The Nair Act of 1088, particularly S.17, altered the presumption of Makkathayam gifts in favor of individuals, superseding the previous presumption in favor of the tarwad or thavazhi.

1. This Second Appeal is by the plaintiffs 1 and 2 and arises out of a suit for partition among the members of a Nair Tarwad hailing from the Travancore jurisdiction. We are concerned only with the availability of items 2 and 3 for purpose of partition and that depends upon the question whether the presumption applicable in that jurisdiction to the case of Makkathayam gift applies at all to a gift by the father's tarwad and if so, whether it applies when the gift took place after the Nair Act of 1088 had come into force. In view of the importance of the question this appeal has been referred to a Full Bench.

2. The 2nd defendant Narayani Amma is the seniormost member in the tarwad, being the mother of the 1st defendant and Parvathi, deceased, whose children are the 1st plaintiff and 3rd defendant. The plaintiffs 2 and 3 are the children of the 1st plaintiff. There were four items scheduled to the plaint and claimed to be available for division among the plaintiffs 1 to 3 and defendants 1 to 3. Items 2 and 3 were gifted under Ext. I dated 4.8.1089 in favour of the 2nd defendant alone by her father's brother and other members of his tarwad "on account of love and affection". Claiming the items as her own, she gifted them in favour of her only son the first defendant under Ext. II dated 22.7.1116. The plaintiffs contested the validity of Ext. II on the ground that Ext. I gift enured to the benefit of the tarwad of the 2nd defendant and not alone to herself and accordingly claimed for partition of their 3/6 share over those items as well. The trial court found in favour of the plaintiffs while the lower appellate court has found against them. Hence this second appeal.

3. Learned counsel for the appellants urged that the common law in the Travancore jurisdiction governing Marumakkathayees was well settled, that a gift by a husband to the wife or by the father to his children or any of them known as Makkathayam gifts was presumed to be for the benefit of the sub-tarwad of his wife and children and that this principle had been extended to gifts by near relations as brother, mother or paternal uncle. The change was first brought about by S.17 of the Nair Act of 1088 to be later affirmed by the Nair Act of 1100 that so far as Makkathayam gifts made after 1088 were concerned, the presumption was to be one of equality of right between the mother and all the children with the principle of partibility attached. According to learned counsel, this change must be confined to gifts by husband or father and should not be extended to gifts by other near relations eg. the paternal uncle and his tarwad as here, in regard to which the customary law had attached the incident of tarwad character. He referred to S.44(a) of the Nair Act of 1100 which saved "the existing rules of Marumakkathayam law, custom, or usage, except to the extent hereinafter expressly provided for". Learned counsel for the respondents contended that the principle of tarwad character as applied to Makkathayam gifts by husband or father to wife or children, had not been extended to gifts by paternal uncle who was only in the position of a stranger and that even assuming such extension, there was no question here of the ascertainment or applicability of a custom or usage within the meaning of S.44(a) of the Nair Act. The matter was merely one of construction in respect of which the legislature should be deemed to have given a sure guidance for the future i.e., by emphasis of the aspect of a tenancy in common as contrasted with a tarwad character of the gift.

4. The questions that arise for consideration therefore is firstly how far the principle as to Makkathayam gifts made by the members of a father's tarwad and secondly whether the principle is applicable after the legislature had once interfered therewith.

5. Taking up the first question we find the principle applicable in cases of Makkathayam gifts was first enunciated in Narayanan v. Parvathi Nangeli 5 TLR 116, which