Machikandi Parkum Ma... v. Varayalankandi Kuunh...

Sankaran Nair, J.:— The suit out of which this Second Appeal arises was brought by the plaintiff-appellant for partition and possession of the interest of the first defendant which he had purchased in execution of a money decree obtained by him. The second and third defendants are respectively the brother and nice of the first defendant, and they contend that the first defendant had no such interest in the property as could be attached and sold. Their case is that the property is held by them with the incidents of tarwad property. Both the lower Courts have dismissed the plaintiff's suit.

One Pakran made a gift of certain properties to his two-sons, the first and second defendants and a daughter Pathumma, whose daughter is the third defendant. The question for decision is whether they took the property as joint-tenants or tenants-in-common or whether they took it only as members of the tarwad, none of them having any interest liable to be attached and sold. The material portion of the instrument of gift runs thus: “I have settled by this that the properties…. and all dealings in my name and all moveables are to be enjoyed by me till my death according to my pleasure and after my death they are to belong to my children Ammadkutti (second defendant) Kunhi Pocker (first defendant) and Patbuumma (the mother of the third defendant) and that no one else has any right to my properties. Properties and dealings which I may acquire in future also are for the said children. After my death the abovementioned persons, who are my children, are to collect all outstandings due to me and arrears of rent and the assessment which was in my name has to be transferred in the names of my children and patta obtained and they are to hold the same in the same way I was holding them, paying the porappad due to the jenmies and getting renewals in their names.” Now there can be scarcely any doubt that, if we look, to the terms of the instrument alone, the three donees therein named took an absolute interest and so far as their right of alienation is concerned it makes no difference whether they are tenants-in-common or joint-tenants as in either case any of them could alienate his interest in the property. But it is contended, and the contention has a good deal of force in it, that the decisions have laid down the principle that the donees in such cases must hold the property with the incidents of tarwad proper by and that therefore Kunhi Pocker, the first defendant and one of the donees and the judgment-debtor, had no saleable interest in it.

The case that is mainly relied upon is that of a Full Bench in Kunhacha Umma v. Kutti Mammi Hajee(1). There were a series of decisions before that on the question of the liability of the interest of one of the donees to be attached and sold—some of them following Narayanan v. Kannan(2), which was a decision to the contrary and others not apparently following it. Many of them will be found reported in the foot-notes to the Full Bench judgment in Kunhacha Umma v. Kutti Mammi Hajee(3) Kunhacha Umma v. Kutti Mammi Hajee was a case in which the properties were given after a person's death by his legal representatives to his widow and her children in accordance with his orally expressed wish, and the question was whether the interest of one of the children could be attached and sold. Best, J., was of opinion that they, held the property as joint-tenants, under English law, as there were all the four unities of a joint-tenancy, that is (1) of possession, (2) of interest, (3) of title and (4) of the commencement of such title, and therefore interest of the judgment-debtor who had died could not be attached and sold. This view cannot be accepted. See the Privy Council decision in Jogeswar Narain Deo v. Ram Chandra Dutt, Mr. Justice Subrahmanta Ayyar contented himself with saying that there was a conflict of decisions and the question was therefore one that should be decided by a Full Bench. The full Bench delivered the following judgment:—“In the case before us the donor expressed no intention as to how the properties should be held by the donees, and in the absence of such expression, the presumption is that he intended that they should take them as properties acquired by their branch or as the exclusive properties of their own branch, with the usual incidents of tarwad property in accordance with Marumakkathayam usage which governed the donees.” This view in accordance with the principle laid down by the Privy Council in Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick(4) and Mahomed Shumsool v. Shewukram(5) and they expressed the opinion that the decision above referred to—Narayanan v. Kannani—is in conflict with the rule of construction indicated by the Privy Council. Now it will be observed that in the Full Bench case the judgment-debtor had died and the question whether he left any interest liable to be sold is very different from the question which arises here. Again, there was no instrument of gift and the intention was imputed to the donor only in the absence of any expression of his intention, while in the case before us there is an expression of the donor's intention. The Privy Council judgments have application only to gifts to a Hindu woman who generally takes only a life-interest. It is the other way in the case of a Malayalam woman, the theory of the Marumakkattayam law being that the property is vested only in the females, the males having only the right of maintenance. For these reasons I should have held without hesitation that the present case is not governed by the Full Bench decision but for the reason that the latter decisions of this Court have apparently included within its scope cases of this kind. It becomes necessary therefore to consider the question more fully.

If it is to be held that the three donees in the case before as held the property with the incidents of tarwad property and that any one of them could not convey his interest, then it would be directly contradicting the terms of the instrument Exhibit I, because Exhibit I distinctly recites that the donees were to told the property “in the same way I was holding them,” or, in other words, those three persons could alienate it even if such alienation may not be in the interests of the branch to which they belong, which would include the third defendant, a daughter of Pathumma. The will states that no one else besides the three donees named has any right to the properties, whereas, if they belonged to the Branch, the descendants of Pathumma born before or after the death of the testator would be entitled to them in their own right and not as representatives of any donee, so that, if we were to decide the case on the construction of the instrument of gift alone, I should have little hesitation in holding that I must give effect to the terms of the instrument and should not import any artificial intention into the case. But the decisions that I have referred to have no doubt held that in such cases the properties must be deemed to be held with the incidents of tarwad property.

