JUDGMENT Varghese Kalliath, J. 1. This is an appeal by the plaintiff in a suit for partition. The only question that is relevant for consideration in this appeal is whether the property involved in the suit is thavazhi property of one Pappi Amma or her puthravakasam property. This question was considered by the Trial Court. The Trial Court held that the division has to be effected on the basis that the property obtained under Ext. A1 has to be treated as thavazhi property. The plaintiff appealed before the lower appellate court. The appellate court also agreed with the Trial Court and dismissed the appeal. Now, the plaintiff appeals. 2. In this second appeal also the question that has to be considered is whether the property scheduled in the plaint is puthravakasam property or thavazhi property. Admittedly, the property was acquired by one Pappi Amma and her minor children. Pappi Amma was admittedly the karanavathy. The property was acquired from Pappi Amma's husband Ayyppan Nair. In the document there is a recital regarding certain debts and repayment of those debts. In fact, a reading of the document would show that it is an assignment cum gift. Learned counsel for the appellant submitted before me that at the time when Ext. A1 was executed in Cochin there was no statutory law governing the matter. The first statutory enactment governing the matter which came into force in Cochin was the Cochin Nair Regulation XIII/1095. S.43 of the Cochin Nair Regulation provided thus: "Section 43.- Property obtained from the husband, or father, by the wife or widow, and child or children, by gift, inheritance or bequest, or purchased for their benefit shall, unless, in the case of gift, bequest or purchase a contrary intention appears from the instrument of gift or will or purchase deed, belong to the wife or widow and each of the children in equal shares, they holding it as tenants in common with right to individual partition." This enactment was repealed by another enactment of the year 1113 - Cochin Nair Act 29/1113. Though S.43 took a position that unless contrary intention is shown if a property is acquired by the Karanavathy or Karanavan and some members of the tarwad conominee in the document they will take the property as puthravakasam property and not as thavazhi property, a direct contrary view is seen expressed in the later enactment, Act 29/1113 Cochin Nair Act. S.64 of that enactment provides thus: "Section 64.- Where a person bequeaths or makes a gift of any property to, or purchases any property in the name of, his wife alone or his wife and one or more of his children by such wife together, such property shall, unless a contrary intention appears from the will or deed of gift or purchase or from the conduct of the parties, be taken as thavazhi property by the wife, her sons and daughters by such person and the lineal descendants of such daughters in the female line: Provided that in the event of partition of the property taking place under this Chapter, the property shall be divided on the stirpital principle, the wife being entitled to a share equal to that of a son or daughter." 3. Learned counsel for the appellant submitted before me that what is contained in S.43 of the Cochin Nair Regulation XIII/1095 is the codification of the law as on that date and this court should give importance to that provision in interpreting Ext. A1. Learned counsel for the respondents submitted before me that Act 29/1113 is also a codification of the law as on that date and what is stated in S.64 of that enactment also should be taken note of in interpreting the document Ext. A1. 4. Counsel for the appellant referred me to X Cochin 614. It is a Full Bench decision. One of the Judges Justice P. I. Varugis held that "for all practical purposes, property given as puthravakasam is assimilable to tarwad property; the donees are not tenants in common; its management rests with the senior male; other members including those after born are entitled to maintenance out of it, and no member can alienate his share". One of the Judges Justice P. I. Varugis held that "for all practical purposes, property given as puthravakasam is assimilable to tarwad property; the donees are not tenants in common; its management rests with the senior male; other members including those after born are entitled to maintenance out of it, and no member can alienate his share". The contrary view was taken by the majority and the court held thus: "the basis of the decisions that puthravakasam property is the joint property of the donees held with the ordinary incidents of the properties of a marumakkathayam tarwad is that with reference to such property there is a presumption that the donor, in the absence of anything to the contrary, intends that the donees should take it as property acquired by their branch or as the exclusive property of their own branch with the usual incidents of tarwad property in accordance with the Marumakkatayam usage which governs the donees. This presumption is not sound according to law or according to considerations of equity and good conscience and should not, therefore, be made. In the absence of this presumption the donees of puthravakasam property, in the absence of an express or necessarily implied intention to the contrary, can only be regarded