Judgment :- 1. First defendant is the wife of the 13th defendant, and plaintiff and defendants 2 to 8 are their children. They are Nayars governed by the Travancore Nayar Act. On Medom 27,1109 M. E., the 13th defendant conveyed the suit properties and some others to the 1st defendant, as per Ext. P1, directing her to discharge three hypothecations on the properties and to take the remainder for herself and her children. Subsequently, on Edavom 25, 1118, defendants 1 and 13 sold the suit properties under Ext. D1 to Augustine Leone, whose widow is the 9th defendant and children the defendants 10 to 12. The plaintiff, claiming the suit properties to belong to him and defendants 1 to 8 in equal shares, has instituted this suit to cancel Ext. D1 as regards his 1/9 share and to recover separate possession thereof from the alienees with mesne profits. Defendants 2 to 5 by one written statement and defendants 6 to 8 by another supported the plaintiff in the cause and claimed their shares also to be partitioned and given to them. Defendants 9 to 12 contended the properties to have belonged to the 1st defendant alone, as been sold to her under Ext. P1 by the 13th defendant, and therefore the alienation under Ext. D1 to be unchallengeable by the plaintiff and defendants 2 to 8. The Subordinate Judge, who tried the case, held Ext. P1 to be a gift within the ambit of S.22 of the Travancore Nayar Act, 1100, enuring to plaintiff and defendants 1 to 8 equally and, as Ext. D1 did not even purport to convey the plaintiff's interests, the plaintiff to be entitled to decree as prayed for. On appeal by defendants 9 to 12, the District Judge held Ext. P1 to be not a gift but an assignment for consideration enuring to the 1st defendant alone, and therefore the plaintiff to have no interest in the suit properties and dismissed the suit. Hence this second appeal by the plaintiff and defendants 6 to 8. 2. Ext. P1 recites that the properties involved therein are encumbered under three hypothecations for an aggregate amount of Rs. 6797.75p. Though the remainder is expressed to be worth Rs. 202.25p. Hence this second appeal by the plaintiff and defendants 6 to 8. 2. Ext. P1 recites that the properties involved therein are encumbered under three hypothecations for an aggregate amount of Rs. 6797.75p. Though the remainder is expressed to be worth Rs. 202.25p. nothing further is said about that; and the properties are given absolutely to the 1st defendant who is expected therein to discharge the hypothecations and take the remainder along with her children. The deed does not recite a consideration for the transfer of properties to the 1st defendant. That the liability to discharge the encumbrances on the properties is not the consideration for the transfer is clear from the recital in the deed where a value is set for the remainder over the encumbrances. He who takes an immovable property has to discharge the encumbrances thereon: it is only an incident of the property taken, not a consideration therefor, unless the property is assigned to him for a definite sum with a direction to pay that sum to the encumbrancers. As a definite value is set in Ext. P1 for the remainder of property over the encumbrances and the same is not collected from the transferee, either directly or indirectly, the transfer under Ext. P1 is strictly a gift. I affirm the finding of the Subordinate Judge to that effect and reverse that of the District Judge to the contrary. 3. It is contended for appellants that the properties given under Ext. P1 had been converted into tarwad properties under Ext. P3, which is an alienation of tarwad property by the 1st defendant, acting for herself and her children, in conjunction with the 13th defendant, to discharge the encumbrances on the properties gifted under Ext. P1, wherein it is provided that certain properties of the latter category would be taken by the 1st defendant and her children instead of the former properties lost to their thavazhi. The conversion or transformation so made can affect only the properties specified to have been so converted in Ext. P3 which do not include the suit properties. The fact that certain specified properties among those acquired under Ext. P1 have been substituted for certain tarwad properties alienated for the benefit of the parties would not show that other properties acquired under Ext. P1 have also become tarwad properties. The argument fails. 4. P3 which do not include the suit properties. The fact that certain specified properties among those acquired under Ext. P1 have been substituted for certain tarwad properties alienated for the benefit of the parties would not show that other properties acquired under Ext. P1 have also become tarwad properties. The argument fails. 