Judgment :- 1. 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 purpose 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. 2. The 2nd defendant Narayani Amma is the seniormost 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 children of the 1st plaintiff. There were four items 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 Ext. I dated 4.8.1089 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 her own, she gifted them in favour of her only son the first defendant under Ext. II dated 22.7.1116. The plaintiffs contested the validity of Ext. II on the ground that Ext. 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. 3. 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 S.17 of the Nair Act of 1088 to be later affirmed by the Nair Act of 1100 that so far as Makkathayam gifts made after 1088 were concerned, the presumption was to be one of equality of right between the mother and all the children with the principle of partibility attached. According to learned counsel, this change must be confined to gifts by husband or father and should not be extended to gifts by other near relations eg. 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 S.44(a) of the Nair Act of 1100 which saved "the existing rules of Marumakkathayam 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 S.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 in common as contrasted with a tarwad character of the gift. 4. The questions that arise for consideration therefore is firstly how far the principle as to Makkathayam gifts made by the members of a father's tarwad and secondly whether the principle is applicable after the legislature had once interfered therewith. 5. Taking up the first question we find the principle applicable in cases of Makkathayam gifts was first enunciated in Narayanan v. Parvathi Nangeli 5 TLR 116, which was decided by Narayana Pillai and Kunhiraman Nair, JJ. 5. Taking up the first question we find the principle applicable in cases of Makkathayam gifts was first enunciated in Narayanan v. Parvathi Nangeli 5 TLR 116, which was decided by Narayana Pillai and Kunhiraman Nair, JJ. The learned judges observed that: "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 analysing 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 extended to a case of gift in favour of any one of the children. See Kunjukallyani v. Kunjipennu Lekshmi,11 TLR 139; Mathevan Kunjukunju v. Raman Krishnan, 13 TLR 72; Padmanabhan v. Kumaran,18 TLR 215 and Koshi Thomas v. Narayanan Krishnan, 22 TLR 239 (FB). 6. In Chakky Karumbi v. Kochittan Raman, 26 TLR 11(FB) 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. 6. In Chakky Karumbi v. Kochittan Raman, 26 TLR 11(FB) 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 donor's views were what might be expected of him as a 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 donees should take his properties as 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 the majority view and said: "Three is no reason why a gift to woman by a total stranger should not rank on the footing as property acquired by her through her own exertions (22 TLR 278) and, for that matter, the same language may be said of a gift by a brother to his sister, but the case of a gift from a husband stands on quite a different footing, because from the very nature of the union existing between the two, the law naturally presumed that the property was gifted partly (not wholly) for her benefit and for the benefit of her children, born and unborn of the existing union." 7. The question recently came up in Amina Beevi v. Vasudevan,1956 KLT 117, 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. 8. A case of gift by a paternal relation came up for consideration in Kochananthan v. Gabriel, 21 TLJ 953. 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 Misradayam 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. 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 Misradayam 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 sub-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 made 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. 9. We may next refer to the less hesitant observations of K. Parameswaran Pillai, J., in Pachy v. Manuel, 24 TLJ 1257 at 1270, 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 Marumakkathayees 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, Nanjinad 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 tenants with the incidents of Marumakkathayam Law attaching thereto. There are not many decided cases on the point but such decisions as the reports contain are all in favour of this view." 10. There are not many decided cases on the point but such decisions as the reports contain are all in favour of this view." 10. 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 for the 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 presumption 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." (Paragraph 96) The learned author then refers to the availability of the presumption in the case of gifts by a Marumakkathayee 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 made. 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 Chakkra Kannan v. Kunhi Pokker (ILR 39 Madras 317) it would seem legitimate in all those cases to draw the inference." 11. It should 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 the 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 Narayanan v. Parvathi Nangeli, 5 TLR 116. 12. It is this principle which, as we saw, is emphasized in the earliest case in Travancore Narayanan v. Parvathi Nangeli, 5 TLR 116. 12. The question arose in Kundan v. Parkum,1917 Madras 726(2) 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, 16 Mad. 201 (F.B.) 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 to the donee 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 Kunhacha Umma v. Kutti Mammi Hajee,16 Mad. 201 proceeded on the general principle enunciated by the Privy Council in Sreemutti Soorjeemoney Dessee v. Denobandoo Mullick, 6 MIA 526 (PC) and Mohomad Shamsool v. Hood Showukram, 2 IA 7 (PC) 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 reason why the same test should not be applied to a gift by an uncle as to a gift by a father. The ratio decidendi 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 decree of propinquity is therefore, immaterial and 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 without any express indication that 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. 13. The recent case in Kuttayi Lakshmi v. Puthia Purayil,1954 Mad. 235, is also a case of gift by an uncle in favour of his nieces. 13. The recent case in Kuttayi Lakshmi v. Puthia Purayil,1954 Mad. 235, is also a case of gift by an uncle in favour of his nieces. Govinda Menon, J., delivering the judgment of the Bench after referring to the observations of Kumaraswami Sastri, J., extracted above, continued: "The question in most of the cases would be what was the intention of the donor. 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 apart 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. 14. 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 S.17 of the Nair Act of 1088 had come into force on 10.3.1088. This section enacted: "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 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," 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 S.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 S.17 of the Nair Act of 1088 applying contrary presumption to the present case. It seems to us however to be only a canon of construction which has lost its entire force by the specific enactment of S.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 construction that gifts in favour of the mother or the children were not intended to be thavazhi gifts was a desirable rule for the future. And if that was to be the rule in cases of gifts by 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, unless, 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 S.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 absolute 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 enured to the benefit of the sub-tarwad of which the 2nd defendant was the eldest member and that there was nothing in Ext. I to show that the other members of the subtarwad were to be excluded. The learned judge applied the provisions of S.17 of the Nair Act of 1088 so as to exclude ordinary presumption obtaining under Marumakkathayam law that the gift would enure to the thavazhi of the donees if it is made by near relations. We hold that the learned judge is right. 15. The above interpretation which we have adopted appears also to be consistent with the conduct of the parties, for in 1100 we find Ext. We hold that the learned judge is right. 15. The above interpretation which we have adopted appears also to be consistent with the conduct of the parties, for in 1100 we find Ext. III 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 defendant's uterine brother Kannan Padmanabhan 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 the consent or acquiescence of the other members of the tarwad may constitute good evidence as against the tarwad on grounds of estoppel. On that footing the Ext. III transaction is certainly useful. 16. 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.