JUDGMENT N.K. Balakrishnan, J. 1. Defendants 2 and 3 in a suit for partition are the appellants. The trial Court granted a preliminary decree directing division of plaint schedule item Nos. 1 and 2 into 7 equal shares and to allot 4 such shares to the plaintiffs jointly and the remaining 3 shares to defendants 1 to 3. Plaint item No. 3 was directed to be divided into 4 equal shares and the first plaintiff was allotted one such share and the remaining 3 shares were allotted to defendants 1 to 3. 2. Deceased Pachi Amma was the grandmother of the first plaintiff. First defendant Pankajakshi Amma is the daughter of Pachi Amma. Defendants 2 and 3 are the children of the first defendant. Plaintiffs 2 to 4 are the children of the Ist plaintiff. Ist plaintiff is the daughter of D1 - Pankajakshi Amma. Plaint items 1 and 2 were allotted to Pachi Amma as per the B schedule to Ext. B4 partition deed of 1118 M.E. corresponding to 1943. Plaint item No. 3 belonged to late Padmanabha Pillai. Padmanabha Pillai died and his right devolved upon his wife and children. The first defendant is the wife and defendants 2 and 3 are the children of Padmanabha Pillai. The first plaintiff is entitled to 1/4 share over item No. 3. 3. Defendants 1 to 3 contended as follows:- Plaint items 1 and 2 were not allotted to the tavazhi of Pachi Amma but those two items were the separate properties of Pachi Amma which were obtained by Pachi Amma as per Ext. B4 partition deed. On the death of Pachi Amma the suit property devolved upon her daughter Pankajakshi Amma (D1) who is the only legal heir of Pachi Amma. The first defendant gifted items 1 and 2 in favour of defendants 2 and 3 in 1977. Thereafter item No. 1 was sold to the 4th defendant in 1981. 4. Plaint item No. 3 belonged to the father of the first plaintiff and on his death his right over the same devolved on the wife and children including the first plaintiff. In that property other plaintiffs have no manner of right. Defendants 2 and 3 have every right to alienate the property obtained from the first defendant. 5th defendant is a mortgagee of those items. 5. In that property other plaintiffs have no manner of right. Defendants 2 and 3 have every right to alienate the property obtained from the first defendant. 5th defendant is a mortgagee of those items. 5. The fourth defendant filed written statement in tune with the contentions raised by defendants 1 to 3. 6. The evidence consists of the oral testimony of P.W.1 and P.W.2 and of documentary evidence Exts. A1 and B1 to B6 (a). 7. The dispute is with regard to items 1 and 2 shown in the plaint schedule. According to the plaintiffs items 1 and 2 were allotted to Pachi Amma as per Ext.B4 partition deed and since parties were governed by the provisions of Travancore Nair Act, the property obtained by Pachi Amma should be treated as the sub tarwad properties of plaintiffs and defendants 1 to 3 and thus the plaintiffs are entitled to get 4/7 shares and defendants 1 to 3 are entitled to 1/7 share each. Though a suit as O.S. 306/1983 was filed against defendants 1 to 3 and another person that suit was dismissed for default. 8. The trial Court after considering the pleadings and evidence found that the plaint schedule property is liable to be partitioned as stated in the plaint and so a preliminary decree was passed. 9. The lower appellate Court had a re-appreciation of the evidence. Following the Full Bench decision reported in Mary v. Bhasura Devi - 1967 KLT 430 it was found that plaint items 1 and 2 are the properties of the sub tarwad consisting of Pachi Amma, her children and grandchildren and so the plaintiffs are entitled to get 4/7 share in the said property. It was further held that the gift deed executed by the first defendant in favour of defendants 2 and 3 would be valid only to the extent of the share which the first defendant had in those items. The third item was directed to be divided into 4 equal shares and the first plaintiff was allotted one such share. Defendants 1 to 3 are allotted one such share each. There is no dispute regarding division of item No. 3. 10. The learned counsel for the appellants submits: The finding of the court below that plaint items 1 and 2 would get the colour of a tavazhi property is the result of of a misconception of law. Defendants 1 to 3 are allotted one such share each. There is no dispute regarding division of item No. 3. 