as coowners or tenants in common with regard to the same". Varugis, J., in holding the view that the property given as puthravakasam is assimilable to tarwad property relied on the observations of Justice Sankaran Nair in 39 Mad. Case. Then the learned Judge observed that "I am also not convinced that property granted as puthravakasam would, in such a case, defeat its own purpose, there would no doubt be the inequalities incidental to the Marumakkathayam system, that is not a sufficient reason for reading into the transaction the conception of a tenancy in common so alient to Marumakkathayam ideas. All the authorities on , the point have been discussed in XXXIX Madras 317, and hence, it is unnecessary for me to deal with them one by one". It is important to note that the learned Judge took the matter so stronglv to say that the consideration of a tenancy in common is alient to marumakkathayam ideas. 5. In this case, I have to decide really what was the intention of Ayyappan Nair when he executed Ext A-1 document. It is important to note that the learned Judge took the matter so stronglv to say that the consideration of a tenancy in common is alient to marumakkathayam ideas. 5. In this case, I have to decide really what was the intention of Ayyappan Nair when he executed Ext A-1 document. In S.43 of the Nair Regulation XIII/1095 also there is a provision which enables the parties to prove a contrary intention. The question is whether the parties in this case who contended that the property should not be treated as properties held as tenants in common were able to establish that contrary intention, even if I hold that the presumption available under S.43 is applicable in this case. The question whether the presumption has been rebutted or removed is a question of fact. In the decision reported in Yesodha v. Sankunni 1984 KLT SN 98 a Division Bench of this court held that "the presumption is only a conditional presumption which affords a presumptive or conditional proof. In other words it is a fact which amounts to proof only so long as there exists no other fact amounting to disproof. It is a provisional proof valid until over thrown by contrary proof". So, I have to evaluate the evidence in the case so as to ascertain whether the facts proved in this case are sufficient to rebut the presumption under S.43 of the Nair Regulation Act. The appellate court has considered certain evidence in this case. As I said earlier, the document was in the year 1090. In 1096 a part of the property was assigned and in that assignment all the members of the family were made parties. A child born after 1090 was also included as one of the sharers of the property. It has to be treated that the sale was effected by Pappi Amma and others and also Ayyappan Nair as guardian of the minor children. Certainly, at any rate, this is an indication that the parties treated the property as thavazhi property. Further, the appellate court has considered the evidence of PW 1 wherein PW 1 also said to a definite question whether the property is thavazhi property or not. The categorical affirmation was that the property is thavazhi property. Certainly, at any rate, this is an indication that the parties treated the property as thavazhi property. Further, the appellate court has considered the evidence of PW 1 wherein PW 1 also said to a definite question whether the property is thavazhi property or not. The categorical affirmation was that the property is thavazhi property. I feel that the question and answer is worth repeating: xxx xxx xxx Counsel for the appellant submitted before me that much importance should not be given to that part of the question that the property was purchased for the thavazhi. I cannot agree because the crucial question that was cosidered in the case was whether the property is thavazhi property or not. 6. Further, it has to be noted that Ext. A1 was taken by the karanavathy with all the members who were existing at that time. This court had occasion to consider the significance of the junction of all the members of the thavazhi joining when acquiring the property and that has been considered as an indicia to be taken note of for determining the question whether the property is thavazhi property or not. Learned counsel referred me to the decision reported in Lakshmi v. Anandani 1982 KLT SN 56 Balakrishna Menon, J., observed that "there is no need of the existence of a joint family nucleus for an acquisition to be one behalf of the joint family. Once it is found that the acquirers constituted a natural group and formed a tavazhi by themselves, there can hardly be any doubt that the acquisition should be presumed to be on behalf of the tavazhi. There is no evidence in the case to rebut the presumption". The same view has been expressed in the decision reported in Seetha v. Krishnan 1975 KLT 156 (F.B). If what is quoted above is taken as a general proposition of law and if that proposition of law is applied to the facts of this case I can say that the acquisition of property by Ext. A1 is by all the members of a natural group which formed a tavazhi. Considering all the circumstances emerged in the case, I feel that what the courts below have done is correct and the suit has been decreed rightly. The appeal is only to be dismissed. I do so.