Punnasseri Narayanan Nair vs Punnasseri Girija & Others on 29 May, 2009

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Kerala High Court

Punnasseri Narayanan Nair vs Punnasseri Girija & Others on 29 May, 2009

This second appeal is brought by defendant No.2 in challenge of the judgment and preliminary decree for partition passed by the first appellate court reversing judgment and decree of the trial court dismissing the suit. Parties are referred as plaintiffs and defendants as in the trial court for convenience.

2. Following substantial questions of law are raised for a decision.

"1. Whether an assignment of property "to a woman and her children" can be interpreted to mean an assignment to her tavazhi?

2. Whether any such presumption of benefit enuring to the tavazhi can ever exist in the case of an assignment which includes within it an element of consideration?

3. Whether the interpretation put on Ext.B2 by the lower court is correct in law and whether the lower court was right in relying on Ext.A11 judgment for that purpose?"

S.A. No.335 of 1995 -: 2 :-

3. Suit is for partition of immovable properties referred to in the plaint schedule with plaintiffs claiming per capita share along with the defendants. Genealogy which is not under challenge is as under:

Ittirarichan Nair two wives two sisters Unniperi Ama Ambramoli Pennuty Amma Themana Amma @mathu Amma Chirutheyi (d) Parvathykutty Gopalan Nair(s) Chiruthakutty Amma (d) Kuttikrishnan Nair (d) Amma(d) Madhavan Nair (s) Krishnankutty Nair(s) Meenakshy Amma (d) D3 Sathyavathi Amma (d) D2 Narayanan Nair (s) P1 Girija Amma (d) P2 Remadevi Amma (d) D1 Somasekharan Nair (s) D4 to D7 Ittirarichan Nair and Meenakshi Amma were following Marumakkathayam law. Ittirarichan Nair executed Ext.B1, Will dated S.A. No.335 of 1995 -: 3 :- 14.5.1929 in respect of 4 items of property which belonged to him absolutely. Item No.1 was bequeathed to Parvathikutty Amma and Gopalan Nair, his children in his deceased wife, Unniperi Amma. Item No.2 was bequeathed to Madhavan Nair and Krishnankutty Nair, his children in his deceased wife, Ambramoli @ Mathu Amma. Item Nos.3 and 4 were bequeathed to Chirutheyi Amma, daughter of his deceased sister, Pennutty Amma and Chiruthakutty Amma and Meenakshy Amma (Defendant No.8 - she died pending suit), daughters of his deceased sister, Themana Amma. After the death of Ittirarichan Nair, Chirutheyi Amma, Chiruthakutty Amma and Meenakshy Amma entered into certain transactions including sale in respect of item Nos.3 and 4 of Ext.B1. Those transactions were entered into for discharging the debt of Kuttikrishnan Nair, brother of Chiruthakutty Amma and Meenakshy Amma (ie., son of Themana Amma, deceased sister of Ittirarichan Nair). In the year 1949, children of Chiruthakutty Amma (daughter of Themana Amma and sister of defendant No.8) filed O.S. No.436 of 1949 for partition of item Nos.3 and 4 of Ext.B1 impleading among others Chirutheyi Amma, Chiruthakutty Amma and Meenakshy Amma, (legatees of items Nos.3 and 4 under Ext.B1) and the assignees under them contending that the bequest of item Nos.3 and 4 as per Ext.B1 was not in favour of S.A. No.335 of 1995 -: 4 :- the three ladies (Chirutheyi Amma, Chiruthakutty Amma and Meenakshy Amma) alone but in favour of the respective sub tavazhies headed by them. Some of the assignees filed O.S. No.356 of 1949 claiming that the bequest was in favour of the three ladies absolutely.

