1. I have had the advantage of perusing the judgment which my brother is about to deliver, and as I entirely agree with it, no useful purpose would be served by my going over the same ground twice. I have considered very carefully the Full Bench decisions in Kunhacha Umma v. Kutti Mammi Hajee 16 M. 201; 2 M.L.J. 226 and Chakkara Kannan v. Varayalankandi Kunhi Pokker 30 Ind. Cas. 755; 29 M.L.J. 481; (1915) M.W.N. 740; 18 M.L.T. 255 (F.B.) and I have come to the conclusion that the principles of construction they lay down do not compel me to treat Exhibit IV as being other than what it purports to be on the face of it, a devise of an absolute estate to the 1st defendant. Its language is to me quite inconsistent with its being intended as a putravakanam gift. The argument that the donee's position as manager of a tavazhi raises a presumption that the intention was to benefit the tavazhi, loses all its force from the fact that it is not contended that the gift was to the whole tavazhi of which he was the manager, but only to the sub-tavazhi constituted by the present appellants.

2. The other issues in the case raise questions of fact only and as we are concurring in the findings of the learned Subordinate Judge, I do not think it necessary to add anything to my brother's observations. The decree will be amended as set out in his judgment; and each party will bear their own costs throughout. The memorandum of objections is dismissed.

Srinivasa Aiyangar, J.

3. These are appeals against a decree of the Subordinate Judge of Palghat by which he declared that the 1st defendant was not the absolute owner of the suit properties, that the discharge of the kanom on them pleaded by him was not true or valid and that the sale by the 1st defendant in favour of the 19th defendant was not binding on the plaintiffs; he also gave the necessary consequential reliefs. Plaintiffs and defendants Nos. 1 to 6 and 8 to 12 are some of them the children others the grandchildren of the 7th defend ant and they constitute a sub-tavazhi. Defendants Nos. 13, 14 and 16 to 18 are some of them the children and others the grandchildren of the 15th defendant, the elder sister of the 7th defendant. Plaintiffs and defendants Nos. 1 to 18 constitute a tavazhi or a branch which, along with two other branches, forms a main tarwad. The suit properties originally belonged to the tarwad of one Panamballi Achan, the husband of the 7th defendant and the father of the 1st plaintiff and defendants Nos. 2 to 6; he granted a kanom on the suit properties for a sum of Rs. 3,000 on the 12th June 1887 to the tavazhi, Exhibit Ia; the Kanom-deed was, however, executed in the names of the first, second, third, fourth, fifth and the thirteenth defendants (the then existing male members of the tawazhi), who were all minors, and the 7th and 15th defendants. By that deed Panamballi Achan acknowledged receipt of Rs. 2,400 from the tavazhi and reserved a sum of Rs. 600 to be paid to one Krishnan Pattar, the previous mortgagee. The 1st defendant, who is the eldest male member of the family, attained majority in 1889 and from that time was in possession and management of the suit properties as karnavan or manager of the tavazhi. There was some question raised as to whether the 7th and 15th defendants were not the actual managers of the tavazhi, though the 1st defendant, the senior male, was the de jure manager. But the Exhibits B and C series conclusively show that the 1st defendant as the manager was in possession and management of the only immoveable property which the tavazhi possessed, namely, the kanom right in the suit properties under Exhibit Ia. It appears that in execution of a decree against the taru ad of Panamballi Achan, some of the properties belonging to that tarwad were brought to sale and purchased in the year 1893 by the 1st defendant. We have held in Appeal No. 132 of 1914 heard along with these appeals that the purchase was made with funds supplied by Panamballi Achan himself and that it enured for the benefit of the sub-tavazhi constituted by the wife and children of Panamballi Achan and not solely to the 1st defendant personally.

4. There were some disputes in the family of Panamballi Achan, in, consequence of which a suit was instituted against him which was finally compromised on the 19th March 1901 by which Panamballi Achan obtained the suit properties and some others as absolute owner, Exhibit 14. In paragraph 6 of that document, it is stated that Panamballi Achan shall have full rights of alienation in respect of the properties obtained by him and also that the remaining members of his family shall have no right whatsoever in them. The result of the transaction was the said Achan ceased to be the karnavan of his tarwad. It would appear that he was maintained by the 1st defendant during the time of the suit and before he obtained the above properties. On the 24th October 1901, the Achan executed a Will, Exhibit IV, by which he devised the bulk of the properties including the suit properties in favour of the 1st defendant, his eldest son. The first question for determination in this appeal is, whether the devise was to the 1st defendant personally or to him as the manager or representative of his sub-tavazhi. The Subordinate Judge has held that the devise was to the sub-tavazhi, but I am unable to agree with him.

