JUDGMENT K. Bhaskaran, J. 1. Whether the acquisition of an item of immovable pro­perty before the coming into force of the Madras Marumakkathayam Act (Act XII of 1933), by and in the name of a Thiyya woman, and all her children who, being members of a natural group, constituted a Marumakkathayam tavazhi of the erstwhile Malabar area by itself would raise the presumption that the property so acquired was to be held as belonging to a tavazhi is the common question of general importance that falls for consideration in these two second, appeals, In S.A. No, 1084 of 1972 there is a further question, whether the 11th defendant in the suit is entitled to a share in the plaint schedule property. 2. One Prikkachi and her seven children, namely, Sekharan, Kalliyani, Panchali, Korumbi, Kunhirama, Krishnan and Koran, acquired the leasehold interest in the plaint schedule property as per the registered assignment deed dated 23rd February 1914, a true copy of which is Ext. A-1 Prikkachi died long ago; and so did Kunhiraman who had not married. Koran died in July 1936, after the Hindu Succession Act came into force on 17th June 1956; the first plaintiff is his widow and plaintiffs 2 to 4 are his children. Korumbi died leaving behind defendants 4 and 5 as her legal heirs. Even before the filing of the suit, Sekharan, who was shown as the first defendants, had dead; his legal representatives have been impleaded as defendants 5 to 10. Krishnan died in the year 1963, and the 11th defendant who was not originally a party to the suit got her­self impleaded, claiming that she was his daughter and legal heir. Second defendant Kalliyani and the 3rd defendant Panchali are the surviving children of Prikkachi. The plaint proceeded on the footing that the plaintiffs were entitled to have the plaint schedule property divided into five equal shares and to get one of such share allotted to them as the legal heirs of deceased Koran, treating the acquisition under the original of Ext. A-1 a one for en­joyment as tenants in common among the acquirers. Accord­ing to them, both Krishnan and Kunhiraman died unmarried and their right as well as that of Panchali on her death devolved on the remaining five persons. The legal heirs of deceased first defendant impleaded as defendants 6 to 10 did not contest the suit. A-1 a one for en­joyment as tenants in common among the acquirers. Accord­ing to them, both Krishnan and Kunhiraman died unmarried and their right as well as that of Panchali on her death devolved on the remaining five persons. The legal heirs of deceased first defendant impleaded as defendants 6 to 10 did not contest the suit. Defendants 2 to 5 who fled a joint written statement contended, inter alia, that the suit was not maintainable; the plaint schedule property was acquired and enjoyed as one belonging to the tavazhi of Prikkachi; and the rights, if any, the plaintiffs had as legal heirs of deceased Koran were lost because of the adverse possession by the tavazhi. After the 11th defendant got herself impleaded to contest the matter, the plaintiffs were prepared to concede one out of six equal shares to her, treating her as the legitimate daughter and legal heir of deceased Krishnan. Defendants 2 to 5 throughout took stand that the 11th defendant was not the legal heir of deceased Krishnan. 3. The trial court dismissed the suit, holding the view that the acquisition under the original of Ext. A-1 was for the benefit of the tavazhi; it also held that the 11th defendant was not the legitimate daughter and legal heir of deceased Krishnan. The 11th defendant filed A. S. No. 115 of 1970 on the file of the Subordinate Judge’s Court of Tellicherry, while plaintiffs 2 to 4 filed A. S. No. 116 of 1970 (the 1st plaintiff having died during the pendency of the suit before the trial court) on the file of the same court against the decision of the learned Munsiff. The learned Subordinate Judge disposed of the two appeals by a common judgment, allowing both of them, and setting aside the judgment and decree of the trial court, and passing a preliminary decree declaring that plaintiffs 2 to 4 were together entitled to 1/6th share over the plaint schedule property and that the 11th defendant was entitled to a similar share. 4. Both the second appeals are by defendants 2 to 5; S. A. No. 1084 of 1972 being against A. S. No. 115 of 1970; and S. A. No. 1085 of 1972 being against A,.S. No. 116 of 1970. 5. 4. Both the second appeals are by defendants 2 to 5; S. A. No. 1084 of 1972 being against A. S. No. 115 of 1970; and S. A. No. 1085 of 1972 being against A,.S. No. 116 of 1970. 5. Sri V. Bhaskaran Nambiar, the counsel for the appellants, submitted that the conclusion of the first appellate court that the acquirers under the original of Ext. A-1 took the property as tenants in common has absolutely no legal basis and that there is also no evidence to warrant the finding that the 11th defendant was the legitimate daughter and legal heir of deceased Krishnan. According to the counsel, the fact that the acquisition under the original of Ext. A-1 was by and in the name of Prikkachi and all her children raises a presumption that the property was to be held and enjoyed as belonging to the tavazhi and that the plaintiffs did not succeed in rebutting that presumption. In support of his contention he pointed out the recital in Ext. B-4 certified copy of the kuzhikana marupat executed by defendants 2, 3 and 5 on 16th April 1929, alleged to be in renewal of the earlier marupat, wherein it was stated that the property was acquired and enjoyed as a tavazhi property. 