Parvathi Amma Kalliani Amma vs padmanabha Pillai Krishna Pillai

Varadaraja Iyengar, J.—This Second Appeal is by the Plaintiffs 1 and 2 and arises out of a suit for partition among, the members of a Nair Tarwad hailing from the Travancore jurisdiction. We are concerned only with the availability of Items 2 and 3 for pturpose of partition and that depends, upon the question whether the presumption applicable in that jurisdiction to the case of Makkathayam gift applies at all to a gift by the father''s tarwad and if so, whether it applies when the gift took place after the Nair Act of 1088 had come into force. In view of the importance of the; question this appeal has been referred to a Full Bench.

The 2nd Defendant Narayani Ainma is the senior most member in the tarwad, being the mother of the 1st Defendant and Parvathi, deceased, whose children are the 1st Plaintiff and 3rd Defendant. The Plaintiffs 2 and: 3 are the burden of the 1st Plaintiff. There were four tusks scheduled to the plaint and claimed to be available for division among the Plaintiffs 1 to 3 and Defendants 1 to 3. Items 2 and 3 were gifted under Ex. 1 dated 4-8-1039 in favour of the 2nd Defendant alone by her father''s brother and other members of his tarwad "on account of love and affection". Claiming the items as hex own, she gifted them in favour of her only son- the first Defendant under Ex; II dated 22-7-1116. The Plaintiffs contested the validity of Ex. II on the ground that Ex.'' I gift enured to the benefit of the tarwad of the 2nd Defendant and not alone to herself and accordingly claimed for partition of their 3/6 share over those items as well. The trial court found in favour of the Plaintiffs while the lower appellate court has found against them. Hence this second appeal.

Learned Counsel for the Appellants urged .that the common law in the Travancore jurisdiction governing Marumakkathayees was well settled, that a gift by a husband to the wife'' or by the father to his children or any of them known as Makkathayam gifts was presumed to be for the "benefit of the sub-tarwad of his wife and children and that this principle had been extended to gifts by near relations, as brother, mother or paternal uncle. The change was first brought about by Section 17 of the Nair Act of 1088 to be later affirmed by the Nair Act of 1100 that so far asvlakkathayam gifts made after 1088 were concerned, the presumption was to be one of equality ''of right between the mother and all the children the principle of portability attached. According to learned Counsel, this change must be confined .to; gifts toy husband or father and should not be extended to gifts by other near relations the paternal uncle and his tarwad as here. In regard to which the customary law had attached the incident of tarwad character.

He referred to Section 44 (a) of the Nair Aot of 1100 which saved "the existing rules of arumakkathayam law custom, or usage, except to the extent hereinafter expressly provided for Learned Counsel for the Respondents contended that the principle of tarwad character as applied to Makkathayam gifts by husband or father to wife or children, had not been extended to gifts by paternal uncle who was only in the position of a stranger and that even assuming such extension, there was no question here of the ascertainment or applicability of a custom or usage within the meaning of Section 44 (a) of the Nair Act. The matter was merely one of construction in. respect'' of which the legislature should be deemed to have given a sure guidance for the future -i.e., by emphasis of the aspect of a tenancy Iris ''common as contrasted with, a tarwad character of the gift.

The questions that arise for consideration therefore is firstly how far the principle to Makkathayam gifts made by the members lf of a father''s tarwad and secondly whether the principle is applicable after the legislature once interfered therewith.

Taking up the first question we find the principle applicable in cases of Makkathayam gifts was first enunciated in Narayanan v. Parvathi Nangeli 5 Ker L. R. 116 (A), which was decided by Narayana Pillai and Kunhiraman Nair, JJ. The learned Judges observed that:

Gift by the father known in Travancore a& Makkathayam, and, in British Malabar; as puth-ravakasam are ordinarily intended to benefit-all the children of the donor by the same mother and analyzing the intention underlying such gifts they described it to be "that the donees should enjoy the property in common by taking the usufructs of the property jointly, and that the property should; in all respects be subject to the incidents of other similar properties held by them, as members of the tarwad.