Those suits were tried jointly and disposed of as per Ext.A11 judgment dated 13.12.1951. Learned Munsiff found that bequest of item Nos.3 and 4 under Ext.B1 (the Will was marked as Ext.A1 in those cases) was for the respective tavazhies headed by the three ladies, the transactions did not bind the plaintiffs in O.S.No.436 of 1949 and accordingly a preliminary decree for partition was passed. O.S. No.356 of 1949 was dismissed. It is not disputed that Ext.A11 judgment and decree became final. Kuttikrishnan Nair, brother of Chiruthakutty Amma and Meenakshy Amma (all of them were defendants in O.S. No.436 of 1949) executed Ext.B2, assignment deed dated 16.11.1953 in the name of Meenakshy Amma (defendant No.8) assigning the suit properties. In Ext.B2 it is recited that consideration for the assignment is the sale of the property bequeathed in the name of Meenakshy Amma as per Ext.B1 to discharge the liabilities of Kuttikrishnan Nair and the expenses she incurred in defending O.S. No.436 of 1949. Exhibit B2 states that a similar transaction was made in the name of Chirutheyi Amma and Chiruthakutty Amma as S.A. No.335 of 1995 -: 5 :- well (for the same reason). While so, Meenakshy Amma as per Ext.A1, assignment deed dated 29.9.1981 assigned her right over the suit properties in favour of defendant No.1, her grand son (through her daughter, Sathyavathi Amma - defendant No.3) stating that item Nos.3 and 4 of Ext.B1 were bequeathed in favour of herself and others as per Ext.B1 and that for the consideration stated in Ext.B2 the suit properties were assigned to her. She executed Ext.A2, correction deed dated 2.9.1985 in favour of defendant No.1. Correction is to the effect that the suit properties dealt with as per Ext.A1 absolutely belonged to her. Plaintiffs who are the children of Sathyavathi Amma (defendant No.3) who is the daughter of Meenakshy Amma (defendant No.8) would say that the suit properties belonged to the sub tavazhi headed by Meenakshy Amma which took the properties with all incidents of tarwad property and hence Ext.A1, assignment deed executed by Meenakshy Amma in favour of defendant No.1 is not binding on them. They prayed for partition claiming per capita share in the suit properties.

4. Defendant Nos.4 to 7 along with the plaintiffs and defendant No.1 are the children of defendant No.3. Defendant Nos.3 to 7 supported the plaintiffs. Defendant No.1 contended that the suit properties absolutely belonged to Meenakshy Amma and that she was S.A. No.335 of 1995 -: 6 :- competent to assign the properties in his favour as per Ext.A1. He also filed O.S. No.539 of 1985 seeking a decree for prohibitory injunction as the absolute owner of the suit properties by virtue of Ext.A1. Defendant No.2 contended that the properties are not tarwad properties but, the bequest as per Ext.B1 and the subsequent assignment as per Ext.B2 were in favour of Meenakshy Amma and her children (defendant Nos.2 and 3) and hence the suits are not maintainable.

5. Learned Munsiff found that the recitals in Ext.B2, assignment deed indicated that Kuttikrishnan Nair intended to convey the suit properties to Meenakshy Amma and her children (defendant Nos.2 and 3) absolutely and that it is not a property vested in Meenakshy Amma and her children (defendant Nos.2 and 3) by inheritance so that, it can be considered as tarwad property. Learned Munsiff observed that the finding as to whether the bequest as per Ext.B1 was to the sub tavazhies headed by the three ladies or not is irrelevant as the court is only concerned with the assignment as per Ext.B2 and that so far as plaintiffs (O.S. No.240 of 1986) are concerned they are the grand children of Meenakshy Amma having no right over the properties and so far as defendant Nos.2 and 3 are concerned, their mother (Meenakshy Amma) is alive (as on that date), they cannot S.A. No.335 of 1995 -: 7 :- seek partition. Learned Munsiff therefore dismissed both the suits. Plaintiffs in O.S. No.240 of 1986 and defendant No.1 who filed O.S. No.539 of 1985 filed separate appeals. First appellate court found that the finding in Ext.A11, judgment in O.S. Nos.356 and 436 of 1949 (that the bequest as per Ext.B1 was to the sub tavazhies headed by the three ladies) is binding on the parties, that Ext.B2 is in favour of a natural group headed by Meenakshy Amma, at the time of Ext.B2, defendant Nos.2 and 3 were alive and that Ext.B2 indicated that the assignment was to benefit Meenakshy Amma and her tavazhi. Accordingly it was found that the suit properties are partible and parties would get share per capita. Appeal preferred by defendant No.1 against the dismissal of O.S. No.539 of 1985 was dismissed. First appellate court passed a preliminary decree for partition in O.S. No.240 of 1986. That preliminary decree and judgment are under challenge in this second appeal. Defendant No.1 has not preferred any Second Appeal against the dismissal of his appeal. Hence the contention that the properties absolutely belonged to Meenakshy Amma (defendant No.8) do not any more subsist.

