JUDGMENT Chandrasekhara Menon, J. 1. The Second Appeal and the cross objections thereon arise out of a suit for partition. The plaintiff is the appellant. The cross objectors are defendants 1 and 2. 2. One Muthayyan Pillai executed a Will marked as Ext. B-2 in the case on 21st October 1913. He was governed by the Hindu Mithakshara Law. He died on 13th December 1913. He had two sons: (1) Appukutty alias Suppu Pillai and (2) Narayanankutty Pillai. As per the Will some of the self acquired properties of Muthayyan Pillai was given to the eldest son Suppu Pillai and his "santhanangal". Some others were given to Narayanankutty Pillai and his "Santhanangal". There were bequests in the Will to his daughters. If the daughters' lines (that is the daughters and their children) were to be extinct, the properties were to go to the sons. The reason for executing the Will was stated in these terms: (MALAYALAM). 2. Items 1 to 4 of the plaint properties were operties obtained by deceased Narayanankutty Pillai as per the Will. Plaint items 5 and 6 are his subsequent self acquisitions. B schedule is alleged to be movables which belonged to Narayanankutty Pillai. He died in the year 1964, intestate. The suit has been brought forward by a daughter of deceased Narayanankutty Pillai, his legal heirs being his wife - 8th defendant, and his children, defendants 1 to 7, besides the plaintiff. The first defendant is the eldest son who is said to be in possession of the properties. Plaintiff claimed 1/9 share of the properties with future mesne profits. The daughters, 3rd and 4th defendants, in their written statements, admitted the plaint claim and they claimed their separate shares in the properties. 3. The sons, defendants 1 and 2 resisted the suit; according to them, the bequests were not for Narayanankutty Pillai exclusively but to his branch of the joint family. The married daughters were not entitled to any share therein. The properties obtained under the Will are ancestral properties and items 5 and 6 were acquired with the income from those properties, making them also coparcenary properties. It is asserted that these properties were treated as joint family properties by the deceased Narayanankutty Pillai and his sons. The plaintiff would be entitled only to 1/9 of the 1/3 share which the father had in the properties, in accordance with the Hindu Succession Act. It is asserted that these properties were treated as joint family properties by the deceased Narayanankutty Pillai and his sons. The plaintiff would be entitled only to 1/9 of the 1/3 share which the father had in the properties, in accordance with the Hindu Succession Act. The first defendant also set up exclusive ownership over the entire movables found in his house. The widow of Narayanankutty Pillai, the 8th defendant, supported the contentions of the sons. 4. The Trial Court found that the bequest was to the joint family of Narayanankutty Pillai and as such the plaintiff can get only a share in the interest of her father had in the properties. A preliminary decree for partition of A and B schedule properties was passed directing division into 2 equal parts and allotment of one share each to plaintiff and defendants 3 to 8. The plaintiff took up the matter in appeal to the District Court, where, the main contention was regarding the nature and interest taken by Narayanankutty Pillai under the Will Ext. B-2. The appellant contended that the bequest tendered solely to the benefit of Narayanankutty Pillai and not to his joint family. In the cross objections, respondents 1 and 2 contended that the custom prevailing in their community disentitle the married daughter from claiming a share in the estate of their father even after the commencement of the Hindu Succession Act. It was also urged in the cross objections that the direction to divide the B schedule movables on the assumption that they are joint family properties was erroneous. However, the lower appellate court, dismissed the appeal and the cross objections and confirmed the Trial Court's judgment and decree. The plaintiff has come up in appeal to this court. Respondents 1 and 2 have filed cross objections in this court also. 5. The main contention that is strongly urged before us by Sri V. Bhaskaran Nambiar, learned counsel for the appellant was that as per Ext. B-2 Will, Narayanankutty Pillai obtained an absolute estate in the properties bequeathed to him and when he died in 1964, after the coming into force of the Hindu Succession Act, his properties are liable to be divided between his widow and children, consequently the plaintiff would be entitled to 1/9 share in the whole properties. B-2 Will, Narayanankutty Pillai obtained an absolute estate in the properties bequeathed to him and when he died in 1964, after the coming into force of the Hindu Succession Act, his properties are liable to be divided between his widow and children, consequently the plaintiff would be entitled to 1/9 share in the whole properties. According to him, the courts below should have held that when the Will was executed in 1913 and the testator also died in the same year, a Will cannot take effect to the benefit of unborn persons and that therefore Ext. B-2 operated only to confer an absolute right in favour of Narayanankutty Pillai. It is the appellant's case that the courts below have not understood the correct principles as laid down in the Tagore case and restated in AIR 1952 Madras 685. Mr. Bhaskaran Nambiar brought to our notice the decision of the Supreme Court in Raman Nadar v. Rasalamma ( AIR 1970 SC 1759 ), wherein it has been held: "Although there is no authority in Hindu Law to justify the doctrine that a Hindu cannot make a gift or bequest for the benefit of an unborn person yet that doctrine has been engrafted on Hindu Law by the decision of the Judicial Committee. The doctrine was laid down for the first time in Tagore's case, (1872) Ind. App. Supp. 47 (PC), in which it was held by the Judicial Committee that a Hindu cannot make a gift in favour of a person who is not in existence either in fact or in contemplation of law at the time the gift was to take effect". Thereafter, making a pointed reference to the relevant passage in Dayabhaga, Chap.1, verse 21, on which the Judicial Committee had purported to base its decision, the Supreme Court said that the passage really neither expresses nor implies that the "sentient being" must be in existence or be present at the time and place of the relinquishment. On the contrary, the whole argument contained in paragraphs 21 to 24 of Chap.1 of Dayabhaga shows that a gift is completed by the donor's act alone, the acceptance of the donee being not necessary. Indeed, in the very next passage, Dayabhaga speaks of gifts to God as showing that the validity of the gifts does not depend upon acceptance". 