The gift in that case was by the father in-favour of the mother but the principle was exx tended to a case of gift in favour of any oner-ofi the children. See Kunjukallyani v. Kunjipenqu Lekshmi, 11 Ker L. R. 139 (B); Mathevan Kuhju-kunju v. Raman Krishna, 13 Ker L. R. 72 (c)v Padmanabhan v. Kumaran, 18 Ker L. R. 215! (d) and Koshi Thomas, v. Narayanan Krishnan 22 Ker L. R. 239 (FB) (E).

In Chakky Karumbi v. Kochittan Raman, 26 Ker L. R. 11 (FB) (F), a gift by a brother in favour of his two sisters was held by a majority of the Judges who constituted the Bench to be governed by the same presumption as to sub-tarwad character. . Muthunayakam Pillai, J. observed in the course of his judgment:

The presumption, in such cases is that the doner''s views were what might be expected of him as follower of the Marumakkathayam law and as affected by the ordinary sentiments and wishes of'' a member of a Malayalee community, and that the presumption therefore should be that he intended that his donee should take his .properties acquired by their branch as the exclusive properties of their own branch, with the usual incidents of tarwad property in accordance with the Marumakkathayam usage: which governed the donees.

Hunt, J., disagreed with majority view and said:

There is no reason why a gift to woman a total stranger should not rank on the footing as property acquired by her through her own -exertions 22 Ker L. R. 278 (G), and for that smatter the same language may be said of a gift ''a brother to Ws sister, but the case of a gift -from a husband stands on quite a different foot because from the very nature of the union existing between the two the law naturally presum.: that the property was gifted partly (not wholly) Jfor lier benefit and for the benefit of her children, born and unborn of the existing union.

The question recently came up in Amina Beevi v. Vasudevan, 1956 Ker LT 117: ((S) AIR 1956 Ker 177) (FB). (H), as to whether the presumption was, applicable to a case of a gift by a Marumakkathayee mother to her daughter and! it was held after exhaustive review of the authorities in Travancore and elsewhere, that the presumption did apply in any event in cases arising within the Travancore jurisdiction.

A case of gift by paternal relation came up for consideration in Kochananthan v. Gabriel, 21 Ker LJ 953 (I). There, a paternal uncle conveyed properties in gift to the children of his deceased elder brother "in pursuance to the direction of that ''brother". The parties were Misra-dayam Ezhavas governed by a system of inheritance under which the children were entitled to ''claim a moiety in the self-acquisitions of their deceased -father. The properties dealt with under the gift comprised both -the self-acquisitions of the elder brother as well as tarwad properties. It was held that the donees held the property as Nsub tarwad property, and had no separable interest therein as tenants-in-common P. K. Narayana Pillai, J., who wrote the leading judgment in the case emphasised the fact that the gift had been media .pursuant to the father''s instructions and the gift was such as a father would make in favour of his children following the Marumakkathayam system and it did not make a difference in the present instance when the; paternal uncle and not the father happened to be the donor. Apparently the learned Judge-was reluctant to place the case squarely on the, footing of the applicability of the presumption to gift by near relations ;

We may next refer to the less hesitant observations of K. Parameswaran Pillai, J., in Pachy" y, Manuel, 24 Ker LJ 1257 at p. 1270 (J), which ''dealt with a case of gift by two brothers governed by the Marumakkathayam law to their two sisters:

The question is whether that presumption is restricted to the case of gifts made by a father or whether it can be extended to gifts made to others by persons following the Marumakkathayam law. I am of opinion that the presumption "is not'' so restricted in its operation. The notion of separate property is not very familiar to Maru-makkathayees and properties are held and enjoyed jointly by them. Tenancy-in-common is a later development and it has been finally adopted, only by the Nairs, Nanjinal Vellalas and "Ezhavas by Legislative enactments relating to these communities. Ordinarily, therefore, When a father or near relation makes a gift of property .to certain Marumakkathayees the intention of ''the donor is that they should enjoy the property not as their separate property but as joint ten-''ants with the incidents of Marumakkathayam. Law attaching thereto. There are not many decided 5 cases on the point but such decisions as the reports contain are all in favour of this view.

