Judgment :- 1. These are two connected appeals from the judgments and decrees of the District Munsiff, Mavelikara in O.S. 104 of 1113. The 1st defendant is the appellant in A.S. 703 of 1119 and plaintiffs 1 to 7,10,11,13 to 17 and the 8th defendant are the appellants in A.S. 704 of 1119. 2. A.S. 703 of 1119 may first be considered. The suit is for partition. According to the plaintiffs the plaint schedule properties are the sub-tarwad properties of plaintiffs and defendants 1 to 37 and they are entitled to 17/54 share over these properties. The 1st defendant contended that plaint B schedule items 5 to 32 which are properties obtained under two gift deeds Exts. A and B are not sub-tarwad properties liable for division. According him the 1st plaintiff, defendants 1 to 4 and their deceased sisters Kunju Amma and Pappi Amma were alone entitled to these properties. (Vide para 15 of the 1st defendant's written statement). The court below found that Exts. A and B properties are sub-tarwad properties. This finding of the learned Munsiff is being challenged in appeal. We have therefore to determine in this appeal the nature of the rights that the donees took under Exts. A and B gift deeds; whether they took the properties under Exts. A and B as sub-tarwad properties as found by the learned Munsiff. 3. The mother of the 1st plaintiff and defendants 1 to 4 was Thevi Amma Narayani Amma. She had ten children through her husband Kirshnan Aiyappan of Kannattu House, the 1st plaintiff, defendants 1 to 4 and the deceased Sankaran Narayanan, Sankaran Parameswaran, Sankaran Kesavan, Narayani Amma, Kunju Kunju Amma and Narayani Amma Pappi Amma. The father executed Ext. A gift deed in favour of his eldest son on 5.3.1070 in conjunction with his uncle Narayanan Krishnan. On 28.11.1081 he executed Ext. B gift deed in favour of four of his children, 1st plaintiff and the deceased Sankaran Narayanan, Sankaran Parameswaran and Narayani Amma Kunju Kunju Amma. Exts. A and B properties are therefore properties acquired by gift from the father and the rights under these documents have to be determined in the light of the provisions of the Nair Act II of 1100 in respect of such gifts. Exts. A and B properties are therefore properties acquired by gift from the father and the rights under these documents have to be determined in the light of the provisions of the Nair Act II of 1100 in respect of such gifts. S. 41 of the Act provides:- "Property acquired by gift or bequest from the father or husband before Regulation I of 1088 came into force shall, for the purpose of this Chapter, in the absence of evidence to the contrary, be treated as the tarwad property of the donees or devisees and of their thavazhee". 4. The learned Advocate for the appellant relies on the rulings reported in 32 T.L.J. 665, 57 T.L.R. 913 and 1948 T.L.R. 447 in support of his contention that on a proper construction of Exts. A and B the children alone took the properties and that they could not be treated as sub-tarwad properties of the donees and of their thavazhee. 5. In order to appreciate correctly the application of S.41 of the Nair Act in the matter of construction of gift deeds executed before Act I of 1088 came into force, it is worth while to look into the pre-existing law in regard to Makkathayam gifts when Act II of 1100 came into force. From very early times Courts in Travancore treated property acquired by gift from the father or the husband as the sub-tarwad property of the donees and of their thavazhee. The earliest decision on the subject is reported in 5 T.L.R. 116 where Narayana Pillai and Kunhiraman Nair, JJ., observe as follows: "gifts by the father known in Travancore as Makkathayam and in British Malabar as Puthravakasam are ordinarily intended to benefit all the children of the donor by the same mother, and the properties which form the subject of gift, though usually registered or acquired in the name of the mother are held by the mother and children in common under the management of the mother or the next senior competent male or female among the donees. The manager of such property acts for the benefit and as trustee of all parties interested in the property and is commonly allowed the same powers and privileges as the Karnavan of a tarwad." In another portion of the judgment the learned judges observes: "The intention of the father of a Marumakkathayam family who makes the provision for the adequate maintenance of his children, and their mother by giving them landed property is that the donees should enjoy the property in common by taking the usufruct of the property jointly, and that the property should in all respects be subject to the incidents of other similar property held by them as members of the tarwad. This intention has invariably been respected by the people themselves, and has come to be regarded as a usage. We do not see why the Court should refuse to respect the well known usages of the country." This decision based as it was on the well-known usage of the people was uniformly followed in later decisions. 