JUDGMENT K.P. Balanarayana Marar, J. 1. The question that arises for consideration in this appeal is whether a bequest by a mother in favour of her daughters before the Madras Marumakkathayam Act enures to the benefit of the tavazhies constituted by the daughters and their descendants or to the daughters alone. 2. One Matha bequeathed all her properties under a will of the year 1918. She had seven children two sons and five daughters. Under the will two items of immovable properties and household articles were bequeathed in favour of her five daughters and a cart and two bullocks in favour of the sons. All the five daughters jointly assigned the properties to Narayani, daughter of one of the legatees. She in turn sold a portion of the property to one Korumbathi who reconveyed the property to Narayani some years later. Thereafter the entire properties were transferred by Narayani to defendants 59 and 60 in the year 1979. The suit for partition O. S.16/1983 before Sub Court, Badagara was filed by a member of the tavazhi of one of the legatees by name Cheeru. The properties are sought to be partitioned in the suit alleging that the 'bequest was in favour of the five tavazhies constituted by the five daughters and their descendants. 3. The suit was mainly resisted by defendants 59 and 60. They contended that the properties were the self acquisitions of Matha and were bequeathed to the five daughters mentioned in the will. They took the properties as tenants in common and transferred their rights in favour of 13th defendant who in turn had sold the properties to these defendants. They further contended that the properties were possessed by 13th defendant as her own to the exclusion of the other members of the tavazhi and they had thus prescribed rights by adverse possession and limitation. 4. Documents were produced on both sides. No oral evidence was adduced on the side of the plaintiff. The 13th defendant was examined as D. W. 1. On a consideration of the documents and evidence the court below held the bequest to be one in favour of the five tavazhies constituted by the five daughters and their descendants. The properties were directed to be divided among the five tavazhies as if they were holding as tenants in common. The 13th defendant was examined as D. W. 1. On a consideration of the documents and evidence the court below held the bequest to be one in favour of the five tavazhies constituted by the five daughters and their descendants. The properties were directed to be divided among the five tavazhies as if they were holding as tenants in common. The assignment deed executed in favour of 13th defendant was found to be a void document. A preliminary decree for partition was passed for division of the properties into 85 equal shares and for allotment of one share to the plaintiff. Defendants 59 and 60 were found liable to pay profits from the date of suit. Aggrieved by this decision the 59th defendant has come up in appeal. 5. There were two bequests by the testatrix, one in favour of the daughters alone and the other in favour of the sons. The bequest is made by none other than the mother of the legatees. The question arises whether the legatees take the bequests as tenants in common or with the incidents of tavazhi properties. As far as the bequest in favour of the sons is concerned, the presumption would be that it is not intended for the branch consisting of those legatees and other members of their thavazhi, but only to those legatees jointly. In such a case can a presumption be drawn in. favour of the tavazhi in the case of the bequest in favour of the daughters alone. That is the precise question that has to be answered in this appeal. 6. Sri Rajagopalan, learned counsel for the 1st respondent, attempted to support the judgment of the court below by relying on the observations of Sundara Aiyar in "Malabar and Aliyasanthana Law". At Pages 170 and 171 the learned author has stated that if a gift is to a sister and her children, the sister and her children will take it as a branch. If it is to all the sisters, they will not take it as a tarwad unless at the time of their taking it they are the sole members of the branch. If it is to all the sisters, they will not take it as a tarwad unless at the time of their taking it they are the sole members of the branch. It is further stated that if it is clear that the sisters and their children are intended to take, the intention of the doner can be given effect to by taking the grant as a grant to the sisters as tenants in common, but each sister to take her share as tarward property. Apart from the observations of the learned author, no authority has been brought to my notice to support this contention. Learned counsel would point out that in the absence of any authoritative pronouncement on this aspect, the observations of Sri. Sundara Aiyar are to be given due weight. But these observations run counter to the decision of a Full Bench of this Court in Seetha v. Krishnan ( 1975 KLT 156 ). 7. In the case of a gift or bequest by a marumakkathayee to his wife and children or to all the children in case the mother is dead, the presumption is that the gift or bequest enures to the benefit of the branch consisting of the wife and children and their descendants in the female line. On a survey of the decisions on this point right from the earliest decision in Kunhacha Umma v. Kutti Mammi Hajee (ILR 16 Madras 201 (FB)), the Full Bench in Seetha's case (supra) held that the effect of the decisions was only to lay down that when properties are gifted or purchased by a person in the names of his marumakkathayee wife and all the children or in the joint names of all the children born to the donor by a deceased marumakkathayee wife who by themselves constitute all the members of a tavazhi, there is a presumption that the donees take the property with the incidents of tarward property. The Full Bench ultimately held thus: "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 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 or 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. 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". 8. The bequest in this case is in favour of five daughters who by themselves do not constitute a tavazhi. Properties were bequeathed under the will executed by the mother who had bequeathed properties to her two sons under the same testament. A presumption that the bequest is in favour of a natural ground capable of forming a tavazhi by themselves cannot therefore be drawn. There is thus no scope for invoking the presumption that the property was intended to be taken by the five daughters with the incidents of tarwad property. The observations of Sundara Aiyar relied on by learned counsel for the 1st respondent are therefore of no assistance. 