Judgment :- 1. These two appeals arise out of O.S. 229/1951, District Munsiff's Court, Kanjirappally filed by the 5 plaintiffs for setting aside the sale deed, Ext.1 executed in favour of the first defendant by their mother the second defendant and their father regarding item 1 of the plaint schedule. Plaint item 2 is a building constructed on item 1 by the first defendant after his purchase. The case of the plaintiffs was that the plaint item 1 was obtained by gift by their mother from their father under Ext. A and that the said property constitutes the sub-tarwad property of the second defendant and her children. 2. The plaintiffs further contended that the sale deed is not supported by consideration and necessity and as such, it is not binding on the plaintiffs. 3. The first defendant contended that the sale-deed sought to be set aside is fully supported by consideration & tarwad necessity. He contended that even on the allegations contained in the plaint that it is sub-tarward property, the second defendant, as the manager of the family, has executed the sale deed for discharge of the decree debts and also for a cash consideration for purposes binding on the plaintiffs' sub-tarward. Therefore, they contended that the sale deed, Ext.1 is fully supported by consideration and also tarwad necessity. 4. Alternatively, the first defendant contended that, in any event, the gift obtained by the mother, the second defendant, will enure only for her benefit and the children then in existence namely, the first and second plaintiffs. In this view, the first defendant contended that the plaintiffs 3 to 5 are not at all entitled to any share in the suit properties. He also claimed value of improvements and denied his liability to pay mesne profits. There was also a contention raised by the first defendant to the effect that the gift by the husband in favour of his wife, the second defendant, the mother of the plaintiffs, was only in favour of the second defendant and even plaintiffs 1 and 2 did not acquire any interest in the properties and also that the gift deed has not at all come into force. 5. The trial court came to the conclusion that the gift deed, Ext. A has been action upon. 6. Though the first defendant appears to have contended that the gift under Ext. 5. The trial court came to the conclusion that the gift deed, Ext. A has been action upon. 6. Though the first defendant appears to have contended that the gift under Ext. A enures only for the benefit of the second defendant as per the clauses in the gift, evidently, this aspect does not appear to have been pressed before the trial court, because it is stated in the judgment of the trial court that it is admitted that the property has devolved on the second defendant and her children as ai mbw property. The plaintiff took up the position that the gift will enure to the second defendant, the children then existing and to be born in future. But the first defendant took up the stand that it enures only to the second defendant and the children then in existence. It was also further contended by the first defendant that the children then existing and the second defendant will take the properties as tarwad properties attracting all the characteristics of a tarwad property including the power of the manager to deal with it for tarwad necessity and for consideration. 7. The trial court, in view of the provisions of S.22 of the Nayar Act - Travancore Regulation II/1100 held that it is a ai mbw property and the donees will take the definite shares on the basis of the ruling of the Travancore-Cochin High Court reported in Narayana Pillai v. Govinda Pillai (A.I.R.1952 T.C. 141) and the trial court also held that the gift under Ext. A will enure for the benefit of only the second defendant and her children then in existence. On a question of fact, it fond that on the date of the gift, only plaintiffs 1 and 2 were in existence and that plaintiffs 3 to 5 are children born after the date of the gift. Therefore, the trial court held that the second defendant plaintiffs 1 and 2 alone have an equal share in the property obtained under the gift deed, Ext. A by the second defendant. 8. The trial court was not impressed with the contentions of the plaintiffs that the sale-deed is not supported by consideration or that it was not for tarwad necessity. It actually found that out of the sale consideration of Rs. 375, a sum of Rs. 340 admittedly went for discharging two decrees binding on the family. 