10. The learned counsel for the appellants submits: The finding of the court below that plaint items 1 and 2 would get the colour of a tavazhi property is the result of of a misconception of law. It should have been found that plaint items 1 and 2 are the individual properties of Padmanabha Pillai, who is the father of Pachi Amma. In Ext.B4 partition deed it was stated that the properties were the self acquired properties of the said Padmanabha Pillai. In view of the recitals in Ext. B4 partition deed the finding of the trial Court that items 1 and 2 are tarwad properties and so those properties are partible, is highly erroneous. Ext. B4 partition deed recites to the effect that the ancestral tarwad properties are not included in that partition deed and so the express exclusion of tarwad properties in Ext. B4 partition deed would make it indubitably clear that items 1 and 2 are not sub tarwad/tavazhi properties. If items 1 and 2 are not tavazhi properties then the Full Bench decision in Mary v. Bhasura Devi (supra) would have no application at all and so the finding entered by the courts below that items 1 and 2 would continue to have the characteristics of tarwad property is unsustainable. Those two items were never the tarwad properties of Pachi Amma and as such it cannot be said that those items acquired the character of a tarwad property. On the death of Pachi Amma plaint items 1 and 2 devolved on the first defendant exclusively and so the plaintiffs did not get any right over the said property. The gift deed executed by the first defendant in favour of defendants 2 and 3 is perfectly valid. 11. The following substantial questions of law have been framed:- i) Are the courts below right in holding that the plaint items 1 and 2 are tarwad properties liable to be partitioned in spite of the specific recital in Ext. B4 partition deed that the properties are self acquired properties of the predecessor-in-interest of the executants of Ext. B4 ? 11. The following substantial questions of law have been framed:- i) Are the courts below right in holding that the plaint items 1 and 2 are tarwad properties liable to be partitioned in spite of the specific recital in Ext. B4 partition deed that the properties are self acquired properties of the predecessor-in-interest of the executants of Ext. B4 ? ii) If it is a self acquired property of a marumakkathayee male, would it get or assume the character and colour of a tarwad property once the same is partitioned among the legal heirs of the said male member after his death ? iii) Are not the courts below wrong in understanding and applying the principles laid down by the Full Bench in Mary v. Bhasura Devi, 1967 KLT 430 ? iv) Whether a property inherited by a Nair marumakkathayee female by virtue of partition of the self acquired property of her father be treated as a tarwad property enabling her female descendants to claim right over the property ? 12. It is vehemently argued by the learned counsel for the appellants that the courts below failed to note that plaint items 1 and 2 were allotted to Pachi Amma as per the partition deed (Ext. B4) that was entered into among the wife and children of deceased Padmanabha Pillai. Padmanabha Pillai had wife and six children of whom Sankaran Narayanan was away at that time. For that son also share was allotted. It was mentioned in Ext. B4 that the properties which were subjected to partition were the properties which were obtained by Padmanabha Pillai as per partition deed No. 911/1104 M.E. and also his self acquired properties. Going by the recitals in Ext. B4 it would appear that the B schedule items 1 and 2 mentioned therein were the properties obtained by Padmanabha Pillai as per the partition deed No.911/1104 M.E. It is contended that this partition deed was not entered into in respect of the property of a female ascendant and so the property allotted to Pachi Amma cannot be treated as the properties allotted to a female descendant. In such circumstances, whether the presumption that the property obtained by a female descendant would assume the character of a thavazhi property when she begets a child, is the question to be considered. The learned counsel has pointed out that in Ext. In such circumstances, whether the presumption that the property obtained by a female descendant would assume the character of a thavazhi property when she begets a child, is the question to be considered. The learned counsel has pointed out that in Ext. B4 there is a recital" and so he would submit that since the properties mentioned in Ext. B4 do not take in the properties obtained by the mother of Pachi Amma as per their tarwad partition the properties allotted to Pachi Amma as per Ext. B4 cannot get the character of tavazhi/tarwad property, since those items were only the properties of her father Padmanabha Pillai. If those items were obtained by Padmanabha Pillai as per a partition deed of his tarwad, it can be said that those items of properties when obtained by one of the daughters would become the tavazhi property of a marumakkathayee female, it is argued on behalf of the respondents. But if the property was not a tavazhi property then on the death of the Nair female leaving her surviving children or the lenient descents of deceased children or both they shall take the whole of the self acquired and separate property left undisposed of by her at her death. 