Referring to gifts of this type, Sundara Iyer in Malabar and Aliyasanthana law states as follows:

Another way in which the thavazhi comes , to own property is by gifts from father or brother or uncle, for the matter of that gifts from anybody provided that the gift is intended to enure forthe benefit of the branch as such and not merely for the benefit of the individual members. The only difference between the gifts last named and others is that whereas there is generally a presumptioa in the former case (the extent of the presumption will be presently considered) that the gift is intended to enure for the benefit of the branch, in other cases it must be made out to be so.

(Paragrapjh-96) The learned author then refers to the availability of the presumption in the case of gifts by a Marumakkathyee to his wife or children and continues:

It can by no means be said to be clear under what other circumstances the inference will be mode. However, the inference has been drawn in a case where the gift was by the uncle to his nieces, the mother being dead........ Having regard to the usual origin of thavazhi property from. fathers, uncles and brothers as stated by Mr. Justice Sankaran Nair in Machikandi Parkum Maramittath Tharuvil Mootha Chettiam Veettil Chakkara Kannan Vs. Varayalankandi Kunhi Pokker and Others, it would seem legitimate in all those-cases to draw the inference.

It would appear therefore in the learned author''s view that the presumption could not be available except in the cases of gifts by fathers, brothers or uncles. We do not however see any insuperable difficulty in extending the principle to cases of gifts made by other near relations of the donees. The basic principle in all these cases is that the ordinary notion of Marumakkathayee donor will be that his gift is intended to have there Incidents of Marumakkathayam law, i.e., the gift is to enure in favour of the tarwad or the thavazhi. It is this principle which, as we saw, is emphasized in the earliest case in Travancore 5 Ker L. R. 116 (A).

12.The question arose in Kundan v. Par-kum, Am 1917 Mad 726 (2) (L), in respect of a gift by an uncle in favour of his nieces and the point was taken that the principle of Kunhacha Umma v. Kutti Mammi Hajee, ILR 16 Mad 201 (FB) (M); as to puthravakasam property did not apply (i) where the donor is not the father and. (ii) where the deed of gift is not expressly'' todonee and his or her children. Kumaraswami Sastri J.; in dealing with .the matter expressed; his difficulty to understand why any such distinction should be drawn and said:

The decision in ILR 16 Mad 201 (FB) (M)''v proceeded on the general''principle enunciated''by the Privy Council in Sreemutti Soorjeemoney Des-see v. Denobandoo Mullic, 6 Moo Ind App. 526 (PC) (N) & Mohamad Shamsool v. Shewakram, 2 lnd App 7 (PC) (O) and if the ordinary notions and wishes of the donor may not improperly be taken into consideration in construing the nature of the estate intended to be conferred, there is no reasoa why the same test should not be applied to a gift by an uncle as to a gift by a father. The ratio decided of the decisions seems to be that a Hindu ordinarily intends to confer on the donee such an estate as the donee would take under the personal law governing him. ''The degree of propinquity is therefore, immateriaVand affords no test. The case may be different where a donor not following, Marumakkathayam law gives properties to those, who do but it is unnecessary to express any opinion in this appeal.

The learned Judge "concluded his observations on this point by saying that where a Marumakkathayam donor gives properties to the children of the same mother or to a member of a thavazhi without1 any express Indication to an absolute Alienable estate was granted, the presumption was that the donor intended to confer only an .estate with all the incidents of tarwad property.

