K. Sadasivan, J.

1. The devolution under the Madras Marumakkthayam Act (Act XXII of 1933 as amended) of a Puthravakasam bequest is the question before us. The testator is one Narayana Menon, a Marumakkathayee. By the will Ext. A-1, he bequeathed the scheduled properties to his wife Lakshmi and his children born to her (who have been mentioned by name in the document) and those if any, yet to be born and also to the children to be born to his daughters. The persons named in the will and those to be born in future as indicated in the document are to possess and enjoy the properties equally (XXXX) The learned Subordinate Judge on a construction of the document has been persuaded to the conclusion that the bequest is to enure to the Thavazhi of the wife and that the members constituting her Thavazhi are to take the properties with all the incidents of tarwad property including right to demand partition and liable to partition on 'per capita' basis. This view of the learned Judge is challenged before us basing mainly on the proviso to S.48 of the Madras Marumakkathayam Act. The section lays down:-

"Where a person bequeaths or makes a gift of any property to, or purchases any prope