Judgment :- 1. The suit out of which this Second Appeal has arisen was for partition of the tavazhi comprising the plaintiff and defendants 1 to 64. In the original plaint there were 58 items of landed properties, but 13 of them have been omitted in the amended plaint filed on July 22,1952. Of the 45 items scheduled in the plaint, the courts below have concurrently found items 33 to 45 to belong either to the wife or to a son-in-law of the 1st defendant and not to the tavazhi and therefore excluded them from the scope of the suit; and passed a preliminary decree for partition of items 1 to 32 among the plaintiff and defendants 1 to 64 excepting defendants 7, 8, 26, 27, 43, 44 and 60. This second appeal is by the legal representatives of the 1st defendant challenging that decree. 2. Karinchi, the ancestress of the tavazhi and mother of the 1st defendant, was married twice. By the first husband she had a daughter Chappila whose descendants are defendants 2 to 16 in the case. By the second husband Bappu she had four children, Chathu, Kunhacha, Kunhimanni and the 1st defendant. Chathu died in 1907. The descendants of Kunhhacha are defendants 17 to 54 and those of Kunhimanni are the plaintiff and defendants 55 to 64. 3. Suit item No. 21 was acquired under Ext. B-1 dated December 8,1876, by Bappu in the name of two of his children, namely Chathu and Kunhacha. As per Ext. B-2 dated January 23,1887, Bappu gifted suit items 10,15 and 19 in favour of Karinchi and her four children by him. Items 4, 5, 7, 8,12,14,18, 20, 24, 25, 26, 30, 31 and 32 are acquisitions of Chathu. He had also acquired kanom or panayam rights in suit items 1, 3, 6, 9 and 16. After the 1st defendant became karnavan he acquired the reversion in the last mentioned five items, and also acquired the suit items 2,11,13,17, 22, 23, 27, 28 and 29. 4. The main contention was that the defendants 2 to 16, who are descendants of Chappila, are not entitled to any right in the properties gifted by Bappu. The courts below held that the properties comprised in Exts. 4. The main contention was that the defendants 2 to 16, who are descendants of Chappila, are not entitled to any right in the properties gifted by Bappu. The courts below held that the properties comprised in Exts. B-1 and B-2 enured to Karinchi and her four children by Bappu as tenants-in-common, but have been long dealt with as properties of the tavazhi of the plaintiff and defendants 1 to 64, and therefore have become partible among them. Excepting the appellants, who are the heirs of the 1st defendant, others have acquiesced in the decree of the court below; and this Second Appeal relates only to the rights the 1st defendant had in the suit items 1 to 32. 5. The nature of a gift from father to children, or from husband to wife and children, among parties following Marumakkathayam law had been the subject of discussion in several decided cases. Such a gift is called Puthravakasom property in Malabar, and Makkathayam property in Travancore. In Kunhacha Umma v. Kutti Mammi Haji (16 Madras 201), a Full Bench of four judges held the legal presumption to be "that they should take them as properties acquired by their branch or as exclusive properties of their own branch, with the usual incidents of tarwad property in accordance with Marumakkathayam usage which governed the donees." There was no complication in that case of the woman having children by another husband. 6. In Ummanga v. Appudorai Pattar (34 Madras 387) the wife and children taking the gift were held to constitute a tavazhi of their own if they had been separated from the tarwad, and only tenants in common if they remained joint with the rest of the tarwad. But this distinction was not accepted by the Full Bench who decided Chakkra Kannan v. Kunhi Pokker (39 Madras 317). It was laid by the Full Bench as a general proposition "When properties are given by a person to his wife and children or children alone following the Marumakkathayam law the presumption is that the donees take the property with the incidents of tarwad property." 7. On the question whether a gift with the incidents of tarwad property could be made to the mother and some of her issue only, viz., those by a particular husband, the majority of the judges in 39 Madras 317 thought it unnecessary to express any opinion in that case. On the question whether a gift with the incidents of tarwad property could be made to the mother and some of her issue only, viz., those by a particular husband, the majority of the judges in 39 Madras 317 thought it unnecessary to express any opinion in that case. Sadasiva Iyer, J. alone adverted to it and observed: "The objection based on the woman (whose husband makes a gift to his children by her) marrying another husband and begetting other children to the latter and on these children also belonging to her tavazhi along with her children by the first husband is not in my opinion insuperable. The result of that state of facts will only be that there will be two separate groups in the same tavazhi holding separate tavazhi property, the senior male in each tavazhi group being the karnavan of that tavazhi group. For instance, take the case of a woman and her children who form a tavazhi within a tarwad. Two of her, daughters might form two different groups in the same tavazhi and their respective husbands might give properties to their respective children. Then, all these children would belong