6. Learned counsel for defendant No.2 contended referring to Ext.A1 that only if a gift, bequest or acquisition is made in the name of the wife and all her children or in the name of all her children when S.A. No.335 of 1995 -: 8 :- their mother is not alive, a presumption that the donees took the property as tavazhi property would arise. Reliance is placed on the decisions in Duja Bhandaray v. Venku Bhandary (AIR 1916 Madras 825) and Chakkara Kannan v. Kunhi Pokker (ILR (39) Madras 317). Learned counsel also referred to me the view expressed by Kumaraswami Sastri, J. in Kundan v. Parkum (AIR 1917 Madras 726) to the effect that even if the gift is in favour of the wife alone it will be only puthravakasom property and argued that in that case, grand children of Meenakshy Amma cannot claim any right in the suit properties. Further contention is that the bequest as per Ext.B1 is not in favour of a natural group as is clear from Ext.B1 itself that item Nos.3 and 4 of Ext.B1 were bequeathed in favour of Chirutheyi Amma, daughter of testator's deceased sister, Pennutty Amma and Chiruthakutty Amma and Meenakshy Amma, daughters of his another deceased sister, Themana Amma. Learned counsel contended that the said three legatees (referred to in this judgment as "the three ladies") did not form a natural group and hence the question of bequest being in favour of the tavazhi did not arise. Learned counsel placed reliance on the decision in Kuttayi Lakshmi v. Puthia Purayil (AIR 1954 Madras 235) where it was S.A. No.335 of 1995 -: 9 :- held that to become puthravakasom property donees must form a natural group. Placing reliance on the decision in Teetha v. Krishnan (1975 KLT 156 (F.B.) learned counsel contended that the presumption arises only if the gift is in favour of the Marumakkathayam woman and all her children or in the names of all the children who by themselves constituted a tavazhi (their mother being not alive). According to learned counsel Ext.B2 would show that properties were absolutely given to Meenakshy Amma and her "Santhanams" which word does not take in her grand children. Reliance is placed on the decision in Narayanai Amma v. Parameswaran Pillai (1963 KLT 630). According to learned counsel even if it is assumed that there is an initial presumption as contended by the plaintiffs only slight evidence is required to rebut that presumption and conduct of the parties in this case rebutted that presumption. Learned counsel referred to Ext.B3, purchase certificate dated 29.9.1977 obtained by Meenakshy Amma and her children, defendant Nos.2 and 3 in respect of the suit properties even at a time when the grand children of Meenakshy Amma were alive. Learned counsel contends that if the properties were actually tarwad properties, the purchase certificate (Ext.B3) would not have been S.A. No.335 of 1995 -: 10 :- taken in the name of defendant Nos.2, 3 and 8 alone. It is also contended by learned counsel that a reading of Ext.A11, copy of judgment in O.S. No.436 of 1949 would show that in similar situation acquisition of property by the mother of Ittirarichan Nair was held to be absolutely for herself. Learned counsel for plaintiffs contended that as per Ext.A11, the court has specifically found that the bequest of item Nos.3 and 4 as per Ext.B1 was in favour of the three ladies and the respective sub tavazhies headed by them and hence the parties are bound by that finding. Learned counsel contended that Ext.B2, assignment deed in the name of Meenakshy Amma has to be read along with Ext.B1, Will and the recitals therein. Learned counsel contended that Ext.B1 would show that Ittirarichan Nair bequeathed item Nos.3 and 4 to the sub tavazhies of the three ladies including Meenakshy Amma (defendant No.8). Learned counsel contended that in the facts and circumstances the word "santhanams" used in Ext.B2 cannot be confined to children of Meenakshy Amma alone. It is also contended that even if the properties are taken to be puthravakasom properties, per capita division is not prohibited.

7. It is not in dispute that Ext.B1, Will executed by Ittirarichan Nair does not concern the suit properties. Suit properties were assigned in the name of Meenakshy Amma as per Ext.B2, assignment S.A. No.335 of 1995 -: 11 :- deed dated 16.11.1953. In the nature of contentions raised by the parties it is necessary to refer to the recitals in Ex.B2 and the circumstances leading to that transaction. It is not disputed that Ext.B2 is in respect of the suit properties which absolutely belonged to Kuttikrishnan Nair, brother of Meenakshy Amma. It is not disputed, and Ext.B2 also states that consideration for the assignment as per Ext.B2 is the sale of the properties bequeathed in the name of Meenakshy Amma and others as per Ext.B1 for discharging the debts of Kuttikrishnan Nair. Exhibit A11 shows that children of Chirutheyi Amma (one of the legatees referred to in Ext.B1) filed O.S. No.436 of 1949 challenging the transactions in respect of item Nos.3 and 4 of Ext.B1 as if those properties were acquired by the sub tavazhies headed by the three ladies. That challenge succeeded and ignoring the transactions a preliminary decree for partition was passed. It is after that decision that Kuttikrishnan Nair who was a defendant in O.S. No.436 of 1949 assigned the suit properties in the name of Meenakshy Amma as per Ext.B2 stating the consideration of that transaction as the sale of item Nos.3 and 4 by Meenakshy Amma and others to discharge his debts and the expenses which Meenakshy Amma had to incur to defend O.S. No.436 of 1949. Exhibit B2 further states that Ittirarichan Nair had executed Ext.B1, Will and that Meenakshy Amma S.A. No.335 of 1995 -: 12 :- and others were to enjoy the suit properties in accordance with the directions contained in Ext.B1. It is by virtue of these recitals in Ext.B2 that plaintiffs claimed that the recitals in Ext.B1 became relevant. Defendant No.2 when examined as D.W.1 admitted that he is claiming right over the suit properties as per Ext.B1, Will executed by Ittirarichan Nair and that Kuttikrishnan Nair assigned the suit properties as per Ext.B2 in consideration of the sale of the property bequeathed as per Ext.B1. Therefore in considering whether the suit properties are tavazhi properties, Ext.B1 has to be taken into account. Defendant No.2 cannot in the light of what is stated in Ext.B2 and his own evidence as DW1 contend that the issue has to be answered with reference to Ext.B2 alone, divorced from the recitals in Ext.B1 and the circumstances which culminated in the execution of Ext.B2.

