Holding

A gift to a sister under Marumakkathayam law is presumed to be for the benefit of her Tavazhi, so her children share the property equally.

Summary

Padmavathy Amma appealed to the Supreme Court against a decision of the Kerala High Court that awarded a one‑sixth share of a gifted property to the son of her sister, Kochukuni. The dispute arose from a gift made by Padmanabha to his sister, who had two sons and a daughter, and the question was whether the gift was intended solely for the sister or for her matrilineal family (Tavazhi) under Marumakkathayam law. The Court examined the language of the deed, the presumption under Marumakkathayam and Travancore Nair statutes, and relevant case law, concluding that a gift to a woman is presumed to be for the benefit of her Tavazhi unless expressly excluded. Consequently, all three children of the sister were deemed co‑owners, and the son’s entitlement to one‑sixth of the whole property was upheld. The appeal was dismissed, leaving the High Court’s decree in force.

Issues considered

Whether a gift by a brother to his sister under Marumakkathayam law is for the sister alone or for her Tavazhi, thereby entitling her children to a share.
Whether male members of the family can be excluded from the gift under the applicable statutes.

Legislation cited

Marumakkathayam Acts. 48
Travancore Nair Acts. 22

Subjects

Marumakkathayam lawTavazhigifttenancy-in-commonmatrilineal successionjoint familyspecial leaveSupreme Court

Judgment

A PADMAVATHY AMMA
v.
AMMUNNI PANICKER AND ANR.

MAY 2, 1995

B [R.M. SAHA! AND B.L. HANSARIA, JJ.j

Hindu Law:

Mantmakkathayam Act: Section 48.
c Travancore Nair Act: Section 22.

Gift by brother to siste,-Parties governed by Marumakkathayam
Law-Held: children of donee sister are also entitled to share.

D P made a gift of property in favour of his sister K who was having
two sons and a daughter. The parties were governed by Marumak·
kathayam Law. Respondent No. 1, son of K, filed a suit claiming one third
share in the gifted property but the Trial Court dismissed the same. On
appeal the High Court held that (i) as the gift was to a female it should
be presumed, In the absence of the contrary intention, that it was to be
E held by the donee as tenancy-in-common; there cannot be any Tavazhi
excluding the male members so notwithstanding the exclusion of male
members, plaintiff-Respondent-1 was entitled to claim a share as a mem·
her of Tavazhl. As K's daughter was alive at the time of gift the High Court
held that K was entitled to half of the gifted properties. Further as K was
F having one daughter and two sons, the plaintiff-respondent was held
entitled to one-third of the half share i.e. one sixth of the whole.

In appeal to this Court on the question whether the gift was for the
benefit of K alone or to her Tavazbi,

Dismissing the appeal, this Court
G
HELD : 1. In Marumakkathayam system of law succession to
property is traced through females, though the expression Marumak·
katbayam strictly means inheritance by sister's children. It is because of
this that a man's heirs are not bis sons and daughters, but his sisters and
H their children • the mother forming the stock of descent and inheritance
1056
t
PADMAVATHY AMMA v. AMMUNNI PAN!CKER [HANSARIA, J.] 1057

being traced through mother to daughter, daughter's daughter and so on. A
A Marnmakkathayam family is known a Tarwad and consists of a group
of persons, males and females, all tracing descent from a common an·
cestress. An ordinary Tarawad consists of the mother, her children, male
and female, the children of such females and their descendants in the
female line, how-low-soever, living under the control and direction of the B
Karnavan, who is the eldest male member. Thus there is no doubt that
under the gift in question, even if the same be construed to have been only
for the benefit of K all her three children had equal interest in the
property. The High Court was, therefore, right ii! decreeing the suit of the
plaintiff to one-sixth share of the suit property. (1059-C·D, 1061-E]
c
KK Kochuni v. State of Madras, [1960] 3 SCR 887, relied on.

M.P. Kunhamina v. M.P. Kunhambi, I.L.R. 32 Mad. 315, distin·
guished.

KM. Kutty v. N.P. Ayissa, ILR 51 Mad. 574; Kunnacna Umma v. Kutti D
Mammi Hajee, I.L.R. 16 Mad. 201 andA.K Haji v. l.P.Bi, (1958] K.L.T. 815,
I referred to.