4. Counsel for the alienees contends that a gift under S.22 of the Travancore Nayar Act, 1100, enures to the donee and her children by the donor who are alive on the date of the gift, but not to children born to them subsequently and relies on Thiruvadinatha Pillai v. Savithrikutty Amma 1957 KLT. 765 in support therefor. In that decision it is categorically laid down: "According to this section the wife and children take equal shares in the property gifted by the husband to the wife or child or children after Act I of 1088 came into force. The question is whether the children contemplated in this section include those born after the date of the gift. The answer would depend on the point of time when the children acquire shares in such properties. If they obtained shares at the time when the gift is made it is clear that after born children will not be entitled to shares. The property would in such a case vest in the children as soon as the gift is made and such properties cannot be divested by the birth of other children later. Any child is entitled to obtain a partition of such properties and if after-born children are also to get shares, such partition would have to be reopened every time a child is born to the mother after partition. In other words, the vesting of the shares would have to be postponed till the mother dies or passes the child bearing age. The wording of the section does not warrant such a conclusion. The plaintiffs who were born after the properties were acquired are not therefore entitled to shares therein, even if the properties be treated as a gift from their father." If the dictum in the above quote is applied to the present case the appellants plaintiff and defendants 6 to 8 who are admittedly born subsequent to the date of Ext. P1 cannot claim any interest under that conveyance. 5. Counsel for appellants, relying on Mathew v. Kunjika Bharathi 1967 KLT. 133 FB. P1 cannot claim any interest under that conveyance. 5. Counsel for appellants, relying on Mathew v. Kunjika Bharathi 1967 KLT. 133 FB. contends that Makkathayam gifts enure to future born children also. I am afraid this contention does not bear force. The dictum in Mathew v. Kunjika Bharathi 1967 KLT. 133 FB. does not in any way affect the authority of the dictum in Thiruvadinatha Pillai v. Savithrikutty Amma 1957 KLT. 765 but distinguishes it on the difference in expression of the relevant personal law statutes of the communities concerned. The expression in the Nayar Acts The Travancore Act I of 1088 and the Act II of 1100 is that "the property obtained by gift by the wife from the husband shall belong to the wife and each of the children in equal shares." The expression in the Ezhava Act The Travancore Act III of 1100 is that "Makkathayam property (which by definition includes property obtained from the husband by the wife by gift) shall be liable to be divided among the wife and each of the children in equal shares." (Both the statutes are expressed to be subject to contrary intention expressed in the instrument of gift.) It must be remembered here that under the pristine (pre-statute) law of both the communities Makkathayam property belonged to the tavazhi of the donee, with all the incidents of a tarwad property attached to it and as such all members of the thavazhi, irrespective of their date or birth, became interested therein and if ever it was partitioned it would be among all the members of the tavazhi on the date of such partition. S 41 of the Nayar Act, 1100, preserves the old law for gifts before 10th Thulam 1088. But in regard to subsequent gifts a change was made by S.22 of the Nayar Act that such property shall no more belong to the tavazhi of the donee but only to "the wife and each of the children in equal shares." As observed in Thiruvadinath Pillai v. Savithirikutty Amma (1957 KLT. 765) the moment the gift takes effect the property gifted belongs to the wife and each of the children in equal shares. The vesting under the gift is not on a fluctuating group of persons as in a tavazhi but on particular individuals. Once property has vested in particular persons, no other person can claim to partake it. 765) the moment the gift takes effect the property gifted belongs to the wife and each of the children in equal shares. The vesting under the gift is not on a fluctuating group of persons as in a tavazhi but on particular individuals. Once property has vested in particular persons, no other person can claim to partake it. The Ezhava Act, on the other hand, did nothing of the sort. It did not affect the vesting of the property under the gift and therefore left the law in that regard in tact to continue. All that it provides is a mode of partition for such properties. In the pre-statute days, both among Nayars and Ezhavas, compulsory partition of thavzhi property was unknown. The Nayar Act, in providing that Makkathayam property "shall belong to the wife and each of the children in equal shares" has taken it out of the category of joint properties of a tavazhi and made it the tenancy-in-common of certain specific individuals. No particular provision for partition of such property is then needed; for, a statutory provision for partition must concern a right to divide and not to a