8. Exhibit B1 says that Ittirarichan Nair executed Ext.B1, Will at a time when he was pretty old, he wanted arrangements to be made regarding inheritance of the properties belonging to him during his life time and accordingly Ext.B1 Will was executed. In this proceeding what is relevant is the disposition of item Nos.3 and 4 of Ext.B1 and the relevant recital concerning that is as under:

3 4 S.A. No.335 of 1995 -: 13 :- ................

........"

(empahsis supplied)

9. I shall refer to Ext.B2, assignment deed dated 16.11.1953 concerning the suit properties. There, it is stated after referring to the sale of item Nos.3 and 4 of Ext.B1 by Meenakshy Amma and others for discharging the debts of Kuttikrishnan Nair that their incurring expenses for defending O.S.No.436 of 1949 that: S.A. No.335 of 1995 -: 14 :-

........

1929 2- ......."

(emphasis supplied)

10. The bequest as per Ext.B1 is by Ittirarichan Nair, the Uncle expressed in the name of his three nieces, Chirutheyi Amma, Chiruthakutty Amma and Meenakshy Amma (defendant No.8). According to learned counsel for defendant No.2 there was no practice of a gift or bequest being made by an Uncle in favour of his nieces and that is not known to Marumakkathayam law. In Chakkara Kannan's case Sanakaran Nair, J. states that 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. In that case S.A. No.335 of 1995 -: 15 :- Srinivasa Aiyangar, J. also states that it is not uncommon for marumakkathayees to make gifts of properties to their wives, daughters or sisters and that such properties are called puthravakasom properties. There is reference to such gifts by Uncle in favour of nieces in Kuttayi Lakshmi's case also. There it is stated that if a gift is made to an entity which constitutes a tavazhi as such then the presumption is that the donor intends that the gift should have all the incidents of tarwad property attached to it and when the donor is the Uncle or brother, still, the donee forms part of a natural group according to Marumakkathayam law. Then the presumption is that the gift is to a tavazhi. Therefore even as per the law in force before the Madras Marumakkathayam Act came into force bequest or gift by Uncle in favour of his nieces to enure for the benefit of their respective tavazhies were not uncommon or unknown. Hence from the mere fact that the bequest as per Ext.B1 is made by the Uncle (Ittirarichan Nair) in favour of his nieces there could be no inference that it was not meant for the tavazhies headed by those nieces.

11. So far as Section 48 of the Madras Marumakkathayam Act is concerned it is not disputed before me that the said provision has no retrospective application. It was so held in Punnoron S.A. No.335 of 1995 -: 16 :- Krishnan v. Punnaran Thala (28) AIR 1941 Madras 605) and Rugmini Amma v. Madhava Mannadiar (ILR 1947 Madras

272). Hence Sec.48 cannot govern Ext.B1.