8. The trial court was not impressed with the contentions of the plaintiffs that the sale-deed is not supported by consideration or that it was not for tarwad necessity. It actually found that out of the sale consideration of Rs. 375, a sum of Rs. 340 admittedly went for discharging two decrees binding on the family. Therefore, the trial court was of the view that plaintiffs 1 and 2 were entitled to 2/3 rights in the property and in consequence, it also held that the sale to the extent of the plaintiffs' 2/3 share is not binding on the plaintiffs 1 and 2 as the second defendant was not competent to convey their rights. As the consideration to the extent of Rs. 340 has gone in discharge of decree debts binding on the family, the trial court also held that the plaintiffs 1 and 2 will be liable to deposit 2/3 share of the amounts under the decrees, Ext. 4 and 6 as a condition to their recovering a 2/3 share in the properties. 9. The trial court further held that the plaintiffs 1 and 2 will be entitled to a 2/3 share in the mesne profits to be determined at the time of the final decree proceedings. 10. The trial court also thought that as the plaintiffs have paid court fee on the market value of the properties, they can be allowed to have a partition of their 2/3 share as per the decree in these proceedings and therefore, it gave appropriate directions for dividing the properties by metes and bounds and for allotment to the plaintiffs 1 and 2 alone a 2/3 share. 11. Regarding the first defendant's claim for value of improvements, that also was reserved for adjudication in the final decree proceedings. 12. The trial court also gave a direction that in effecting a partition, as far as possible the site in which the building is situated, is to be avoided in allotting the 2/3 share of the plaintiffs. 13. The first defendant carried the matter on appeal attacking the finding of the trial court regarding the gift having taken effect and also regarding the direction against him for payment of mesne profits. 14. The plaintiff filed a memorandum of cross-objection to the effect that the plaintiffs 3 to 5 are also entitled to a share in the gift-deed Ex. The first defendant carried the matter on appeal attacking the finding of the trial court regarding the gift having taken effect and also regarding the direction against him for payment of mesne profits. 14. The plaintiff filed a memorandum of cross-objection to the effect that the plaintiffs 3 to 5 are also entitled to a share in the gift-deed Ex. A and contended that the sale deed should have been set aside to the extent of their shares also. 15. The learned District Judge agreed with the finding of the trial court and held that the gift deed has been given effect to and acted upon by the parties. But on the question as to whether the properties comprised under the deed of gift belongs to the second defendant and all her children or whether it belongs only to the second defendant and the children who were in existence at that time namely, plaintiffs 1 and 2 alone, the learned District Judge negatived the contention of the first defendant that the property acquired under the gift is sub-tarwad property of the second defendant and her children. The learned judge held that the donees take the property as tenants-in-common and relied upon S.22 of the Nayar Act Travancore Regulation.11/1100 for this purpose. Again, the learned judge held that the decision of the Travancore-Cochin High Court in Narayana Pillai v. Govinda Pillai (A.I.R.1952 T.C. 141 at 143) is authority for the position that only the children who subsist on the date of Ex. A alone, are entitled to take the properties and they take the properties as tenants-in-common. Therefore, here again, the learned judge agreed with the view of the trial court that it is only the plaintiffs I and 2 who got a share along with the second defendant in the properties covered by Ex. A. But the learned judge was not prepared to accept the view of the trial court that plaintiff's 1 and 2 are entitled to mesne profits, as in his opinion, no question of mesne profits arise in this case before the deposit of the amount. In consequence of these findings, the trial court dismissed the appeal filed by the first defendant and also the memorandum of objections filed by the plaintiffs. 16. S. A. 39/1956 is filed by the first defendant and S. A. 115/1956 is filed by the plaintiffs. In consequence of these findings, the trial court dismissed the appeal filed by the first defendant and also the memorandum of objections filed by the plaintiffs. 16. S. A. 39/1956 is filed by the first defendant and S. A. 115/1956 is filed by the plaintiffs. So far as S. A. 39/1956 is concerned, Mr. M. Ramanatha Pillai, learned counsel, urged the same points that have been held against his client concurrently by both the courts. I cannot accept his contention that Ex. A enures only for the benefit of the second defendant. Nor can I accept his contention that the properties in the hands of the second defendant and plaintiffs 1 and 2 are to be treated as sub-tarwad properties and the principles applicable to alienation by a karnavan had to be applied in this case. The learned counsel's further argument was that as consideration and tarwad necessity have been found in favour of his client, the transaction evidenced by Ex. I should not have been set aside. 