JUDGMENT P. Subramonian Poti, J. 1. Defendants 1 to 3 in a suit for partition are the appellants in this appeal. The court below has passed a preliminary decree for partition in regard to certain items declaring that the plaintiff and the first defendant are each entitled to half share. In regard to other items the suit has been dismissed. The decree granted to the plaintiff for partition in regard to certain items is challenged by the appellants in this appeal. 2. The plaint schedule items, 24 in number, belonged to the Mandoth tarwad. There were three sisters in that tarwad. Lakshmi Amma, Kunhikkali Amma and Pappi Amma, they being the daughters of one Dhakshayani Amma. Lakshmi Amma and Kunhikkali Amma died prior to 1116. At that time, in the tavazhi of Lakshmi Amma, there was only her daughter, Kunhippilla Amma. In Kunhikkali Amma's tavazhi there were three grandsons, namely Ramankutty Kaimal, the first defendant and Madhavankutty. In Pappi Amma's tavazhi, besides Pappi Amma, there was only a son, the plaintiff in the suit. In 1116 the tarwad entered into a partition, Ext. P-1, under which the plaintiff and his mother took as one branch and Kunhippilla Amma and the surviving members of Kunhikkali Amma's branch together formed the second branch. The suit properties are those allotted to this second branch in the said partition, Ext. P-1. There is a provision in the partition deed that the members of the second branch should maintain Kunhippilla Amma and should look after her comforts and if they fail in this duty, she would have a special right to take possession of items 1, 8 and 19 (corresponding to plaint items, 1, 5 and 15) and maintain herself with the income of the properties. She could also lease out those items in that event. But it was provided that on her death these items would revert to the branch. Sometime after the partition, Madhavankutty and Ramankutty Kaimal, the two brothers of the first defendant, died with the result that he and Kunhippilla Amma were alone the surviving members of the second branch. The plaintiff became the sole surviving member of his branch on the death of his mother. Kunhippilla Amma died on 3rd January 1963 and this suit has been filed soon thereafter. The plaintiff became the sole surviving member of his branch on the death of his mother. Kunhippilla Amma died on 3rd January 1963 and this suit has been filed soon thereafter. The plaintiff claims that on the date of death of Kunhippilla Amma she being one of the two members of her branch, her one half interest in the properties of her branch should devolve on the plaintiff under the Hindu Succession Act, 1956. According to him, under that Act, he is the sole heir and as such Kunhippilla Amma's one half interest in the suit properties which are the properties of the second branch in Ext. P-1 partition must devolve solely on the plaintiff. That is the basis for the claim for one half of the suit items. The second defendant is the father-in-law of the first defendant and the 3rd defendant is the wife of the first defendant. They have been impleaded in the suit as persons in whose names some fraudulent documents have brought into existence to defeat the rights of the plaintiff. 3. The claim of the plaintiff for division is opposed by defendants 1 to 3. According to them the suit items belong solely to the first defendant as the sole surviving member of his branch. Kunhippilla Amma had no interest in these properties by reason of the allotment under Ext. P-1 partition except by way of a claim to be maintained by the branch. The provisions of the partition deed are said to have been intended only to secure that right to her and therefore on her death no right would devolve upon any of her heirs under the Hindu Succession Act. It is contended that at any rate even if there be a case of succession plaintiff would not be the sole heir as, according to the first defendent, he also was a heir. There are special rights set up with regard to the various suit items, some of which have been upheld by the court below. There was a contention that certain of the items are not available for partition and that in regard to certain items the right available was only jenmom subject to kanom. In regard to items 1 and 5 the case of the defendants is that these items have been sold in court auction for a debt binding on the tarwad and purchased by a stranger, Karthiayani Amma. In regard to items 1 and 5 the case of the defendants is that these items have been sold in court auction for a debt binding on the tarwad and purchased by a stranger, Karthiayani Amma. From her the first defendant's father is said to have taken an assignment and the first defendant claims under the father. Therefore it is contended that the right to this is lost to the tarwad. In regard to item 3 the case is that the property was sold in a court auction, that the amount was later deposited by the first defendant and therefore either the first defendant must be found solely entitled to this item or a special right for the amount spent for taking back the property from the auction must be found in the first defendant. 4. The court below, on a construction of Ext. P-1, found that Kunhippilla Amma had an interest in the property of the second branch in Ext. P-1 as a member of that branch and that her claim was not limited to the right of maintenance. The main challenge in the appeal is to that finding. 