The rule of decision is that indicated by their Lordships of the Privy Council in Jogeswar Narain Deo v. Ram Chandra Dutt in which they expressed their dissent from a decision of the Madras High Court — Vydinada v. Nagammal — to the effect that, where a Hindu testator devised certain properties to his nephew and his wife, they took them as joint-tenants and the nephew could not sever the joint-tenancy by an alienation by him alone to a creditor. The judicial committee pointed out “the principle of joint-tenancy appears to be unknown to Hindu Law except in the case of co-parcenary between members of an undivided family,” and in the second place, even if it is a joint-tenancy under English Law, that joint-tenancy could be severed by a conveyance or an equivalent of conveyance. According to this, therefore, it is where a co-parcenary might exist according to the rules of the Marumakkatiayam Law that the property given to certain members of a Marumakkattayam family may be deemed to be held by them as co-parceners. Under that law it is only tarwad property or the property of a branch who hold certain properties as their, branch property in the same way as a tarwad with their own karnavan, etc., that is really held in co-parcenary right. As in my view the right decision of the question mainly depends upon an appreciation of what properties are held as a co-parcenary property, I will explain it in some detail—

M 1, the senior male member would be the karnavan of the entire tarwad and in management of all its properties. He is the guardian of the infants or children born to any of the female members, he is bound to look after them, maintain them in the tarwad house and give them the education customary among such tarwads. Any female and her children form a tavazhi or branch. Tavazhi literally moans, tayar mother, and vazhi, line, that is mother's line. Very of ten a woman and her descendants live apart from the tarwad house in a house of their own with properties belonging exclusively to their branch, the senior member amongst them having all the rights and obligations of the karnavan of an ordinary tarwad. Such a branch or tavazhi is constituted or created by gifts from the father of the woman or by gifts from a favourite brother or maternal uncle, or, it may be, by the self-acquisition of any member of that branch which he would often reserve for the sole benefit of the members of his branch. The karnavan of the main tarwad does not exercise his rights over the members of this branch or interfere in the management of the exclusive properties, of that branch. In all such cases what the interests of that branch are in the main tarwad and its properties have often been discussed. If they wish to preserve their rights, which carry with them their obligations in the main tarwad, then the senior member of that branch when he becomes the senior of the main tarwad also assumes the headship or karnavanship of the main tarwad. Failure to assume the karnavanship of the main tarwad when by seniority in age it comes to a member of this tavazhi or branch is usually taken as an indication that it has become a distinct branch without any co-parcenary interest in the main tarwad. Whether the branch members retain their interest in the main tarwad or not, so long as they have a karnavan exercising over them the ordinary karnavan's rights, they form a branch tarwad. I take no exception to the Full Bench Judgment in Kunhacha Umma v. Kutti Mammi Hajee if it goes only to that extent; it was on that footing that the case was argued by me before the Division Bench; the reference to a Full Bench was rendered necessary by a decision which was supposed to throw doubt even on that doctrine.

But let us take a case where a female and her children remain in the tarwad house under the control of their karnavan and certain properties are given to them by their father. Now there are four possible views, (i) One view is that they constitute a tarwad by themselves with reference to that property, (ii) Another view is that those members hold the property in the same way for instance as the members of a Mitakshara family do in Bengal, substituting females for males; that is they may be entitled to partition but before partition their interests are not liable to be attached and sold, (iii) A third possible view is that they hold in the same way as the properties held by a Mitakshara family according to the Madras decisions, that is they are entitled to partition but their interest also is liable to be attached and sold during their life-time but not after that, (iv) Another view is that it may be attached and sold even after death.

I have already stated that, if Kunhacha Umma v. Kutti Mammi Hajee is to be understood as applying to the members of a tarwad who live apart from the main tarwad house holding their own property and having their own karnavan, I accept that decision. Mr. Justice Moore and I have also followed that decision, nor do I see any reason to question it in so far as it bolds that the interest of a member cannot be attached and sold after his death.