processual division according to settled rights in other words, must relate to joint properties with fluctuating interests and not to properties held in tenancy-in-common with defined shares. As the Ezhava Act made no change in the nature or vesting of Makkathayam property, it continues to belong to the tavazahi of the donee, but the Act has, in providing for partition of all joint properties of Tarwad property in S.28 to 31, and of Makkathayam property in S.32 enacted that the Makkathayam property "shall be liable to be divided among the wife and each of the children in equal shares." It said nothing about the condition, nature or incidents of Makkathayam property before or till partition. It said only that Tarwad properties may, subject to certain conditions, be divided per capita among collateral thavazhees and members bereft of a thavazhee as such, and that Makkathayam properties shall, without any restriction, be liable to be divided per stripes among the wife and children of the donor in equal shares. In the circumstances, the proposition laid down in Mathew v. Kunjika Bharathi (1967 KLT. In the circumstances, the proposition laid down in Mathew v. Kunjika Bharathi (1967 KLT. 133 FB.) for Makkathayam properties among the Ezhavas cannot be applied to Makkathayam properties among the Nayars to whom the dictum in Thiruvadinatha Piliai v. Savirithikntty Amma (1957 KLT. 765) applies. 6. Counsel for appellants contends that the gift to a Nayar wife must be deemed to be given in trust for her children and therefore to enure to all her children irrespective of the fact that they were alive on the date of the gift or born subsequently, and relied on an observation of Raman Nayar, J. in Mathew v. Kunjika Bharathi (1967 KLT. 133 FB.) which runs thus: "The gift can be to the named donees as representing the group of persons composed of the wife and children including children to be born. Such a gift can be made only through the machinery of a trust, the named donees holding as trustees for themselves and the other beneficiaries. It seems to me that S.22 of the Nayar Act could well have been construed as enacting a presumption to that effect see Narayanan Narayanan v. Parwathi Nangali (5 TLR.116) where it is suggested that in a Makkathayam gift, the named donees take as trustees for the entire body composed of the wife and children..." I am afraid that Narayanan Narayanan v. Parwathi Nangali 5 TLR.116 cited in the above quote gives no colour for such a proposition. The only passage where a 'trust' is referred to in that decision runs thus: "Gifts by the father known in Travancore as Makkathayam and, in British Malabar as Puthravakasom, are ordinarily intended to benefit all the children of the donor by the same mother, and the properties which form the subject of this gift, though usually registered or acquired in the name of the mother are held by the mother and children in common under the management of the mother or of the next senior competent male or female among the donees. The manager of such property acts for the benefit, and as trustee, of all parties interested in the property, and is commonly allowed the same powers and privileges as the karnavan of a tarwad. The manager of such property acts for the benefit, and as trustee, of all parties interested in the property, and is commonly allowed the same powers and privileges as the karnavan of a tarwad. That 1st defendant has acted as such manager at least upto 1051 when dissensions arose in the family, may fairly be concluded from the evidence on record, and we have no doubt that if the 2nd defendant could establish the reality of the debt sued for in the previous suit No. 113, the presumption would arise that the debt was incurred for the use of plaintiffs and 1st defendant...." It is pertinent to remember that this expression was made on'21st Masi 1062' when all Makkathayam properties belonged to the thavazhi of the donee. Even so, the passage cited above relates only to the mode of management of the property by the mother or the karnavan of the thavazhi, and not to the nature of the gift constituting Makkathayam property. The relevance of a reference to trusteeship in relation to the management by the ancestress or the karnavan of joint family properties may be obvious when we remember that in early days it was urged in several cases that the karnavan of a tarwad was in the position of a trustee an argument that seldom found favour with jurists or judges. [M. P. Joseph in his 'Principles of Marumakkathayam law' says: "A Karnavan is not in the position of a mere trustee as a mere trustee has no personal interest in the estate whereas the Karnavan has such interest and further the karnavan is not bound to render accounts. It Sundara Aiyar in his 'Malabar and Aliyasantana law' also observes to the same effect, thus: "His position is his birth-right and is not derived from the other members of the tarwad. He is not an agent appointed by them, though in some respects his powers and duties