The main legal point established in the judgment is that the devolution of a Puthravakasam bequest under the Madras Marumakkthayam Act is controlled by the proviso to S.48, and the rule of partition should be 'per stirpes' for the property given by a marumakkathayee in favour of his wife and children as tavazhi property.

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 property in the name of, his wife alone or 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 deed of gift or purchase 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:

Provided that, in the event of partition of the property taking place under Chap.6, the property shall be divided on the stirpital principle, the wife being entitled to a share equal to that of a son or a daughter."

The learned Judge has correctly found that the legatee under Ext. A-1 is the Thavazhi of the testator's wife, but he has gone wrong in his assumption that in the event of partition, the rule to be followed is 'per capita' i.e., individual partition by which the property is to be divided equally amongst all the members of the Tavazhi, in existence at the time of partition. In other words, according to the learned Judge, the property would devolve not only on the members of the Thavazhi in existence at the time of the testator's death, but also on those born subsequently. This conclusion was reached by the learned Judge on a construction of the provision in the will that the property shall descend on future born children also i.e., children to be born to the testator's daughters. From this provision in the will, an inference was drawn by the learned Judge that the testator's intention was that the property should be enjoyed as an item of tarwad property subject to partition on 'per capita' basis as provided in Chap.6 of the Act. The mode of division contemplated in Chap.6 is 'per capita' among all the members of the tarwad or thavazhi, in existence at the time, But the position is different in the present case. Here we are confronted with a Makkathayam or Puthravakasam bequest i.e., property bequeathed by a Marumakkathayee in favour of his wife and children to be enjoyed by them in the female line, The devolution of such a property is controlled by the Proviso to S.48. Such property shall descend on the legatees not in the same way as an item of tarwad property would devolve, on the members constituting the tarwad. In the event of partition the stirpital principle would have to be followed in the case of Puthravakasam property. It is no doubt true that the testator has evolved his own method of devolution in the will but in giving effect to his formula, the law governing the parties would have to be borne in mind. In other words, no member of a Marumakkathayam tarwad can create a thavazhi 'ad hoc' or by act of parties. In the present instance, the will takes effect on the death of Narayana Menon, that is to say, succession opens on his death. Those members of the tava