The court clarified the application of S.48 of the Madras Marumakkathayam Act and its retrospective operation, establishing that it did not apply to gifts or bequests before the Act.

1. This Second Appeal is by Defendants 1 to 4 and 6 to 18 in O.S. No. 394 of 1963, Munsiff's Court, Badagara which was a suit for partition. The properties sought to be partitioned were gifted by one Cba¬thappa Kurup under Ext. B-1 dated 1711902 in favour of his wife Parukutty Amma and his children then existing by her, namely Ananthan Nambiar (the plaintiff) Lakshmi Amma, Chindan Nambiar and Krishnan Nambiar. Ext. 6-1 contained a provision that the income from the properties was to be utilised also for the support of the children to be born to the donor by Parukutty Amma The plaintiff was prepared to concede a share to Narayanan Nambiar, the 4th Respondent who was the subsequently born child. Thus a 1/5th share for each of the five children was claimed on the ground that the division had to be on the stirpital principle in accordance with the proviso to S.48 of the Madras Marumakkathayam Act 1933. Supplemental Defendants 6 to 19 were the descendants of the Ist Defendant and it was claimed by them and by Defendants 1 to 4 that the properties belonged to the tavazhi constituted by the plaintiff and Defendants 1 to 4 and 6 to 19. Both the courts below upheld the plaintiff's claim for partition and decreed the suit as prayed for.

2. In Second Appeal, it was contended that the gift deed Ext. B-1 enured to tavazhi of Parukutty Amma and her children and the lineal descendants in the female line; that being a gift executed prior to the Madras Marumakkathayam Act 1933, neither the main part of S.48. nor the proviso thereto had application; and that division had to be on a per capita basis. The courts below on a construction of Ext. B-1 held that Chathappa Kurup intended to benefit only his wife and his children through her, and not the lineal descendants in the female line, and that therefore the property belonged only to the plaintiff and Defendants 1 to 4; and that Defendants 6 to 19 had no rights therein.

3. We cannot sustain the conclusion of the courts below on the construction of Ext. B-1. The gift was to the wife and all the then existing children of Chathappa Kurup. It provides that the income is to be enjoyed by the donees and by any children to be born thereafter to the donor by Parukutty Amma. The document contemplated a living in commonality by all the donees. It is well settled that a gift or bequest in favour of the wife and all the children, is presumed to be on behalf of the tavazhi. Disagreeing with the courts below, we have no hesitation to bold that Ex. B-1 enured for the benefit of the puthravakasam tavazhi of Parukutty Amma and her children.

4. The next question is: how is a division to be made? S.48 of the Madras Marumakkathayam Act reads:

"48. Construction of bequests, gifts etc. to wife or wife and children: Where a person bequeaths or makes a gift of any property to, or purchases any property in the name of his wife alone or his wife and one or more of his children by such wife together, such properties shall unless a contrary intention appears from the will or deed of gift or purchase or from the conduct of the parties, be taken as tavazhi property by the wife, her sons and daughters by such person and the lineal descendants of such daughters in the female line:

Provided that in the event of partition of the property taking place under Chapter VI, the property shall be divided on the stirpital principle, the wife being entitled to a share equal to that of a son or daughter."

It was held by a Division Bench of the Madras High Court (Pandrang Row and King JJ.) in Krishnan v. Thala (AIR. 1941 Mad. 605) that the Section did not have any retrospective operation and that in the case of an acquisition prior to the date of the Act, the mode of division was per capita and not per stirpes. The acquisition there was in the year 1881, by the husband Kelan in favour of his wife Manikkam. Two reasons were given in support of the decision: First that on the date of the Act Manikkam was not alive, that her onion with h