Under the customary marumakkathayam law in Malabar, there is no presumption that the acquisition is for the benefit of the tavazhi in cases of gift or acquisition in the name of the wife alone or in the joint names of the wife and some alone of the children.

1. The question arising for decision in this case is whether under the customary marumakkathayam law which obtained in the Malabar area prior to the passing of the Madras Marumakkathayam Act there is a presumption that in the case of a gift, bequest or acquisition made by a person in the sole name of his marumakkathayee wife or in the joint names of the wife and one or more of her children to the exclusion of some others the benefit of such transaction is to enure to the tavazhi consisting of the wife and all her children together with the lineal descendants in the female line. This case has been referred to a Full Bench because of an apparent conflict between the views expressed on the said question in two Division Bench rulings of this court. In Prabhakara Menon v. Gopala Menon and others 1960 KLJ.161 a Division Bench consisting of M. S. Menon, J. (as he then was) and T. K. Joseph, J. while dealing with a case from the Malabar area observed that "in the case of gifts by a Nair husband or father to his wife or children or to the wife and some children the courts in Travancore and Madras have been taking the view that the gift would enure to the tavazhi. In Lakshmi Amma v. Anandan Nambiar 1973 KLT 753 which was also a case from Malabar, a Division Bench consisting of our learned brothers Gopalan Nambiyar and Viswanatha Iyer, JJ., after referring to the earlier case-law on the subject including the decision in Prabhakara Menon v. Gopala Menon and others 1960 KLJ.161 observed as follows:

"Prior to the Marumakkathayam Act, the position under the customary marumakkathayam law was, that a presumption of the tavazhi nature of the gift or bequest to acquisition would be raised only if the same was in favour, or in the name/names, of the wife and all the children, or of all the children alone, who by themselves constitute a tavazhi. A gift, bequest or acquisition in the, name or names of the wife alone, or of the wife and one or more of the children alone to the exclusion of the others, would not give rise to such a presumption."

Strictly speaking, the question whether any presumption as to the tavazhi nature of the acquisition arises where the gift, bequest or acquisition was in the name of the wife alone had not arisen in either of the aforementioned cases and the observations made by the two Division Benches on the said question are only in the nature of obiter dicta. In Prabhakara Menon v. Gopala Menon and others 1960 KLJ.161 the question that arose for decision was whether an acquisition made in the joint names of the wife and her adult children with funds provided by the husband should be presumed to be one in favour of the tavazhi consisting of the wife and all her children and descendants in the female line. Although the names of two minor children had not been included in the document of acquisition, the court found that the said omission was immaterial since by a subsequent document those minor children were also recognised as having rights in the properties and that the original acquisition itself had, therefore, to be treated as one by the mother and all the children with funds provided by the father. In view of the said finding there was really no necessity at all for the court to consider the question as to whether there is any scope for drawing a presumption regarding the nature of the acquisition in cases where the document evidencing the transaction is in the name of the wife alone or in the joint names of the wife and some alone of the children. Likewise, in Lakshmi Amma v. Anandan Nambiar 1973 KLT 753 also the Division Bench was dealing with the case of a gift made by a person in 1902 in favour of his marumakkathayee wife and all their children then existing. However, in as much as the two Division Benches have made some observations indicating divergent views on the above question, it was considered desirable to have an authoritative pronouncement on the question and hence this case has been placed before