17. A perusal of Ex. A clearly shows that the husband of the second defendant has executed the document in favour of his wife the second defendant to provide for the maintenance expense of not only the second defendant but also her k'm§A . Though technically the document stands in the name of the second defendant, the recitals make it very clear that the object of the donor was to provide for the maintenance of not only the second defendant but also her k'm§A Therefore I cannot accept the contention of Mr. Ramanatha Pillai that the entire benefit of the gift under Ex. A enures only for the benefit of the second defendant. 18. That the second defendant and her children will not take it as tarwad property but only as tenants-incommon is also clear from the judgment of the Travancore-Cochin High Court of Koshi and Govinda Pillai, JJ. reported in Narayana Pillai v. Govinda Pillai (A.I.R.1952 T.C. 141). The learned judge had to interpret S.22 of the Nayar Act - Travancore Regulation.11/1100. According to the learned judges, it is unnecessary that the gift is to be in the name of the children also. reported in Narayana Pillai v. Govinda Pillai (A.I.R.1952 T.C. 141). The learned judge had to interpret S.22 of the Nayar Act - Travancore Regulation.11/1100. According to the learned judges, it is unnecessary that the gift is to be in the name of the children also. The learned judges are of the view that even if it stood in the sole name of the wife, the children would get a share in the same unless a contrary intention was expressed in the instruments of gift. 19. The learned judges, after referring to the decision in Ramakrishna Pillai v. Gouri Pillai Amma (1947 T. L. J. 426) observed at page 143 as follows: "It was held there that both the Nair Acts of 1088 and 1100 expressly declared that in the case of a gift by a husband or father to a wife or child, or to a wife and child, the effect of the gift would be a gift in favour of the wife and the subsisting children as tenants-in-common, unless a contrary intention was indicated. It was also pointed out that Sreedharan Moothath v. Velayudhan Pillai 132 T. L. J. 665) was wrongly decided and must be overruled." Therefore, it would follow from the reasoning of the learned judges that such a gift will enure in this case to the second defendant and the subsisting children as tenants-in-common also unless a contrary intention is indicated in the document. I do not find any such contrary intention expressed in the document. Therefore, the view of the lower courts that it is only plaintiffs 1 and 2 that also obtained shares as tenants-in-common along with the second defendant is correct. 20. There is no other point arising in this second appeal. I do not think that the lower court acted illegally in giving a direction to work out the rights of the parties on the basis of a partition action. To my mind, that direction is in the interests of everybody and avoids further litigation. Therefore, S. A. 39/1956 fails and is dismissed with costs. 21. As stated earlier, S. A. 115/1956 is filed by the plaintiff. The two main contentions are: (1) that the lower appellate court erred in disallowing mesne profits; and (2) the view of the two courts that plaintiffs 3 to 5 are not entitled to a share, is wrong. 22. Mr. 21. As stated earlier, S. A. 115/1956 is filed by the plaintiff. The two main contentions are: (1) that the lower appellate court erred in disallowing mesne profits; and (2) the view of the two courts that plaintiffs 3 to 5 are not entitled to a share, is wrong. 22. Mr. Sivasankara Panicker, learned counsel for the appellant in the appeal, contended that the learned District Judge erred in interfering with the direction of the trial court on the question of award of mesne profits. I am not able to accept the contention of Mr. Sivasankara Panicker. Both the courts have found that the transaction is supported by consideration and also that a substantial portion of the consideration has gone for discharge of two decree debts. Both the courts have set aside the transaction so far as the plaintiffs' 2/3 share is concerned only on their paying back their 2/3 share in the decree debts that have been deposited. The view of the lower appellate court that no question of mesne profits arises before the deposit of the amount is correct and it does not call for any interference. The second contention of Mr. Sivasankara Panicker is to the effect that even plaintiffs 3 to 5 will get a share in the properties covered by the gift under Ex. A He has relied upon certain observations of the Travancore High Court contained in Raman Pillai v. Narayana Pillai (21 T.L.J. 562) that in such circumstances, the mother and her children will take the properties as tarwad properties. Based on this decision the learned counsel contended that all the children of the second defendant including plaintiffs 3 to 5 will be entitled to a share. 