of the gift or bequest or acquisition would be raised only if the same was in favour, or in the name/names, of the wife and all the children, or of all the children alone, who by themselves constitute a tavazhi, A gift, bequest or acquisition in the name or names of the wife alone, or of the wife and one or more of the children alone to the exclusion of the others, would not give rise to such a presumption". Strictly speaking, the question whether any presumption as to the tavazhi nature of the acquisition arises where the gift, bequest or acquisition was in the name of the wife alone had not arisen in either of the aforementioned cases and the observations made by the two Division Benches on the said question are only in the nature of obiter dicta. In 1960 Ker LJ 161, the question that arose for decision was whether an acquisition made in the joint names of the wife and her adult children with funds provided by the husband should be presumed to be one in favour of the tavazhi consisting of the wife and all her children and descendants in the female line. Although the names of two minor children had not been included in the document of acquisition, the court found that the said omission was immaterial since by a subsequent document those minor children were also recognised as having rights in the properties and that the original acquisition itself had, therefore, to be treated as one by the mother and all the children with funds provided by the father. In view of the said finding there was really no necessity at all for the court to consider the question as to whether there is any scope for drawing a presumption regarding the nature of the acquisition in cases where the document evidencing the transaction is in the name of the wife alone or in the joint names of the wife and some alone of the children. Likewise, in 1973 Ker LT 753 = (AIR 1974 Ker 82), also the Division Bench was dealing with the case of a gift made by a person in 1902 in favour of his marumakkathayee vyife and all their children then existing. However, inasmuch as the two Division Benches have made some observations indicating divergent views on the above question, it was considered desirable to have an authoritative pronouncement on the question and hence this case has been placed before this Full Bench by the learned Judges before whom it first came up for hearing.
(2.) Before entering on a discussion of the question of law raised in the case it is necessary to set out in brief the facts of the case in so far as they are relevant for our present purpose. This second appeal arises out of a suit for partition filed by the 1st respondent herein in the Mun-siff's Court, Kozhikode as O. S. No. 125 of 1965 of that court. The appellants before us are defendants Nos. 4, 6, 8, 16 and 17. The plaintiff and defendants Nos. 2 to 8 are the children of the deceased 1st defendant by her husband Kayivath Mannan. Defendants 14 and 15 are the children of one Kanakamma, a deceased daughter of the 1st defendant. The 15th defendant died pending the suit and her two minor children were brought on record as her legal representatives. They are defendants Nos. 16 and 17. The parties belong to the Thiyya community of North Malabar following the marumakkathayam law.
(3.) The immovable property described in the plaint A Schedule was acquired in the name of the 1st defendant as per the sale deed Ext. A-1 dated 24th October, 1923 with funds supplied by her husband Mannan. The case of the plain-tiff is that the plaint property belongs to the Puthravakasam tavazhi consisting of the 1st defendant and all her descendants in the female line and it is on the said basis that the plaintiff has claimed the relief of partition. The appellants herein who were the contesting defendants before the trial Court put forward the plea that the plaint A Schedule property belonged exclusively to the 1st defendant, that it had never been enjoyed or dealt with as tavazhi property and that the 1st defendant who died pending the suit has left a will bequeathing the properties in favour of defendants 4, 6 and 8 and hence the plaintiff has no right whatever to claim a partition of the suit items.;

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