Judgment :- 1. This second appeal is by the heirs of the plaintiff in a suit for partition. 2. The parties are Muslim Marumakkathayees hailing from Malabar. The plaintiff and defendants 1 to 5 are the children of Kunhammav by his wife Kunhipathumma. The father died in 1939, while the mother died in 1942. There were two more children of the union, viz. Ammed, the eldest who died in or about 1945, leaving as his heirs the defendants 8 to 12 and Beeyathu the youngest, who predeceased the father leaving the defendants 6 and 7 as her heirs. Kunhammav had acquired considerable properties even while young, and these and his future acquisitions he disposed of in favour of the thavazhi of his wife and children, under Ext. B-86 will dated 23-4-1907. Apparently at his instance, Kunhipathumma also executed her own will on the same day, providing for the devolution of all her properties also, alike in favour of the thavazhi of the children. Subsequently on 30-11-1913 Kunhammav obtained with his own funds, a kanom deed Ext. B-1 in respect of two items of garden lands scheduled to the plaint, in the sole name of one of the children, viz. the 2nd defendant. Thereafter he advanced more moneys and got Ext. B-14 renewal of the kanom on 13-4-1919, but in the names of his wife Kunhipathumma and three of their children, viz. Ammed and defendants 2 and 3. Finally on 23-9-1927, he purchased the properties outright under Ext. A-1 sale deed in the names of his wife and all the eight children. The main question in controversy in the case and pursued in this court is whether any rights accrued in the schedule properties to the wife and children under and by virtue of this purchase Ext. A-1 and if so to what extent. The plaint as originally framed, had proceeded to claim a plaintiff's share on the basis, that Ext. A-1 was intended to be and was operative, so as to invest the properties in the wife and children in equal shares. The defendants 1 and 5 supported this position. Soon later, the plaintiff got the plaint amended to the effect that the wife and children were nominal purchasers only under Ext. A-1 was intended to be and was operative, so as to invest the properties in the wife and children in equal shares. The defendants 1 and 5 supported this position. Soon later, the plaintiff got the plaint amended to the effect that the wife and children were nominal purchasers only under Ext. A-1 and the acquirer Kunhammav was the beneficial owner until he died, with the result that the wife and children obtained rights, if at all, in the properties covered by Ext. A-1, only as his heirs under the Mohammadan Law. This change helped to secure a larger share for the plaintiff and possibly was adopted by him, on that account. The 4th defendant favoured this latter construction. The defendants 3 and 7 who were the real contestants in the case however disagreed. According to them the plaintiff's original position as modified was the correct one, that is, Ext. A-1 was intended to be and was a real transaction but it enured to the benefit of the thavazhi of the acquirer's wife and children as a whole and not to the wife and children alone individually. The defendant 13 and 14 were impleaded as the lessees of the 4th defendant in possession of portion of the plaint properties; the 15th defendant came in later as the assignee of the 13th defendant. 3. The learned Principal District Munsiff, Tellicherry before whom the case came on for trial accepted the plaintiff's case of benami as laid in the amended plaint. In coming to this view he depended to a considerable extent, upon the facts (i) that the consideration for the kanom deeds Exts. B-1 and B-14 and also the sale deed Ext. A-1 proceeded entirely from Kunhammav and there was no indication in all the documents that the acquisition was to be for the benefit of the thavazhi of the wife and children; (ii) that Kumhammav continued to be in possession and enjoyment of the properties till he died ; and (iii) that after the death of the parents, some of the heirs kept possession of some properties and others, of the other properties. An argument of defendants 3 and 7 based upon the recitals contained in Exts. An argument of defendants 3 and 7 based upon the recitals contained in Exts. 86 and 85 was repelled, because under the Mappilla Wills Acts VII of 1928 (Madras) which came into force on 11 1929, testamentary disposition by Mappillas governed by the Marumakkathayam Law were to be governed by the Mohammadan Law relating to Wills and there was no evidence either, to show that the heirs of the testators had accepted the bequests thereunder. In separate appeals taken by the defendants 7 and 14, however, the learned subordinate Judge, Tellicherry upheld the contentions of the defendants 3 and 7. For, in his view the taking by Kunhammav of Exts. B-1, B-14 and A-1 in the name or names concerned, evinced clearly his intention step by step, to benefit the thavazhi of his wife and children and Kunhammava's possession did not in the circumstances affect the matter. But as, in his opinion, the suit was for partial partition, both in respect of parties and of properties, he dismissed the suit in entirety. Hence this second appeal by the plaintiff's heirs, the plaintiff having died after the appeals were decided in the court below. And the only question is whether the Munsiff's view should be preferred and even otherwise, the suit may be allowed to proceed, after the defects as to parties and properties are cured. 