23. I do not think that this contention is open to Mr. Sivasankara Panicker, in view of the decision of the Travancore-Cochin High Court referred to above namely, the decision of Koshi and Govinda Pillai, JJ. in Narayana Pillai v. Govinda Pillai (A.I.R.1952 T. C. 141). The learned judges there have held that in such circumstances it is not necessary that the gift is to be in the name of the children also. Even if it stood in the sole name of the wife, the children would get a share in the same unless a contrary intention was expressed in the instruments. 24. The learned judges there have held that in such circumstances it is not necessary that the gift is to be in the name of the children also. Even if it stood in the sole name of the wife, the children would get a share in the same unless a contrary intention was expressed in the instruments. 24. The learned judges have also held that even if the gift is in favour of a wife or child, or to a wife and child, the effect of the gift would be in favour of the wife and the subsisting children as tenants-incommon unless a contrary intention was indicated. Later on, the learned judges also observed that the children then subsisting and the mother would hold the properties as tenants-in-common. 25. This decision lays down that the property so obtained by a lady will not be a tarwad property but a property held by herself and her children, who were in existence on the date of the gift, as tenants-incommon in definite shares. Mr. Sivasankara Panickar very fairly brought to my notice a decision of the Kerala High Court reported in Thiruvadinatha Pillai v. Savithrikutty Amma (1957 K.L.T. 765.) a decision of Mr. Justice Sankaran as he then was and "Mr. Justice Joseph. This decision is against the contentions of Mr. Sivasankara Panicker, because the learned judges have held that properties vest in the children as soon as the gift is made and such properties cannot be divested by the birth of other children later. The learned judges have also pointed out the anomaly of holding that the subsequent children also will get shares in such properties. After referring to the provisions of S.22 of the Nayar Act of Travancore-Regulation 11/1100, the learned judges observed that S.22 does not warrant such a conclusion. The learned judges finally conclude that the children born after the properties were so obtained, are not entitled to shares therein. 26. Mr. Sivasankara Panicker contended that neither the Travancore-Cochin decision nor the latest decision of the Kerala High Court referred to above have considered the decision in Raman Pillai v. Narayana Pillai (21 T. L. J. 562), nor have they adverted to Clause.2 of S.22 of the Nayar Act Travancore Regulation.11/1100. 27. Whatever may be the merits in the contention of Mr. Sivasankara Panicker contended that neither the Travancore-Cochin decision nor the latest decision of the Kerala High Court referred to above have considered the decision in Raman Pillai v. Narayana Pillai (21 T. L. J. 562), nor have they adverted to Clause.2 of S.22 of the Nayar Act Travancore Regulation.11/1100. 27. Whatever may be the merits in the contention of Mr. Sivasankara Panicker, in the face of the decision of a Division Bench of the Kerala High Court referred to above to the effect that after-born children will not get any right, it is not open to me, sitting as a Single Judge, to go behind the said decision. I am bound to follow the said judgment and it follows that the contentions of Mr. Sivasankara Panicker cannot be accepted. 28. The learned counsel finally contended that even according to the terms of the document, Ex. A, the donor intended that the properties must be enjoyed also by the children to be born in future. In my opinion, if that is so, the recitals would have been entirely different, namely, to the affect that the properties are to enure for the benefit of the children then existing and also to he born in future. In the absence of any recital to the above effect, in my opinion, the donor should be considered to have contemplated only the maintenance of his children then existing. The findings of both the courts are that only plaintiffs 1 and 2 were born at the time of Ex. A. In this view, the second appeal fails and has to be dismissed. 29. Mr. Sivasankara Panicker submitted that the decision of the Travancore-Cochin High Court and the decision of the Kerala High Court may require reconsideration. The only possible thing that I can do at present is to grant leave to appeal from my judgment. Accordingly, I grant leave to appeal in both the second appeals. 30. In the result, both the second appeals are dismissed with costs of the respective respondents therein. Leave to appeal in both the second appeals is granted. Dismissed. Leave granted.