13. The learned counsel for the appellants refers to the explanation to the proviso to Sec. 17 of Travancore Nair Act, which says that the provisions contained in Sec. 12, Clauses (ii) and (iii), shall apply to the distribution of the estate among the lineal descendants of the intestate female. Sec.12 of the Travancore Nair Act reads : "Rules of distribution of estate under Section 11 The distribution of the estate under Section 11 shall be according to the following Rules ; (i) The widow or widows if there are more than one and the mother shall each be entitled to a share equal to that of a son or daughter; (ii) Sons and daughters shall take the property in equal shares : Provided that, if a son or daughter shall have predeceased the intestate, the lineal descendants of such child shall take the share which such child would have taken had it survived the intestate; (iii) Grandchildren shall take in equal shares what their father or mother would have taken had he or she survived the intestate. In like manner, the property shall go to the surviving lineal descendants of the intestate, where they are all in the degree of great-grandchildren to him or in a more remote degree." Sec.17 reads thus : "Where intestate Nayar female has left children or lineal descendants of deceased children - On the death of a Nayar female leaving her surviving her children or the lineal descendants of deceased children or both, they shall take the whole of the self-acquired and separate property left undisposed of by her at her death." Sec.12 (i) and 12 (ii) would make it clear that the distribution of the estate under Sec. 11 shall be according to the rule that the sons and daughters shall take the property in equal shares provided that if a son or daughter shall have predeceased the intestate, the lineal descendants of such child shall take the share which such child would have taken had it survived the intestate. Sub Sec. (iii) of Sec. 12 says that the grand children shall take in equal shares what their father or mother would have taken had he or she survived the intestate. In like manner, the property shall go to the surviving lineal descendants of the intestate, where they are all in the degree of great- grandchildren to him or in a more remote degree. But, the respondents would contend that Sec. 17 and Sec. 12 will have no application to the facts of this case since according to them the property obtained by Pachi Amma should take the character of a tavazhi property and if so, it cannot be treated as a self acquired property. 14. In Mary v. Basura Devi - 1967 KLT 430 FB it was held that the moment a marumakkathyee female who has separated from the remaining members of her tarwad gives birth to a child, a tarwad comes into being whether she likes it or not and whether she owns property or not and it continues until there is a partition between them. It is also held that these separate units are commonly called tavazhis/sub tarwad in contra distinction with the original tarwad. It is also held that these separate units are commonly called tavazhis/sub tarwad in contra distinction with the original tarwad. Community of interest, unity of possession, right by birth and survivorship are incidents of joint family property whether of a marumakkathayam tarwad or a mitakshara coparceneray, but the existence of such property is no more necessary to constitute a tarwad than it is to constitute a coparceneray . It was also held that where persons lived together it is difficult to conceive of possessing no joint property whatsoever. Until a division takes place a female and all her descendants in the female line constitute a marumakkathayam tarwad whether they own property in common or not. 15. It was further held that the property got by the marumakkathayee female in her tarwad partition would enure to the benefit of her children than in the case of property given to her by her husband. 16. It is vehemently argued by the learned counsel for the appellants that the recitals in Ext. B4 are clear that the properties belonged to Padmanabha Pillai and it (Ext. B4) does not evidence a tarwad partition at all. But the learned counsel for the respondents would submit that Padmanabha Pillai had otti right in some of the items of the property mentioned therein. The plaint schedule properties are comprised in Sy. No. 1668/8, 896/3 and 1776 . Since the third item (the property comprised in Sy. No. 1776) is not in dispute now discussion needs to be had only with regard to the other two items. With regard to the property in Sy. No. 1668/8 and 896/3 it is stated that Padmanabha Pillai was having otti right over those items. It is submitted by the learned counsel for the appellant that the first defendant must have been alive at the time of Ext. B4 partition going by her age and if it was a family partition then certainly her name also would have been included in the partition deed. Therefore, according to the learned counsel it was only because it was not a family partition (it was not not the partition of the tarwad property) the daughter