JUDGMENT

HANSARIA, J. :—This appeal by special leave requires determination of the question as to whether the gift of the suit property by Padmanabha in favour of his sister was to the Tavazhi of the sister or was for the benefit of the sister alone. The parties being governed by Marumakkathayam Law, to answer the question, we shall have to refer to that law and ascertain the intention of the donor as reflected in the gift (which was brought on record in the trial Court as Ex. A-1); and then decide whether the gift to Kochukunhi has to enure to her benefit alone or to her Tavazhi.

2. Respondent No. 1 filed the suit at hand claiming one-third share in the gifted property as a son of Kochukunhi, who had another son and a daughter. The trial Court dismissed the suit. On appeal, the High Court held that the plaintiff was entitled to one-sixth share and remanded the case to the trial Court for fresh disposal after answering all the other issues in the suit. Feeling aggrieved, the daughter of Kochukunhi has filed this appeal.

3. Let the broad terms of the gift deed be first noted. The perusal of the same shows that the properties were gifted out of love and affection to the sister and her descendants in the female line. The deed further says that the property shall devolve in no other way. Then it recites that if there be need to encumber the property, the document shall be signed by the major female members. It, however, further says that after the life-time of the donor and donee, all the major male members should join the document to encumber the property otherwise it would not be valid.

4. Relying on the aforesaid terms of the gift deed, it is contended by Shri Viswanath Iyer, Sr. Advocate, appearing for the appellant that the daughter of Kochukunhi alone had right and title in the property after the death of the donee. The High Court, however, did not accept this case of the defendant-appellant, because, according to it, the gift being to the sister, a female, has to be presumed, in the absence of the contrary intention, to be a gift to be held by the donee as tenancy-in-common. It was further opined by the High Court that notwithstanding the exclusion of male members, the plaintiff was entitled to claim a share as a member of Tavazhi, and there cannot be any Tavazhi excluding the male member. As Kochukunhis daughter was alive at the time of gift, the High Court opined that Kochukunhi was entitled to half of the gifted properties; and she having one daughter and two sons, the plaintiff became entitled to one-third of the half, that is, one-sixth of the whole. It is because of this that the plaintiffs claim to one-sixth share was accepted and not one-third as prayed for.

5. Shri Viswanath Iyer has contended that under Marumakkathayam Law it is the daughter alone who was entitled to whole of the property of Kochukunhi. Shri Poti appearing for the first respondent, however, submits that where a gift is to a relation like wife, she holds the same on behalf of her children also, if there by any. To put it differently, the presumption would be that the donee takes on behalf of the Tavazhi, of which the son is undoubtedly a member.

6. Being concerned with parties governed by Marumakkathayam Law, we may first state that in this system of law succession to property is traced through females, though the expression Marumakkathayam strictly means inheritance by sisters children. It is because of this that a mans heirs are not his sons and daughters, but his sisters and their children - the mother forming the stock of descent and inheritance being traced through mother to daughter, daughters daughter and so on. It may then be stated that a Marumakkathayam family is known a tarawad and consists of a group of persons, males and females, all tracing descent from a common ancestress. An ordinary Tarawad consists of the mother, her children, male and female, the children of such females and their descendants in the female line, how-low-soever, living