1. These two appeals arise out of a suit for partition of an ezhava tarwad. A. S. No. 251 of 1955 is by defendant 7 and a. S. No. 276 of 1955 by defendant 3. The tarwad in question consists of plaintiffs 1 to 6 and defendants 1 to 14. Defendant 1 is the common ancestress and defendant 2, Who is her son, Is the karanavan. Defendants 3 to 6 are defendant 2's brothers and the other sons of defendant 1. Plaintiff 1 and defendant 7 are defendant 1's daughters, And plaintiffs 2 to 6 are plaintiff 1's children. Besides plaintiff 1 and defendant 7, Defendant 1 had another daughter, Parvathi by name, Who is now dead. Defendants 8 to 14 are the descendants in the female line of parvathi and defendant 7. Plaint a schedule properties are said to be properties belonging to the tarwad in jenmom right and plaint b schedule properties are properties over which the tarwad has mortgage rights. C schedule items are said to be outstanding on mortgages etc. Executed by members of the tarwad, And d schedule items are movables, Decrees etc. Belonging to the tarwad.

2. Plaintiffs claim that all the immovable properties included in plaint a, B and c schedules, Other than a schedule items 19 and 20, Which are the same as items 9 and 10 in c, Schedule ii, Are properties obtained by their tarwad under a will, Ext b executed in favour of defendants 1 to 7, Plaintiff 1 and parvathi on 17 - 5 - 1094 by the deceased adichan raman who was the first husband of defendant 1 and the father of defendants 2 to 7, Plaintiff 1 and parvathi. Defendant 1's mother was married twice, And one ayyappan kumaran was her second husband. She had two children by ayyappan kumaran, But both of them and ayyappan kumaran are now dead. Before his death ayyappan kumaran had executed a gift deed, Ext. 1 in favour of defendant 1 on 18 - 11 - 1100 conveying to her a schedule items 19 and 20. According to the plaintiff, This gift deed enures to the benefit of defendant 1's thavazhi which is the tarawad sought to be partitioned in this suit, And so a schedule items 19 and 20 also belong to the tarawad and are partible. Treating a schedule items 19 and 20 as belonging to her exclusively defendant 1 had executed a gift deed, Ext. Ii for those properties in favour of defendant 7 on 26 - 3 - 1123. Plaintiffs claimed the partition on the basis that this gift deed and certain other alienations in respect of some of the plaint properties made by other members of the tarawad were invalid and not binding on them. The ground on which plaintiffs impugned the validity of ext. Ii and the other alienations was that they had been executed on the footing that the properties belonged only to defendants 1 to 7, Plaintiff 1 and parvathi and without the junction of all the major members of the tarwad, And without proper tarawad necessity and consideration.

3. Defendants 1 and 3 contended that the bequest under ext. B was solely for defendants 1 to 7, Plaintiff 1 and parvathi and the other members of the tarawad had obtained no rights to the properties comprised in the will and that the said properties were not therefore partible and the alienations impugned by the plaintiffs were valid and not liable to be set abide. The lower court repelled these contentions, And upholding the plaintiffs' case passed a preliminary decree for partition of plaint a, B and c schedule items as prayed for by the plaintiffs. Defendants 3 and 7 have therefore filed this appeal.

4. Only two points were urged by the learned advocate for the appellants in the two appeals. One of those points was common to both the appellants viz., That the bequest under ext. B will was solely for defendants 1 to 7, Plaintiff 1 and parvathi, And the other members of the tarawad had not obtained any right to the properties under the said will and so they were not partible and plaintiffs had no right to impugn the validity of the alienations in respect of them. The other point was raised only by the appellant in a. S. 251 of 1955, Viz., Defendant 7, And that was that the gift under ext. Ii was solely for defendant 1, And other members of the tarawad had not obtained any right under the said gift deed and that a schedule items 19 and 20 were not therefore partible or ext. Ii liable to be set aside.

5. Plaintiffs also have filed a memorandum of objections. That relates to mesne profits disallowed to them for the period between the date of suit and 15 - 3 - 1952 and the lower court's omissions to give any direction in its decree regarding certain decrees and amounts included in plaint d schedule as belonging to the tarawad.

6. Property which a husband or father gives to his wife and children following the marumakkathayam system of inheritance, Or to any or some of them, Is known in travancore as the makkathayam property of the donee or donees as the case may be; and it is well settled that before the right to separate ownership and individual partition was conferred by legislation such makkathayam property was taken not merely by the donee or donees mentioned in the instrument of gift or bequest but by their thavazhi as a whole in the absence of evidence of a contrary intention on the part of the person making the gift or bequest. In the case of such gifts and bequests, When there was no evidence of a contrary intention on the part of the donor or the testator, The thavazhi of the donee or donees took the gift as their sub - tarawad property with all the incidents of tarawad property. In the case of the nairs the right to separate ownership and individual partition was conferred by the travancore nair act and in the case of ezhavas that right was conferred by the travancore ezhava act which came into force on 1 - 1 - 1101. S. 32 of the travancore ezhava act provides that makkathayam property acquired after the date of the act shall be liable to be divided among the wife and each of the children in equal shares except where a contrary intention is expressed in the instrument of gift or bequest. This section applies only to makkathayam properties acquired after the date of the act. So far as the makkathayam property obtained before the date of the act is concerned, The old rule of marumakkathayam law applies. The ordinary presumption therefore in the case of makkathayam property acquired before the act is that it belongs to the thavazhi of the donees as a whole and is taken by the thavazhi as their sub - tarawad property and it is for the person alleging that the property was obtained by the wife and children as tenants - in - common and the other members of the thavazhi had no right to it to prove that it was with such intention that the donor or testator gave the property. In the absence of any evidence as regards the donor's intention it has to be presumed that makkathayam property obtained before the date of the act was obtained as the sub - tarawad property of the thavazhi of the wife and children and is partible among all the members of their thavazhi. These principles were accepted by the travancore - cochin high court in padmanabhan nair v. Kalliani amma (1950 t. C. L. R. 449) wherein it was pointed out after referring to decided cases that from very early times courts in travancore have treated property acquired by gift from the father or husband as the subtarawad property of the donees and their thavazhi. The parties to that case were nairs, But the law was