5. We have now to advert to the terms of Ext. P-1. It is clauses 4 and 6 of the document that is relevant for the purpose of this case. Clause 4 mentions that certain properties are set apart for the second group consisting of parties Nos. 3 to 6 in the partition deed. Kunhippilla Amma is one of them. That clause winds up in the following manner : MALAYALAM In clause 6 reference is made to the fact that Kunhippilla Amma had no children and that the first defendant and his brothers were brought up by Kunhippilla Amma. It further mentions that the members of the second branch should look after Kunhippilla Amma properly and if any default is made in this she would be entitled to lease out items 1, 8 and 10 in A schedule to the partition deed, take the income out of it and maintain herself. It further prohibits the members of the second branch from interfering with such acts of Kunhippilla Amma. There is also a provision that though Kunhippilla Amma could lease out these three items of properties she was not entitled to encumber them or to effect any alienation. It further prohibits the members of the second branch from interfering with such acts of Kunhippilla Amma. There is also a provision that though Kunhippilla Amma could lease out these three items of properties she was not entitled to encumber them or to effect any alienation. Reliance is placed upon that part of the clause which mentions: MALAYALAM The reference here is to the three items which Kunhippilla Amma was permitted to lease out or to enjoy if she was not properly maintained by the members of the second branch. There is a further statement that item 31 was to be in the enjoyment of Kunhippilla Amma. Reading these provisions the first defendant would contend that the only right recoginsed in favour of Kunhippilla Amma in Ext. P-1 is that to be maintained by the members of the second branch and in case of default, to take possession of the three items of properties. Considerable emphasis is laid upon the provision that these properties would revert to the tarwad. The case is that this is indicative of the fact that these three items are treated differently from the other items in the schedule as there was no necessity of providing for reversion of these items to the branch on her death if she had right in all the items of the properties just like the other members of the branch. On the date of partition and thereafter until the Hindu Succession Act, 1956 came into force the law was that, if Kunhippilla Amma had died issueless and undivided, the property would have remained in the second tavazhi, without any scope for a claim by any person to inherit to her share. Ext. P-1 makes a provision for maintenance of Kunhippilla Amma. It is true that it enables her to take possession of three items of properties on default of those who are bound to maintain her and item 31 irrespective of whether they maintained her or not. These are, to our mind, not sufficient to infer that the parties to Ext. P-1 wanted to limit her right to maintenance. We should, to begin with, assume that she had as much right as the other members and if it was intended to limit her right to one for maintenance alone that would necessarily mean that she could not have claimed partition of any share at any time. P-1 wanted to limit her right to maintenance. We should, to begin with, assume that she had as much right as the other members and if it was intended to limit her right to one for maintenance alone that would necessarily mean that she could not have claimed partition of any share at any time. That could certainly have been expressed in the document especially so when rather detailed provisions are made even in regard to her maintenance. There is no indication in clause 6 which can lead us to think that the parties to the document wanted to deny her the normal right of a member to claim partition or such other rights as any member would have in their tarwad properties. Possibly since she was a female member a safeguard was made in the document to see that whoever was looking after the properties on behalf of the tavazhi maintained her properly. If they defaulted, a further safeguard was made that she could take the income from the three items of properties. The clause regarding reversion of these items to the tarwad was possibly only indicative that she was not entitled to create any burden on the properties. It was apparently only intended to show the nature of her special interest provided in clause 6. To our mind, it appears that clause 6 is only a provision specially made to secure effectively her right to maintenance which right every member had and not in any way intended to cut down or limit her right which she would have otherwise as a member of the second branch. If that be the case, on her death, which took place after the coming into force of the Hindu Succession Act, 1956, she is deemed to have died intestate with regard to her share and the question of determination of the rights in the suit will have to be on that basis. 7. The deceased Kunhippilla Amma, it is agreed, was a person governed by the Cochin Nair Act, 1113. 