5. The material portions of the Will are these:

"The properties described in the schedule are comprised in the properties which I obtained exclusively for myself from my tarwad with absolute rights of alienation. All the said properties shall on my death be taken possession of and enjoyed with absolute rights of alienation by Narayanan, son of myself, and Kaveri Amma; no other person shall have any right whatsoever to raise any objection or dispute regarding the said property adversely to the said Narayanan and the said Narayanan shall well and duly perform all my funeral ceremonies."

6. It was, no doubt, held in Kunhacha Umma v. Kutti Mammi Hajee 16 M. 201; 2 M.L.J. 226 which after being questioned has been confirmed in the recent Full Bench decision of this Court in Chakkara Kannan v. Kunhi Pokker 30 Ind. Cas. 755; 29 M.L.J. 481; (1915) M.W.N. 740; 18 M.L.T. 255 (F.B.), that a testator in Malabar giving property to his wife and children who are governed by the Marumakkattayam Law is presumed to give it to them as a tavazhi to be held with the incidents of tarwad property, and not to the donees individually as tenants-in-common. Such gifts are known as putravakasam gifts. The learned Pleader for the appellant contended that that presumption was applicable only to cases where the gift or devise was to all the then existing members of the tavazhi. The authority of the cases in this Court reported as Naku Amma v. Baghavan Menon 18 Ind. Cas. 1; 38 M. 79 and Kalliani Amma v. Govinda Menon 12 Ind. Cas. 492; 35 M. 649; 10 M.L.T. 399; 22 M.L.J. 23; (1911) 2 M.W.N. 487 is against this contention and in a case reported as Kozhi Thomma v. Narayanan Krishnan 22 Travancore Law Report 239 cited by the learned Pleader for the respondent it was held that a devise to the senior male member of a tavazhi, that is to the natural representative of the family, was to be presumed to be a putravakasam gift to the tavazhi, and not merely to the donee individually. But this presumption which, as I understand it, is based on the principle of construing the terms of a Will in the light of the surrounding circumstances, must not be used for the purpose of controlling and modifying the express words of a Will, but can only be used for the purpose of construing it. Though the fact of the 1st defendant being the manager of the tavazhi may lead to a presumption that the gift was intended for the benefit of the tavazhi of which he was the manager, it is impossible in this case to presume that the gift was in favour of the tavazhi constituted by the plaintiffs and defendants Nos. 1 to 18 of which the 1st defendant was the manager; for Panamballi Achan could have had no wish to benefit the children of his wife's sister. In fact, the contention of plaintiffs is that the gift was only to the sub-tavazhi and not to the whole tavazhi. Further, absolute powers of alienation are expressly given to the first defendant and unless it was intended to give the property to him personally it would be impossible for him to exercise that power. Mr. Ramachandra Aiyar, the learned Pleader for the respondents, contended that the powers of alienation expressly given merely indicate the nature or the quantum of the interest conferred on the family, the absolute interest in the property; and the 1st defendant as manager of the family would have power to alienate the family properties for the benefit of the family. But the very limited power of alienation which the 1st defendant as manager of the sub-tavazhi would have is not the power which is conferred on him by the Will. The decision in Kunhacha Umma v. Kutti Mammi Hajee (1) which is followed in the recent Full Bench case is itself based on the decisions of the Privy Council in Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick 6 M.I.A. 526; 19 E.R. 198; 4 W.R. 114; 1 Ind. Jur (N.S.) 37; 1 Boulr. Rep. 228; 1 Suth. P.C.J. 291; 1 Sar P.C.J. 583. and Mahomed Shumsool Hooda v. Shewukram A. 7; 22 W.R. 409; 14 B.L.R. 226, the latter of which is a case of a devise to a Hindu wife by her father-in-law, the Privy Council expressing its opinion that a gift simpliciter to a woman may be presumed to confer only a widow's estate as being more in accordance with the presumed wishes of the testator. Even in that case, the widow may have a limited power of alienation in the corpus of the property devised. But if an absolute power of alienation is conferred by the Will nobody has ever contended, even in the case of a devise by a Hindu husband to his wife, that the devisee did not take an absolute interest in the property but only took a widow's estate. The other terms of the Will set out above also show that the intention of the testator was to devise the property solely to the first defendant as his individual property and that the gift was not a putravakasam gift. That the testator was quite familiar with the distinction between a gift to an individual and to a tavazhi represented by that individual is also clear from Exhibit XVII, paragraph 7, a transaction brought about by the Achan himself. J, therefore, hold that the 1st defendant became the owner of the equity of redemption in the suit properties under the terms of Exhibit 4. I do not think it necessary to consider the various cases cited by the Pleaders on both sides, as they do not lay down any principle of law or rule of construction and they are of no use on the construction of the terms of this particular Will. I may, however, note that the same learned Judge came to different conclusions on the construction of two Wills couched in practically the same language [Vide Kalliani Amma v. Govinda Menon 12 Ind. Cas. 492; 35 M. 649; 10 M.L.T. 399; 22 M.L.J. 23; (1911) 2 M.W.N. 487 and Narasamma Hegadthi v. Billa Kesu Pujari 31 Ind. Cas. 543; 25 M.L.J. 637.]

