King, J.

1. In this appeal the question arises whether the provisions of Section 48 of the Madras Marumakkattayam Act of 1932 shall be applied to the partition of a certain item of property. The property was admittedly purchased in the year 1881 by the husband of one Manikkam in the name of Manikkam and their eldest daughter Choyichi. The first part of 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 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.

2. The section Concludes with a proviso:

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

3. Both the Courts below have held that this property must be divided per capita or in other words, t