7. The deceased Kunhippilla Amma, it is agreed, was a person governed by the Cochin Nair Act, 1113. The rule of succession in regard to the property of a Hindu female dying intestate indicated in section 15 of the Hindu Succession Act, 1956 is applied with the modifications provided under section 17 of the Act in the case of persons who would have been governed by the Marumakkathayam law or aliyasantana law if the Hindu Succession Act had not been passed. It is agreed that section 17 would have application to the case before us. Reading section 17 along with section 15, the property of Kunhippilla Amma who had admittedly died intestate would devolve” "(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the mother; (b) secondly, upon the father and the husband ; (c) thirdly, upon the heirs of the mother ; (d) fourthly, upon the heirs of the father ; and (e) lastly, upon the heirs of the husband." The interest of Kunhippilla Amma in the property of the tarwad which would have fallen to her share if there was a partition immediately prior to her death is available for the purpose of intestate succession and it is in regard to this that the claim has been made by the plaintiff. Admittedly the first class of heirs mentioned in section 17, clause (2) namely, �sons and daughters (including the children of any pre-deceased son or daughter) and the mother" are not available in the case before us, because Kunhippilla Amma died without issues and her own mother was also dead on the date of her death. Similarly clause (b) also has to be excluded because Kunhippilla Amma had no father or husband alive on the date of her death. The third class of heirs are the heirs of her mother and it is agreed on both sides that it is this clause which applies to the properties of Kunhippilla Amma. Of course, her mother was dead long before the date of her death. But in determining who the heirs of the mother are, reference has to be made to rule 3 of section 16: "16. Of course, her mother was dead long before the date of her death. But in determining who the heirs of the mother are, reference has to be made to rule 3 of section 16: "16. The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the following rules, namely :" Rule 1... Rule 2... Rule 3. ”The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death." It is also necessary to notice section 15 (1) here: "15 (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16” (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother." Applying rule 3 to a case referred to therein namely clauses (b), (d) and (e) of sub-section (1) of section 15, succession has to be determined on the assumption that the person had died intestate immediately after the death of the intestate herself. In other words though Lakshmi Amma, the mother of Kunhippilla Amma had died during the lifetime of her daughter and even prior to the commencement of Hindu Succession Act, 1956, if rule 3 would apply to the case, then it would mean that succession to Lakshmi Amma, the mother of Kunhippilla Amma, would be on the assumption that Lakshmi Amma died soon after the death of Kunhippilla Amma. That would mean that it would be succession to her that would be material. That would mean that it would be succession to her that would be material. This necessarily raises a question whether though in terms rule 3 of section 16 refers only to clauses (b), (d) and (e) of sub-section (1) of section 15 it has to be understood as referring also to sub- section (c) of clause (2) of section 17 of the Act. Rule 3 is apparently intended to provide for cases where the heirs of a deceased relative of the intestate have to be determined. If the heirs have to be determined under the rules of succession under the Act, necessarily it can only be on the assumption that the relative died after the commencement of the Act and since the deceased cannot be one of the heirs of such relative the further assumption, that such death is immediately after the death of the deceased is provided under the Rule. Rule 3 has application only to clauses (b), (d) and (e) of section 15 (1) because clauses (a) and (b) do not refer to heirs of any deceased relative but only sons, daughters, husband, mother and father, a class who are living on the date of death of the intestate. The necessity for assuming that the relatives are not dead till the moment of death of the intestate arises only when the question of determining their heirs arise. 8. It is evident that no reference is made in section 16, rule 3 to section 17 (2) because the effect of section 17 is to incorporate or substitute in place of the categories mentioned in section 15 (1) a different category of heirs and therefore it is to be read into section 15. Possibly therefore reference to section 15 (1) was considered sufficient. But there is an anomaly in this. Just as there is reference to heirs of the husband, father and mother in section 15 (1), there is a similar reference to heirs of the father, mother and husband in sub-section (2) of section 17, but there is a little change in the serial order. Sub-section (b) of section 15 (1) corresponds to sub-section (c) of section 17 (2), sub-section (d) of section 15 (1) corresponds to sub-section (d) of section 17 (2) and sub-section (e) of section 15 (1) corresponds to sub-section (c) of section 17 (2). Sub-section (b) of section 15 (1) corresponds to sub-section (c) of section 17 (2), sub-section (d) of section 15 (1) corresponds to sub-section (d) of section 17 (2) and sub-section (e) of section 15 (1) corresponds to sub-section (c) of section 17 (2). Therefore the sub-sections corresponding to (b), (d) and (e) in the substituted section are sub-sections (c), (d) and (e). In view of the