of Pachi Amma; namely, Pankajakshi Amma (D1) was not made a party to Ext. B4. No such case was advanced by the defendants in the written statement, it is pointed out. Therefore, according to the learned counsel it was only because it was not a family partition (it was not not the partition of the tarwad property) the daughter of Pachi Amma; namely, Pankajakshi Amma (D1) was not made a party to Ext. B4. No such case was advanced by the defendants in the written statement, it is pointed out. It is argued by the learned counsel for the respondents that only because there is a recital in Ext. B4 that the properties obtained from their old tarwad or ancestral tarwad are not included in Ext. B4 it cannot be construed to hold that Ext. B4 was not a tarwad partition at all. The property which was allotted to Pachi Amma should be treated as a tavazhi/sub tarwad property, the moment she begets a child, it is further argued. 17. Had there been sufficient pleadings to the effect that the other children of Pachi Amma were alive at the time of execution of Ext. B4 and if the earlier title deeds had been produced to show that those properties were the self acquired properties of Padmanabha Pillai, the argument advanced by the learned counsel for the appellants would have gained momentum, argues the respondents' counsel. The property obtained by a marumakkathayee woman on partition of her tarwad property should continue to be impressed with the character of a tarwad property but here it was not her tarwad property that was partitioned. Hence, it is difficult to hold that the property acquired by Pachi Amma as per Ext. B4 partition deed should be treated as a tarwad property. 18. Sec.22 of the Travancore Nair Act reads : "Property acquired by gift or bequest from husband or father after Regulation I of 1088 (1) Property acquired by gift or bequest by the wife or widow or child or children from the husband or father, as the case may be, after Regulation I of 1088 came into force, shall, unless a contrary intention is expressed in the instrument of git or bequest, if any, belong to the wife or widow and each of the children in equal shares. (2) Rules for the devolution and distribution of such property.- The Rules for the devolution and distribution of the property of an intestate as hereinbefore provided shall, so far as they may be, apply to property mentioned in Sub-section(I), as also to property acquired under Regulation I of 1088 and under Section 21 of this Regulation." 19. In all the decisions including the Full Bench Decision in Mary v. Bhasura Devi (supra) the properties which were the subject matter of partition in the earlier partition deed were the tarwad properties and not the individual or self acquired property of the father. That distinction has to be taken note of. 20. It was observed by the trial Court that plaint items 1 and 2 were included in the B schedule to Ext. B4 partition deed and those items were allotted to Pachi Amma and so it is evident that under Ext. B4 the family property of Pachi Amma was divided and she got her share included in the B schedule. This is patently erroneous, the learned counsel for the appellant submits. The appellate court also fell into the same error. 21. The courts below did not focus their attention to the fact that what were partitioned as per Ext. B4 were not the tarwad or tavazhi property of Pachi Amma. It was observed by the trial court that there is no sufficient pleading and evidence to show that Pachi Amma was having a tavazhi on the date of Ext. A1. Even if there is no evidence to show that Pachi Amma was having a tavazhi still if the properties which were subjected to partition under Ext. B4 were the maruymakkathayam tavazhi/tarwad properties then the property obtained by Pachi Amma would get the character of tavazhi property, the moment Pachi Amma begets a child. But the question is whether the properties which were partitioned under Ext. B4 were the family/tarwad properties of Pachi Amma. In other words, if the properties partitioned under Ext.B4 were not the family property of Pachi Amma, ie; if those properties were not the tarwad properties of Pachi Amma, then on partition of those items, the item or items allotted to Pachi Amma would not get itself impressed with the tavazhi character. 22. The courts below proceeded on the premise that the properties which were partitioned under Ext. B4 were the family properties. 22. The courts below proceeded on the premise that the properties which were partitioned under Ext. B4 were the family properties. At the risk of repetition it has to be stated that there are clear recitals in Ext. B4 that the properties which were allotted to the marumakkathayam family from their tarwad were not included in Ext. B4. The recitals in Ext. B4 would make it abundantly clear that the properties which were partitioned as per Ext. B4 were the properties obtained by Padmanabha Pillai, the father of Pachi Amma and not the properties which were allotted to the mother of Pachi Amma nor were those properties the tarwad properties of Pachi Amma. If only the properties were held by a marumakkathayee tarwad and if those properties were partitioned and the particular item was allotted to a female descendant it would take the character of a tavazhi property and not otherwise. These aspects were not considered by the courts below. 