1. The plaintiff is the appellant. The suit was one for partition on the averment that the plaint schedule property belonged to the thavazhy consisting of the plaintiff and his mother. The parties are Muslims of North Malabar governed by Marumakkathayam law. One Achumma had four children, Mammu. Moosa, Beechumma and Mariyumma. The plaintiff is the son of Mariyumma. Defendants 2 to 4 are the children of Beechumma. Defendants 5 to 9 are the children of Moosa who is no more. Mammu is the first defendant. The plaint schedule properties were gifted under Ext. A1 dt. 9-9-1940 in favour of Achumma and her four children by the wife and children of the brother of the husband of Achumma. There was an earlier suit for partition O.S 26 of 1975 on the file of the Subordinate Judge's Court of Tellicherry filed by Mammu impleading his sisters Beechumma and Mariyumma and the legal representatives of Moosa. It must be noted that the plaintiff herein, the son of Mariyumma was not a party to that suit. That suit proceeded on the basis that the properties obtained by Achumma and her children under Ext. A1 were taken by the donees as co-ownership properties and that Achumma having died the four children of Achumma took a share each in the properties. In fact it was endorsed in the plaint in that case that a preliminary decree for partition may be passed dividing the plaint schedule property into 30 equal shares and allotting to Mammu 8 out of those shares, defendants 1 and 3 to 7 therein together 15 out of 30 shares and to the 2nd defendant therein, the mother of the present plaintiff 7 out of 30 shares. There was also a final decree in that suit by which the plaint schedule property which was essentially the building and the appurtenant land was allotted to defendants 1 and 3 to 7 herein, namely Beechumma and her children. It was also provided therein that the allottees of the property should pay a sum of Rs. 12,045.40 to Mammu the plaintiff therein towards owelty and to the second defendant therein Mariyumma, the mother of the plaintiff in the present suit Rs. 11,884.40 as owelty. Mammu received the amount directed to be paid to him as oweliy and agreed to a satisfaction of the decree being recorded. And that was done. As far as the second defendant therein was concerned the execution was taken for evicting her from the house which had been allotted to Beechumma and her children in that earlier partition decree. It is at that stage that the present plaintiff came forward with the present suit for partition on the averment that the plaint schedule property is a property which enures to the thavazhi of Achumma and her children including himself and that he is therefore entitled to a share on his own in the plaint schedule property. According to him since he was not a party to the earlier decree which proceeded as if the four children of Achumma were co-owners, the said decree would not bind him and he is therefore entitled to seek a fresh partition of the property on the basis that it is thavazhi property. It was contended by the defendants in the suit especially by Beechumma and her children that the acquisition under Ext. A1 in favour of Achumma and her four children did not enure to the thavazhi and that the property was never treated as thavazhy property. According to the contesting defendants the property was merely a co-ownership property and the plaintiff had no right over it so as to enable him to enforce a partition. The only evidence adduced at the trial was the production of Ext. A1 the gift deed executed by the wife and children of the brother of the husband of Achumma. The court below interpreted the said document to hold that the allotment therein was not in favour of a thavazhi but the property belonged to the donees mentioned in the document Ext. A1 and that therefore the present plaintiff is not entitled to claim any share. The trial court therefore dismissed the suit. The plaintiff has come up with this appeal.

2. Even at the outset the learned counsel for the respondents submits that there is absolutely no bonafides in the present suit. According to him, the mother of the plaintiff has been allotted a share in the property on the basis that she is one of the co-owners and even if the claim of the plaintiff is upheld the share that the plaintiff and his mother together would get would not exceed what was allotted to the mother in the earlier partition. It is also pointed out that the only attempt of the present plaintiff is to prolong the execution of the prior decree and his eviction from the building in the plaint schedule property which had been allotted to Beechumma and her children in the earlier partition decree. It is also pointed out that Mammu, the plaintiff in that case, had already received the owelty amount payable to him by the final decree and that it is not just or proper to entertain the claim made by the present plaintiff in this suit or in this appeal as the present, suit is motivated by malafides and with the intention to cling on to the property inspite of the earlier final decree which has become final. The learned counsel for the appellant on the other hand submitted that if on a construction of Ext. A1 it is found that the gift thereunder enures to thavazhi then notwithstanding the so called motive the earlier decree would not bind the present plaintiff as he was not a party there to and that therefore he cannot be held disentitled to claim his share in the plaint schedule property.