The recent case in Chalakaran Kuttayi Lakshmi and Another Vs. Chalakaran Puthia Purayil Mukundan Karnavan and Others, is also a case "of gift by an uncle in favour of his nieces. CtOvinda Menon, J, delivering the judgment of the 3ench after referring to the otoservations of imaraswami Sastri, J, extracted above, continue. The question in most of the cases would be what the intention of the donor was. If the donor does not specifically make it clear that individual donees are to take the gift as tenants-in-common the natural presumption which is in consonance with ordinary ideas and notions of people following Marumakkathayam law is that the intention of the donor was that those to whom he makes a gift of the property should hold the same as a ground or entity with all the incidents of tarwad property attached to it."

Applying the test laid down in the above cases, It seems to us that in the absence of and a part from the legislation which intervened the gift Ext. I would enure not to the donee 2nd Defendant alone but to the thavazhi composed of herself and descendants in the female line how low so ever.

The next and more important question is how far this principle as to Makkathayam gift -extended as above is available for application to Ext. I which came into existence in 1089 after Section 17 of the Nair Act of 1088 had. come into tforce on 10-3-1088. This section enacted:

Property obtained from the husband or father by the wife or widow and child or children ''toy gift or inheritance, shall, unless in the case of gift contrary intention appears from the instrument of gift, belong to the wife or widow and each of the children in equal shares with right to tadtsidual partition.

Can it be said that the principle as extended was in the nature of a custom or usage in the community and accordingly saved by the operation of Section 44 (a) as learned Counsel for Appellant contends. It seems to us however to be only a canon of construction which has lost its entire force by the specific enactment of Section 17 of the Nair Act of 1088 applying contrary presumption to the present case. The Nair Act of 1088 must be taken to have reflected the consciousness of the .community that a positive rule of construction1 that gifts in favour of the mother or the children were not intended to bei thavazhi gifts was a desirable rule for the future.

And if that was to be the rule in cases of gif tn toy husbands or fathers, what reason is that to say -that a different and contrary rule of construction .should be deemed to have been preserved in cases of gifts by other relations less close than the; father or husband. It appears clear therefore that the notion of gift in favour of a thavazhi must, xmless, - expressly made, be deemed to have become scarce after the Nair Act of 1088 had come into force or putting it in another way, the presumption as to group which prevailed before the date of the Act has given place to a presumption in favour of individuals.

Applying the test of Section 17 of the Nair Act'' of 1088 to the facts here: we find that the 2nd Defendant was the only child of her father and must be held, accordingly to be entitled in absoi lute right, to the property covered by Ext. I gift deed. The learned Munsiff in dealing with this , question applied the presumption available in the case of Makkathayam gifts that the gift enureS to the benefit of the suto-tarwad of which toe 2nd Defendant was the eldest member and "that there was nothing in Ext. I to show that the other members of the sutotarwad were to he excluded. The learned Judge applied the provisions of Section 17 of the Nair Act of 1088 so as to exclude ordinary presumption, obtaining under Marumakkathayam Jaw that the gift would entire the thavazhi of the donees if it is made by near relations. We hold, that the learned Judge is right.

The above interpretation which we adopted appears also to be consistent with the conduct of the parties, for in 1100 we find Ext. HE mortgage executed by the 2nd Defendant in favour of a stranger of item No. 3 with a declaration that the property belonged exclusively to herself and the 2nd Defendant''s uterine brother Kannan Pad-manabhan had also attested the document. Ordinarily in construing a deed of gift what the Courts have least to see is the intention of the donor as evinced by the deed or the surrounding circumstances at the time of the deed and no amount of dealing by the donee should convert a limited into an absolute grant. But there can be no doubt that subsequent dealing by the donee with consent or acquiescence of the other members of the tar-wad may constitute good evidence as against the tarwad on grounds of estoppel. On that footing the Ext. Ill transaction is certainly useful.

It follows therefore that the Plaintiffs claim to share in items Nos. 2 and 3 has been properly rejected by the Court below. This second appeal fails in the result and is dismissed with costs.