23. It was vehemently argued by the learned counsel for the respondents that there is a recital to the effect that Narayani Amma the mother of Pachi Amma had obtained Rs. 925/- from Narayani Amma's mother. That does not in any way alter the position. 24. In the plaint, the allegation made was to the effect that plaint items 1 and 2 were allotted to the tavazhi of late Pachi Amma as per the B schedule to Ext.B4 partition deed of 1118 ME corresponding to 1943. But there is nothing in Ext. B4 to indicate that the aforesaid properties were allotted to the tavazhi of Pachi Amma. That apart, the properties were not the tarwad properties of Pachi Amma and her female ascendants. In the plaint, age of the first defendant was shown as 67 years in the year 1991, if so, as on the date of Ext. B4 first defendant must have been aged about 19 years. Therefore, the non inclusion of the first defendant in Ext. B4 would strengthen the case of the appellants that the properties were not the tavazhi properties, for, if those properties were the tarwad/tavazhi properties of Pachi Amma and her female ascendants, then certainly the first defendant who is the daughter of Pachi Amma also would have been shown as a sharer. True that, it was not so specifically pleaded in the written statement. True that, it was not so specifically pleaded in the written statement. But the learned counsel for the appellant would submitted that since it is so connected with the question of law as to whether the allotment to Pachi Amma did partake the character of tavazhi allotment, the non-inclusion of the first defendant in Ext.B4 partition deed of 1943 (1180 ME) would certainly assume relevance. 25. In the written statement it was specifically contended by the defendants that those properties were separate properties of Pachi Amma which she had under Ext.B4 partition deed and that on the death of Pachi Amma the first defendant who is the only legal heir of Pachi Amma obtained absolute right over the same. 26. In Mathevan Pillai Eravi Pillai v. Perumal Pillai Valli Amma - 1954 KLT 295 , by referring to the decision Palani Mudaliar v. M. Natarajan - AIR 1942 Madras 503 it was held that the doctrine of advancement is not applicable to Indian Christians . But the position under Marumakkathayam law is somewhat different in this aspect. Even though the theory of advancement may not as such be applicable to a Marumakkathayee, the Maruymakkathayam Law has recognised a presumption that the acquisition made by a marumakkathayee husband or father in the name of his wife or children, are intended to be for the benefit of the sub-tarwad consisting of the wife and children. But no such presumption arises in the case of acquisitions made by a karanavan in the name of a junior member of the tarwad. 27. It is pointed out by the learned counsel for the appellants that here it is not an acquisition made by father or husband in the name his wife or children but it is a case where the father's self acquired properties were subjected to partition among the wife and children and thus Pachi Amma, one of his daughters, obtained the properties shown in the B schedule to Ext. B4. The partition deed does not say that the properties mentioned in the B schedule therein shall be jointly enjoyed by Pachi Amma and her children or grand children. On the other hand, it was only stated that the allottee would take the property as his/her own property. Therefore, by no stretch of imagination it can be said that the share allotted to Pachi Amma as per Ext. On the other hand, it was only stated that the allottee would take the property as his/her own property. Therefore, by no stretch of imagination it can be said that the share allotted to Pachi Amma as per Ext. B4 partition of the properties of her father's self acquired property would partake the character of tavazhi acquisition or that the property so allotted would enure to the tavazhi of Pachi Amma and her female descendants. 