particular reference in rule 3 of section 16 to clauses (b), (d) and (e) of section 16, it would have been necessary to have referred to the corresponding clauses in section 17 (2) also. As it is, no doubt, on the face of it, it would appear that rule 3 will have no application to a case arising under section 15 (1) as substituted by section 17 (2) in so far as it concerns clause (c) of that sub-section namely thirdly, upon the heirs of the mother". Therefore, we have now to see what would be the consequence of literally applying section 17 (2) (c) as it stands without resorting to the assumption under rule 3 of section 16 to a case under that subsection, namely a case, where, on the death of a female governed by Marumakkathayam law, she has left only the third category of heirs, the heirs of her mother. If the assumption that the mother died after the commencement of the Hindu Succession Act, 1956 is not to be made and if it happens that the death was prior to the Act, as in this case, then, necessarily we will have to look to the law governing the deceased prior to the commencement of the Act. It is agreed that, on the date of her death, the question of succession to Lakshmi Amma, the mother of Kunhippilla Amma, would have had to be decided under the provisions of the Cochin Nair Act, 1113 and under section 36 of that Act her children would be the heirs. The only child that Lakshmi Amma had on the date of her death was Kunhippilla Amma and therefore it would mean that the reference to mother's heirs would be to Kunhippilla Amma. The only child that Lakshmi Amma had on the date of her death was Kunhippilla Amma and therefore it would mean that the reference to mother's heirs would be to Kunhippilla Amma. In other words, in investigating as to who is to succeed Kunhippilla Amma by applying section 17 (2), one will have to find that it is the heirs of Kunhippilla Amma's mother and that in turn would mean that it is the deceased herself. The result is that the intestate would succeed to herself, which is obviously anomalous. We should assume that in the case before us, it is justifiable to look into the intention of the legislature as there is certainly not only an ambiguity but an absurdity if the section is read literally and in the manner in which we have attempted to read it. The very fact that there has been no reference to section 17 (2) in rule 3 of section 16 is sufficient to show that it is assumed that such reference is not necessary as what section 17 (2) does is to substitute in the existing sub-section (1) in section 15 another sub-section in cases covered by section 17. Therefore, reference in rule 3 to sub-section (1) of section 15 would be sufficient to cover even the substituted section. The substituted section also has clauses corresponding to (b), (d) and (e), but they are clauses (c), (d) and (e). There is no question of applying rule 3 to section 17 (2) (b) because the class of heirs referred to therein is the "father and husband ''. There is necessity to apply the rule in the case of heirs of the mother. It is quite apparent that the purpose of rule 3 in section 16 is to enable an assumption to be made that the deceased relative whose heirs are to succeed died only after the death of the intestate. That would mean that while the rule should' naturally apply to clauses (b), (d) and (e) of section 15 (1) it should apply by the same logic to clauses (c), (d) and (e) of section 17 which correspond to the former. It is not difficult to discern the intention of the legislature in these circumstances. That would mean that while the rule should' naturally apply to clauses (b), (d) and (e) of section 15 (1) it should apply by the same logic to clauses (c), (d) and (e) of section 17 which correspond to the former. It is not difficult to discern the intention of the legislature in these circumstances. It is therefore evident that a case arising under section 17 (2) (c) also was intended to be covered by rule 3 of section 16 and if so we have to apply that rule in determining the class of heirs falling within that sub-section. 9. What we have said just now would justify the determination of the heirs on the basis that Lakshmi Amma died soon after the death of Kunhippilla Amma. That would in turn require application of section 17 read with section 15 of the Hindu Succession Act, 1956 to the succession to the properties of Lakshmi Amma because she herself was an intestate female. She too had no sons and daughters on the fictional date of her death, namely the death immediately after the death of Kunhippilla Amma. Therefore, the category of heirs falling under section 17 (2) (a) can be ruled out. Clause (b) also can be ruled out since on that date she had no father or husband. Therefore clause (c) again calls for application and that too we will have to determine. Her mother was Dhakshayani Amma. In determining heirs of Dhakshayani Amma, rule 3 of section 16 will have to be applied again. That would mean that for the purpose of succession Dhakshayani Amma must be considered as having died immediately after the death of Lakshmi Amma. That in turn would mean that her succession would also be governed by section 15 (1) read with section 17 (2) of the Hindu Succession Act. In other words, ultimately we have to consider who the heirs of Dhakshayani Amma would have been had she died after, the death of Kunhippilla Amma as well as Lakshmi Amma. This would