The main legal point established in the judgment is the interpretation of the terms of the will to determine the intended beneficiaries and the nature of the gift, as well as the determination of the quantum of shares in a partition suit.

1. This appeal is by the defendants 1 to 4 in a suit for partition and the question is how far the rule as to the nature and incidents of puthravakasam property enunciated in Krishnan Nair v. Cheethamma,10 Cochin Law Reports 401 and since followed in the erstwhile Cochin jurisdiction is applicable to the case and if so whether it could not now be adopted. In view to the importance of the question raised this case has been referred to the Full Bench.

2. The plaintiffs 1 to 6 and the defendants 1 to 13 are the members of the Thavazhi of Madhavi Amma deceased. The 1st plaintiff and defendants 1 to 5 are the children of Madhavi Amma through her husband Parameswaran Pillai. Plaintiffs 2 to 5 are the children of the 1st plaintiff Lekshmikutty and the 6th plaintiff is the child of the 2nd plaintiff Thankamma alias Malathi. Defendants 6 to 13 are the children of the 5th defendant Narayanan. Parameswaran Pillai belonged to Kottayam in Travancore and had a flourishing practice as a lawyer attached to the District Court in Cochin. He had considerable properties both in Travancore and in Cochin and these he disposed of by Ext. A will dated 11.5.1094 which came into effect soon after, on his death in Medom of that same year. We are concerned in this suit with the bequest of item 13 under the will. That bequest was in favour of his wife Madhavi Amma and his children through her then existing and to be born and also the offspring of the female children. The plaintiffs claimed that the bequest was in favour of the Thavazhi as a whole and laid this suit accordingly for partition by metes and bounds and their 6/19 share over the A Schedule immovable property and the B Schedule movables which were alleged to comprise the item 13 aforesaid. The defendants 14 to 18 were the wife and children of the 2nd defendant and were impleaded as persons in possession for purpose of effective relief.

3. Defendants 1 to 4 and 5 to 13 contested the suit. The contention of defendants 1 to 4 was that on proper construction the bequest under Ext. A was only in the nature of a Puthravakasam gift in favour of the wife and children of the testator which they took absolutely and as tenants-in-common. The plaintiffs 2 to 6 and the defendants 6 to 13 who represented the grandchildren, were in this view not entitled to get any share in the properties concerned. The contention was also raised that the plaintiffs would in any event be entitled only to 5/16 share since division of status must be deemed to have been attained long previously in 1105 when Ext. D partition took place as regards the Travancore properties. They further questioned the availability of B Schedule movables for purpose of partition and also the right of the plaintiffs to mesne profits as claimed. They also put forth a claim by way of improvements. Defendants 5 to 13 supported the plaintiffs in regard to the Thavazhi character of the bequest but they claimed that the distribution should be on the basis of a divided status on intermediate date in 1121, so as to exclude some of the grand children.

4. The court below upheld the plaintiffs' case that the grand-children also could claim as devisees under the will and that the allotment should be had as between 19 members comprising plaintiffs 1 to 6 and defendants 1 to 13. It accepted however the contentions of the defendants 1 to 4 in regard to the movables available for division. It ultimately granted a preliminary decree declaring the shares of the parties and also the right of the plaintiffs on the one side to mesne profits and of the 2nd defendant on the other to improvements postponing the respective ascertainment to stage of final decree. Hence this appeal by the defendants 1 to 4.

5. It will be useful before we proceed further to refer to the actual terms of clause (5) of Ext. A dealing with the bequest in question:

6. That is to say, the legacy was made of item 13 and all the movables contained therein. The legatees were the testator's wife