28. The decision reported in Raman Pillai v. Mathews - 1955 KLT 227 has also been relied upon in this connection. That was a case where the point for consideration was whether the claim of the appellants therein for recovery of the entire properties belonging to the sub-tarwad is sustainable. Such a claim was put forward by them on the basis that the donees under Ext.III documents took the properties as their sub-tarwad properties. It was held that such was the concept under the marumakkathayam law in respect of the gifts obtained by the wife from her husband but this position underwent drastic changes when the marumakkathayam law was codified. It was held that in the case dealt with therein the rights of the donees under Ext. III had to be determined on the basis of the codified law as embodied in the Nayar Act. It was further held that under Sec. 22 of that Act the donees under a gift of the kind mentioned earlier, subsequent to the Nayar Act, take the properties as tenants in common and the incidents of tarwad property are not attached to such a gift . In that case, the gift deed came into existence in the year 1100 ME. Since the gift was after the Nayar Act came into force, it was sufficient to negative the plaintiffs claim that the properties obtained under a gift deed are their tarwad properties. 29. Relying upon the observations made by the Division Bench in the decision cited supra (vide paragraph 5 therein) it is argued by the learned counsel for the appellants that though in this case the document in question is a partition deed of 1118 which came into existence after the Travancore Nayar Act, the allottee thereunder would take the property only as his or her individual property. There is nothing in Ext. There is nothing in Ext. B4 to show that the father - Padmanabha Pillai intended or purported to create any right in favour of the children or the female descendants of Pachi Amma or other children mentioned therein. Here, from the age of the parties given in the plaint it is obvious that the first defendant was alive on the date of Ext. B4 partition deed, but her name was not included as an alottee which itself would scuttle the plea raised by the respondents that the allotment was in favour of the tavazhi of Pachi Amma and her female descendants. It is clear from Ext. B4 that the demise made thereunder was absolute in favour of the allottees thereunder and not intended to benefit their female descendants. 30. The learned counsel for the appellants has also relied upon the Full Bench decision in Krishnan Nair Sivasankaran Nair v. Sankaran Krishnan Namboori - 1957 KLT 807 . That was a case where the plaintiffs two in number claimed half share of the plaint schedule property as two out of the four heirs of their deceased father Sankara Pillai. Sankara Pillai died in Meenam 1095 leaving his widow (the 5th defendant), two sons D4 and plaintiff No. 1 and a daughter plaintiff No. 2 as his heirs. On 20-3- 1111 M.E. defendants 4 and 5 therein, D5 acting also as the guardian of the two plaintiffs, who were then minors sold the property to defendant No. 1. The plaintiffs claimed their 1½ share after avoiding the alienation in favour of defendant No. 1. The plaintiffs had become majors before 1113 but the suit was filed only on 24-3-1123. 31. The trial Court took the view that the mother (D5) was not the legal guardian of the plaintiffs and that they had therefore, 12 years to sue for recovery of the half share of the property. It was found that the schedule to the plaint therein constituted the tavazhi property of D5 and her children. Therefore, the question for consideration therein was whether in the hands of Sankara Pillai's heirs the plaint property constituted their separate property or tavazhi property and whether D5 was really the legal guardian of the plaintiffs. It was held that a succession to Sankara Pillai's property opened in 1095 . The law governing the succession was Travancore Nayar Act 1/1088. Therefore, the question for consideration therein was whether in the hands of Sankara Pillai's heirs the plaint property constituted their separate property or tavazhi property and whether D5 was really the legal guardian of the plaintiffs. It was held that a succession to Sankara Pillai's property opened in 1095 . The law governing the succession was Travancore Nayar Act 1/1088. It was the common ground that the plaint property constituted the separate property of Sankara Pillai and that as he had left no undivided marumakkathayam heirs his widow and children were his sole legal heirs as per Sec. 12 of Travancore Nayar Act. Sec. 17 provided that the widow and each of the children shall take the property in equal shares with right to individual property. There it was argued on behalf of the appellants that by virtue of the provisions of Sec. 13, until a division is effected the property would be tavazhi property and that the widow and children did not take the same as tenants in common. But it was held that Sec. 13 has no application to that case in as much as, Sec. 13 contemplates where a deceased Nayar male leaves both makkathayam and marumakkathayam heirs. It was further held: "Even otherwise that section only states that until a division is effected the senior male member, or in the absence of a male member, the senior female member among the heirs shall have possession of the property. This provision cannot in our opinion affect the legal character of the property that devolved on the widow and children on the death of a Nair male. To find out that we have to look to S. 17 and when that section states that the heirs shall take the property in equal shares with right to individual partition, we do not hesitate to hold that what the law enacts is that these shares would constitute the separate property of the heirs, or in other words they take the property as tenants-in-common". 