Presumption regarding purchase in name of wife and children.

This appeal is directed against the decree, and judgment of the Court of the Subordinate Judge of Ottapalam in O.S. No.85 of 1944, a suit filed by the appellants for partition and for delivery of possession to the plaintiffs and their mother, the 14th defendant of their 7/20 share in the tarwad properties described in the plaint B schedule. Before us, the learned counsel appearing for the parties did not cover the entire field of disputes occupied in the Court below. It would, therefore, be sufficient if the necessary facts relevant to the questions raised were stated.

Defendants 1, 2, 6, 9 and 12 to 14 are the children of Kunhikutti Kolpad and her husband Kunhan Nedungadi. Plaintiffs are the children of the 14th defendant. The other defendants are the children of defendants 2, 6 and 9. Originally, Kunhikutti Kolpad and her children were members of a tarwad called Mandilakkottil. In 1914, there was a partition among the members of the tarwad, and Kunhikutti Kolpad and her children separated themselves and constituted a different tarwad. Kunhan, the husband of Kunhikutti Kolpad, was also in affluent circumstances. The B schedule properties were his self-acquisitions. Though this fact was disputed in the Court below, it is conceded before us. He purchased the Kanom right in items 1 to 47 of the plaint B schedule excluding items 16 to 21, in the. name of his wife Kunhikutti Kolpad, items 16 to 21 in the name of his two children, defendants 1 and 14, and the leasehold interest in items 51 to 53 in the names of his wife Kunhikutti Kolpad and four of her children. He acquired the jam right in items 48 to 50 in his own name under Exhibit B-8. Kunhikutti Kolpad died in 1919, and Kunhan died in 1932. Long before his death, on 15th November, 1923, Kunhan executed a will Exhibit N-23 bequeathing to his seven children all the properties belonging to him exclusively. On the same day, he and his seven children executed a settlement deed, Exhibit B-24, in regard to items 1 to 47. After the death of Kunhan in the year 1934, his children defendants 1, 2, 6, 9 and 12 to 14 partitioned the properties they got from their father, under Exhibit B-31 on stirpital basis. As regards the properties belonging to their tarwad, the 14th defendant and her children instituted O.S. No.72 of 1938 on the file of the Walluvanad District Munsif’s Court. Pending the suit, the parties settled their dispute by executing the partition deed Exhibit B-72 The suit was dismissed. At the time Exhibit B-31 was executed, the plaintiff 1 to 4 were minors and the plaintiffs 5 and 6 were not born. After two of the plaintiffs became majors, they filed O.S. No.85 of 1944 for partition of the B Schedule properties on per capita basis. Their case is that the B schedule properties belong to their tavazhi and the partition under Exhibit B-1 effected during their minority as per stirpital basis is illegal and would not bind them. The learned Subordinate Judge held that under Exhibits B-23 and B-24, defendants 1, 2, 6, 9 and 12 to 14 took the properties as tenants-in-common and, therefore, the plaintiffs have no right to reopen the partition on that basis. On that finding he dismissed the suit. The plaintiffs preferred the above appeal.

The main question raised in the appeal by the learned Counsel for the appellants turns upon the construction to be put on Exhibits B-23 and B-24 dated 15th November, 1923. Before we advert to the question raised, it would be convenient to clear the ground by disposing of some of the incidental questions argued in the case. One of the points urged by the respondents is that section 48 of the Madras Marumakkattayam Act (Act XXII of 1933) would govern the construction of the documents before us. Section 48 reads:-

“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