resemble those of an agent. Nor is he a mere trustee for them, himself having a proprietary interest in the family property though his position towards them is in many respects analogous to that of a trustee." In Varanakot Narayanan Namburi v. Varanakot Narayanan Namburi 2 Madras 328 Justice Karnan and Justice Forbes discuss the position of a Karnavan and say that he is not a mere trustee. "The suggested analogy between a trustee and a Karnavan is not correct, in as much as a mere trustee has no personal interest in the estate, whereas the Karnavan has such interest." In Neelamma Pillai v. Krishnan 18 TLJ.100 at 116 F. B., a Full Bench of the Travancore High Court observed: "...the position of a karnavan partakes more of the nature of an agency or trust though he could not be treated as an agent or trustee as ordinarily understood."] In the light of the above, one can appreciate how their Lordships in Narayanan Narayanan v. Parwathi Nangali 5 TLR.116 came to refer to the management of thavazhi property as Makkathayam property then was by the ancestress or the karnavan of the thavazhi as "a trustee of all parties interested in the property". What is relevant here is that that decision 5 TLR.116 has not laid down that a gift by a husband to a Nayar wife implies a trust for all her children; nor has Raman Nayar J. held so in Mathew v. Kunjika Bharathi 1967 KLT.133. All that the learned judge has said in the last mentioned case is "that S.22 of the Nayar Act could well have been construed as enacting a presumption... that in a Makkathayam gift, the named donees take as trustees for the entire body composed of the wife and children", but it has not been so construed by anybody so far; for his Lordship expressly observed in Para.4 of his judgment "the gift can be to the named donees as representing the group of persons composed of the wife and the children then in existence as contemplated by S.22 of the Nayar Act as that Section has so far been understood." To me therefore the contention that a gift to a Nayar wife by her husband implies a trust on the donee to hold it for the benefit of all her children then alive and to be born in future, does not appear to be supported by any precedent or warranted by the relevant statutes. The contention has to be and is repelled. 7. Counsel for appellants relied also on Raman Pillai v. Narayana Pillai 21 TLJ. The contention has to be and is repelled. 7. Counsel for appellants relied also on Raman Pillai v. Narayana Pillai 21 TLJ. 562 in support of his contention that a gift under S.22 of the Nayar Act enures to the thavazhi of the donee and therefore all children born of the donee even subsequent to the date of the gift are entitled to share therein. But that decision has been overruled by a Full Bench of the Travancore High Court in Achuthan Pattar v. Kalyani Amma 26 TLJ. 284 F. B. where Rao Bahdur A. Verghese C. J., with concurrence of Raman Tampi J. and Gopala Menon J., held thus: "Until the passing of Regulation (subsequently styled Act) I of 1088, the Makkathayam properties of members of Marumakkathayam families were considered to belong to the sub-tarwad consisting of a mother and her children, and all the incidents of Marumakkathayam Law were held to attach to these properties. Further, whether such properties were acquired in the name of the mother or any or her children, all the children born to the mother including those born after the acquisition and all the descendants of the daughters including children born to them subsequent to the acquisition were also held to be entitled to these properties, as the result of the operation of Marumakkathayam Law S. 41 of the Regulation is the one that incorporated the existing practice which provides that property acquired by gift or bequest from the father or husband before Regulation I of 1088 came into force shall, in the absence of evidence to the centrary, be treated as tarwad property of the donees or devisees and of their Thavazhies. Marumakkathayam Law applied to such gifts treated as tarwad property. The sentiment of the community that property gifted to wife and children must go to them individually was provided for in S.17 of the Regulation. If it was the intention of the Legislature that gifts made subsequent to the passing of the said Regulation also should have all the incidents of Marumakkathayam Law, it would have been sufficient for the Legislature to say that S.41 applies not only to gifts prior to the Regulation I of 1088, but also to gifts by a father or husband made subsequent to it. But the Legislature has not chosen to do so because it did not want gifts by father or husband subsequent to the Regulation I of 1088 to bear the incidents of Marumakkathayam Law. That is why a special S.17 was provided in the Regulation I of 1088 which is reproduced as S.22 (i) in the Regulation II of 1100, specially providing that a gift by a husband or father will be taken by the donees in equal shares. It is significant that S.22 does not state