32. It is submitted by the learned counsel for the appellants that the courts below proceeded on an erroneous assumption that the property partitioned as per Ext.B4 was the tarwad property . In short, the legal character of the properties partitioned under Ext. B4 was lost sight of by the courts below. 33. 32. It is submitted by the learned counsel for the appellants that the courts below proceeded on an erroneous assumption that the property partitioned as per Ext.B4 was the tarwad property . In short, the legal character of the properties partitioned under Ext. B4 was lost sight of by the courts below. 33. The Full Bench Devision in Mary v. Basura Devi (cited supra) has no application to the facts of this case, the learned counsel for the appellants submits. In the decision cited supra what was dealt with was the separate share obtained by a female member in a tarwad partition but in the case on hand, Ext.B4 was not a tarwad partition but only a partition of the property of the self acquired properties of Pachi Amma's father. The learned counsel submits that the legal character of the property which was subjected to partition is of paramount importance since if only the property that was partitioned was the tarwad property, the alottee would take the allotted share as the one allotted to her and to her female descendants. The customary marumakkathayam law is that the property allotted to a single sharer retains the character of tarwad property and is subject to all the incidents of such property just like tarwad property held by a sole surviving member of a tarwad. But that principle can be imported only if the property allotted to a sharer was in a partition of the tarwad property and not in a partition of the self acquired properties of the father. It is true that under marumakkathayam law a subsequently conceived child gets a right by birth in the property obtained by its mother for her separate share in the partition of her tarwad thus reducing her therefore, absolute powers of disposition to those of a joint family manager. In other words, after an individual partition the property in the mothers' hand continues to retain the character of tarwad property. But the fact that the property that was partitioned under Ext. B4 was not the tarwad property escaped notice of the courts below. 34. There is no presumption in marumakkathayam law that when individual members are allotted properties towards their separate share in the partition of her father's properties such properties are tavazhi properties in their hands. 35. But the fact that the property that was partitioned under Ext. B4 was not the tarwad property escaped notice of the courts below. 34. There is no presumption in marumakkathayam law that when individual members are allotted properties towards their separate share in the partition of her father's properties such properties are tavazhi properties in their hands. 35. So far as the case on hand is concerned there are no incidents of joint family property or tarwad property. It was held by the Full Bench that when on partition the tarwad breaks up forming a number of new tarwads as it were, each unit takes the property allotted to it for itself free of any claims by the remaining units and when the unit is a multi member unit, it is undisputed that it takes the property with all the incidents of tarwad property and with all its obligations. It was held that the presumption that the property got by a female in her tarwad partition should enure to the benefit of her children is much stronger than in the case of property given to her by her husband. Sec. 17 of the Nayar Act contemplates a Nayar female with children having separate property other than self acquired property. The words "self acquired and separate" occurring in Sec. 17 must be read as "self-acquired and separate " as in Sec. 14 of the Nayar Act of 1088, as per which her children have no right by birth and which, on death of that female devolves by succession and not by survivorship. [See paragraph 15 of the Full Bench decision in Mary v. Bhasura Devi (supra)] The vital incident of tarwad property is the existence of undivided property and joint enjoyment and ownership . If this is destroyed, the property ceases to be tarwad property. Only over two types of properties a right is acquired by birth (a) ancestral property in Hindu Law and (b) joint family or tarwad property which continues to be joint property. Since the properties which were partitioned under Ext. B4 were not the tarvad properties but the self acquired or separate property of Pachi Amma's father, the contention that the