Defendants 1,3,4,6 to 8,10 to 14 and 17 to 20 in O.S. NO: 127 of 1978 on the file of the Court of Subordinate Judge, Kozhikode are the appellants. Suit was for partition of plaint schedule properties.

Plaint schedule properties belonged to one Kannambath Narayanan Nair, father of plaintiff and 1st defendant. He executed a will Ext.A1 dated 20-10-1989 bequeathing the plaint schedule property in favour of plaintiff and 1st defendant and their mother Ammalu Amma, now deceased, and the children of 1st defendant. Narayanan Nair died on 1-1-1957. The parties were governed by Marumakkathayam Law. It is the plaintiffs case that on the death of Narayanan Nair, plaintiff became entitled to 1/3 share, that subsequently, plaintiff smother died and her right became devolved on plaintiff and 1st defendant, that therefore plaintiff became entitled to 1/2 share and defendants land 2 to 11, the children of 1st defendant together became entitled to the remaining 1/2 share, that a notice was sent by him demanding partition, to which a reply was sent contending that the plaintiff was entitled to only 1/13 share and that since the properties were 'puthravakasam tavazhi properties', plaintiff was entitled to the share claimed in the plaint.

3. Defendants 1,3 and 6 to 11 filed written statement denying that the plaint schedule property was a puthravakasam property and contending that the plaint property was bequeathed for the benefit of the tavazhi consisting of the plaintiff, 1st defendant and their mother and children of 1st defendant, that on the date of the will, the tavazhi consisted of only plaintiff s mother, plaintiff, 1st defendant and her children, namely, defendants 2 to 8 and that as per the stipulation in the will, all the members of the tavazhi were entitled to equal rights in the property. They also averred that the averment in the reply that the plaintiffs share was only 1/13 is a mistake and that the defendants were entitled to 21 shares out of 22 shares.

4. The 2nd defendant also filed a written statement raising similar contentions. Defendants 4 and 5 also filed a separate joint written statement adopting the same contentions.

5. The court below found that in view of S.48 of the Madras Marumakkathayam Act, the property had to be divided on the stirpital principle and in that view of the matter, it was held that the plaintiff was entitled to 1/2 share.

6. In this appeal, learned counsel for appellants challenged the finding of the lower court. Learned counsel raised two contentions:-(1) The bequest of the plaint schedule property was in favour of named individuals and not to the tavazhi and therefore proviso to S.48 of the Act has no application; and (2) Even assuming that the bequest was in favour of the tavazhi, the proviso to S.48 has no application to the present case and the property has to be divided on per capita basis.

7. It is profitable to quote the relevant clause in Ext.A1:-

Learned counsel for the appellants contended that the expression "used in the will in respect of the bequest of item 1, which is plaint schedule property only means that the individuals named therein would enjoy the property as tenants in common and does not lead to the inference that the bequest is in favour of the tavazhi consisting of the plaintiff, 1st defendant and her children. He invited my attention to the expression

and argued that it would mean that all the properties are to be enjoyed as individual properties of the legatees. He also contended that in the case of joint bequest in favour of plaintiff, 1st defendant and their mother and the children of 1st defendant, the legatees have to enjoy the property as tenants in common.

8. I am unable to agree with the contentions of the learned counsel. Plaintiff, 1st defendant and her children form a natural tavazhi and there is a presumption under Marumakkathayam Law that such a bequest is in favour of the tavazhi. When a gift, bequest or purchase is made in favour of the wife, and all the ch