6. Incidents of such gifts prior to the Nair Act I of 1088 have been dealt with in the Full Bench decision reported in 13 T.L.J. 452 at 460 thus: "the law as it stood before Thulam 13th 1088 was that Makkathayam property is impartible. The donees and the descendants of the female donees in the female line how-lowso-ever constituted a sub-tarwad, partaking of the character and incidents of an ordinary tarwad. Naturally therefore all the members of such a tarwad including the children and grandchildren acquired vested rights in the property". Mr. Krishnaswamy Iyer, C.J. quoted this with approval in a later Full Bench decision reported in 1947 T.L.R. 426. He added: "I do not understand this passage to say that under no circumstances could a gift be made by a husband or father to a woman so as to constitute her the sole and absolute owner of the gift. In the absence of any indication to contrary the presumptions relating to the intendment of the gift will be taken to be that the donee and her children would take the gift as their impartible sub-tarwad property". In the course of his judgment in the above case Mr. In the absence of any indication to contrary the presumptions relating to the intendment of the gift will be taken to be that the donee and her children would take the gift as their impartible sub-tarwad property". In the course of his judgment in the above case Mr. Justice S. Krishna Pillai, relying on the decision in 5 T.L.R. 116 and several other subsequent decisions stated the law thus:-"Before the enactment of the first Nayar Act of 1088 the Law was that Makkathayam gifts made in favour of the wife or of any one or more of his children by that wife ensured to the benefit of the sub-tarwad consisting of the wife, the children and the descendants of the female children in the female line. It did not matter in whose name the gift was made or whether any of the children was in existence on the date of the gift. When once the gift was made it partook of the nature of sub-tarwad property over which the donee acquired no special interest as against the un-named or unborn persons who constitute the subtarwad". 7. The incidents of partibility attached to property obtained from the husband or father by the wife or widow or child or children by gift or inheritance was a new feature introduced for the first time by S.17 of Act I of 1088. Marumakkathayam Law never recognised partibility before S.17 of the Act enacted that "the property obtained from the husband or father by the wife or widow and child or children by gift or inheritance, shall, unless in the case of gift a 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 individual partition". 8. The question whether this section was retro-active in its operation so as to embrace all properties obtained by gift or bequest by the wife or widow and child or children before the Act came into force came up for consideration in a case reported in 8 TLJ 9. 8. The question whether this section was retro-active in its operation so as to embrace all properties obtained by gift or bequest by the wife or widow and child or children before the Act came into force came up for consideration in a case reported in 8 TLJ 9. Chief Justice Raman Menon and Justice Kochukrishna Marar held that: "the right to claim partition created by S.17 of the Nair Regulation avails not only in respect of property obtained by gift since the date of the Regulation, but also in respect of property so obtained before the said date." The effect of this decision was to make partible even those properties which were considered to be sub-tarwad properties till the date when Act I of 1088 came into force. 9. The correctness of the above decision was questioned in a subsequent case reported in 8 T.L.J. 397. It was held there in that S.17 of the Act I of 1088 does not apply to property obtained as Makkathayam before the date of the Act when the parents of the donees were not alive at that date. Justice Raman Thampi, in the course of his judgment stated: "It is well known that, in several cases, Nair tarwad own properties originally acquired by a lady with the aid of funds supplied by her husband, her children and grand-children and great-grand-children might be living together peacefully secure in the sense of their common ownership and possession of such properties. If the courts construe S.17 of the Nair Regulation as making such properties liable to partition, chaos and ruination would be the only result. It must be remembered that the legislature deliberately refused to accept the recommendations of the Marumakkathayam Committee regarding partition of tarwad properties. The function of a court of justice is not to frustrate the intention of the legislature by construing S.17 of the Regulation so as to extend the principle of partibility to properties which have for long periods been treated as