property obtained by Pachi Amma as per the B schedule to Ext.B4 would partake thavazhi character is found to be erroneous and unsustainable. Since the properties which were partitioned under Ext. B4 were not the tarvad properties but the self acquired or separate property of Pachi Amma's father, the contention that the property obtained by Pachi Amma as per the B schedule to Ext.B4 would partake thavazhi character is found to be erroneous and unsustainable. The Full Bench decision in Mary v. Basura Devi (supra) is seen wrongly applied to the facts of this case. 36. The learned counsel for the appellants would submit that His Lordship Sri.P.T.Raman Nair (as His Lordship was then) who headed the full Bench in Mary v. Bhasura Devi (supra) rendered a subsequent Judgement in Karthiyayani Pillai v. Govindan Nair - 1968 KLT 119 and it is relied upon in support of his submission as to what actually tavazhi of a female in Sec.2 (3) of the Travancore Nayar Act means. That was a case where the property belonged to one Padmanabha Pillai a person governed by Travancore Nayar Act. By Ext. P1 document dated 20-5-1998 (1098 M.E.) Padmanabha Pillai gifted the property to his wife, the first defendant and his four children then in existence. No intention to the contrary within the meaning of Sec. 22 (1) of Nayar Act was pleaded. Therefore, it was held that the first defendant and her four children took the property in equal shares as tenants in common. The learned counsel submits that, in this case, instead of Padmanabha Pillai gifting the property to his wife and children the properties were settled or partitioned among the sharers who were then alive and, therefore, the sharers could take the property only as individual property. Even in a case where the properties were jointly gifted to the wife and children, his Lordship held that they would hold the property as tenants in common and if so the proposition propounded by the respondents' counsel that the property allotted to one of the daughters in the partition deed should be treated as allotment in favour of her tavazhi cannot be accepted at all, especially in view of the fact that the properties mentioned therein never had the tavazhi or tarwad character. On the other hand, there are specific recitals to the effect that the properties were the self acquired properties of Padmanabha Pillai, the father of Pachi Amma and husband of Narayani Amma mentioned therein. On the other hand, there are specific recitals to the effect that the properties were the self acquired properties of Padmanabha Pillai, the father of Pachi Amma and husband of Narayani Amma mentioned therein. In Karrthiyayani Paillai's case (cited supra ) subsequent to the gift another child (the third defendant) was born to the first defendant and so it was held that the said child got no share in the property by birth and the first defendant's claim that the 3rd defendant got 1/6 share is unsustainable and cannot conceivably be read as a plea to the effect that she and her children took the property gifted as a tavazhi. When even in such a case it was held that the gift was not in favour of a tavazhi and that under Sec. 22 (1) of the Nayar Act the donees took the property in equal shares as tenants in common, the position of the respondents in this case would be more pejorative. 37. In all the decisions including the Full Bench Decision in Mary v. Bhasura Devi (supra) the properties which were the subject matter of partition in the earlier partition deed were the tarwad properties and not be individual or self acquired property of the father. That distinction has to be drawn. 38. To sum up, the courts below failed to take note of the legal character of items 1 and 2 of the properties partitioned as per Ext. B4 and as a result of the same, the courts below went wrong in holding that items 1 and 2 of the plaint schedule were obtained by Pachi Amma from her tavazhi properties. Plaint items 1 and 2 were the self acquired properties of the father of Pachi Amma. As per Ext. B4, there was a separate and exclusive allotment of those plots to Pachi Amma and, as such, it could only be treated as the individual property of Pachi Amma. Therefore, the preliminary decree granted by the court below and confirmed by the appellate Court directing division of those items as if those items were the tavazhi properties, is to be set aside. Since Pachi Amma had absolute right over the property it devolved on her only legal heir Pankajakshi Amma(D1). In the result, this R.S.A. is allowed. The preliminary decree granted by the courts below directing division of plaint items 1 and 2 is set aside . Since Pachi Amma had absolute right over the property it devolved on her only legal heir Pankajakshi Amma(D1). In the result, this R.S.A. is allowed. The preliminary decree granted by the courts below directing division of plaint items 1 and 2 is set aside . The suit so far as it relates to those items stands dismissed.