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TMI Blog1915 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... arumakkattayam law. The decision proceeded on the authority of two decisions of their Lordships of the Judicial Committee 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 Muttuswami 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 Ummanga v. Appadorai Patter I. L. R. (1911) Mad. 387 a decision of Sir Arnold Whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 Rai Bishen Vhand v. Mussumat Asmaida Koer (1883) 11 I.A. 164 in the passage cited by Benson and Sundara Ayyak, JJ., in Vengamma v. Chelamayya I.L.R. (1913) Mad. 484. 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. 3. Following the decision of the Full Bench in Kunhacha Umma v. Kutti Mammi Hajee I.L.R. (1893) Mad. 201 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there can be group tavazhis and sub-tavazhis 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. (Partly Concurring) 7. 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, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible, 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 I.L.R. (1896) Calc. 670; S,C., 23 I.A. 37. This question was answered by a Full Bench of this Court in Kunhacha Umma v. Kutti Mammi Hajee I.L.R. (1893) Mad. 201, 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 I.L.R. (1906) Mad. 322, Pattatheruvath Pathumma v. Mannamkunniyil Abdulla Haji I.L.R. (1908) Mad. 228, Kunhamina v. Kunhambi I.L.R. (1909) Mad. 315, Katankandi Koma v. Siva Sankaran (1910)20MLJ134 Chakkantavida Chakkan Abdulla v. Thazhath Cheekkootti (1910)20MLJ368 Parvathi Kattilamma v. Ramachandra Ejaman (1910) M.W.N. 124, Kunhiraman v. Kunhi Parvathi (1910) M.W.N. 642 and Kalliani Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 I.L.R. (1909) Mad. 351, 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. 10. 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 I.L.R. (1902) Bom. 445 and on Kishori Dubain v. Mundra Dubain I.L.R. (1911) All. 665. There is nothing in the Allahabad case to support his contention, and the passage in Bai Diwali v. Patel Bechardas I.L.R. (1902) Bom. 445 is only an expression of doubt. On the other hand, the decision in Vengamma v. Chelamayya I.L.R. (1913) Mad. 481 supports the contrary conclusion. 12. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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