9. It is then contended that the testatrix intended the properties to devolve on the tavazhies of the five daughters and there is necessary indication in the will to that effect. Pointed attention is drawn to the recital that the property has to be enjoyed by the legatees in marumakkathayam way . The testatrix wanted the properties to be preserved for posterity. There is a restraint on alienation. Each of the legatees by herself is not competent to encumber the property. In case the property is evicted from the possession of the legatees, the consideration received should be utilised for acquiring property in the joint names of the legatees. It is also stipulated that the properties should be enjoyed by them in union. Each of the legatees by herself is not competent to encumber the property. In case the property is evicted from the possession of the legatees, the consideration received should be utilised for acquiring property in the joint names of the legatees. It is also stipulated that the properties should be enjoyed by them in union. Considerable stress was laid by counsel on these recitals in support of his contention that the intention is to benefit the tavazhi of the legatees. If the words of the bequest are clear that it is intended for the benefit of the persons mentioned therein or in other words if it is for the exclusive benefit of the legatees, the presumption raised by the Full Bench of the Madras High Court in Chakkra Kannan v. Kunhi Pokker (ILR 39 Madras 317) and the later rulings on that, aspect is not available and the legatees would take the bequest absolutely. On the other hand if the words are clear regarding the intention to benefit a branch, a natural group, the presumption is available and the bequest is not one to the legatees exclusively. True, the testatrix wished the properties to be enjoyed in the marumakkathayam way and there is also restraint of alienation by one of the legatees. But there had been a disposition in favour of the five daughters mentioned in Ext. A1 who were directed to enjoy the properties as absolute owners, as representatives of the testatrix. There is thus clear indication in the will to confer absolute rights on the persons whose names were specifically mentioned in the document. While construing a similar will this court in Janaki alias Nangali Amma v. Krishnan Nambissan ( 1958 KLT 516 ) held that the expression in Ext. B3 indicates the intention of the testator that the bequest was for the benefit of his wife and children alone and that they were to take the properties as tenants in common with separate and equal rights. 10. On a reading of the various recitals contained in Ext. A1 the intention of the testatrix appears to be to benefit her five daughters and not the tavazhi constituted by those daughters and their descendants. That has been clearly manifested by the disposition in their favour in absolute rights with a direction to enjoy the properties as representatives of the testatrix. A1 the intention of the testatrix appears to be to benefit her five daughters and not the tavazhi constituted by those daughters and their descendants. That has been clearly manifested by the disposition in their favour in absolute rights with a direction to enjoy the properties as representatives of the testatrix. The legatees had therefore taken the properties as tenants in common and not on behalf of a natural group. 11. The subsequent conduct of the parties also reveals that the intention was not to benefit the tavazhies of the five daughters. As early as 1956 all the five daughters jointly transferred their rights to 13th defendant who is the daughter of one of them. A portion of the property is seen sold by 13th defendant to one Korumbathi under Ext. B3 dt. 13-11-1956. That right was reconveyed to 13th defendant in 1971 under Ext. B4. A malpattom (lease of usufructs) was granted by 13th defendant to one Ayissu in 1974 as per Ext. B6. She has also obtained the purchase certificate Ext. B5 through Land Tribunal. Building tax and revenue are seen paid by her from 1966 onwards. From 1956 onwards these properties are dealt with as if they belonged to the five legatees exclusively and their transferee, the 13th defendant. As observed by Sundara Aiyar at P. 172 of "Malabar and Aliyasanthana Law" subsequent dealing with the property might undoubtedly be of use in determining whether the gift was made or accepted on behalf of the branch. There is clear indication in the present case to show that the legatees accepted the bequest as one in their favour to the exclusion of all others. The fact that 13th defendant who purchased the rights of the legatees is a member of the tavazhi of one of the legatees will not by itself enable the other members of her tavazhi or the member of the other tavazhies constituted by the other four daughters and their descendants to lay claim over these properties. Reliance was placed on the admission of 13th defendant as D.W.1, that the intention of the testatrix was to benefit the tavazhi. She stated that the tavazhi members had rights over the properties, but the properties were not possessed as tavazhi properties. In the light of this admission the conclusion reached by the court below is justified, according to counsel for the 1st respondent. She stated that the tavazhi members had rights over the properties, but the properties were not possessed as tavazhi properties. In the light of this admission the conclusion reached by the court below is justified, according to counsel for the 1st respondent. This statement is not admissible in evidence according to learned counsel for the appellant since it was not made during the continuance of the interest of the person making the statement. Statements made by persons who have a pecuniary or proprietary interest in the subject matter of the proceeding and who make the statement in their character of persons so interested are admissions and any such admission is a relevant fact. But S.18 of the Evidence Act further provides that statements made by persons from whom the parties to the suit have derived their interest in the subject matter of the suit are admission only if they are made during the continuance of the interest of the person making the statement. Admittedly D. W. 1 had parted with her rights in favour of defendants 59 and 60 in the year 1979 about four years before the suit. Her interest in the property has thus ceased to exist. It would be unjust to rely on the admission of such a person. The statement of D. W. 1 does not therefore amount to an admission and is not a relevant fact. The court below was therefore wrong in placing reliance on this admission in finding that the properties belonged to the five tavazhies constituted by the five daughters and their descendants. 12. From the discussions in the foregoing paragraphs it is seen that the bequest under Ext. A1 is in favour of the five daughters exclusively and not in favour of the tavazhies constituted by those legatees and their descendants. The court below was therefore wrong in finding that the properties belonged to the tavazhies of the five daughters and in granting a decree for partition of the properties. That finding of the court below is set aside and it is found that the properties now belong to defendants 59 and 60 in exclusive rights on the basis of Ext. B13 assignment executed by 13th defendant who had obtained valid rights on the strength of the assignment executed by the five daughters under Ext. B2. That finding of the court below is set aside and it is found that the properties now belong to defendants 59 and 60 in exclusive rights on the basis of Ext. B13 assignment executed by 13th defendant who had obtained valid rights on the strength of the assignment executed by the five daughters under Ext. B2. The properties are therefore not liable to be partitioned among plaintiff and defendants 1 to 58 and 61. In the result the appeal is allowed and in reversal of the judgment and decree of the court below the suit is dismissed. In the circumstances of the case the parties are directed to suffer their costs.