But, it is said that, according to that decision, even if the members do not form a separate tavazhi holding separate property, they hold the properties gifted to them (we will say), by the husband of the woman, with all the incidents of a tarwad, etc. Now, what is the position of that group of members? Take it in the table above given the husband of F7 gives certain property to her and to her children F8 and M6. It cannot be contended for a moment that they are constituted into a separate tarwad or a separate tavazhi, with the tarwad incidents, by themselves, for M1, the karnavan of the entire tarwad, does not lose his rights over the children F8 and M6 if minors, and even F7 if she is a minor or any children that may be hereafter born to F7 and F8. Nor do they lose their corresponding rights in the tarwad house and its property. For the same reason the senior male in that group cannot displace the old karnavan and succeed to his rights over the other members. This view, which Mr. Justice Moore and myself put forward in Koroth Amman Kutti v. Perungottil Appu Nambiar has been accepted in the subsequent cases which have reference to that doctrine. Now, if they do not constitute by themselves a separate tarwad or tavazhi, is there any reason why to the donor must be imputed an intention that they should hold the property with the incidents of tarwad property? This would lead to startling results. Supposing F7 marries again after the divorce by or of the first husband or after his death. Then the children that might be born to her by the second husband, M7 and F9, would also form the members of the tavazhi to which their mother and her children by her first husband belong, because the mother is the root of the tavazhi and the father has no place in the system, and they (i.e, the children by the second husband) would acquire an interest in the property given by her first husband. It is obvious that we cannot impute to the first husband an intention that the children born to his wife by another person should benefit in the gift which he made for her and her children's use. Once it is recognized that a woman with her children by one husband are incapable of forming a tavazhi or joint family by themselves only, to the exclusion of the children that may be born or have been born to her by another husband, it seems necessarily to follow that they do not take as a tavazhi or as co-parceners according to the Privy Council decision in Jogeswar Narain Deo v. Ram Chandra Dutt already referred to. Even in cases of inheritance it has been held by a Full Bench of this Court that the co-parcenary principle does not generally apply; Karuppai Nachiar v. Sankaranarayanan Chetty; a fortiori therefore, in cases of gifts which stand in this respect on the same footing as wills. This is in accordance with the Privy Council decision in Jogeswar Narain Deo v. Ram Chandra Dutt that in the absence of anything to the contrary the donees take as tenants-in-common. Again, the husband may himself be a follower of the Muhammadan law or of the Hindu law called in Malabar the Makkathayam law of inheritance, and in Kunhacha Umma v. Kutti Mammi Hajee itself the donor was probably a follower of the Muhammadan law. The Chief Justice and Mr. Justice Wallis in Pattatheruvath Pathumma v. Mannamkunniyil Abdulla Haji assumed it to be so and applied it to a case where the father followed the Muhammadan law of inheritance. Now what reason is there to impute to him an intention that his children should be governed by the incidents of the Marumakkathayam law? If the intention is to be presumed from the general inclination of a person towards a particular system of inheritance, then it is almost impossible to presume such intention in the case of a Muhammadan donor, and the reason that I suggest next would show that such a presumption ought not to be made even in any other case.

How does it stand on principle? Ordinarily a karnavan's rights are commensurate with his obligations. He has the custody of the entire property in which all the members of the tarwad are interested, to hold it for the benefit of them all, to maintain them in the family house and to educate them. Now, if the properties gifted by a father are to be held with the incidents of tarwad property and the senior male member amongst them is to hold it without any right of the other members for partition, what is the result? They are not maintained out of it, because living in the tarwad house they get their maintenance from the karnavan of the entire tarwad and the senior male of their branch has no control in the tarwad house. They are not educated by the senior male of their branch, because the obligation to educate them is on the karnavan of the tarwad. The guardianship of the infants is also in the karnavan of the entire tarwad. I cannot imagine that a person should be in the possession of the property of another in which they are all jointly interested without any obligations towards those others—the only obligation in this case which would be recognized, if this contention is upheld, being that he has to hold them during his lifetime as karnavan to be handed over after his death to the next man to be held in the same way, no other member getting any benefit out of it. I can hardly conceive that any donor would intend that his property should be enjoyed only by the senior male amongst his descendants to the exclusion of others. That senior male might be—and it has often turned out to be—the son of one of the daughters; and his own sons, who might be junior in age to his grandson by one of the daughters, get do benefit in any form whatever, or again, if the donor has only daughters, the property will be held by one of their sons to the exclusion of them all. I do not think that such a result as this is ever contemplated by the Marumakkathayam law which, in theory vests the property in females only. It follows from what I have said that we should not uphold the impartibility of such property nor the absolute right of the senior; male member to manage the property to the practical exclusion of the others as in an ordinary tarwad property. Such inpartibility without any right of the other members to participate in the enjoyment of its income is undoubtedly against the general feeling of the people. If the decision in Kunhacha uumma v. Kutti Mammi Hajee leads to this conclusion, then I am of opinion that it should be reconsidered. I think myself that it does not.