12. I shall consider whether Ext.B1 is a bequest in favour of the three sub tavazhies headed by the three ladies. Learned counsel for defendant No.2 placed reliance on Duja Bhandary's and Chakkara Kannan's cases (referred supra). In the former case gift was to the wife to the exclusion of children and gave her an absolute estate. In that case the deed contained no words conveying the estate to the children who were alive at the time of the gift. It was held that the donor intended to give an absolute estate to the wife. In the latter case it was held that when the gift was to the wife and children or children alone the presumption is that the donees take the property with the incidents of the tarwad property. Srinivasa Aiyangar, J. held that it was not the giving of the property by a person to his wife and children that constitutes the tarwad property and that when the property is given to a wife and children following Marumakkathayam law, they, as tavazhi hold the property with the incidents of tarwad property. It was held on facts that the deed of gift said that the donees were to enjoy the property in the same way the donor did S.A. No.335 of 1995 -: 17 :- which indicated that there was an absolute gift in favour of the donees concerned and that no one else other than the donees have right in the property. The court however did not consider the question whether the gift with the incidents of tarwad property could be made to the mother and some of her issues only as such a situation did not arise on the facts of that case. Srinivasa Aiyangar, J. observed that some only of the members of a tarwad cannot form a corporate unit capable of holding property as such. Husbands of female members and children of male members of tarwad are not members of the tarwad. It is not uncommon for them to make gifts of properties to their wives, daughters of sisters and their children and such properties are called puthravakasom properties.

13. In Kundan's case (referred supra) Kumaraswami Sastri, J stated that in constituting a deed of gift the courts have to see the intention of the donor as evidenced either by the deed or by the surrounding circumstances at the time of gift. Where a Marumakkathayam donor gave properties to the children of the same mother or to a member of a tarwad without any express indication that an absolute alienable estate is granted, the presumption is that donor intends to confer only an estate with all the incidents of the tarwad property. But where there are express indications that the donees S.A. No.335 of 1995 -: 18 :- take absolute heritable and alienable estate there is no reason to treat the clauses as repugnant and unenforceable simply because the gift is to the donees and her children and heirs. In the course of discussion it was stated that where an Uncle following Marumakkathayam law made a gift of certain properties to his nieces, children of the same mother and there was nothing in the deed to indicate that absolute alienable estate was intended to the concerned, gift was of puthravakasom property.

14. In Rugmini Amma's case (referred supra) at page 283 it was stated that:

"so far there is no decision that if a property is given by a father to a wife alone or to one or more children, the property is to be held as tarwad property. The only point settled by the various decisions is that property would be held as tarwad property if the gift is in favour of the wife and children".

Therefore prime question is whether the bequest as per Ext.B1 was in favour of the three ladies and their children alone or to the sub tavazhies headed by the three ladies.

S.A. No.335 of 1995 -: 19 :-

15. Defendant No.2 has a contention that the bequest as per Ext.B1 is not in favour of a natural group so that the natural group took the properties with the incidents of tarwad properties. That contention was raised on the premise that the bequest is in favour of the three ladies who are daughters of two deceased sisters of the testator and hence legatees cannot form a natural group. A reading of Ext.B1 would show that the bequest of item Nos.3 and 4 therein is not to the three ladies together, but to the three ladies and their children. So, each of the three ladies and their children formed a natural group. Hence the contention that the bequest is to the three ladies jointly which is not a natural group so as to arouse a presumption as claimed by the plaintiffs cannot be accepted. That the bequest is not in favour of the three ladies alone is not disputed by defendant No.2 also, his only contention in that regard being that the bequest should be confined to the three ladies and their children alone. Defendant No.1 claimed absolute right over the suit properties from Meenakshy Amma on the strength of Ext.A1 as clarified by Ext.A2 and to protect his right, title, interest and possession of the property filed O.S. No.539 of 1985 which the trial court dismissed and that was confirmed by the first appellate court. He has also not challenged that verdict. Hence it is required to be considered whether the S.A. No.335 of 1995 -: 20 :- bequest as per Ext.B1 is in favour of the three ladies and their children alone or it is in favour of the three sub tavazhies headed by those three ladies. That in my view is to be decided on the facts of the case considering all the relevant circumstances including the recitals in Ext.B1. The decision relied on by counsel for defendant No.2 was a case where bequest/gift was in favour of the person concerned absolutely and hence there was no scope for interpretation that the bequest/gift was in favour of the tavazhi so that properties were taken by the legatees/donees with incidence of tarwad property.