to the tarwad of their great grand-mother, would again belong to their grand-mother's tavazhi and would also belong to the groups or sub-tavazhis of their respective mothers and hold those respective group properties separately. Just as there can be tavazhis within a tavazhi, there can be group tavazhis and sub-tavazhis in the same tavazhi. If two groups or sub-tavazhis springing from two daughters who form a tavazhi can have separate sub-tavazhi properties, there is nothing startling in two branch tavazhis springing from the same lady (through her marrying two successive husbands) and holding separately their respective branch tavazhi properties. A tavazhi consists, no doubt, of the descendants of a single woman (I do not think that it includes the woman herself etymologically), but there is nothing to prevent the existence in that same tavazhi of two groups each of which groups might form a separate unit for the purpose of holding particular properties as if it was a separate tarwad and with the incidents of tarwad property. In cannot be said to be an unnatural separation between the two groups, unnatural in the sense of repugnance to the habits, practices and sentiments of the community." 8. In cannot be said to be an unnatural separation between the two groups, unnatural in the sense of repugnance to the habits, practices and sentiments of the community." 8. These observations became a ruling of the Court when a Bench adopted the same in Imbichi Beevi Umma V. Raman Nair (42 Madras 869) and held: "There remains the real question for consideration, i. e. whether a separate branch of the tavazhi can be established consisting of a woman and her children by one husband to the exclusion of the children by another husband. When property is given to his family by a father, it is held with all the incidents of tarwad tenure - Kunhacha Umma v. Kutti Mammi Hajee (16 Madras 201) - and this view is based on the presumed intention of the father to benefit his own children. If, therefore, the second husband gives property to his wife and his own children, it is difficult to presume that he intended also to benefit the children by the former husband or even children by subsequent husband, in the absence of any expression of such intention. No doubt the word 'tavazhi' may be, as suggested by Sankaran Nayar, J., derived from tayar (mother) and vazhi (way) and it would naturally include all the descendants of that woman. But even though that is the real meaning of tavazhi, it has been held that branches of a tarwad consisting of persons who have acquired separate property from their father are constituted as tavazhi by virtue of the possession of that property. If, therefore, the property was intended for that man's children alone, there is no reason for adding to the branch, which is to enjoy that property the children by another husband. The very fact that the tavazhis ate very frequently called puthravakasam tavazhis leads to the inference that they are not merely descendants of one female but also branches of the family which are benefited by a gift from their father and are thereby constituted as tavazhis. In this view there is no real difficulty in supposing that the tavazhi of a woman could consist of two branches, one branch made up of children by one husband and the other of children by another husband and each branch might own separate properties obtained from their respective fathers. In this view there is no real difficulty in supposing that the tavazhi of a woman could consist of two branches, one branch made up of children by one husband and the other of children by another husband and each branch might own separate properties obtained from their respective fathers. This has been recognised by Sadasiva Ayar, J. in Chakkrakannan v. Kunhi Pokker (39 Mad. 317 at p. 335 F.B.) and apparently is the view taken in Travancore." 9. A different view was however taken in Moithiyan Kutti v. Ayissa (51 Madras 574) to the effect: "A tavazhi consists of a mother and all her children and descendants in the female line; and a tavazhi cannot be constituted by a woman and some of her children only, they being children of one father, her other children being excluded. When, therefore, a follower of the Marumakkathayam law makes a gift of property to his wife and her children by him> she having already children by a former husband living, the donees do not take the property with the incidents of a tarwad or tavazhi property, but take it as ordinary donees, each entitled to an equal share as tenants in common". 10. The decision in 51 Madras 574 was rendered in 1928. In 1933 the Legislature rose to pass Madras Marumakkathayam Act, XXII of 1933, with its S.48 reading thus: "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: Provided that, in the event of partition of the property taking place under Chapter VI, the property shall be divided on the stirpital principle, the wife being entitled to a share equal to that of a son or a daughter." Legislative recognition was thus given to the view expressed in 42 Madras 869, of a tavazhi being constituted by a Marumakkathayi woman and her children by the donor husband, exclusive of her children by another. 11. 