6. Sri P. P. Ananthanarayana Iyer, the counsel for the respondents-plaintiffs, submitted that merely for the reason that the original of Ext. A1 assignment deed stood in the name of Prikkachi and her children who constituted themselves a natural tavazhi, no presumption would arise that the acquisition was for and on behalf of the tavazhi which they constituted. He also submitted that the recital in Exts. B-4 and B-5 (the marupat executed by the landlord in favour of defendants 2, 3 and 5 on the same day on which Ext. B-4 was executed by them in favour of the landlord) would not bind the plaintiff; inasmuch as their predecessor- in-interest Koran, or for that matter any of the sons of Prikkachi, was a party to those documents. It was also submitted by him that there was no pleading or evidence showing that there was tavazhi nucleus for the acquisition of the plaint schedule property as an asset enuring to the benefit of the tavazhi of the acquirers. 7. It was also submitted by him that there was no pleading or evidence showing that there was tavazhi nucleus for the acquisition of the plaint schedule property as an asset enuring to the benefit of the tavazhi of the acquirers. 7. Sri Bhaskaran Nambiar has placed reliance on two decisions of this court: one, of the Full Bench in Seetha and others v. Krishnan and others, 1975 K.L.J 156 (F.B.) and the other of the Division Bench in Karthyayini Amma and others v. Parukutty Amma, A.I.R. 1957 Kerala 27. Paragraph 23 of the Judgment of the Full Bench at pages 166 and 167, which was particularly stressed by Sri Nambiar reads as follows: “The conclusion that emerges from the foregoing discussion is that under the rules of customary Marumakkathayam law which were applicable in, Malabar prior to the introduction of the Madras Marumakkathayam Act, it is only in cases where the gift or acquisition is made in favour of a Marumakkathayee woman and all her children or in the names of all the children who by themselves constitute a tavazhi (the mother being dead) that a presumption would arise that the acquisition is for the benefit of the tavazhi. There is no scope for raising any such presumption in cases where the gift, bequest or acquisition is in favour of the wife alone or of the wife and some of the children alone leaving out the others. There is no scope for raising any such presumption in cases where the gift, bequest or acquisition is in favour of the wife alone or of the wife and some of the children alone leaving out the others. The underlying principle is that the presumption would be attracted only in cases where the transaction is in favour of all the members of a group who constitute a natural tavazhi capable of acquiring and holding property.� The question that came up for consideration before the Full Bench has been stated by Eradi J. who delivered the judgment on behalf of the Bench at the very beginning of the judgment as follows: “The question arising tor decision in this case is whether under the customary marumakkathayam law which obtained in the Malabar area prior to the passing of the Madras Marumakkathayam Act there is a presumption that in the case of a gift, bequest or acquisi­tion made by a person in the sole name of his Marumakkathayee wife or in the joint names of the wife and one or more of her children to the exclusion of some others the benefit of such transaction is to enure to the tavazhi consisting of the wife and all her children together with the lineal descendants in the female line.� The principle laid down in paragraph 23 of the judgment, quoted above, read in the light of the statement as to the question that came up for consideration before the Full Bench, is confined to a case in which there was a gift, bequest or acquisition by a person in favour of his wife alone or the wife and some of his children leaving out certain others. In other words, the principle laid down directly relates to the incidents with which the property is taken when a gift, bequest or acquisition is made by one person in favour of certain other person or persons. Here the question is quite different; the acquisi­tion is by Prikkachi and her children, who would constitute themselves into a natural tavazhi, for their own benefit, without making a gift, bequest or acquisition in favour of any other person or persons. 8. The observation by Varadaraja Iyengar J., who spoke for the Bench in Karthyayini Amma and others v. Parukutty Amma. A.I.R. 1957 Kerala 27, appears to be nearer to the point which Sri Nambiar was endeavouring to establish. 8. The observation by Varadaraja Iyengar J., who spoke for the Bench in Karthyayini Amma and others v. Parukutty Amma. A.I.R. 1957 Kerala 27, appears to be nearer to the point which Sri Nambiar was endeavouring to establish. In paragraph 6 at page 29, there is the following observation: “…………In our judgment, the existence of an original nucleus, upon whose absence very considerable reliance was placed by the appellants’ learned counsel, is not essential and all that is necessary is, that the persons acquiring jointly stand in the relation of the members of an undivided tarwad. * * * * * The case which may mote properly be referred to is the one reported in Ouseph v. Govinda Menon, 28 Cochin LR 9 (C), where question was as to the nature and incidents of acquisitions of property by members of a tarwad out of their earnings effected by their joint labour. The learned Judges referred to the presumption available under Hindu law, that in the absence of evidence of an intention to the contrary, the acquisitions by the joint labour of persons constituting the members of a joint Family living in commensality, are the joint family properties of such family and went on to hold that the nature and incidents of tarwad property being identical with those of the joint Hindu family property in most respects, the rule of presumption as above must apply also to Marumakkathayam tarwads.