4. There is no doubt, the system of benami, that is, of acquiring and holding property and even of carrying on business in names other than those of the real owners is as such prevalent among the Mohammodans as among the Hindus in India. The doctrine received legislative sanction in 1882 by the Indian Trusts Act, 11 of 1882, S.81 and 82 and it is therefore too late now to question it. The principle of the resultant trust in England is practically to the same effect but an exception had been recognised there, that in cases where the purchase was in the name of the child or wife there will be a presumption of advancement and the wife or child will be entitled beneficially. Discussing whether the English doctrine of advancement does not apply to India, Lord Justice Knight Bruce observed in Gossain's case, 6 M. I.A. 53. Discussing whether the English doctrine of advancement does not apply to India, Lord Justice Knight Bruce observed in Gossain's case, 6 M. I.A. 53. "Now, on this, as far as their Lordships can learn, there is no authority in Indian law, no distinct case of dictum, establishing or recognising such a principle or such a rule. It is clear that in the case of a stranger the presumption is in favour of its being benami transaction, that is, a trust; but it is clear also that in this country (i.e. England) where the person in whose name the purchase is made is one for whom the party making the purchase was under an obligation to provide, the case is different; and it is said that that ought to be deemed the law in India also, not because it is the law of England but because it is founded on reason and the fitness of things, if I may use expression, on natural justice, that on such grounds it ought to be considered the law of India. For, their Lordships are not satisfied that this view of the rule is accurate, and that it is not one merely pro prio juris. Probable as it may be that a man may wish to provide for his son to a certain extent and thought it may be his duty to do so, yet there are other considerations belonging to the subject, among others, a man may object to make his child independent of him in his life time, placing him in such a position as to enable him to leave his father's house, and to die leaving infant heirs, thus putting the property out of the control of the father. Various reasons may be urged against the abstract propriety of the English rule. It is merely one of positive law and not required by any rule of natural justice to be incorporated in any system of law, recognising a purchase by one man in the name of another to be for the benefit of the real purchaser. Their Lordships are therefore not prepared to act against the general rule even in the absence of peculiar circumstances; but in India there is what would make it particularly objectionable, viz., the impropriety or immorality of making an unequal division of property amongst children." 5. Their Lordships are therefore not prepared to act against the general rule even in the absence of peculiar circumstances; but in India there is what would make it particularly objectionable, viz., the impropriety or immorality of making an unequal division of property amongst children." 5. The later decisions of the Privy Council have affirmed the above principles so that we may take it as well-settled that under the general law in India there is no presumption of an intended advancement as there is in England. Thus, relying on their earlier decision Gurun Datta v. T. Ram Datta. A. I. R, 1928 P. C. 172, their Lordships of the Privy Council observed in the latest case before them Shambhu Nath v. Pushkar Nath. A. I. R 1945 P. C. 10, "The deposit by a Hindu of his money in a bank in the joint names of himself and his wife and on terms that it is payable to either as survivor does not on his death constitute a gift by him to his wife. There is a resulting trust in his favour in the absence of proof of a contrary intention, there being in India no presumption of an intended advancement in favour of a wife". 6. But the extension of this principle to cases under the Marumakkthayam Law has not gone without question in the Travancore jurisdiction. So in an early case before Krishnaswamy Rao, C. J., and Kunhiraman Nair, J. in Aiyappan Kumaran v. Palavesan Chanthanassari Pillai, 10 T. L. R.77 it was observed: "A person claiming the amount due under a bond standing in the name of another must make out a strong case in his favour. We are aware of a large number of decisions of the British Courts in which they have held that the claimant must be taken to have discharged his burden if he proved that the money advanced was his. These decisions were passed in cases in which the claimant and the alleged benamidar who are generally related, were governed by the Hindu Law of Mitakshara or Dayabhaga. In the present case, the plaintiff and the 2nd defendant are not followers of Hindu Law as propounded by the Benares and Bengal schools. These decisions were passed in cases in which the claimant and the alleged benamidar who are generally related, were governed by the Hindu Law of Mitakshara or Dayabhaga. In the present case, the plaintiff and the 2nd defendant are not followers of Hindu Law as propounded by the Benares and Bengal schools. They are Elavas governed by the Marumakkathayam Law, modified by the usage It is usual for fathers governed by the Marumakkathayam law to advance their money and take bonds in the names of their children for the latter's benefit In these circumstance, we think that the presumption drawn by the British Courts from the