16. At this juncture counsel for defendant No.2 invited my attention to Ext.A11, certified copy of judgment in O.S. No.436 of 1949 and O.S. No.356 of 1949 (filed by children of Chiruthakutty Amma, sister of Meenakshy Amma challenging the alienation of item Nos.3 and 4 of Ext.B1). Learned counsel contended that even in Ext.A11 a gift in favour of the mother of Ittirarichan Nair was found to be an absolute gift in her favour. According to learned counsel that principle should apply in the case of bequest as per Ext.B1 also (which is Ext.A1 in Ext.A11). Additional issue No.16 raised in Ext.A11 case is whether the properties were tarwad properties or it belonged to Ittirarichan Nair exclusively. The jenm right of the properties bequeathed as per Ext.B1 (Ext.A1 in Ext.A11 case) belonged to S.A. No.335 of 1995 -: 21 :- Punnassery Elavana Tarward. Kondan Nair (husband of Chirutha Amma and father of Ittirarichan Nair) had a sub kanom right over the said properties. Kondan Nair assigned the properties to Chirutha Amma, his wife as per Ext.B1 in Ext.A11 case. Ittirarichan Nair obtained a melkanom right with power to evict Chirutha Amma (his mother). While so, Chirutha Amma surrendered her right in favour of Ittirarichan Nair. Plaintiff in O.S. No.361 of 1947 who was defendant No.14 in O.S. No.436 of 1949 contended that those assignments were executed for and on behalf of Chirutha Amma (mother of Ittirarichan Nair) and her descendants. Hence it was contended in that case that the gift to Chirutha Amma should be taken as a gift to herself and children who followed Marumakkathayam law of succession. The court relied on the decision in Chakkara Kannan's case and held that properties were given to Chirutha Amma 'absolutely'. That finding was based on the recitals in the relevant document which according to the court conferred absolute right in favour of Chirutha Amma. It was also found that the recital in the document in the name of Chirutha Amma that from the day of the document herself and her children to enjoy the property did not form part of the operative portion of the gift. In other words, the finding that properties were gifted absolutely to S.A. No.335 of 1995 -: 22 :- Chirutha Amma was in the light of the relevant recital in Ext.B1 in Ext.A11 case. It is to be remembered that, that was a gift and once there was an absolute gift, subsequent direction as to the mode of enjoyment could not cut down the disposition in favour of the donee.

17. So far as Ext.B1 is concerned I referred to the relevant recital as to the bequest and the mode of enjoyment of item Nos.3 and 4 therein. Relevant recitals so far as item Nos.3 and 4 in Ext.B1 are concerned is that "all rights belonging to me are to be enjoyed on my death by Chirutheyi Amma, daughter of my deceased sister, Pennutty Amma and Chiruthakutty Amma her younger sister Meenakshy Amma who are the daughters of my younger deceased sister Themana Amma with their santhanams now existing and to be born as owners paying micha varom etc." and that "in case of any of the above said donees die before my death the rights apportioned to them shall devolve upon the remaining members and their respective tavazhies". Interpretation given by defendant No.2 is that it is only in case of one of the three ladies (legatees) dying before the death of the testator that the right of the tavazhi would arise. But, I am unable to accept that interpretation. So far as a Will is concerned, accepted rule of construction is that the court must make S.A. No.335 of 1995 -: 23 :- every effort to give effect to all the recitals in the Will so far as it is possible and rejection of a clause arises only when it is repugnant to an absolute disposition already made. If there are two inconsistent and irreconcilable provisions in a Will, the latter has to prevail over the former. In this case one thing is certain particularly as the testator was making arrangements for inheritance of his properties on account of his old age, that he had the respective tavazhies of his nieces (whose mothers were then not alive more) also in his mind while he made the bequest as per Ext.B1. It is difficult to accept the contention that Ittirarichan Nair, the testator wanted to benefit the respective tavazhies only in case any of the three ladies died before his death. This Court has pointed out in Prasanth v. Kalliani (2007 (2) KLT 992) that the question whether the gift or bequest was to the donees individually or shall enure to the tavazhi is to be resolved on the intention of the donor or the testator. When interpreting the bequest of item Nos.3 and 4 as per Ext.B1, this Court has to take into account the notions and ideas an ordinary Hindu following Marumakkathayam law had as to the ordinary method of enjoyment of his properties (See Mohammed Shumsool v. Shewukram - (1874) L.R. (2) I.A. 7). No doubt, there is a direction S.A. No.335 of 1995 -: 24 :- in Ext.B1 that the three ladies and their children shall enjoy the properties as owners paying revenue etc. but the rule of construction informs me that the recitals as a whole should be read and attempt should be made to give effect, as far as possible to all directions in the Will. Reading of relevant clauses in Ext.B1 as a whole it leaves me in no doubt that the testator wanted the properties to be taken by the sub tavazhies headed by the three ladies including Meenakshy Amma (defendant No.8).