6. Indeed, in the very next passage, Dayabhaga speaks of gifts to God as showing that the validity of the gifts does not depend upon acceptance". 6. But even though the Supreme Court was of the view that the Judicial Committee had laid down its dictum, upon some misconception with respects the meaning of the words used, it was pointed out: "Mr. Sarjoo Prasad suggested that the matter required reconsideration. But it is manifest that the decision of the Judicial Committee in Tagore's case, (1872) Ind. App. Supp. 47 (PC) (supra) has stood a great length of time and on the basis of that decision rights have been regulated, arrangements as to property have been made and titles to property have passed. We are hence of the opinion that this is a proper case in which, the maxim 'communis error facit jus' may be applied." 7. Sri Venkiteswara Iyer, learned counsel for respondents 1 and 2, however, contends that the principles in Tagore's case could have no application to the case in hand. The instant case is not one of gift to an unborn person but gift to a juristic entity viz., the joint family of Narayanankutty Pillai. 8. In examining these contentions, we will have first to go to the relevant passages in the Will Ext. B-2. We have already quoted Clause II of the Will; we think it will i be useful if we quote clauses 5 to 10 also: (5) (MALAYALAM) . (6) x x x (7) x x x (8) x x x (9) x x x (10) x x x From these, one will have to decide the question whether the testator intended to benefit the sons in their individual capacity alone or his intention was to give the gift to the joint family of each of the sons. We cannot accept the rather broad contention raised by Mr. Bhaskaran Nambiar that if a Hindu father disposes of his self acquired properties by a Will giving them to the sons, the sons take the properties as their self acquired properties. That will be against the principles of Hindu Law, as established by decisions of the court. We cannot accept the rather broad contention raised by Mr. Bhaskaran Nambiar that if a Hindu father disposes of his self acquired properties by a Will giving them to the sons, the sons take the properties as their self acquired properties. That will be against the principles of Hindu Law, as established by decisions of the court. In regard to the question where a Hindu, instead of allowing the self acquired or separate ; property to go by descent, makes a gift of it to the son, I or bequeaths it to him by Will, the question arises whether such property is separate property of the son or whether it is ancestral in the hands of the son as regards his (son's) male issue. As Mulla points out in his Hindu Law, the question had been answered in different ways by different high Courts, with the result that there was a considerable diversity of judicial opinion. But the question was finally considered and answered by the Supreme Court in Arunachala Mudaliar v. Muruganatha ( AIR 1953 SC 495 ). In this case, after due consideration of the ancient texts and diverse opinions of the High Courts, Justice B. K. Mukherjea, took the view that the question was primarily one of the intention of the donor or testator to be gathered from the terms of the gift or Will. As a Mithakshara father has absolute right of disposition over his self acquired property to which no exception can be taken by his male descendants, it is not possible to hold that such property, Justice Mukherjee said, bequeathed or gifted to a son must necessarily, and under all circumstances, rank as ancestral property in the hands of the donee in which his sons would acquire coordinate interest. Speaking for the Court the learned Judge further said:- "As the law is accepted and well settled that a Mithakshara father has complete powers of disposition over his self acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. If there are express provisions to that effect either in the deed of gift or a Will, no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant If, however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well known canons of construction. Stress would certainly have to be laid on the substance of the disposition and not on its mere form". The material question which the court would have to decide in such case is, whether taking the document and all the relevant fact into consideration, it would be said that the donor intended to confer a bounty upon his son exclusively for his benefit and capable of being dealt with by him at his pleasure or that the apparent gift was an integral part of a scheme for partition and what was given to the son was really the share of the property which would normally be allotted to him and in his branch of the family on partition. In other words, the question would be whether the grantor really wanted to make a gift of his properties or to partition the same. As it is open to the father to make a gift or partition of his properties as he himself chooses, there is, strictly speaking, no presumption that he intended either the one or the other." (Underlining is ours) In interpreting a Hindu Will, we will also have to take due note of what the Privy Council said in Muhamed Shumsool v. Shewukram (1874-75 Indian Appeals 7 at p. 14 and p. 15). "In construing the Will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. "In construing the Will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate." It is on the basis of the above principle laid down by the Privy Council that a Full Bench of the Madras High Court said in Kunhacha Umma v. Kutti Mammi Hajee (1893 ILR 16 Madras 201), concurring with Best and Subramonia Iyer JJ., that a gift to a Muhammadan woman (governed by the Marumakkathayam law) and her children enure in favour of the donee and her children with incidents of Tarwad property. (see also Kalliani Amma v. Govinda Menon (1911 (35) Madras 648). Such a gift to a legal entity like a joint family will not come within the ambit of Tagore's case. 9. When we go into the present Will, on the basis of this decision, we have no hesitation in coming to the conclusion that the lower courts were correct in the decision they have arrived at. The expression 'santhanangal' in clauses 5 and 6, according to us, imports succession or heirship and the gift was really to the joint family unit of the particular son. Clause 11 of the deed would make that fact clear, because, it is specifically stated therein that the main purpose of writing the document was to avoid any controversy between the sons of the testator who would, in the absence of the Will, have taken the properties as ancestral properties as far as they were concerned. 10. In the circumstances of the case, there is no merit in the contentions raised by the appellant. Nor do we find any substance in the cross objections filed by respondents 1 and 2. Therefore, we dismiss the Second Appeal and the Cross objections, but in the circumstances of the case, without costs.