3. The question therefore that has to be considered is whether the gift under Ext. A1 to Achumma and to her four children enures to the thavazhy of Achumma or is taken by Achumma and, her children as co-owners. As noticed already the parties are marumakkathayies. The gift was obtained from the wife and children of the husband's brother. It is submitted by the learned counsel for the appellant that the gift Ext. A1 being in favour of a marumakkathayee female and to all her children, should be considered to be one enuring to the benefit of the thavazhy of Achumma. For that proposition the learned counsel relies on the decision reported in Seetha v. Krishnan (1975 K.L.T 156). On the other hand according to the learned counsel for the respondents the gift could not be treated as enuring to the thavazhi for two reasons. Firstly, according to him the language of the documents makes it clear that, the gift was in favour of the persons named therein, and was not intended to enure to the thavazhi as can be seen from the absence of usual words in any gift made by a marumakkathayee in favour of a female's thavazhi. Secondly, according to the learned counsel for the respondents, all the members of the thavazhy then existing were not the donees under the thavazhi in that the children through Beechumme who were then available were not the donees, under Ext. A1 He particularly points to the fact that the fourth defendant in the present suit the daughter of Beechumma whose age is shown as 45 even in the plaint should have certainly been alive at the time of Ext. A1 gift deed and it is clear from Ext. A1 that she was not one of the donees mentioned therein. According to the learned counsel for the respondents therefore the fact that a member of the thavazhi was left out in making the gift would make it a gift in favour of a truncated thavazhi and it has always been understood that such a gift is taken by the donees named therein as their property and is not treated as thavazhi properties. The learned counsel for the respondent also relies on the decision reported in 1975 K.L.T 156 in support of the proposition. He also brings to may notice the decision reported in Yesodha v. Sankunni (1984 K.L.T SN 57) Case No. 98).

4. Dealing with the first aspect What is emphasised by the learned counsel for the respondents is that what is stated in the document is that the donees therein are to hold and enjoy the property as joint owners According to the learned counsel fot the respondents the parties being marumakathayees if it was intended that the gift should enure to the thavazhi of Achumma it shciuld have been normal to use the words and not to use the words There is some difficulty in accepting this argument of the learned counsel for the respondents. The words according to me cannot exclude the concept of a gift being in favour of the thavazhi because the thavazhi would also be holding the property in joint rights. It is no doubt true that there is no specific words in the document that the property is to be enjoyed by the donees as a thavazhi. The omission however may not really matter if on the basis of the settled law it is possible hold that a gift in favour of a marumakathayee female and all her children would enure to the thavazhi of that female.

5. Therefore the real question that falls for decision in this case would be what is the effect of a gift that is made to a marumakathayee female and to all her children leaving out only a grand-daughter through a daughter. The only argument of the learned counsel for the respondents is that the gift must be in favour of an entity and it is in that view that it had been said that a gift in favour of a marumakathayee female and all her children or in favour of a set of persons who by themselves form into a natural group enures to the thavazhi. Here according to the learned counsel one of the grand children namely the daughter of Beechumma had been left out at the time of execution of Ext. A1 and that would clearly show that the gift was not in favour of a natural group. According to him it cannot also be said that the gift is in favour of all the members of an existing thavazhi. In short his contention is that when the decisions say that gift to a marumakathayee female and all her children would enure to the thavazhi, the expression ‘children’ therein would necessarily take in the grand children through the female line also and that unless all of them are included in the gift it cannot be presumed that the gift was in favour of a thavazhi. The question therefore is whether by the exclusion of a grand child in the female line while making a gift to a marumakathayee female and all her children, it could be faid that the presumption recognised by the Full Bench of this court in the decision reported on 1975 K.L.T 156 can be excluded.