18. The expression "Santhanams" referred to in Exts.B1 and B2 need not be confined to the children of Meenakshy Amma. In Chakarakannan's case (supra) it was held that it is not the giving of properties to the wife and children that constitutes them a tarwad or tavazhi. If properties are given to a wife and children following Marumakkathayam law, they as a tavazhi hold those properties with the incidents of tarwad properties. In Kundan's case (supra) referring to the mention of absence of the word 'children' or 'Santhanams' in the deed it was stated that:

"the decision do not turn on the presence or absence of reference to issue in the deed but on general considerations of the nature of the S.A. No.335 of 1995 -: 25 :- estate which a Marumakkathayam donor intended to confer" ............... "no doubt the trend of the decisions is to treat reference to children as an indication that the donor intended the gift to be puthravakasom, but the converse do not follow...."

19. At any rate in Raghavan v. Soumini Amma (1957 KLT 558) in the case of a puthravakasom gift under the Marumakkathayam law it was held that the presumption is that it enured to the tavazhi and that it is not in the nature of a tenancy-in common as among the donees. In Narayanai Amma's case (referred supra) in the case of a gift before 1088 to a Nair woman and her children living and to be born in future it was held that the presumption is that the gift enures to the benefit of the tavazhi. Referring to the expression "Santhathi" which corresponds to "Santhanam" it was held that the expression meant not children or issue only, but imports succession or heirship. In Kamalam v. Devaki (2006(2) KLT 499) even in the absence of an expression like 'tavazhi' in the Will in the case of a bequest in favour of a natural group it was held that there is a presumption that it was to enure the S.A. No.335 of 1995 -: 26 :- benefit of the tavazhi constituted by that group and that the mere absence of the expression 'tavazhi' will not by itself show that the properties were to be enjoyed as co-ownership properties.

20. There are also other factors which would justify a conclusion that the bequest of item Nos.3 and 4 as per Ext.B1 was to the tavazhi headed by the three ladies. I stated about the circumstances which culminated in Ext.A11 judgment. In Ext.A11 there is a definite finding that the bequest as per Ext.B1 (Ext.A1 in that case) was not merely in favour of Meenakshy Amma and her children (defendant Nos.2 and 3) alone but in favour of the tavazhi headed by her. That suit was necessitated as Meenakshy Amma and the two other legatees under Ext.B1 disposed of item Nos.3 and 4 to clear the debts of Kuttikrishnan Nair. Exhibit A11, judgment was pronounced on 13.12.1951 and following that, Kuttikrishnan Nair executed Ext.B2, assignment deed on 16.11.1953 to compensate Meenakshy Amma for the loss caused to her by sale of the properties bequeathed in her name as per Ext.B1 (Will) and the loss caused to her in defending Ext.A11 case. In Ext.B2 Kuttikrishnan Nair stated that properties (suit properties) are to be enjoyed by Meenakshy Amma and her children in accordance with the directions in Ext.B1 Will. I stated that even defendant No.2 is swearing by Ext.B1, Will since according to him his S.A. No.335 of 1995 -: 27 :- right in the property is as per Ext.B1. Learned counsel for defendant No.2 contended that the direction as to the mode of enjoyment of the properties in Ext.B2 is illegal and unenforceable since a vender could not make any such direction as to enjoyment of the property sold. But in this case the Court is not considering the legality or validity of the direction as to the mode of enjoyment made in Ext.B2 since no one concerned has so far challenged the said direction in Ext.B2 and that is not an issue also in this case. On the other hand that direction has to be taken into consideration to understand the manner in which the parties understood the assignment as per Ext.B2 and how the properties were being enjoyed. It has to be borne in mind that it is after Ext.A11, judgment where it is specifically found that bequest of item Nos.3 and 4 as per Ext.B1 was for the benefit of the sub tavazhies headed by three ladies that Kuttikrishnan Nair compensated the loss caused to Meenakshy Amma (by sale of item Nos.3 and 4 in Ext.B1) by executing Ext.B2, assignment deed stating that Meenakshy Amma and her children were to enjoy the said properties in the way directed in Ext.B1. When the bequest of item Nos.3 and 4 as per Ext.B1 was found in Ext.A11 case with Meenakshy Amma, defendant Nos.2 and 3 and Kuttikrishnan Nair also as defendants as being in favour of the respective sub tavazhies of the S.A. No.335 of 1995 -: 28 :- three ladies including Meenakshy Amma, that decision was not challenged by anybody concerned and thereafter Kuttikrishnan Nair executed Ext.B2, assignment deed reciting that the suit properties are to be enjoyed by Meenakshy Amma and others as per the directions in Ext.B1, I have to understand that Meenakshy Amma and others accepted the finding in Ext.A11, judgment that the bequest was in favour of the sub tavazhi headed by Meenakshy Amma. They cannot turn round and contend that the bequest as per Ext.B1 was not for the tavazhi but in favour of Meenakshy Amma (defendant No.8) and defendant Nos.2 and 3 alone. It is understanding Ext.B1, bequest as being in favour of the three sub tavazhies headed by Meenakshy Amma and others that Kuttikrishnan Nair executed Ext.B2 and Meenakshy Amma and others accepted Ext.B2 to be enjoyed in the way directed therein. It is clear that the assignment was made and accepted in respect of the suit properties for the benefit of the sub tavazhi headed by Meenakshy Amma.