7. The next question which arises for decision is, whether the 1st defendant has discharged the Kanom of 1887. His case is that he paid Rs. 1,500 to each of the 7th and 15th defendants, as each of the sub-branches were entitled to a half of the kanom amount and he relies on Exhibit I, the deed of surrender executed by the person in whose favour the original Kanom deed was executed. His story is, no doubt, supported by the 7th defendant who says that she received Rs. 1,500 from her son, the 1st defendant, but I agree with the Subordinate Judge that the story of payment is not true. The 1st defendant who as the karnavan or manager of the family was in possession of the suit properties as Kanomdar, was himself the owner of the equity of redemption and when he pleads that he has discharged his liability to the family by payment to two of its members there is a heavy burden on him to prove satisfactorily that he did, as a matter of fact, make the payment. He says that he paid Krishnam Pattar from his own earnings the sum of Its. 600 to be paid under Exhibit Ia. That is how he accounted for his possession and management of the suit properties when he tried to make out that the 7th and 15th defendants were in de facto management of the properties of the tavazhi. I have no doubt that this story was invented by the 1st defendant for the purpose of showing that, at the time of the Will, Exhibit 4, he was not the actual representative of the family and also for the purpose of pleading that the alleged payment by him of the kanom amount to the 7th and 15th defendants was a good discharge in law of his liability. This, of course, is not true. If, however, his story, namely, that he paid Rs. 600 out of his own earnings to redeem the previous mortgagee be true, the Kanom amount due to the family would be only Rs. 2,400 and not Rs. 3,000, and he would not have paid Rs. 1,500 each to the 7th and 15th defendants. His evidence suggests that he paid Rs. 1,500 to his mother at home and Rs. 1,500 at the Registrar's Office to the 15th defendant. The endorsement of the Registrar contradicts this story and shows that a sum of Rs. 1,500 was tendered for payment to the 7th and 15th defendants. It is further difficult to understand why he did not pay the whole sum before the Registrar. It is impossible again to understand why he split the sum into Rs. 1,500 each, though as admitted by the 7th defendant, there was no division between her branch and that of the 15th defendant. He is unable to account for his possession of Rs. 1,500, the sum alleged to have been paid to his mother and his story that he borrowed from the 19th defendant Rs. 1,500 (to make up the Rs. 3,000), is not supported by any reliable evidence. The Subordinate Judge has disbelieved that story and I agree with him. The 15th defendant has not gone to the box to depose to her having received the sum of Rs. 1,500 while the 7th defendant has not chosen to say as to what she did with the Rs. 1,500, which she is alleged to have received. Mr. Ramachandra Aiyar suggested that this kanom of Rs. 3,000 though said to belong to the tavazhi of the plaintiffs and defendants Nos. 1 to 18 was really a gift made by the Achan to his wife and children under the guise of a loan similar to gifts having been made by the 15th defendant's husband to her and her children. It appears from the evidence of P.W.N. 3 that the only properties which the tavazhi possessed was this kanom of Rs. 3,000 and two other sums of Rs. 1,200 and Rs. 1,000 due by the Manayil people and Ayyatturai Pattar, the sambandakkar of the 15th defendant. He also made the following statement which is significant:

"I cannot boldly say that the rent of the kanom of Panamballi people was not enjoyed by the 7th defendant and the income of the other two by the 15th defendants."

