Purathat Kishakot Kunhacha Umma vs Pudiakath Kutti Mammi Haji

The properties in question originally belonged to one Taruvai and they were given after his death to his wife Ayishamma and her children in

accordance with his orally expressed wish. The question referred to us is whether Ayishamma and her children took the properties with the

incidents of property held by a tarwad. In the case before us the donor expressed no intention as to how the property should be held by the

donees and in the absence of such expression the presumption is that he intended that they should take them as properties acquired by their branch

or as the exclusive properties of their own branch with the usual incidents of tarwad property in accordance with the Marumakkatayam usage,

which governed the donees. This view is in accordance with the principle laid down by the Privy Council in Sreemutty Soorjeemoney Dosses v.

Denobundoo Mullick 6 M. I. A 526 and Mahomed Shumsool v. Shewukram L. R 2 I. A 14. The decision reported at I. L. R M 315, Narayanan

v. Kannan, was not followed in S. A. Nos. 647 and 648 of 1890 and it appears to us to be in conflict with the rule of construction indicated by the

Privy Council. We answer the question in the affirmative.