held to be same in the case of marumakkathayee ezhavas also in kunju kunju v. Padmanabhan (8 d. L. R. T - c 501) and kunjukrishna panicker v. Krishna paniker (i. L. R 1956 t - c. 41). Following these cases we hold that the makkathayam properties obtained by a marumakkathayee ezhava female and her children before the date of the travancore ezhava act of 1100 has in the absence of evidence of a contrary intention on the part of the person making the gift or bequest, To be treated as the sub - tarawad property of the thavazhi of the donees as a whole with all the incidents of tarawad property attached to it.

7. Ext. B, Being a will executed by a father in favour of his wife and children before the date of the ezhava act the above rule would apply to the properties bequeathed thereby. There is absolutely no evidence in this case to show that when he made the bequest adichan raman had the intention to confine the benefit of the bequest to his wife and children alone and that they should take it as tenants - in - common to the exclusion of the other members of the thavazhi. In respect of some of the properties comprised in ext. B adichan raman had executed an earlier will, Ext. A on 4 - 1 - 1096 in favour of defendants 1 to 7, Plaintiff 1 and parvathi and the children who might be born to him and defendant 1 in the future. On the strength of the provision in ext. A that the bequest thereunder was also for the benefit of his children to be born in the future, It was contended by the appellants' counsel that the omission to make such a provision in ext. B would indicate an intention on the part of adichan raman that the bequest under ext. B was for defendants i to 7, Plaintiff 1 and parvathi alone and not for the thavazhi as a whole. We do not consider that this omission would constitute sufficient proof of a 'contrary intention' on the part of the testator so as to nullify the ordinary presumption under the marumakkathayam law. Ext. B, Was executed more than three years after ext. A and it is quite possible that by the time of ext. B adichan raman thought that he would have no more children and therefore executed ext. B without mentioning anything about children who might be born to him in future. It is only in the event of the donor having an intention to take the gift out of the operation of the ordinary rule of law that he needs say anything as to whom the gift is intended for. When he has not said anything to reveal his intention and has merely mentioned his wife and children as donees he must be presumed to have made the gift with the consequences attaching to such a gift under the ordinary rules of law. The lower court was therefore right in holding that the properties bequeathed by ext. B belong to the plaintiffs' tarwad and are partible

8. The same principles apply to ext. I also. Although ext. I is not a gift by a husband or father, It is a gift to a marumakkathayee woman by one of her near relatives and the presumption in such cases would be, As pointed out in chakkrakannun v. Kunhi pokker (i l. R. 39 mad. 317), That the property comprised in the gift is to be held and enjoyed in the way property is customarily held and enjoyed under the marumakkathayam law which was the system of inheritance followed by both the donor and the donee. This presumption has been applied by the travancore high court and also by the travancore - cochin high court to cases of gifts by near relatives such as mother, Brother, Maternal and paternal uncles etc. (vide 26 t. L. R. 11 f. B; 27 t. L. R. 86; 21 t. L. J. 958; 22 t. L. R. 239; and i. L. R. 1956 t. C. 47), And on principle we see no difference between such gifts and a gift by a step - father. As in the case of ext. B there is no evidence of a contrary intention in the case of ext. I also, We therefore hold that ext. I gift also was obtained by defendant 1's thavazhi as their sub - tarwad property and that a schedule items 19 and 20 are consequently partible.

9. For the reasons stated above both appeals fail and have to be dismissed.

10. In the memorandum of objections the plaintiffs urge that the lower court was wrong in not directing an accounting of the profits of the properties from the date of the plaint. Under the ezhava act the plaintiffs were not entitled to claim partition without the consent of defendant 1 who is the common ancestress, And they obtained her consent only on 15 - 3 - 1952. The lower court has directed accounting of the profits of the properties from this date. It was contended by the plaintiffs' counsel that if no mesne profits can be awarded for the period prior to 15 - 3 - 1952, Plaintiffs can be awarded at least maintenance from the date of plaint. But in the memorandum of objections there is no claim for payment of maintenance, And no court fee also has been paid for the claim. However since a receiver was appointed for some of the plaint properties even before 15 - 3 - 1952 and he has taken the profits of certain properties and also deposited some amounts in court, We consider it just and equitable to direct that all amounts realised by the receiver also should be taken into account as assets available for partition, And that such assets also should be partitioned.

11. The second point urged by the plaintiffs is that the lower court has left out of account the decrees included in d schedule movables. The lower court does not seem to have adverted at all to the claim in respect of the decrees. We would therefore direct the lower court to consider the contentions of the parties in regard to the decrees mentioned in plaint d schedule and provide in the final decree for partition of the rights in respect of such decrees as may be found to belong to the tarawad.

12. In the result a. S. No. 251 of 1955 and a. S. No. 276 of 1955 fail and are dismissed with costs to the plaintiffs - respondents. The memorandum of cross objections filed by the plaintiffs is allowed without costs to the extent indicated in para. 10 and 11 above, And the lower court's decree is confirmed subject to the directions given in the said paragraphs.

dismissed.