This statement was made in the cross-examination of the witness by the 1st defendant and one cannot help thinking that the suggestion of Mr. Ramachandra Aiyar is probably right, though it is not possible to act on it as if it was a fact proved by evidence in the case. But it is impossible to avoid the suspicion that the 1st defendant made no payment whatsoever either to the 7th or the 15th defendant of the kanom amount of Rs. 3,000, but that he has induced his mother (who and her children alone were interested in this amount) to admit a discharge, while the 15th defendant and her children were not in fact effected by this pretended payment. This makes it unnecessary to discuss the further question, namely, whether the 1st defendant could in law relieve himself of his liability by payment to the 7th and 15th defendants as alleged by him. The only person who ordinarily could give a discharge was the de jure manager of the family, who in the case happened to be the 1st defendant himself. He could have discharged himself of his liability by investing the money in some security on behalf of the family or by payment to all the members of the family. He is, I think, not entitled to pay to two of the members of the family, constituting them managers for the mere purpose of receiving the money and giving him a discharge. At any rate he being the person who as manager was entitled, in fact was bound, to deal with the money for the benefit of the family, he is, I think, bound to account for the application of the money. It is, however, unnecessary to express a final opinion on this point. But it is to be observed that the receipt of this Rs. 3,000 is acknowledged by all the persons in whose name the original kanom stood and if I had arrived at the conclusion that the 1st defendant had really and bona fide made the payment, I would have held that that was a valid discharge of his liability as that would be a payment to the persons who represented the family in the particular transaction.

8. The only remaining question is as to the right of the 19th to 23rd defendants, who claim to have purchased the suit properties from the 1st defendant under Exhibit 28, dated the 17th February 1911. Their case is that they purchased the suit properties for a sum of Rs. 6,500 from the 1st defendant free from all claims of the tavazhi as Kanomdars under Exhibit Ia; inasmuch as the 1st defendant was the owner of the equity of redemption under Exhibit 4 and as they bona fide paid full value believing the representations made that the kanom in favour of the family had been discharged, they were entitled to hold the properties against the plaintiffs. As regards their title to the equity of redemption, as I have found that the 1st defendant was absolute owner, they are entitled to it whether they paid consideration for it or not, that being a matter in which the plaintiffs have no concern. As regards their right to hold the property free of the claim of the tavazhi, I hold they have not proved that they had no notice of the subsisting claim of the family. I have disbelieved the story of the loan of Rs. 1,500 by the 19th defendant to the 1st defendant which is said to have formed part of the price. If the 19th defendant did not give the loan of Rs. 1,500, she or her agent must have been a party to this pretended discharge and could not possibly have believed that the right of the family came to an end it is unnecessary to discuss the question whether the balance of the price of Rs. 5,000 was paid to the 1st defendant or not.

9. I, therefore, hold that defendants Nos. 19 to 23 are bound to surrender the suit properties to 1st defendant on behalf of the tavazhi of the plaintiffs and defendants Nos. 1 to 18 as mortgagees entitled to hold possession till redeemed. Mr. Ananthakrishna Iyer, on behalf of the defendants Nos. 19 to 23, offered to pay the mortgage-money if we came to the conclusion that the mortgage was still subsisting under the circumstances and to avoid multiplicity of suits. I think cur order should be that defendants Nos. 19 to 23 should deposit the sum of Rs. 3,000 and the value of the improvements, if any, to which kanomdars may be entitled, within a time to be fixed after the ascertainment of the amount due to the kanomdars, the money so paid to be invested in immoveable property by the 1st defendant under the directions of the Court for the benefit of the tavazhi; in which case the plaintiffs' suit will be dismissed.

10. If the defendants Nos. 19 to 23 do not pay the amount ascertained to be due within the time fixed., the tavazhi of the plaintiffs and defendants Nos. 1 to 18 as mortgagees may recover possession of the suit properties from the defendants Nos. 19 to 23.

11. Under the circumstances each party must bear their costs in this and in the lower Court. The case will go back to the Court of the Subordinate Judge at Palghat to ascertain the amount of improvements, if any, and pass a final decree fixing the time of payment. Parties will be at liberty to adduce fresh evidence as to the improvements if any.

12. The memorandum of objections is dismissed.