Let us see how far the Privy Council case that is relied upon is against this view. That was the case of a gift by will to a daughter-in-law. Their Lordships of the Privy Council made the following observations. “In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate”—Mahomed Shumsool v. Shewukram. As their Lordships point out, a Hindu desires that the estate should be retained in his family. In the case before us there is no such presumption if the donor follows the Marumakkathayam law of inheritance, as he is giving the property to strangers to his Marumakkathayam family. If be is a follower of the Muhammadan or Hindu law, the presumption would be exactly the other way, i.e, that the donees should not enjoy it as a Marumakkathayam family. Then, their Lordships say that the donor must be taken to have known that the donee in that case, a woman, cannot, as a general rule, take an absolute inheritance. That presumption does not apply, as I have already pointed out to Malabar. On the other band, do presumption ought to be drawn that his sons other than the senior male are to get scarcely any benefit out of it. I do not think therefore the Privy Council decision compels us to impute any artificial intention to the donor, and in particular, when there is an instrument of gift, I am satisfied that we ought to go upon the words of the instrument. It does not of course follow from this that one of these donees may either sell his share or a creditor may attach and sell his interest in execution of a decree. If we follow the Madras decisions in reference to the Mitakshara family, he would be so entitled to do, but if we follow the Bengal decisions, which proceed perhaps upon the true theory of Hindu co-parcenary law, he will not be entitled to do so. Where certain members of a Hindu family earn property there is no presumption that they hold it as co-parcenary property.

Similarly it has been held that in the case of followers of Marumakkathayam law also there is no such presumption. See Govindan Nair v. Sankaran Nair.

It is desirable on account of the apparent conflict of opinion that the matter should be settled by a Full Bench. I would therefore refer the following questions to a Full Bench:—

(1) When properties are given by a person to his wife and children or children alone following the Marumakkathayam law, do the donees constitute by themselves a tarwad or tavazhi, and if they do so, is the right of management of the properties forming the subject of the gift vested in the senior male member thereof?

(2) If the first question is answered in the affirmative, whether in such cases the other members of the tavazhi including those who become members of it by birth are entitled to maintenance, etc., out of such properties in the same manner as they were entitled before the gift to receive maintenance out of the properties belonging to the main tarwad; and whether they are entitled to partition of the said properties?

(3) Can any one member of the tarwad or tavazhi so constituted alienate his share, or can his interest be attached and sold by a decree-holder in execution of a decree against any one of them?

I have not dealt separately with the following decisions, Katankandi Koma v. Siva Sankaran, Chakkantavida Chakkan Abdulla v. Thazath Cheekkotti, Pattatheruvath Pathumma v. Mannamkunniyil Abdulla Haji, Abdula v. Chekkooti, Kunhamina v. Kunhambi and Parvathi Kattilammah v. Ramachandra Ejaman, as they all may be supported on the ground that the donees in those cases formed a tavazhi living separately from the tarwad under their own karnavan as practically a distinct fcarwad. There is at any rate nothing in the judgments that they were not living as a tarwad by themselves under their own Karnavan.

Tyabji, J.:— I agree that the questions mentioned by my learned brother should be referred to a Full Bench.

Kunhacha uumma v. Kutti Mammi Hajee(6) as I understand it, decided, so, far as is at present material, that, where the donees are governed by a law under which property must be, or usually is, held with the incidents of tarwad property, there a gift will be presumed, at least in the absence of circumstances showing a contrary intention, to be held by the donees, impressed with such incidents.

I had occasion recently to take part in a decision in which a point similar to that with which we have now to deal arose. See Narayanan v. Anandan(7). In that appeal what I intended to take part in laying down was that, when the donor and the joint donees are all governed by the same system of law, viz., the Marumakkattayam, a gift will presumably be governed, and the subject of the gift will, in the hands of the donees, continue to be affected, by the incidents of that law, provided of course that, if that law permits of property being held in two or more different ways, then it will be a question to be determined under which of the various recognized modes of holding property the donees are to hold the subject, of gift: the answer to such question necessarily depending on the construction that has to be placed on the terms of the gift. In Narayanan v. Anandan I understood that the learned pleader who appeared for the appellant before us conceded, first, that the donor and the donees were alike governed by the Marumakkattayam law, secondly, that under that law property had necessarily to be held with the incidents of tarwad property, thirdly, that, assuming that the law in question recognizes the holding of property without the incidents of tarwad property, that mode of holding property was rather unusual, and there was nothing to indicate that the subject of gift in that particular case was intended to be held with incidents other than those of tarwad property.

However, my learned brother, to whose experience and knowledge of the subject I need not allude, in his judgment mentions considerations which would throw great doubt on the permissibility of postulating those propositions which form the basis of the judgment in Narayanan v. Anandan. For I gather from the judgment of my learned brother that under Marumakkattayam law itself not only is there no necessity for holding property with the incidents. If tarwad property, but that property cannot be so held, unless it is given to or acquired by a tarwad as such, or, in other words, unless, prior to the gift or acquisition, the donees or persons acquiring constitute a tarwad or a tavazhi. I see also the difficulty in holding that a new tarwad or tavazhi should come into being by the mere fact of a gift being made to several persons as joint donees; or that a gift can by itself constitute the donees into a tarwad or a tavazhi. Again it is not very probable that there should be any intention on the part of the donor—especially when he is a Musalman—of so constituting the donees into a tarwad or tavazhi, even where the donees are related to each other by being the wife and children of the donor: where the donees are members of different, tarwads and bear no relationship to each other, the improbability of there being any such intention would be still greater; further, the question whether, even assuming that the donor intends so to constitute the donees into a new tarwad or tavazhi, the law empowers him to do so, requires careful consideration. The question may also arise, when the rights of the parties have to be determined with reference to a set of circumstances which do not seem to have been contemplated at the time when the well recognized rules of custom arose, nor to have been specifically provided for by rules of custom which are known to prevail, whether in such matters effect ought to be given to “logical conclusions which may seem to and acute modern dialectician to follow” from the rules imposed by ancient customs [cf. Baqar Ali Khan v. Anjuman Ara Begam]. It may be that in such matters effect ought to be given rather to the ordinary notions and wishes of the parties, even though such notions and wishes may not in strict logic be in conformity with the prevailing customs nor have taken a shape sufficiently definite to be considered as embodying an independent rule of customary law, but may only furnish indications of what justice, equity, and good conscience would require.