impartible". The function of a court of justice is not to frustrate the intention of the legislature by construing S.17 of the Regulation so as to extend the principle of partibility to properties which have for long periods been treated as impartible". Justice Sesha Iyer, in the course of his leading judgment observes as follows:- It is perfectly conceivable that in most tarwads a considerable portion of the properties owned by the tarwad was at some remote period acquired as Makkathayam, and the question is: Did the legislature, by enacting S.17 of the Regulation, intend that all such properties, whenever they might have been acquired, should be deemed capable of division after the Regulation, provided they were originally impressed with the character of Makkathayam gift? That that was not the intention of the legislature is clear from S.26, which enacts that nothing in the Regulation shall confer any rights on the offspring of a marriage dissolved before the date of the Regulation". 10. Due to conflict of views regarding the scope of S.17 of the Act the question came up for consideration before a Full Bench in Chempakakutty v. Parameswaran - 35 T.L.R. 282. The Full Bench held that'under S.17 of the Nair Act I of 1088 one of the donee is entitled as against the other or the others to enforce partition of property obtained on gift from the father even in cases where the marriage union between the parents had become dissolved by death of either or both before the date of the Regulation:" Raman Menon, C.J. in the course of his judgment at page 292 stated as follows:- "If the decision that I propose to make should happen in the future to disturb the harmony that now prevails in Malabar tarwads and to ruffle their serene and peaceful lives, I should be sorry; but I feel bound to apply the law as I find it; and it may further be pointed out that the interpretation which Mr. Justice Thampi, himself approved, does not appear to be altogether free from the objections above set forth." 11. The matter again came up for consideration in another Full Bench decision reported in 12 T.L.J. 414. Justice Thampi, himself approved, does not appear to be altogether free from the objections above set forth." 11. The matter again came up for consideration in another Full Bench decision reported in 12 T.L.J. 414. Though the question in that case was whether the words 'child' or 'children' in S.17 should be restricted to the issues of the first generation or would apply to the issues how-low-so-ever in interpreting the section, Justice Raman Thampi, in the course of his judgment considered the ruling in 35 T.L.R. 282 (F.B.) and expressed the view that it was incorrectly decided. However his opinion was not shared by the two other judges that constituted the Full Bench: 12. The entire question came up in another form before a Full Bench consisting of Chatfield, C.J., Viraraghavachari and Raman Thampi, JJ., in the case reported in 13 T.L.J. 452. It was held "Chempakakutty v. Parameswaran (35 TLR 282) was not correctly decided in so far as it professes to hold that S.17 of the Nair Regulation is not governed by S. 26(1) and that the character of divisibility attaches to property claimed under a gift made prior to the date on which the Regulation came into force or under a gift made by a man whose marriage with a Nair woman who is the mother of or who is a joint donee with his children (who themselves are donees) has been dissolved prior to such date". The decision in 13 T.L.J. 452 was pronounced on 4th Vrischigom 1099. In another Full Bench case reported in 15 TLJ 3 a suit for maintenance, Sankara Pillai and Varghese, JJ., as obiter questioned the correctness of the decision in 13 TLJ 452, while Chatfiled, C.J., as obiter struck to his view given expression to in that case. It was also to be remembered that the Full Bench decision in 12 T.L.J. 414 construed the meaning of the words 'child' or 'children' occurring in S.17 of Act I of 1088 as restricted to issues of the first generation only. 13. It was in this state of the conflict of views regarding the interpretation of S.17 of Act I of 1088 that the Legislature enacted the amended Nair Act II of 1100. 13. It was in this state of the conflict of views regarding the interpretation of S.17 of Act I of 1088 that the Legislature enacted the amended Nair Act II of 1100. The Legislature had to make clear their intention in respect of properties acquired by gift or bequest by the wife or widow or child or children from the husband or the father as the case may be. This they did by enacting S.22 of the Nair Act II of 1100. Restricting the operation of the Section to property acquired by gift or bequest after Act I of 1083 came into force they enacted in S. 22 of the Act that such property shall unless a contrary intention is expressed in the instrument of gift or bequest, if any, belong to the wife or widow and each of the children in equal shares. In regard to property obtained