M.P. Jospen, The Principles of Marumakkathayam Law, pages 1 and
2; Mayne's Hindu Law pages 1188 and 1189, 12th edn; KS. Variar,
Marumakkathayam and Allied System of Law in the Kera/a State, page 91, E
1st edn. (1969), referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5259 of
1995.
F
From the Judgment and Order dated 26.7.89 of the Kerala High
Court in AS.No. 247 of 1987.

G. Viswanath Iyar and N. Sudhakaran for the Appellant.

P.S. Poti and Ms. Nalini Poduval for the Respondents. G
_j The Judgment of the Court was delivered by

HANSARIA, J. This appeal by special leave requires determination
of the question as to whether the gift of the suit property by Padmanabha
in favour of his sister was to the Tavazhi of the sister or was for the benefit H
1058 SUPREME COURT REPORTS [1995] 3 S.C.R.

A of the sister alone. The parties being governed by Maruma'kkathayam Law,
to answer the question, we shall have to refer to that law and ascertain the
intention of the donor as reflected in the gift (which was brought on record
in the trial court as Ext. A-1); and then decide whether the gift to
Kochukuni has to anure to her benefit alone or to her Tavazhi.

B 2. Respondent No. 1 filed the suit at hand claiming one-third share
in the gifted property as a son of Kochukunhi, who had another son and a
daughter. The trial court dismissed the suit. On appeal, the High Court
held that the plaintiff was entitled to one-sixth share and remanded the
case to the trial court for fresh disposal after answering all the other issues
C in the suit. Feeling aggrieved, the daughter of Kochukunhi has filed this
appeal.

3. Let the broad terms of the gift deed be first noted. The perusal of
the same shows that the properties were gifted out of love and affection to
D the sister and her descendants in the female line. The deed further says
that the property shall devolve in no other way. Then it recites that if there
be need to encumber the property, the document shall be signed by the
major female members. It, however, further says that after the life time of '
the donor and donee, all the major male members should join the docu-
ment to encumber the property otherwise it would not be valid.
E
4. Relying on the aforesaid terms of the gift deed, it is contended by
Shri Viswanath Iyer, Sr. Advocate, appearing for the appellant that the
daughter of Kochukunhi alone had right and title in the property after the
death of the donee. The High Court, however, did not accept this case of
F the defendant- appellant, because, according to it, the gift being to the
sister, a female, has to be presumed, in the absence of the contrary
intention, to be a gift to be held by the donee as tenancy-in-common. It
was further opined by the High Court that notwithstanding the exclusion
of male members, the plaintiff was entitled to claim a share as a member
of Tavazhi, and there cannot be any Tavazhi excluding the male members.
G As Kochukunni's daughter was alive at the time of gift, the High Court
opined that Kochukunhi was entitled to half of the gifted properties; and
she having one daughter and two sons, the plaintiff became entitled to
one-third of the half, that is, one-sixth of the whole. It is because of this
that the plaintiff's claim to one- sixth share was accepted and not one-third
H as prayed for.
PADMAVAIBY AMMAv. AMMUNNI PANICKER (HANSARIA,J.] 1059

5. Shri Viswanath Iyer has contended that under Marumakkathayam A
~ Law it is the daughter alone who was entitled to whole of the property of
Kochukunhi. Shri Poti appearing for the first respondent, however, submits
that where a gift is to a relation like wife, she holds the same on behalf of
her children also, if there be any. To put it differently, the presumption
would be that the donee takes on behalf of the Tavazhi, of which the son
is undoubtedly a member.
B

6. Being concerned with parties governed by Marumakkathayam
Law, we may first state that in this system of law succession to property is
traced through females, though the expression Marumakkathayam strictly
means inheritance by sister's children. It is because of this that a man's c
heirs are not his sons and daughters, but his sisters and their children-{he
mother forming the stock of descent and inheritance being traced through
mother to daughter, daughter's daughter and so on. It may then be stated
that a Marummakathayarn family is known a Tarawad and consists of a
group of persons, males and females, all tracing descent from a common
D
ancestress. An ordinary T arawad consists of the mother, her children, male
) and female, the children of such females and their descendants in the
female line, how-low-soever, living under the control and direction of the
Karnavan, who is the eldest male member. (See pages 1 and 2 of M.P.
Jospen's book 'The Principles of Marumakkathayam Law'.)
E
7. The Tarawad is thus atypical matriachal family, with all its inci-
dents, which are well settled, as would appear from what was stated by a
Constitution Bench of this Court in KK Kochuni v. State of Madras, (1%0]
....... 3 SCR 887. Subba Rao, J., as he then was, speaking for the majority dealt
with this aspect at pages 928 and 929 of the judgment. After pointing out F
that Marumakkathayarn family consists of all the descendants of the female
line of one common ancestor (sic ancestress) and is called a Tarawad, it
was stated that the incidents of the Tarawad are so well-settled that is not
necessary to consider. the case law, but it would be enough if so.iie relevant
passages from the book 'Malabar and Aliyasantana Law' by Sundara Aiyar
are cited; and it was so done. It is not necessary to quote the passages. G
Suffice to say that according to learned author, the joint family in a
Marumakkathayam Tarawad consists of a mother and her male and female
children, and the children of those female children, and so on. The rights
of the junior male members have thereafter been enumerated by stating
ultimately that everyone is a proprietor and has equal rights. H
1060 SUPREME COURT REPORTS [1995] 3 S.C.R.