On many of the matters involved in this reference (to some of which I have alluded above) I feel that there are not sufficient materials at present available which would enable me to express an opinion.

I therefore agree that the questions mentioned in my learned brother's judgment be referred to a Full Bench.

T.R Ramachandra Ayyar for the appellants.—How the gift is to be construed is the question involved in this reference. Court should as a rule be slow to impute to the donor an intention to contravene the law. If the gift is to be interpreted as one to the tavazhi and not to the individual, persons born subsequent to the gift and who become members of the tavazhi would take under the gift; in such a case the gift would be void as being one to unborn persons. See Bai Diwali v. Patel Bechardas and Kishori Dubain v. Mundra Dubain. A gift must be so construed as to make it limited to the donees in existence at the time of the gift. When there is a gift to two persons there is no presumption that the incident of survivorship is annexed to it. See Jogeswar Narain Deo v. Rama Chandra Dutt.

If the lady married another husband and had children by him, the gift would enure to the latter children also—a result which would not have been contemplated by the first husband. Kunhacha Umma v. Kutti Mammi Hajee follows Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick and Mahomed Shumsool v. Shewukram. The observations of the Privy Council are confined to Hindu women who take only a life interest. A woman of the marumakkatayam tarwad on the other hand owns the tarwad property, and the presumption therefore in favour of an absolute gift to the wife and children.

The donor may be the follower of makkattayam or of the Muhammadan law. How can we impute to him an intention that his children should be governed by the Marumakkattayam law? If the property which is the subject-matter of the gift is to be held with the incidents of tarwad property, then the sons of the donor may not have the management of the property at all, if there is a daughter's son entitled to act as karnavan. If the tarwad of which the donees are members has property, then it may be that the donees may never have any occasion to enjoy the gifted property. Where the tarwad is joint and the donees are living within the main tarwad the intention can never be that the donees should enjoy as a tavazhi. We must construe the gift in such a way as to avoid these anomalies. That can be done only by holding that the property in question is held as absolute property by the donees free from the tarwad incidents. Kunhacha Umma v. Kutti Mammi Hajee does not lay down the correct law. The decision would be right only if the gift is a gift to an independent tavazhi living separate from the tarwad. This is what is referred to in the reference order of Sankaran Nair, J.

The respondents Nos. 1 and 5 did not appear in person nor were they represented by pleader.

J.L Rosario for the respondents Nos. 2 and 3.—The principle of stare decisis should be applied to this case. Kunhacha Umma v. Kutti Mammi Hajee has been followed as good law ever since 1892 and rights have grown up under it which ought not to be unsettled; and further, the decision itself is right. Property can be conserved only if it is held with the incidents of tarwad property.

T.R Ramachandra Ayyar in reply,—The principle of stare decisis ought not to apply in this case; for there has been conflicting decision in this Court. See Koroth Amman Kutti v. Perungottil Appu Cambiar, Chakkantavida Ghakkan Abdulla v. Thazhath Cheekkootti and Kalliani Ammah v. Govinda Menon and seeing that the property has been tied up in accordance with the doctrine of Kunhacha Umma v. Kutti Mammi Hajee no rights with regard to tarwad property could have grown up in other people.

This Reference coming on for hearing the Court expressed the following Opinions:—