fact of the ownership of the money at the time of advance cannot be safely applied to the transaction in question. In a case like this, the plaintiff must prove not only that he made the advance out of his own purse but also that he did not intend to pass the right in the money to the relation in whose name he obtained the bond". In the case of Kanakku Govindan Roman v. Kali Nilakanta, 2 Thandu Iyer's Select Unreported Decisions 33, Govinda Pillai and Hunt, JJ. referred with approval to the decision in 10 T. L. R.77 just cited and applied the rule of advancement to a purchase made by a person standing in loco parontis. a g. grand-mother. In Kochutty Mathevi v. Naga Narayani, 4 Thandu Iyer's Select Unreported Decisions 357, Hunt and Ramachandra Rao, JJ. held that an investment or purchase in the name of the wife or children of a Marumakkathayee raised a presumption of advancement and not one of benami as under Hindu Law and it was for the husband to rebut this. The learned judges said: "This is not the intention of a Marumakkathayee husband who purchases a property in the name of his wife. The ordinary intention is to benefit her at once. The learned judges said: "This is not the intention of a Marumakkathayee husband who purchases a property in the name of his wife. The ordinary intention is to benefit her at once. It is for the husband to rebut this by proving the contrary and he has not done so." In Ratna Bai v. Janaki Pillai, 13 T. L. J. 417, R. Viraraghava Iyengar, C. J. and K. C. Chatfield, J. questioned the propriety of applying the English Law of advancement to Marumakkathayees as in the 10 T. L. R. and 2 S. D. cases above cited and suggested that a modified form of advancement in favour of the sub-tarwad of the person or persons in whose names the property had been purchased, was the proper rule, and finally we have the recent decision in Eravi Pillai v. Valli Amma.1954 K.L.T. 295, where the question arose in respect of an acquisition by the karnavan in the name of a junior member in a marumakkathayam tarwad. The learned judges observed: "It has been ruled by the Privy Council in Gopeekrist Gosain v. Gangapursod Gosain (6. M- I- A, 53) that the doctrine of advancement will not apply to the acquisitions made by a Hindu in the name of his sons or other relations. Similarly it was ruled in Moulvia Sayyud Uzhur ali v. Mussumut Bubee Ultaf Fatime (13 M.I.A 232) that this doctrine is not applicable to Muslims also. In Palani Muduliar v. M. Natarajan (A. I. R.1942 Mad. 503) it was ruled that the doctrine of advancement is not applicable to Indian Christians also. The position under Marumakkathayam Law is some what different in this respect. Even though the theory of advancement may not as such be applicable to a Marumakkathayee, the Marumakkathayam Law has recognised a presumption that the acquisitions made by a marumakkathayee husband or father in the name of his wife or children, are intended to be for the benefit of the sub-tarwad consisting of the wife and children. But no such presumption arises in the case of acquisitions made by a karanavan in the names of the junior members of the tarwad. The karanavan is not under any special obligation to provide for such junior members," 7. But no such presumption arises in the case of acquisitions made by a karanavan in the names of the junior members of the tarwad. The karanavan is not under any special obligation to provide for such junior members," 7. There have been cases in the Madras jurisdiction also, where the purchase of property by the husband in the name of his marumakkathayee wife and children have, without more, been held to belong to their tavazhi. The doctrine of advancement in the modified form was applied without mention thereof in terms. Indeed the only question in these cases was to whom the property enured, whether to the purchasers alone or their thavazhi. It was assumed there was no benami purchase in any event. Thus in the leading case of Chakkara Kannan v. Kunhi Pocker, I. L. R.39 Mad. 317 it was laid down: "It has been the recognised rule of law that where a person governed by the marumakkathayam law makes a gift, or purchases property in the name of his wife and children, or children alone, then the presumption is that the donees take the property with all the incidents of Marumakkathayam property." It will be noticed that the very fact of the purchase of property is taken to constitute a gift thereof, and the presumption in favour of the thavazhi arises equally as in a case of gift simpliciter. This presumption was affirmed and further extended by the legislature when they enacted S.68 of the Madras, Marumakkathayam Act XXII of 1933 as follows: "Where a person bequeaths or makes a gift of any property to, or purchases any property in the name of, his wife alone or his wife and one or more of his children by such wife together, such property shall, unless a contrary intention appears from the will or deed of gift or purchase or from the conduct of the parties, be taken as tavazhi property, by the wife her sons, and daughters by such person and the lineal descendants of such daughters in the female line. In Bhaskaran v. Kavunni, A.I.R. 1954 Mad. In Bhaskaran v. Kavunni, A.I.R. 1954 Mad. 987, at 990, the theory of advancement was referred to, while dealing with purchases before the Act came into force, one in the name of the wife alone where there were children and the other in the name of some only of the children and it was said: "The theory of advancement is not accepted in