A 8. The gift at hand being to female, let it be seen as to how such a
gift has been treated by the concerned High Courts of the country. In M.P.
Kunhamina v. M.P. Kunhambi, !LR 32 Madras 315, the Court was called
upon to construct a gift which was by a husband to his wife and three
daughters, excluding the male members. The fight, however, was between
the daughters and it was held, on construction of the document, that
B descendants of one daughter were not excluded from inheriting the gifted
property because of the death of their ancestor before her sisters. In the
present case,.we are not concerned with such a situation; nonetheless, the
decision is relevant as it states that there cannot be total dis-inheritance of
some of the donees. In KM. Kutty v. N.P. Ayissa, !LR 51 Madras 574, the
C gift was by a husband to his wife and children. The wife, however, had some
children by former husband. The Bench opined that in such a situation the
donee did not take the property as Tarawad property. What is important
for our purpose is that this decision refers to Kunnacha Umma v. Kutti
Mammi Hajee, !LR 16 Madras 241, which was founded on some principles
D laid down by the Privy Council, one of which is to the effect that when a
Marumakkathayam man's property is given to his wife and children,
without any expression of intention how they were to enjoy it, they must be
held to have taken it with incidents of property held by a Tarawad. As to
what is meant by a Tarawad was explained in A.K Haji v. /.P.Bi, [1958]
KLT 815, stating that Tarawad means in law a Marumakkathayam family
E holding property as a joint-family with all the incidents of a joint-family
under Marumakkathayam Law.

9. It would also be useful to see as to how this aspect has been
explained in standard treatise. It has been stated as below in Mayne's
F Hindu Law at pages 1188 and 1189 of 12th Edition:

"In the matter of gifts, the question has often arisen whether a gift
is made to tavazhi as such or whether the donees take as tenants-
in-common. The ordinary presumption is that when properties are
given by way of gift to a woman and her children or her children
G alone following the Marumakkathayam or Allayasantana Law, the
property is taken by the donees with the incidents of tarwad
property. Only some of the members of a tavazhi cannot hold the
property with the incidents of tarwad property, hence when a gift
is made to them, they will take it as tenants-in-common unless
H there are circumstances to justify the inference that they took it
PADMAVATIIY AMMA v. AMMUNNI PANICKER [HANSARIA, J.] 1061

on behalf of the entire tavazhi. when property is given to the A
mother alone, when there are children, the presumption that she
takes it on behalf of the tavazhi is rebutted."

The author has then referred to section 48 of the Marumakkathayam Act
which applied to transactions after 1st August, 1933; which laid down that
when a person gives property to his wife alone, such property shall, unless B
a contrary intention appears, be taken as Tavazhi property by the wife.
Under section 22 of the Travancore Nair Act of 1100 M.Y. (Malayalami
Year), to which reference has been made by the High Court, a gift has to
be held by the donees as tenancy in common.

10. In K.S. Variar's 'Marumakkathayam and Allied Systems of Law C
in the Kerala State', it has been stated at page 91 of the 1st edition (1969)
that the presumption in the Travancore State is that a gift in favour of
mother alone is for the tavazhi. Similar view has been expressed by M.P.
Joseph in his above-mentioned book at page 295 of the revised edition
(1926) by stating that even though a gift is made in the sole name of the D
mother, all the children take the properties as Makkathayam.

11. All the above do not leave any doubt in our mind that under the
gift in question, even if the same be construed to have been only for the
benefit of Kochukunhi, all her three children had equal interest in the
property. The High Court was, therefore, right in decreeing the suit of the E
plaintiff to one-sixth share of the suit property.

12. The appeal is, therefore, dismissed. No order as to costs.

T.N.A. Appeal dismissed.

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