Wallis, C.J:— It seems desirable at the outset to point out that the decision of the Full Bench in Kunhacha Umma v. Kutti Mammi Hajee, which is questioned in the reference merely decides that among the followers of the Marumakkattayam law, when a gift is made by the father to the mother and her children, there is a presumption that they are intended to take such properties as the exclusive properties of the branch or tavazhi consisting of the mother and her children, that is to say, with the usual incidents of tarwad property. In the absence of express provision the presumption is that the property is to be enjoyed by the mother and her issue in the way in which property is customarily held and enjoyed among followers of the Marumakkattayam law. The decision proceeded on the authority of two decisions of their Lordships of the Judicial Commitee which laid down that the law governing the parties is one of the circumstances to be taken into, consideration in ascertaining the intention of the donor. As pointed out in the judgment of one of the Judges who made the reference to the Full Bench the presumption was arrived at in consideration of what were known to be the notions and wishes of persons in the position of the donor and also of the ordinary incidents of property in the district. This view was accepted by the Full Bench of four Judges two of whom Mottuswami Ayyar and Wilkinson, JJ., were well acquainted with Malabar, and that it was well founded is suggested by the fact that the decision has not only been accepted but has been given a considerable extension in the neighbouring State of Travancore, as pointed out during the argument by my learned brother speaking from, his experience as Chief Justice of that State. It has also been followed, as I shall show, in numerous cases in this Court, and was not questioned before Uummanga v. Appadorai Patter a decision of Sir Arnold White, C.J, and Sankaran Nair, J. in 1910, and it may be taken that; many transactions have proceeded on the footing that it was correct. In these circumstances, notwithstanding the respect which I feel for the opinion of Sankaran Nair, J., especially in a matter affecting his own community, I think we should be very slow to differ from the decision of the Full Bench unless we are absolutely obliged to do so, more especially as that decision merely relates to a presumption which it is always in the power of a donor to negative if so minded by express provision. If any change is to be made it should, it seems to me, be made by the legislature.

As regards the authorities, the decision in Kunhacha Umma v. Kutti Mammi Hajee, was not only not questioned but, as pointed out in subsequent cases, was accepted in Koroth Amman Kutti v. Perungottil Appu Nambiar, to which Sankaran Nair, J., was a party. It was followed in Pattatkeruvath Pathumma v. Mannamkunniyil Abdulla Haji, Kunhamina v. Kunhambi, Katankandi Koma v. Siva Sankaran, Chakkantavida Chakkan Abdulla v. Thazhath Cheekkootti, and Parvathi Kattilammah v. Ramachandra Ejaman. Lastly in Kalliani Ammah v. Qovinda Menon(8), which was subsequent to Ummanga v. Appadorai Pattar(9), it was again accepted and acted on by Abdub Rahim and Sundara Ayyar, JJ., in a careful judgment in which all the authorities were examined. In this state of things it seems to me that it is not now open to us to question the decision of the Full Bench even if we saw reasons to doubt that it had been correctly decided. “With reference to the observations of their Lordships of the Judicial Committee in Jogeswar Narain Deo v. Ramchandra Dutt(10). Which are referred to by Sankaran Nair, J., that the principle of joint tenancy appears to be unknown to the Hindu law except in the case of a co-parcenary between members of an undivided family, it may be observed that these observations of their Lordships were made with reference to ordinary Hindu law and not to the peculiar Marumakkattayam system which was not under their Lordships' consideration. But even taking them to be applicable, I cannot see how a gift to a female and all her descendants in the female line can be held to infringe the principle, for that is the kind of joint family known to the Marumakkattayam system. On the other hand, the propriety of such a gift would appear to be recognized by their Lordships in Bai Bishen Chand v. Mussumat Asmaida Koer in the passage cited by Benson and Sundara Ayyar, JJ., in Vengamma v. Chelamayya. The question whether a gift with the incidents of tarwad property could be made to the mother and some of her issue only, viz., those by a particular husband does not arise in this particular case, as the gift is to the children of the donor by a deceased wife and it is not suggested that she left any other children. It is therefore unnecessary to express any opinion on this point, or to refer to the authorities which are collected in the judgment of Benson and Sundara Ayyar, JJ. just mentioned.

Following the decision of the Full Bench in Kunhacha Umma v. Kutti Mammi Hajee and the course of subsequent decisions I would answer the question in the reference as follows:—

(1) The presumption is that the donees take the property with the incidents of tarwad property including those mentioned. (2) Persons subsequently born into the tavazhi are entitled to be maintained but not to claim partition. (3) An individual cannot alienate his share nor can it be attached and sold in execution of a personal decree against any of the members.

Sadasiva Ayyar, J.:— I am prepared to follow the decision in Kunhacha Umma v. Kutti Mammi Hajee which is in conformity (so for as I find) with the views universally held by the communities following the ordinary Marumakkattayam law and with the intentions of a father (who might even belong to a Makkattayam community) who consorts with a lady belonging to a Marumakkattayam community and who makes or arranges; a gift to his children born of his said Marumakkattayam wife.

The objection, based on the rule of perpetuity, to the validity of such gifts has been considered elaborately by Sundara Ayyar, J., in Vengamma v. Chelamayya and I respectfully agree with his opinion that rule cannot be applied so as to defeat gifts made to all the persons who can naturally form a joint Hindu family the gifted property to be held as joint family property or to the whole of a group of persons following the natural law Marumakkattayam forming a natural tavazhi group.