India, and, therefore, it cannot be presumed that the properties were purchased for the benefit of the wife and her children. Assuming that Kunhan advanced monies for the benefit of his wife in one case, and his two children in the other case, no presumption can be raised that the said sale deeds were taken for the benefit of the 'tavazhi' for, as has been pointed out, such presumptions are permissible only in a case where the purchase is in the name of the wife and children or in the name of all the children or the entire group constituting the thavazhi." But this cannot be taken to strike a different note. 8. The universal application of the principle of benami in every case in India does not therefore appear to be correct. The exception may have to be admitted, in respect of cases arising under the Marumakkathayam law, where the circumstances of the nominee being the wife or children is held to operate by rebutting the resulting trust. The reasons, as we saw, which prompted their Lordships of the Privy Council in Gosain's case, 6 M.I.A. 53, to refuse to extend the exception of the English law as to advancement to cases of the like kind in India, do not apply here. The 'reason and fitness of things' indeed call for the application of the exception. 9. The result of the above discussion is that a benami purchase under Ext. A-1 cannot be said to have been made out merely from the fact of the advance of the consideration therefor by Kunhammav. There must be further proof that he did not intend to benefit the wife and children in whose name Ext. A-1 was taken. There had been no statement by Kunhammav as to such intention either at the time of Ext. A-1 later. Indeed if the expression of his intention in Ext. There must be further proof that he did not intend to benefit the wife and children in whose name Ext. A-1 was taken. There had been no statement by Kunhammav as to such intention either at the time of Ext. A-1 later. Indeed if the expression of his intention in Ext. B6 testament of earlier date could be taken note of, such properties as would be acquired in his own name after its date were to devolve on the thavazhi of his wife and children, obviously meaning that the properties acquired in their names were to be taken as direct gifts. Kunhammav had not also dealt with the properties to any the least extent until he died. The only circumstance which could be and was relied on by the plaintiff in this connection is that Kunhammav was in possession of the properties covered by Ext. A-1 till he died. But this by itself did not mean anything. For it is not unusual, that donors in like circumstances, take up the management and continue therewith until their death notwithstanding, that there are adult sons among the donees, and the eldest of them is in actual control of the rest of the thavazhi properties. 10. But apart altogether from any presumption of advancement in favour of the wife and children, the facts and circumstances of the case do sufficiently establish that Kunhammav did not intend to reserve the beneficial interest under Ext. A-1 in himself. For though the criterion as to the ownership of property may, as a general rule be the source from which the purchase money has come, it cannot be held to be the sole criterion and each case has to be decided according to the presence or absence of rebutting circumstances and as held by the Privy Council in Ram Narian v. Muhammad I. L. R.26 Cal. 227 the source of the purchase money may be consistent with the claimant having intended to make a gift of the property to the holder of it. And though the English Law of advancement may not as such be applicable to the conditions of this country very little evidence of intention is sufficient to turn the scale, per Sir George Loundes Mohammad Sadiq. v. Fakir Jahan. (1931) 591. A. 1, 16. And though the English Law of advancement may not as such be applicable to the conditions of this country very little evidence of intention is sufficient to turn the scale, per Sir George Loundes Mohammad Sadiq. v. Fakir Jahan. (1931) 591. A. 1, 16. There is nothing therefore to prevent us from taking into account the relationship of the parties in determining the question of intention. There was also no specific motive why Ext. A-1 should have been taken in the name of the wife and children. He could as well have taken it in his own name if he wanted to reserve the benefit to himself. It follows, therefore, that the conclusion of the learned judge that the properties covered by Ext. A-1 belong to the thavazhi of Kunhipathumma and her children is perfectly correct and has to be upheld. 11. The question then is whether the dismissal of the suit by the learned subordinate judge on the ground that the suit is bad for partial partition is correct. It would appear from the evidence, that the only properties in the direct possession of the sub-tarwad comprise the plaint schedule properties. If so there could be no harm in confining the suit to them. So far as defect of the parties is concerned, it could be made good by the addition of the persons omitted. Learned counsel for the respondent has no objection to their being impleaded at this stage. 12. I therefore allow the appeal and remit the suit to the trial court for fresh disposal according to law and in the light of the above observations. The costs of this appeal and in the court below, will be costs' in the cause, except to the extent of the institution fees in this appeal which will be refunded to the appellant's learned counsel. Allowed.