21. Learned counsel for defendant No.2 then referred to me Exts.A1, A2 and B3. Exhibit B3, I stated above is the purchase certificate dated 29.9.1977 in the name of defendant Nos.2, 3 and 8. That according to the learned counsel is a conduct on the part of defendant Nos.2, 3 and 8 indicating that the properties absolutely S.A. No.335 of 1995 -: 29 :- belonging to them. Learned counsel contends that to Ext.B3 no objection was preferred by the plaintiffs or defendant Nos.1 and 4 to 7.

22. Exhibit B3 is in the name of Defendant Nos.2, 3 and 8. But from that alone it is not possible to hold that properties lost its character as tarwad properties if it were otherwise so. Exhibit B3 taken by some of the co-owners should enure to the benefit of other co-owners as well. Exhibit B3 can be taken as for the benefit of the members of the sub tavazhi. Exhibits A1 and A2 are of no assistance to defendant No.2. For, as per Exts.A1 and A2 Meenakshy Amma was claiming absolute right for herself which is not the case pleaded by defendant No.2

23. It is contended by learned counsel for plaintiffs that finding in Ext.A11 would operate as res judicata on the present contention of Meenakshy Amma. Exhibit A11 would show that a specific issue was raised as to whether the bequest as per Ext.B1 (Ext.A1 in Ext.A11 case) was for the benefit of the sub tavazhies headed by Meenakshy Amma and others legatees of item Nos.3 and 4 of Ext.B1. After a detailed consideration of the materials on record the court came to the conclusion that bequest as per Ext.B1 (Ext.A1 in that case) is for the benefit of the three sub tavazhies including the one headed by Meenakshy Amma. It is conceded that Ext.A11 judgment has become S.A. No.335 of 1995 -: 30 :- final. If that be so it is not open to defendant Nos.2, 3 and 8 to contend as against the finding in Ext.A11 that the bequest as per Ext.B1 was only for the benefit of Meenakshy Amma and her children (defendant Nos.2 and 3) alone.

24. It is seen that learned Munsiff has not considered any of the above relevant facts and aspects. Instead, learned Munsiff proceeded on the assumption that recital in Ext.B2 indicated that Kuttikrishnan Nair intended to convey the properties for the benefit of Meenakshy Amma and her children (defendant Nos.2 and 3) alone and that it is not a property vested in them by way of inheritance so that it can be considered as tarwad property. It would appear that learned Munsiff took the view that only in case property was taken by Meenakshy Amma and her children by way of inheritance it could be considered as tarwad property. That view is quite unsustainable. Learned Additional District Judge referred to the finding in Ext.A11 as to the character of the suit properties in the light of Ext.B1 and said that at the time of Ext.B2, assignment deed, Meenakshy Amma and defendant Nos.2 and 3 were alive and that if the assignment were in favour of Meenakshy Amma and defendant Nos.2 and 3 alone, names of defendant Nos.2 and 3 also would have been mentioned in Ext.B2. Instead Ext.B2 only stated that Meenakshy Amma and her children are S.A. No.335 of 1995 -: 31 :- to enjoy the properties which indicated that it was to benefit the tavazhi headed by her. Learned Additional District Judge found from Exts.B1 and B2 that properties were acquired by the tavazhi headed by Meenakshy Amma. In the facts and legal position stated and particularly in view of the finding in Ext.A11, there is little reason to interfere with the finding of the first appellate court that the suit properties were acquired by the tavazhi headed by Meenakshy Amma and therefore partible at the instance of the plaintiffs who are concededly members of the tavazhi headed by Meenakshy Amma (defendant No.8). The substantial questions of law raised are answered accordingly.

Second appeal fails. It is dismissed. No costs.

Civil Miscellaneous Petition Nos.873 and 1968 of 1995 shall stand dismissed.

THOMAS P.JOSEPH, JUDGE.

vsv THOMAS P.JOSEPH, J.

=================== S.A. NO.335 of 1995 =================== J U D G M E N T 29TH MAY, 2009

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