� 9. In my view it could not be safely said that a presumption would always arise that the acquisition by those who would themselves constitute a natural group forming a tavazhi, would get impressed with the character of the tavazhi though it may be a strong circumstance, in the absence of an intention to the contrary, to draw an inference that the parties intended to treat the acquisi­tion for the benefit of the tavazhi. The other questions, whether the funds for the acquisition represented the contribution of joint labour, and whether the persons who acquired the property were living and messing together, throwing such property into one common stock with the manifest intention to deal with one another and outsiders as members of an undivided tarwad, would also be relevant considerations for deciding whether the acquisition made by the members, who would constitute into a tavazhi governed by the customary Marumakkathayam law, was for the benefit of the tavazhi or for enjoyment as tenants in common. The concept of individual acquisition might have been remote from the minds of the persons who were under the influence of the Marumakkathayam way of life; but all the same, it could not be said that there could not have been any acquisition of property at all for enjoyment as tenants in common by those who would constitute them­selves into a tavazhi, as that would run counter to the pro­visions of section 45 of the Transfer of Properly Act. The dominant consideration should be the manner in which the funds for the acquisition was raised and the intention of the parties, manifest or implied, as to the mode in which the property acquired was to be held and enjoyed, bearing in mind the concept of family life prevalent during the time of acquisition. 10. In this case the courts below do not appear to have applied the proper test for deciding the nature and incidents of the acquisition made under the original of Ext. A-1 assignment deed. The trial court proceeded on the presumption that all acquisitions made by those who among themselves could have constituted a natural tavazhi would enure to the benefit of the tavazhi. The first appellate court has taken the view that in the absence of an express provision in the deed itself that the acquisition was for and on behalf of the tavazhi; the pro­perty should be deemed to have been held as tenants in common. In my view the middle path has to he pre­ferred to either of the extreme positions taken by the courts below. In my view the middle path has to he pre­ferred to either of the extreme positions taken by the courts below. As has already been sufficiently indicated, the court has to take a decision as to the nature and incidents of the acquisition not only on a consideration of the customary law that governed the parties, but also by applying other tests like the source of the funds for the acquisition and the intention of the parties as could be gathered from the facts and circumstances borne out by the evidence on record. The significance of the execution of Ext. B-5 and the original of Ext. B-4, both dated 16th April 1929, in favour of and by defendants 2, 3 and 5, also is a matter which has to be properly investigated and proper inference drawn. 11. As neither of the courts below has approached the question as to the nature and incidents of the acquisition under the original of Ext. A-1 in the proper perspective, the matter deserves to be remanded to the trial court for a fresh disposal. 12. But on the question as to whether the 11th defendant was the legitimate daughter of deceased Krishnan, we are of the view that the first appellate court was correct. The plaintiffs, originally proceeded on the footing that Krishnan died unmarried, were prepared to concede that the 11th defendant was his daughter and legal herein Even defendants 2 to 5 who are the appellants herein did not seriously dispute the 11th defendant’s claim that she was the daughter of Krishnan. Their serious objection seems to have been that she did not adduce evidence to establish that she was the legitimate child of Krishnan. The 11th defendant has produced proof borne out by Ext.B-3, extract from the school admission register, to show that she was the child of Krishnan. The only question put to D.W. 1 in cross examination regarding the legitimacy is as to whether there were any records to show that her mother was married to Krishnan, and she had to answer in the negative. It has not been shown by the appellants that it was imperative to have any record regarding the marriages in the particular community, the first appellate court, has rightly relied on the oral evidence of D.W.1 and the documentary evidence afforded by Ext. It has not been shown by the appellants that it was imperative to have any record regarding the marriages in the particular community, the first appellate court, has rightly relied on the oral evidence of D.W.1 and the documentary evidence afforded by Ext. B-3 and declared that the 11th defendant was the legitimate child and legal heir of deceased Krishnan. In the result, the decision of the first, appellate court to the extent that the 11th defendant is the legitimate child and legal heir of deceased Krishnan is upheld, and the finding contrary thereto entered by the trial court is set aside; all the other findings entered by the courts below are set aside and the matter is remanded to the trial court for fresh disposal in accordance with law, bearing in mind the observations and directions contained in this judgment. The plaintiffs would be at liberty to amend the plaint and implead other parties, if so advised, in which event the defendants would be entitled to file additional written statements. The parties would be entitled to adduce whatever evidence they wish to in support of their respective contentions. The learned Munsiff wil dispose of the matter as expeditiously as possible, giving full oppertunity to the parties to have proper pleading and evidence in support of their respective contentions. The second appeals are disposed of as above; there will be no order as to costs.