The main legal point established in the judgment is the interpretation of the customary Marumakkathayam law of Malabar and the application of S.48 of the Act to determine the presumption of thavazhi property in cases of gifts by a Nair husband or father to his wife or children.

T.K. Joseph, J.

1. This appeal arises from the preliminary decree in a suit for partition. The plaintiff sued for partition of the properties described in schedules A, A1, B and C appended to the plaint. The suit was allowed only in respect of the properties in schedule A; hence this appeal by the plaintiff.

2. The facts necessary for the decision of the appeal may be stated: The plaintiff and defendants 1 and 2 are the descendants of one Kunji Amma who had six sons, Raghavan Nair, Kannankutty Nair, Ramankutty Nair, Govinda Menon, Sekharan Nair and Madhavankutty Menon, and a daughter, Kallyani Amma. Kallyani Amma had two sons who are defendants 1 and 2 and a daughter, Kunhikutty Amma. The plaintiff is the only surviving son of Kunhikutty Amma. The properties in schedule A are those obtained by Kunji Amma's thavazhi in partition of the main tarvvad in 1927. B schedule represents properties alleged by the plaintiff to have been obtained by the thavazhi from Kunji Amma's husband, Gopala Menon. Part of B schedule properties was compulsorily acquired by the Government and the compensation due in respect of the same is included in schedule A1. C schedule represents the movables. At the time of suit, the three surviving members of the thavazhi were the plaintiff and defendants 1 and 2. The plaintiff sued for partition and recovery of one-third share in all the properties with profits, past and future.

3. Defendants 1 and 2 raised practically the same contentions. According to them, the properties in schedule A had been partitioned under Ext. B14 on 30-5-1950, the plaintiff being represented by the first defendant. As regards B schedule properties, it was contended that they belonged to Kunji Amma and her children and not to the thavazhi. After the death of three of the brothers, the remaining brothers and Kallyani Amma partitioned these properties under Ext. B68 dated 26-6-1939. Kallyani Amma took the shares of the rest and she bequeathed them to defendants 1 and 2 under a will, Ext. B67, executed on 4-4-1942. The plaintiff's claim to the properties in schedule B and the compensation money in schedule A1 was thus denied. As regards the movables it was contended that the same did not exist. Defendants 3 and 4 who claimed to be mortgagees of the second defendant supported defendants 1 and 2 and further contended that the amounts due to them under the mortgages should in any event be charged on the second defendant's share.

4. The court below set aside the partition of A schedule properties holding that the same was not valid or binding on the plaintiff and gave the plaintiff a preliminary decree for partition and recovery of one-third share of the same. The suit was dismissed as regards B schedule properties and the compensation money, holding that the same did not form thavazhi property. As regards the movables, it was held that there was no satisfactory evidence regarding the same. The plaintiff has therefore preferred this appeal from the decree regarding the properties in schedules A1, B and C. The defendants have acquiesced in the decree.

5. The main point for decision in this appeal is whether the plaintiff is entitled to a share in the properties in schedule B. There are seventeen items of immovable property in schedule B and these were purchased under sale deed, Ext. B1, on 19-12-1896. Ext. B1 stands in the names of Kunji Amma and such of her children who had attained majority on that date. The names of Sekharan Nair and Madhavankutty Menon who were minors are not included in Ext. B1. Gopala Menon, the husband of Kunji Amma, was not alive on the date of Ext. B1 but the finding, which is not objected to by either side, is that the acquisition was made with funds left by Gopala Menon. Though the names of the two minor sons of Kunji Amma were not included in Ext. B1, it is seen that three years later, Kunji Amma and her children who figured in Ext. B1 acknowledged their right in Ext. B2 dated 16-5-1899, a deed of assignment of