11. Counsel for the plaintiff brought to my notice Kuttayi Lakshmi v. Puthiapurayil Mukundan Karnavan (A.I.R.1954 Madras 235) and Bhaskaran V. Kavunni (A.I.R.1954 Madras 987) where tavazhi has been held to comprise a mother and her children and contended that a mother and some of her children by one husband to the exclusion of her children by another could not constitute a tavazhi and therefore the gifts by a husband to a woman and her children by him to the exclusion of her other children should be construed only as a gift to them in tenancy-in-common. As the law laid in 42 Madras 869 has been declared by the legislature soon after a dissent to it was expressed in 51 Madras 574, and the A.I.R. 1954 Madras cases did not make any reference to a woman having children by more than one husband, the law has to be held correctly laid in 42 Madras 869. No doubt, S.48 would apply in terms only to gifts made after it came into force on August 1,1933; but it did not purport to create a tavazhi where none existed before, and only declared that'puthravakasom' property would be "tavazhi property" of the woman and her children by the donor. In my view, the Section was designed to remove the doubt or difference cast in the law as declared in 42 Madras 869 by 51 Madras 574 and to affirm the law declared in the former; and therefore the law has always been as expressed in 42 Madras 869 only. 12. It is pertinent to note in this connection that the law in Travancore has also been to the same effect. In Mathevan Kunhu Kunhu v. Raman Krishnan (13 T.L.R. 72) the presumption ordinarily arising from a Makkathayam gift made by a Marumakkathayam father was held to be that the property given by him was for the benefit of all his children. In Mariamma Rachel v. Narayana Pillai (2 T.L.J. 15) it was observed: "No man can reasonably be called upon to provide for the offspring of his wife by some third party. In Mariamma Rachel v. Narayana Pillai (2 T.L.J. 15) it was observed: "No man can reasonably be called upon to provide for the offspring of his wife by some third party. It is extremely unlikely that the idea of making provision for the possible issue of his widow by a future union would be entertained by even the most philanthropic persons The law so far has only recognised a sub-tarward formed by the grant of property to a Marumakkathayam female by her husband for the benefit of her children by him. P.K. Narayana Pillai, J. in Pappi Nangiaramna v. Kunji Nangiaru (23 T.L.J. 344) also was of the view: "Suppose a husband gives property to a Nair lady and her children by him; there cannot be any doubt, that the property so given will be Makkathayam property or Puthravakasam property as it is called in Malabar. Suppose further that the lady is married by another husband and other children are born. They will belong to the same Tavazhi, but why should their addition to the tavazhi affect the rights of the children by the previous husband and the mother, interse, as such rights stood in law when the gift was made. In such-a case, one section of the Tavazhi will hold the property previously gifted as Marumakkathayam property unmodified by the extension of the Tavazhi by subsequent additions. The children born to the subsequent husband cannot possibly have any right to property granted by previous husband". The latest observation of the Travancore High Court on the subject is in Devaki v. Velayitdhan (1948 T.L.R. 584, 590). "It has been held in certain cases that a woman can give rise to two tavazhis, under certain circumstances. It has been held that where a Marumakkathayam husband makes a gift of properties to his wife and children there is no presumption that he intended to benefit her children by a former or subsequent husband in the absence of any expression of such intention. The above rule is now well established and it is not necessary to cite the cases which have laid it down. (After referring to 39 Madras 317,42 Madras 869 and 51 Madras 574). The above rule is now well established and it is not necessary to cite the cases which have laid it down. (After referring to 39 Madras 317,42 Madras 869 and 51 Madras 574). The principle that where a Marumakkathayam husband makes a gift of properties to his wife or his wife and children, the presumption is that the properties are to be enjoyed with the incidents of tarwad property, has its origin in the rule that when ascertaining the intention of the donor, the law governing the parties is one of the circumstances to be taken into account. The above presumption need not be tacked on to the conception of a tavazhi. In such cases as the children by another husband cannot have been in contemplation of the husband who makes the gift these children have to be excluded from the operation of the same." 13. The gifts made by Bappu, as per Ext. B-2, in favour of his wife Karinchi and his four children through her must be held to enure to them as a tavazhi, to the exclusion of Chappila and her descendants. If it be so, it is conceded that the 1st defendant would be entitled to 1/46 share in the properties conveyed by Ext. B-2, namely, suit items 10,15 and 19. 