by gift or bequest before Act I of 1088 came into force, the law as it stood before the date when Act I of 1088 was made applicable by enacting S. 41 of the Act. 14. It did not matte if gift was in favour of the wife or any one or more, or all the children. As a general rule property acquired by such gift will be treated as the tarwad property of the donees and of their thavazhi. The persons mentioned in the document do not derive any special interest under the document. They only take the property as tarwad property as contemplated in the section. This general rule is however capable of exceptions as indicated in the Section. The exceptions are cases in which there is evidence to the contrary. Therefore in the absence of evidence to the contrary property acquired by gift from the father before Regulation I of 1088 came into force has to be treated by courts as the tarwad property of the donees and of their thavazhy. 15. This being the law the fact that Ext. A gift is only in favour of the eldest son Sankaran Narayanan or Ext. B gift is only in favour some of the children will not avail the appellant to make out that the gifts in question did not enure to the benefit of the thavazhi of the donees. Reliance was however placed in the expression in Ext. A gift is only in favour of the eldest son Sankaran Narayanan or Ext. B gift is only in favour some of the children will not avail the appellant to make out that the gifts in question did not enure to the benefit of the thavazhi of the donees. Reliance was however placed in the expression in Ext. A"as indicative of evidence to the effect that the properties wee intended only for the benefit of the children. We do not think that the above expressions can be taken as indicative of any intention to restrict the right conferred under the documents to the persons specifically mentioned in the documents or to the children only. The expression indicates only the quality of the estate conveyed under the document and not that the children alone derive the rights under the documents as is contended for by the learned Advocate for the appellant. 16. The principle enunciated in the decision in 32 T.L.J. 665 is relied on by the learned Advocate for the appellant. That was a case coming under S.17 of the Nayar Act I of 1088. It was held that "The principle underlying S.17 seems to be that the Legislature intended the benefit of the gift to go only to the person who is either named in the instrument of gift or who is the only one in whose name the acquisition stands. It follows, therefore, that were an acquisition stands in the name of the wife or widow or where she alone is named in the instrument of gift, it must be taken unless the contrary is shown that she alone was intended to take the property". This decision came up for consideration in the case reported in 1947 T.L.R. 426. His Lordship Mr. Krishnaswamy Iyer, C.J., quoting the above extract from 32 T.L.J. 665 says: "The decision in the case was that a hypothecation executed by one Lekshmi the mother of defendants 1, 2 and 3 was effective against Lekshmi's interests in the property and though the property was acquired by Lekshmi presumably out of the funds supplied by her husband, the children took no benefit under the gift. The sale deed of the hypothecated property stood in the name of Lekshmi and Lekshmi's mother Chakki. The sale deed of the hypothecated property stood in the name of Lekshmi and Lekshmi's mother Chakki. If the presumption be that this gift was made to Lekshmi by her husband, Lekshmi and her children who are alive on the date of the sale deed of 1094 would have taken an equal interest in the property acquired as tenants-in-common so that the hypothecation by Lekshmi would have been effective only in respect of her one-fourth share. The view taken by the learned judges was that the document of acquisition stood in the name of Lekshmi and therefore Lekshmi was presumably entitled absolutely to the whole of the interest conveyed. There was no intention indicated to the contrary that Lekshmi was intended to take the property along with her existing daughters. Therefore the hypothecation was valid to the full extent of Lekshmi's interest in the sale deed, her children taking nothing. We cannot but regard this case Sreedharan Moothathu v. Velayudhan Pillai - 32 T.L.J. 665, as having been wrongly decided and we say this with all respects to the learned judges for whose opinion we have great respect". We are in entire agreement with the above view expressed in 1947 T.L.R. 426. This decision also stated that the decision in Sreedharan Moothathu v. Velayudhan Pillai - 32 T.L.J. 665 must be regarded as overruled. The same learned judge who decided the case reported in 32 T.L.J. 665 has written the leading judgment in the two other cases, viz., 57 T.L.R. 913 and 1948 T.L.R. 447 relied on by the learned Advocate for the appellant. The former was a case of Ezhavas and the latter was of Nanjinad Vellalas