Judgment :- 1. A short but interesting question of marumakkathayam law comes up for consideration in this second appeal. 2. A marumakkathayee Thiyya by name Kunhambu executed a will, Ex. Al, in favour of his five children then alive, born in his wife, Devaki, with the stipulation that the properties should be enjoyed as puthravakasam tavazhi properties in equal right without partition by the tavazhi constituted by the said children, children to be born thereafter in Devaki and the children and grandchildren (santhathi santhanangal) in the female line. There was a further provision restraining encumbering or alienating the properties. The plaintiff-respondents are one daughter of Kunhambu and her children and grandchildren; and they have claimed partition of the properties on the per capita basis. Both the lower courts have allowed this claim; and in second appeal the counsel of the third defendant, one of the sons of Kunhambu, questions the correctness of this decision. 3. The argument of the appellant's counsel is that the bequest is to the five persons named in the will. In the alternative he contends that the bequest is to the tavazhi of Devaki, though her name is not mentioned as one of the beneficiaries; and that since the bequest is to that tavazhi as puthravakasam properties, the proviso to S.48 of the Madras Marumakkathayam Act must apply in partitioning the properties, in case the testator died after the Act came into force. This argument was advanced even before the lower appellate court with a request for remand of the case to find out whether the testator died before or after the promulgation of the Madras Marumakkathayam Act; and the request was refused by the lower appellate court. The lower appellate court expressed the view that even if the death of the testator was after the Act came into force, that would not make any difference in the result of the case. 4. I shall now consider the question whether the proviso to S.48 of the Madras Marumakkathayam Act can apply to this case, if the testator died after the Act came into force. The other question, namely, whether the bequest is to the five named persons in the will or to the tavazhi of Devaki, will also be answered. 4. I shall now consider the question whether the proviso to S.48 of the Madras Marumakkathayam Act can apply to this case, if the testator died after the Act came into force. The other question, namely, whether the bequest is to the five named persons in the will or to the tavazhi of Devaki, will also be answered. S.48 provides that when a person bequeaths property to his wife alone or to 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 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 Ex. Al the bequest is not to the wife alone or to the wife and children, but is to the five children then alive. In spite of the bequest being to the children then alive, can it be held that the bequest is really to the tavazhi consisting of the wife and the children? A reading of the relevant provisions extracted above will make it abundantly clear that the testator's intention was to benefit the tavazhi and not the five individuals alone mentioned by name. I may also refer to a decision of the Madras High Court, wherein a similar course was adopted in interpreting a similar will. In Ayikkarakath Puthiya Purayil Amina Umma v. Ayikkarakath Puthiya Purayil Mammad (1955-II M. L. J. 161) Rajamannar C. J., speaking for the Court, has pointed out that there were two modes of interpreting such a will, one, holding that the bequest was to the tavazhi consisting of the wife and children, and two, holding that the bequest was only to the individuals named in the document rejecting the other provisions as repugnant. The learned Chief Justice has adopted the former course, which I am also adopting in this case. Thus, the bequest under Ex. A-1 is to the tavazhi of Devaki and her children and not merely to the five named individuals. 5. The next question is whether in such a case the proviso to S.48 can apply. The learned Chief Justice has adopted the former course, which I am also adopting in this case. Thus, the bequest under Ex. A-1 is to the tavazhi of Devaki and her children and not merely to the five named individuals. 5. The next question is whether in such a case the proviso to S.48 can apply. The proviso lays down that in the event of partition under Chapter VI of such property as mentioned in the substantive portion of the section, 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. The property gifted or bequeathed by a marumakkathayee male to his wife or to the wife and one or more of his children or to all his children by the wife is known as puthravakasam property in the Malabar area and makkathayam property in the Travancore area. The presumption under S.48 of the Madras Marumakkathayam Act is to enable to find out whether a bequest or gift by a Marumakkathayee is to the individuals mentioned in the document or to the tavazhi. If the provisions of the document are clear that the bequest is either to the individuals or to the tavazhi, the presumption under S.48 does not arise. Once it is found, either by the provisions of the document or by the presumption under S.48, that the property is bequeathed or gifted to the tavazhi, then the proviso to the section follows; and partition of such property is on the stirpital principle. In this case it may not be necessary to draw the presumption under S.48, because the provisions of the will are clear that the bequest is to the tavazhi. In such a case also the property is puthravakasam property and the proviso to S.48 will be attracted. 6. Mr. Bhaskaran Nambiar, on behalf of the respondents, argues that the proviso will be attracted only in cases where the presumption under S.48 is drawn to find out whether the property is bequeathed to certain individuals or to the tavazhi and not in cases where the document itself is clear regarding the effect of the bequest, i. e., where it is clear from the recitals that the bequest is to the tavazhi. This contention has only to be stated to be rejected. This contention has only to be stated to be rejected. It is not because a property is found to be of a particular class, puthravakasam property, by virtue of a particular presumption, but because it is property of that class, that the stirpital principle of partition is applied to it. 7. The next contention of Mr. Bhaskaran Nambiar is that S.48 is not retrospective. I may agree with him if he contends that the section or its proviso will not apply to cases of bequests which took effect before the commencement of the Act. But his contention is not that. He contends that if a will was executed prior to the commencement of the Act, to the property covered by that will, even if the testator died after the commencement of the Act, the proviso to S.48 cannot apply. This again is an argument which has only to be stated to be rejected. 8. It follows that the decision of the lower appellate court that in any event per capita division alone applies to the case is wrong. Per capita division will apply only if the testator died prior to the commencement of the Madras Marumakkathayam Act; and per stirpes division will apply if he died subsequently. 9. The question then arises whether I should remand the case to decide this or whether I should call for a finding on the question. I think in the interest of justice, the latter course is better. Therefore, I direct the trial court to submit a finding as to when Kunhambu died whether before the Madras Marumakkathayam Act was promulgated or after. The parties are free to adduce evidence; & the trial court will submit the finding within two months from the date of receipt of records by it. The records will be sent down without delay; and the second appeal will be posted for further hearing after the receipt of the finding. Time for filing objection to the finding is ten days. 10. The finding called for is now before me; and it shows that Kunhambu died in August 1943, several years after the Madras Marumakkathayam Act was promulgated. The partition has therefore to be on the stirpital basis; and the five persons named in the will of Kunhambu are entitled to shares in the properties. 11. 10. The finding called for is now before me; and it shows that Kunhambu died in August 1943, several years after the Madras Marumakkathayam Act was promulgated. The partition has therefore to be on the stirpital basis; and the five persons named in the will of Kunhambu are entitled to shares in the properties. 11. The second appeal is allowed in part; and the preliminary decree passed by the lower courts is modified. There will be a fresh preliminary decree for partition dividing the B-schedule properties into five; and the plaintiffs will get one of the shares and defendants 1 to 4 will get one share each. The other questions reserved by the lower courts for consideration at the final decree stage will be considered at that stage, as directed already. In the circumstances, all parties will get their costs throughout from the estate. Allowed.