The main legal point established in the judgment is the interpretation of a will under marumakkathayam law and the application of S.48 of the Madras Marumakkathayam Act, including the retrospective nature of the proviso to S.48.

1. A short but interesting question of marumakkathayam law comes up for consideration in this second appeal.

2. A marumakkathayee Thiyya by name Kunhambu executed a will, Ex. Al, in favour of his five children then alive, born in his wife, Devaki, with the stipulation that the properties should be enjoyed as puthravakasam tavazhi properties in equal right without partition by the tavazhi constituted by the said children, children to be born thereafter in Devaki and the children and grandchildren (santhathi santhanangal) in the female line. There was a further provision restraining encumbering or alienating the properties. The plaintiff-respondents are one daughter of Kunhambu and her children and grandchildren; and they have claimed partition of the properties on the per capita basis. Both the lower courts have allowed this claim; and in second appeal the counsel of the third defendant, one of the sons of Kunhambu, questions the correctness of this decision.

3. The argument of the appellant's counsel is that the bequest is to the five persons named in the will. In the alternative he contends that the bequest is to the tavazhi of Devaki, though her name is not mentioned as one of the beneficiaries; and that since the bequest is to that tavazhi as puthravakasam properties, the proviso to S.48 of the Madras Marumakkathayam Act must apply in partitioning the properties, in case the testator died after the Act came into force. This argument was advanced even before the lower appellate court with a request for remand of the case to find out whether the testator died before or after the promulgation of the Madras Marumakkathayam Act; and the request was refused by the lower appellate court. The lower appellate court expressed the view that even if the death of the testator was after the Act came into force, that would not make any difference in the result of the case.

4. I shall now consider the question whether the proviso to S.48 of the Madras Marumakkathayam Act can apply to this case, if the testator died after the Act came into force. The other question, namely, whether the bequest is to the five named persons in the will or to the tavazhi of Devaki, will also be answered. S.48 provides that when a person bequeaths property to his wife alone or to his wife and one or more of his children by such wife together, such property shall, unless a contrary intention appears from the will 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. In Ex. Al the bequest is not to the wife alone or to the wife and children, but is to the five children then alive. In spite of the bequest being to the children then alive, can it be held that the bequest is really to the tavazhi consisting of the wife and the children? A reading of the relevant provisions extracted above will make it abundantly clear that the testator's intention was to benefit the tavazhi and not the five individuals alone mentioned by name. I may also refer to a decision of the Madras High Court, wherein a similar course was adopted in interpreting a similar will. In Ayikkarakath Puthiya Purayil Amina Umma v. Ayikkarakath Puthiya Purayil Mammad (1955-II M. L. J. 161) Rajamannar C. J., speaking for the Court, has pointed out that there were two modes of interpreting such a will, one, holding that the bequest was to the tavazhi consisting of the wife and children, and two, holding that the bequest was only to the individuals named in the document rejecting the other provisions as repugnant. The learned Chief Justice has adopted the former course, which I am also adopting in this case. Thus, the bequest under Ex. A-1 is to the tavazhi of Devaki and her children and not merely to the five named individuals.

5. The next question is whether in such a case the proviso to S.48 can apply. The proviso lays down that in the event of partition under Chapter V