Judgment :- 1. A marumakkathayee husband executed a gift deed in favour of his wife and children; and the lower courts including a judge of this Court in second appeal have held that the properties were given to the wife and children as a tavazhi. (On this question there is no dispute now). The dispute in the appeal is whether the properties have to be partitioned per capita or per stirpes. All the lower courts have held that the partition should be per capita. The gift was in 1894. 2. The proviso to S.48 of the Madras Marumakkathayam Act of 1933 reads: "Provided that in the event 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 daughter." . The question is whether this proviso applies to the case before us. As we have indicated already, the decision of the lower courts is that, since the gift was several years prior to the coming into force of the Madras Marumakkathayam Act, the division is per capita and not per stirpes. 3. The counsel of the appellants, who claims that the partition should be stirpital, has raised two contentions. The first is that, whenever the gift might be, the question of application of the proviso has to be considered only at the time when a partition takes place under Chapter VI: even in a case where the gift was prior to the Act, if the partition takes place only after the Act, the stirpital principle as contemplated by the proviso should apply. There are decisions (and this is not seriously disputed either) that the Madras Marumakkathayam Act has no retrospective effect. We may just refer to some of the decisions which lay down this. They are Thatha Amma v. Thankappa (AIR. 1947 Mad. 137), Bhaskaran Thirumulpad v. Ravunni Thirumulpad (AIR. 1954 Mad. 987) and the decision of this Court in Prabhakara Menon v. Cooala Menon (1960 KLJ.161), all Division Bench rulings. We shall, for the time being, leave this question and go to the next question, a decision of which will also be relevant in coming to a final conclusion on this question. 4. 1954 Mad. 987) and the decision of this Court in Prabhakara Menon v. Cooala Menon (1960 KLJ.161), all Division Bench rulings. We shall, for the time being, leave this question and go to the next question, a decision of which will also be relevant in coming to a final conclusion on this question. 4. The next contention urged is that, regarding puthravakasam properties, even prior to the passing of the Madras Marumakkathayam Act, the principle of partition was the stirpital principle and not the per capita principle. In other words, the contention is that the rule of law enacted in the proviso to S.48 is only declaratory of the existing law and not a new principle. In this connection, some passages from Sundara Aiyar's Malabar and Aliyasanthana Law have been brought to our notice. The learned author says at page 11 "Having regard to the state of authorities the only safe position that can be taken is that there is no definite rule either way and a division on either basis or a combination of both will not be set aside merely on that ground." It is pointed out, on the basis of this passage, that there was no such rule as per capita division in the case of puthravakasam properties prior to the Madras Marumakkathayam Act; that the right of compulsory partition was not available to any member of the tarwad; that, when all members agreed, partition could be effected as they liked; and that, in the event of such an agreed partition, the partition might be stirpital. might be per capita, as the parties agreed upon. To meet this, other passages from the same work of the learned author have also been brought to our notice. For instance, the following passage occurring on pages 7 and 8 of the work has been cited. "Supposing there are three daughters with an unequal number of children the children by one daughter cannot, as a body, claim an equality of rights with the children of another daughter. In fact, the family consists of individuals with equal rights and the law does not recognise any rights in branches as such. Supposing a division takes place with the consent of all, everybody, whether male or female, adult or infant, would be entitled to an equal share." This indicates that the rule of partition of course, when all agreed was the per capita rule. Supposing a division takes place with the consent of all, everybody, whether male or female, adult or infant, would be entitled to an equal share." This indicates that the rule of partition of course, when all agreed was the per capita rule. 5. We shall also refer to one decision of a Division Bench of the Madras High Court in this connection, viz., Krishna v. Thala (53 L. W. 452). In the last paragraph of this decision it is observed "It is argued for the appellant that, since the Marumakkathayam Act has created for the first time the right to partition which did not exist before, it is not unreasonable that such a right should be restricted by the proviso which is found in S.48. We are unable to see any such unreasonableness. There was a right of partition before the Act though it depended upon the consent of all the members of the family. If such a consent were given, the division of property acquired in this way would always be per capita." Thus, the position appears to be that, in case a partition was agreed upon prior to the Madras Marumakkathayam Act, the partition was per capita; and that there was no rule of law that the partition of puthravakasam properties should be per stirpes. Now we revert to the first contention; and in support thereof, two decisions of this Court, one by one of us sitting single and the other by a Division Bench, have been brought to our notice. The decision of the Single Judge is Sivasankaran v. Lakshmi (1966 KLT. 327). It was argued in that case that the principle of stirpital division applied only to a case where the presumption contemplated by the proviso was applied in interpreting a document to find out whether the gift was to the individuals mentioned in the document or to the tavazhi and not to a case where the recital in the document itself indicated the nature of the gift apart from the presumption that it was to the tavazhi. This argument was rightly repelled; and the Single judge held "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." In that case, there was a will executed prior to the coming into force of the Madras Marumakkathayam Act; but it was found that the testator died after the Act. It was held that, in such a case, though the will was earlier, since it took effect only on the death of the testator subsequent to the coming into force of the Act, the stirpital principle of division contained in the proviso to S.48 of the Act applied. Some observations in Para.7 and 8 of the judgment have been relied upon by the counsel of the appellants to claim that the relevant time is the time of partition and not the time of the gift or the time at which the will takes effect. We do not think that the observations pointed out by the counsel do really mean so. 6. The next decision is the Division Bench ruling in Kunju v. Vesamma (1969 KLJ. 475). In this decision also we do not find anything so much in support of the contention of the appellants, though the counsel of the appellants says that there are observations in the judgment of Krishnamoorthy Iyer J. to support his claim. 7. In view of the fact that the gift was several years prior to the coming into force of the Madras Marumakkathayam Act and in view of our finding that partition in so far as it could be done prior to the Act was on the per capita principle, it must follow that the decision of the lower courts that the properties have to be partitioned on per capita basis must stand. The appeal fails and is dismissed with costs.