6. I was not shown any direct authority on such a problem. According to the learned connsel for the respondent the paucity of authority may be because it had never been doubted that unless all the members of a thavazhi are included in the gift it cannot be presumed to be made to a thavazhi. But it has been clearly laid down by the Full Bench in the decision reported in 1975 K.L.T 156 that a gift made to a marumakathayee female and all her existiag children would fee presumed to be for the thavazhi. The Full Bench has not indicated that the omission of grand children through the female line would in anyway affect the presumption. On the other hand the emphasis has been on the non - omission of any one of the children of the marumakathayee female. According to me what is gatherable from the decision of the Full Bench in 1975 K.L.T 156 is that the presumption is rebuted only if one of the children is left out and not when one of the grand children is left out. I am not in a position to agree with the learned counsel for the respondents that in every case of a gift in favour of a marumakathayee female and all her children then existing the omission to include a grand child in the female line would exclude the presumption that the gift enures to the thavazhi.

7. It was not argued before me that the gift having been obtained from the relatives of the husband would be ‘puthravakasom property’ presumably because the gift in question was made prior to the introduction of Sec. 48 of Madras Marumakathayam Act.

8. The gift Ext. A1 as noticed by me already is in favour of Achumma and all her children and therefore according to me going by the ratio of the decision reported in 1975 K.L.T 156 the gift enures to the thavazhi. If that be so the earlier decree for partition in C.S 26 of 1975 cannot bind the appellant who was not impleaded in that suit. If that be so the dismissal of the suit by the trial court cannot be justified. The plaintiff would be entitled to claim a share in the property.

9. There could also be another approach to the question. Even though the name of one grand child was omitted from Ext. A1 it could be presumed from the circumstances that the intention was to benefit the thavazhy notwithstanding the omission of the name of the grand child also a donee. In fact that was what was done in the decision reported in Prabhakara Menon v. Gopalakrishna Menon (1960 K.L.J 161). In the Full Bench decision reported in 1975 K.L.T 156 referred to earlier such a possibility of presuming that notwithstanding the omission of a grand child or a minor child the presumption could still be drawn was recognised. In fact the Full Bench thought that in the light of the inference drawn by the Division Bench there was really no necessity for the Division Bench to consider the question as to whether there was any scope for drawing a presumption regarding the nature of the acquisition in cases where the document evidencing the transaction was in the name of the wife alone or in the joint name of the wife alone or in the joint names of the wife and some alone of the children. In this case obviously the gift has been made to a marumakathayee female and all her children and they were to take the property in joint rights and even though a grand child had been omitted while describing the donees it could still be presumed that the intention was to benefit the thavazhy of the mother in view of the junction of the mother and all her children in the gift deed.

10. The submission regarding the absence of bonafides on the part of the plaintiff, may have some substance. But I do not think that can in any way affect the right of the present plaintiff to claim a partition on the basis that he is also entitled to a share in the property as a member of the thavazhi.

11. The plaintiff - appellant is therefore entitled to a decree for partition of the plaint schedule properties. He would be entitled to one out of 8 shares in the plaint schedule property.

12. It is also necessary to make some equitable directions regarding the actual partition that has to be effected. Though the plaintiff himself was not a party it is clear from the earlier final decree passed that the property cannot be divided by metes and bounds. The position therefore is that it is liable to be allotted to the major sharers, the children of Beechumma. If that be so in the final decree that is to be passed the plaintiff would to be paid only owelty towards the share that is due to him. Therefore as a matter of equity I direct that the plaint schedule property will be allotted to the share of defendants 2 to 4 who between them are entitled to the major shares in the property. In the result the appeal is allowed and a preliminary decree is passed allotting the plaintiff a ⅛ share in the suit property. The share of the plaintiff and any other defendants who may be claiming a share by paying the court fee would be met by directing defendants 2 to 4 to pay owelty towards the share due to those sharers. In the circumstances of the case I direct the parties to suffer their respective costs, in both the courts.