leave Dhakshayani Amma with only the plaintiff as her heir. That is because, plaintiff falls within category (a) of sub-clause (2) of section 17 of the Act. That sub-clause relates to sons and daughters (including the children of any predeceased son or daughter). This would leave Dhakshayani Amma with only the plaintiff as her heir. That is because, plaintiff falls within category (a) of sub-clause (2) of section 17 of the Act. That sub-clause relates to sons and daughters (including the children of any predeceased son or daughter). There is a reference also to the mother which is not necessary for the purpose of this case because there is no case that Dhakshayani Amma's mother was alive then. Of course, no sons and daughters were alive on the date of death of Kunhippilla Amma. But the term ' sons and daughters' would include the children of any pre-deceased son or daughter. The plaintiff is the son of a pre-deceased daughter and therefore he would fall within the first category. The first defendant would contend that he too will fall within the first category since he is the grandson of a pre-deceased daughter and the children must be read so as to take in grand-sons also. The term ' children', with reference to parents, only means the immediate successors. The successive lines are lineal descendants of the children. Therefore the term ' children ' cannot be extended to grand-children. If that be the case, the plaintiff alone would succeed to Dhakshayani Amma, if Dhakshayani Amma had died after the death of Kunhippilla Amma. That has to be assumed as we have said earlier and on that assumption plaintiff's claim to inherit to Kunhippilla-Amma should succeed. 10. Now we will come to the claim of special rights concerning items 1, 5 and 8, urged by the appellants before us. These items have been found to be available for partition. The claim with regard to items 1 and 5 is that the tarwad had no interest in these properties on the date of suit. It is said that these items originally belonged to the tarwad, but they went out of the tarwad in a court auction sale. In that auction it was purchased by a stranger, Karthiayani Amma, and later she sold it to the first defendant's father. He executed a settlement in regard to that property in favour of the first defendant and it is thus the first defendant claims special rights over these items. The pleading of the plaintiff which may justify any claim to these items of property is quite unsatisfactory. He executed a settlement in regard to that property in favour of the first defendant and it is thus the first defendant claims special rights over these items. The pleading of the plaintiff which may justify any claim to these items of property is quite unsatisfactory. In fact the plaintiff has not unequivocally pleaded either that the court sale was for the benefit of the tarwad or that, at any subsequent time, with the funds of the tarwad this has been acquired again for the tarwad. When once the auction sale is admitted, it is for the plaintiff to plead and prove how, in spite of such court sale, the tarwad has any interest over the property. Excepting a vague allegation in the plaint that the first defendant acted fraudulently in executing a document to take away the property from the tarwad, there is no specific averment as to the case of title in regard to items 1 and 5. In the evidence also the plaintiff has not spoken to this. The plaintiff has no case as P.W. 1 that for the purchase in favour of Karthiayani Amma funds of the tarwad have been used. In fact we cannot find anything in the evidence of the plaintiff to justify the plea urged that items 1 and 5 must be found for the tarwad. In these circumstances the finding of the court below calls for interference in regard to items 1 and 5. The plaintiff is found not entitled to partition of these items. 11. The claim of special right in regard to item 3 by the first defendant is vague. The counsel for the first defendant submitted at the hearing that this item was sold in court auction in execution of a decree and later the first defendant, through his father, made the deposit of the decree amount. That of course cannot confer title on the first defendant. If it be a case of claim to reimbursement of amounts spent by him for salvaging the property, that is necessarily a fact to be pleaded by him. Possibly if he had specifically pleaded it there might have been an answer. The plaintiff could very well have set up a case that the income from the tarwad property in the hands of the first defendant was sufficient to pay off the debt. Possibly if he had specifically pleaded it there might have been an answer. The plaintiff could very well have set up a case that the income from the tarwad property in the hands of the first defendant was sufficient to pay off the debt. We are only considering whether in the absence of a plea the first defendant would be justified in urging this at this stage. We are only indicating that possibly there might have been an appropriate answer. Therefore, as a claim for reimbursement of amount spent by first defendant he could have no case and admittedly the title of the tarwad remains. Hence the special right claimed by the first defendant cannot stand. In the result, the appeal fails except to the extent of holding that items land 5 are not available for partition. In the circumstances of the case parties are directed to suffer costs.