The objection based on the woman (whose husband makes a gift to his children by her) marrying another husband and begetting other children to the latter and on these children also belonging to her tavazhi along with her children by the first husband is not, in my opinion, insuperable. The result of that state of facts will only be that there will be two separate groups in the same tavazhi holding separate tavazhi property, the senior male in each tavazhi group being the karnavan of that tavazhi group. For instance, take the case of a woman and hef children who form a tavazhi within a tarwad. Two of her daughters might form two different groups in the same tavazhi and their respective husbands might give properties to their respective children. That all these children would belong to the tarwad of their great grand-mother, would again belong to their grandmother's tavazhi and would also belong to the groups or sub-tavazhis of their respective mothers and hold those respective group properties separately. Just as there can be tavazhis within a tavazhi, there can be group tavazhis and sub-tavazhia in the same tavazhi. If two-groups or sub-tavazhis springing from two daughters who form a tavazhi can have separate sub-tavazhi properties, there is nothing startling in two branch tavazhis springing from the same lady (through her marrying two successive husbands) and holding separately their respective branch tavazhi properties. A tavazhi consists, no doubt, of the descendants of a single woman (I do not think that it includes the woman herself etymologically), but there is nothing to prevent the existence in that same tavazhi of two groups each of which groups might form a separate unit for the purpose of holding particular properties as if it was a separate tarwad and with the incidents of tarwad property. It cannot be said to be an unnatural separation between the two groups, unnatural in the sense of repugnance to the habits, practices and sentiments of the community. I agree to the answers proposed by my Lord.

Srinivasa Ayyangar, J.:— In India it is not uncommon for groups of persons though not incorporated to hold properties as if they were corporate entities. Castes and sub-castes hold property as such, so also village communities. But the more common and familiar instances of such groups in Southern India are the joint Hindu family governed by the Mitakshara law, the Nambudri illom governed by the Makkattayam law, the Nayar tarwad governed by the Marumakkattayam law, and the Aliyasantan family of South Canara. The Mappillas of North Malabar generally follow the Marumakkattayam system and the parties to this suit are governed by that law. The incidents of such group holding are now well settled. In the case, of Malabar tnrwads such incidents include the impartibility of the property, the right by birth of persons born in the tarwad, and the management of the properties by the senior male member of the tarwad who is styled the karnavan.

The constitution of a Marumakkattayam tarwad is well known and is concisely stated in the extract from the report of the Malabar Marriage Commission printed in Raman Menon v. Raman Menon. The constitution of a joint Hindu family governed by the Mitakshara law furnishes a very close parallel (see the description of such a family by Bashyam Ayyangar, J. in Sudarsanam Maistri v. Narasimhulu Maistri. These groups cannot of course be created by agreement of parties. The tavazhia or the subordinate groups constituting the tarwad are, I think, capable of holding properties as corporate units with the incidents of tarwad property, at the same time retaining their joint interest in the properties of the main tarwad, just as branches and sub-branches in a Mitakshara joint Hindu family are capable of holding properties with the incidents of joint Hindu family property. I am also of opinion that some only of the members of a tavazhi cannot form a corporate unit capable of holding property as such. The husbands of the female members and the children of the male members of a tarwad are not members of the tarwad. It is not uncommon for them to make gifts of properties to their wives, daughters or sisters and their children, and such properties are called Puthravakasam properties. The question is whether, in the absence of express words in the grant, the tavazhi hold them as a corporate unit with the incidents of impartibility and right by birth, or whether the members of the tavazhi hold the property as co-owners, i.e, as tenants-in-common. I think these are the only two alternative views possible, and the second and third views mentioned in the referring order of Sankaran Nair, J., may be left out of consideration—Jogeswar Narain Deo v. Ram Chandra Dutt. This question was answered by a Full Bench of this Court in Kunhacha Uumma v. Kutti Mammi Hajee, and the answer was that such properties were held with the incidents of tarwad property. The basis of the decision was that was the usual mode of holding property by persons governed by Marumakkattayam law; and that the donors presumably intended to benefit not merely the existing members of the family but also those who may thereafter be born in the family. This decision was followed in a large number of cases in this Court, viz., Koroth Amman Kutti v. Perungottil Appu Nambiar, Pattatheruvath Pathumma v. Mannamkunniyil Abdulla Haji, Kunhamina v. Kunhambi, Katankandi Koma v. Siva Sankaran, Chakkantavida Chakkan Abdulla v. Thazhath Cheekkootti, Parvathi Kattilamma v. Ramaohandra Ejaman, Kunhiraman v. Kunhi Parvathi and Kalliani Ammih v. Govinda Menon.