that the equal shares given to the donees therein can take effect only at some future date of partition, as is specially provided for in S.39 in respect of the individual share in regard to the tarwad properties. There is no warrant for reading into S 22 a period of postponement of the operation of that section which is deliberately omitted in it by the statute. Gifts of this kind, after Regulation I of 1088, are consequently taken by the donees as tenants-in-common from the time of the gift and not as joint tenants as held by the 17 TLJ. decision mentioned above. The expression 'before Regulation I of 1088 came into force' in S.41 is very significant, and definitely by implication shows that the statute did not want to treat all Makkathayam properties acquired either before or after the passing of Regulation I of 1088 alike for the purpose of Chapter VII of the Regulation, which deals with partition. It appears to me that the Division Bench that decided Narayani Amma v. Krishna Pillai 17 TLJ. 793 was carried away by the general idea prevailing before the Regulation I of 1088 came into force, that donees under a gift or bequest by the husband or father became a Sub-Tarwad in respect of these properties with all the incidents of Marumakkathayam Law pertaining thereto. The decision was accordingly arrived at without an intensive and analytic examination of the provisions of the Nair Regulation I of 1088. The Benches that decided Raman Pillai v Narayana Pillai 21 TLJ. 562 and C. R. P. No. 244 of 1105 (4 TLT.1092) bindly followed Narayani Amma v. Krishna Pillai 17 TLJ. 793 and fell into the same error. The decision was accordingly arrived at without an intensive and analytic examination of the provisions of the Nair Regulation I of 1088. The Benches that decided Raman Pillai v Narayana Pillai 21 TLJ. 562 and C. R. P. No. 244 of 1105 (4 TLT.1092) bindly followed Narayani Amma v. Krishna Pillai 17 TLJ. 793 and fell into the same error. It is also relevant to point out that S.22, Clause (2) of Regulation II of 1100 makes a special provision how property devolving on donees under S.22(1) by gift or bequest devolves on their heirs in case of intestacy of the donees. If donees under S.22(1) took the gifts with all the incidents of Marumakkathayam Law applying to the Sub-tarwad as held in Narayani Amma v. Krishna Pillai there was no need to provide for a devolution in case of intestacy of any one of them, because the properties of the Sub-Tarwad are governed by all the incidents of the Marumakkathayam Law, and they cannot devolve as provided in S.22(2). We are decidedly of opinion that 17 TLJ. 793 and the two decisions that followed it have not been correctly decided and that the donees coming under S.22(1) of Regulation II of 1100 took as tenants-in¬common. The answers to the reference therefore are: (i) In regard to Makkathayam acquisitions of members of the Nair community, after Regulation I of 1088 came into force, dealt with in S.17 of Regulation I of 1088 and S.22 of Regulation II of 1100, each donee or devisee takes a separate, heritable, and alienable share, in absence of a contrary intention appearing in the instrument of gift or bequest. (ii) Such donees or devisees form tenants-in-common in respect of such acquisitions. They do not form a Sub-tarwad with incidents of Marumakkathayam properties attaching to such acquisitions." In Thiruvadinatha Pillai v. Savithrikutty Amma 1957 KLT. 765 this Court has held that the property gifted to a Nair wife after 1088 M. E./1912 A. D. belongs to the donee and her children alive on the date of the gift in equal shares to the exclusion of her children born later; and that dictum has been followed by Vaidialingam J. in Arumugham Pillai v. Janardhana Panicker 1959 KLT. 1002. The gift under Ext. P1 therefore enures only to the 1st defendant and her children who were alive on the date of Ext. P1. 1002. The gift under Ext. P1 therefore enures only to the 1st defendant and her children who were alive on the date of Ext. P1. It is conceded that the plaintiff and defendants 6 to 8 were born subsequent to the date of Ext. P1. It must then follow that they are not entitled to shares in the suit properties. The dismissal of the suit by the District judge is therefore right. 8. Counsel for defendants 2 to 5 contended that under S.22 they are entitled to shares in the suit properties and they, having not joined the alienation under Ext. D1, are entitled to recover their shares from the alienees. The District Judge has dismissed the entire suit, even as regards defendants 2 to 5 and they have not objected to that dismissal by an appeal or by a cross-objection in this appeal. Their rights do not therefore arise for consideration in this second appeal. The contention is therefore overruled. 9. In the result, the second appeal fails and is dismissed hereby. As the point, on which the plaintiff is non-suited here, has not been taken in the Courts below I direct the parties to suffer their costs throughout. Dismissed.