both followers of Marumakkathayam Law. In the matter of construction of the gift deeds in question in these cases the principle adopted in 32 T.L.J. 665 appears to have been followed. In the light of the principles of Marumakkathayam Law relating to Makkathayam gifts as expounded in the Full Bench decision reported in 1947 T.L.R. 426 and 13 T.L.J. 452 and the other decisions we have adverted to we do not think that the rule of construction adopted in these decisions can be said to be correct. However the present is a case coming under S. 41 of the Nayar Act and we have to confine ourselves to the provisions of the Section in determining the incidents of the two gifts Exts. However the present is a case coming under S. 41 of the Nayar Act and we have to confine ourselves to the provisions of the Section in determining the incidents of the two gifts Exts. A and B in this case. Adopting the law applicable to such gifts we feel no hesitation in holding that Exts. A and B properties are sub-tarwad properties liable for division as contended for by the plaintiffs. 17. Another point that is argued by the learned Advocate for the appellant relates to the direction in the decree regarding the allotment of properties. The learned Munsiff directs that in alloting the shares the commissioner will as far as possible allot the portions of plaint items 9,13 and 20 covered by the revenue sales to the 1st defendant, We do not think that there is any warrant for the direction given by the learned Munsiff. The case of the plaintiffs that defendants 1 and 2 with a view to wrongly obtain sub-tarwad properties for themselves fraudulently allowed the properties to be sold for arrears of tax and purchased them benami in the name of the 52nd, 53rd and 48th defendants has not been accepted by the learned Munsiff. The claim of the plaintiffs for damages occasioned by the revenue sales has also been repelled. We think that the view of the learned Munsiff is correct. In these circumstances, we cannot see any justification in the above direction given by the learned Munsiff. First defendant has every right to get his share of all the properties just like any other member of the sub-tarwad and there is no warrant either in law or in equity to compel him to take properties that have already been sold in revenue auction and purchased by others. Therefore we uphold the contention of the 1st defendant and vacate the direction in the judgment of the court below, that "in allotting the shares, the commissioner will, as far as possible allot the portions of plaint items 9,13 and 20 covered by the revenue sales to the 1st defendant and not allot those items to the plaintiffs". 18. It is admitted by the learned Advocate for the appellants that the other questions raised by him in the appeal memorandum will depend on our decision on the question whether Exts. 18. It is admitted by the learned Advocate for the appellants that the other questions raised by him in the appeal memorandum will depend on our decision on the question whether Exts. A and B properties are sub-tarwad properties and that if it is found that they are sub-tarwad properties the decision of the lower court on the other questions have also to stand. No other point was urged in appeal. 19. Therefore subject to the modification indicated in paragraph 17 supra, we dismiss A.S. 703 of 1119 with costs. 20. A.S. 704 of 1119 may next be considered. It was argued before us by the learned Advocate for the appellant that the finding of the learned Munsiff that Ext. C schedule item 2 was the separate property of Sankaran Nair and that Ext. D sale deed executed by him in favour of defendants 27 to 31 is valid is unsustainable. In the face of the clear admission in Ext. XII by defendants 1 and 2 that the property C schedule item 2 was acquired by Kesavan Nair with his own funds, we do not think that the conclusion by the learned Munsiff is incorrect. There is no reason why defendants 1 and 2 especially the 2nd defendant who had no particular interest to serve should admit in Ext. XII that the property is the self-acquisition of Kesavan Nair. The evidence in the case inclines us to think that the probabilities are in favour of the truth of the statement contained in Ext. XII in respect of C schedule item No. 2. We therefore confirm the findings of the lower court regarding C schedule item 2 and Ext. D sale deed. 21. The next point that is urged before us in the claim for 1100 fanams towards the expenses for thatching the sub-tarwad building in Ayikarettu purayidom. We do not think that there is any substance in this. If the plaintiffs have thatched the sub-tarwad building as stated by them, it can only be considered as a voluntary act done gratuitiously. We do not think that the plaintiffs are entitled to claim any amount against the tarwad on this account. 22. No other point was urged in this appeal. 23. In the result we dismiss A.S. 734 of 1119 also with costs. Appeal dismissed.