For the first time, in Uummunga v. Appadorai Patter(11), a suggestion was made that if a tavazhi had not become a distinct tarwad by division or relinquishment of its joint interest in the properties of the main tarwad, the property held by that tavazhi will not have the incidents of tarwad property; and the Full Bench decision in Kunhacha Umma v. Kutti Mammi Hajee was explained as deciding only that the interest of a member of such a tavazhi lapsed to the other members of the tavazhi, if that interest has not been alieoated during his life-time. With the greatest respect to the learned Judges I am unable to accept this explanation. It ignores the fact that in properties held with the incidents of tarwad property no individual member has an alienable interest. It is to be observed that Sankaran Nair, J., who was one of the Judges who decided that case, at that time seems to have been of opinion that it is only in cases where a tavazhi becomes a distinct tarwad by ceasing to have any interest in the properties of the maid tarwad, that it can hold properties with the incidents of tarwad property; but in the order of reference the learned Judge concedes that the rule would apply even in cases where the tavazhi retains its interest in the properties of the main tarwad, provided that the members of the tavazhi live separately from the other members of the tarwad. He thinks that Kunhacha Umma v. Kutti Mammi Hajee was a case of that sort. In any case he thinks that decision should not be extended to tavazhis whose members do not live separately with separate karnavan of their own. In the Full Bench case—Kunhacha Umma v. Kutti Mammi Hajee—so far as one can gather from the report, the tavazhi do not seem to have been living separately with a separate karnavan of their own. In many of the caaes which followed the Full Bench decision, the members of the tavazhi do not appear to have lived separately with a separate karnavan. I am unable to see how the fact of separate living by the members of a tavazhi without a separation in interest can possibly affect the capacity of the tavazhi to hold property or the incidents of the property held by them as such tavazhi. In Krishnan v. Damodaran a Full Bench of this Court decided that where a female member of a tavazhi dies, her separate property is inherited by her tavazhi as such, i.e, as a corporate unit. Though in Govindan Nair v. Sankaran Nair, it was held by two Judges of this Court, a third Judge dissenting, that the separate property of a male member of a tavazhi on his death lapses to the tarwad and not to the tavazhi, the opinion collected in the referring order in that case show clearly the consciousness of the people that the tavazhi was a separate entity which ought to inherit the property of both the male and female members of that tavazhi. In a case where the tavazhi succeeds to the property of a deceased member, that property will be managed, I assume, by the senior male member of that tavazhi and the members of that tavazhi will have the additional advantage of participating in the income of that property. I see no difficulty in the tavazhi holding the properties to which it succeeded with the incidents of tarwad property.

Two points are taken by Sankaran Nair, J., in the order of reference. One that a tavazhi which has not separated itself in the sense mentioned above cannot cease to be under the control of the karnavan of the tarwad and cannot have a karnavan of its own; and the other, that a tavazhi may consist of children of different fathers. In Koroth Amman Kutti v. Perungottil Appu Nambiar, Moore and Sankaran Nair, JJ., had no difficulty in holding that Puthravakasam property held by a tavazhi was held with the incidents of tarwad property though the mere gift of property to a tavazhi did not constitute them a distinct tarwad. In Kalliani Ammah v. Govinda Menon, all the previous cases were considered by Abdur Rahim and Sundara Ayyar, JJ., and the relation of the senior male member of a tavazhi managing the properties of the tavazhi to the other members of the tavazhi was indicated. They say: “There can be no doubt that he cannot have all the rights of a karnavan over the junior members of his tarwad. He is not their guardian and has no right of supervision or control over them. He is not responsible for their protection, education or maintenance. His right is confined to the management of the special property owned by him and the other members of his branch.” I do not think that a tavazhi [which] is not [a] separate tarwad with a separate karnavan of its own is an impediment to their holding property with the incidents of tarwad property. As regards the second point there is of course the possibility of a woman to whom properties are given by one husband marrying another and having children by him. All the children of that woman would form members of her tavazhi. It is certainly difficult to presume an intention in the first husband to grant the property to his wife's children by another husband. Such cases are likely to occur very rarely. After all the rule is one of construction and even if the decision in Kunhacha Umma v. Kutti idammi Hajee is open to question [I think it is not] we ought not to depart from it after it has been followed for such a long time.

It is now necessary to notice another contention of Mr. Ramachandra Ayyar which does not seem to have been put forward before the referring Judges. He contends that no gift or grant of property can be made to a tarwad so as to enable it to hold that property with the incidents of tarwad property; such a grant, he contends, amounts to a grant in favour of unborn persons and therefore contrary to the decision of the Privy Council in the Tagore case. I understand him to concede that a tarwad could purchase properties and hold them with the incidents of tarwad property. If they can do that, I do not see why they should not take a gift and hold the properties with the incidents of tarwad property. The fallacy underlying the argument is that the grant is a grant made in favour of unborn persons. The gift is made to the entity which is called the tarwad “or tavazhi and the law governing the parties regulates the mode of succession and enjoyment. Mr. Ramachandra Ayyar relied on a dictum of the Bombay High Court in Bai Diwali v. Patel Bechardas and on Kishori Dubain v. Mundra Dubain. There is nothing in the Allahabad case to support his contention, and the passage in Bai Diwali v. Patel Bechardas is only an expression of doubt. On the other hand, the decision in Vengamma v. Chelamayya supports the contrary conclusion.

My answer to the first question is that it is not the giving of properties by a person to his wife and children that constitutes them a tarwad or tavazhi, but that if properties are given to a wife and children following, the Marumakkattayam law, they as a tavazhi hold those properties with the incidents of tarwad property, and the right of management of the properties is vested in the senior male member of that tavazhi.

I answer the first part of the second question in the affirmative and second part in the negative.

I answer the third question in the negative.

C.M.N