14. The courts below held that the properties had been treated and dealt with as tavazhi properties and therefore they enure to the tavazhi of the plaintiff and defendants 1 to 64. The transactions relied on for drawing that inference are those in which Chathu and after him the 1st defendant have acted as tavazhi karnavans. I have found that Karinch and her issue by Bappu constitute a tavazhi of their own, and the properties gifted by Bappu belong to that tavazhi. Admittedly Chathu and after him the 1st defendant were the karnavans of that tavazhi. There is therefore nothing particular in their having dealt with the properties as tavazhi karnavans. It was pointed out that items 30 to 32 have been given to defendants 2 to 16 for their maintenance. These items as also many others were admittedly the acquisitions of Chathu and were given to the tavazhi of the plaintiff and defendants 1 to 64 by Chathu as per his Will Ext. B-17. It was pointed out that items 30 to 32 have been given to defendants 2 to 16 for their maintenance. These items as also many others were admittedly the acquisitions of Chathu and were given to the tavazhi of the plaintiff and defendants 1 to 64 by Chathu as per his Will Ext. B-17. If then the three items were set apart to defendants 2 to 16 for their maintenance, it can no way be relevant in deciding the nature of the suit items 10, 15,19 and 21. No other circumstance is brought out in evidence to show that the above said items have been treated or dealt with as properties belonging to defendants 2 to 16 also. 15. Suit item No. 21 was acquired in the name of Chathu and Kunhacha, under Ext. B-1 dated December 8,1876. The document recites that the fund for the acquisition proceeded from their father Bappu; but it gives no indication whether the property enured to them alone, or to all his children, or to their tavazhi. Ext. B-17 is the Will of Chathu, and in it he had expressed that the acquisition made by his father in the name of himself and Kunhacha, evidently referring to Ext. B1, enured to himself, his brother and their two sisters. This is apparently an admission on his part which is against his own interest. There is no evidence in this case to contradict that recital in Ext. B-17. There is therefore no reason why that recital should not be given credit to. As the mother was then alive and was not made one of the donees, the gift could not enure to them as a tavazhi, under the Malabar law. The court below however held the property to belong to the tavazhi and the descendants of Kunhacha have not challenged the same. In the circumstances, the suit item No. 21 cannot be held to enure to the two persons in whose name it was acquired under Ext. B-1, nor to the tavazhi so far as the appellants are concerned. It must therefore be taken as the property of the four children of Bappu as tenants-in-common, so far as the appellants are concerned, and as tavazhi property as regards others. B-1, nor to the tavazhi so far as the appellants are concerned. It must therefore be taken as the property of the four children of Bappu as tenants-in-common, so far as the appellants are concerned, and as tavazhi property as regards others. The 1st defendant was therefore entitled to one-fourth share in suit item No. 21 as his separate property and that has on his death devolved on the appellants herein. Chathu also had a similar one fourth share which under his will, Ext. B-17, has been set apart for the tavazhi of the plaintiff and defendants 1 to 64. 16. Chathu executed his will, Ext. B-17, on June 15,1907, and died the same year. The properties which have been specified in para 3 above as his acquisitions have been devised by him to the tavazhi of plaintiff and defendants 1 to 64. Parties are in agreement that the will was acted upon by all concerned. It was then too late on the date of the institution of the suit in 1960 to ignore Ext. B-17 and retrace the title to the properties covered by it. Acquisitions of Chathu mentioned above are therefore partible among the plaintiff and the defendants in the shares declared by the court below, as on the date of disruption of the tarwad by the pleadings in O.S. No. 81 of 1943, which was an earlier suit for partition of this tavazhi. 17. The acquisitions of the 1st defendant have been held by the courts below to enure to the entire tavazhi. All his acquisitions had been made only after he became the karnavan of the tavazhi, save those covered by Exts. B-7 to B-10 which are acquisitions of mortgage rights by him m while he was a junior member in the tavazhi. The latter should be presumed to be his separate property unless the contrary is proved positively in the case. As there is no such evidence on record the mortgage rights under Exts. B7 to B-10 are held to be the separate property of the 1st defendant, inherited after him by the appellants, and partition can only be subject to those mortgage rights. 18. In the result, the appellants are declared entitled to the mortgage rights under Exts. As there is no such evidence on record the mortgage rights under Exts. B7 to B-10 are held to be the separate property of the 1st defendant, inherited after him by the appellants, and partition can only be subject to those mortgage rights. 18. In the result, the appellants are declared entitled to the mortgage rights under Exts. B-7 to B-10,146 share in suit items 10,15 and 19,14 share in item 21 and 161 share in the rest of the suit items which are partible among plaintiff and defendants 1 to 64. The decree of the court below is modified to the extent mentioned above and affirmed in other respects. It goes without saying that in regard to items 10,15, 19 and 21 the shares of the parties will be re-calculated to give effect to the special rights of the appellants mentioned above. In the circumstances of this case, the parties are directed to bear their costs in this court and in the lower appellate court. Decree modified.