Gopalan Nambiyar, J.
1. This Second Appeal is by Defendants 1 to 4 and 6 to 18 in O. S. No. 394 of 1963 Munsi-ff's Court. Badagara which was a suit for partition. The properties sought to be partitioned were sifted by one Chathappa Kurup under Ext. B-1 dated 17-1-1902 in favour of his wife Parukutty Amma and his children then, existing by her, namely Ananthan Nambiar (the plaintiff) Lekshmi Amma. Chindan Nambiar and Krishnan Nambiar. Ext. B-l contained a provision that the income from the properties was to be utilised also for the support of the children to be born to the donor by Parukuttv Amma. The plaintiff was rarepared to concede a share to Naravanan Nambiar, the 4th Respondent who was the subse-quently born child. Thus a 1/5th share for each of the five children was claimed on the ground that the division had to be on the stirpital principle in accordance with the proviso to Section 48 of the Madras Marumakkathavam Act 1933. Supplemental Defendants 6 to 19 were the descendants of the 1st Defendant and it was claimed by them and by Defendants 1 to 4 that the properties belonged to the tavazhi constituted by the plaintiff and Defendants l to 4 and 6 to 19. Both the courts below upheld the plaintiff's claim for partition and decreed the suit as prayed for.
2. In Second Appeal, it was con-tended that the gift deed Ext. B-l enured to tavazhi of Parukuttv Amma and her children and the lineal descendants in the female line; that being a gift executed prior to the Madras Marumakkathavam Act, 1933, neither the main nart of Section 48, nor the proviso thereto had application, and that division had to be on a per capita basis. The courts below on a construction of Ext B-l held that Chathappa Kurup intended to benefit only his wife and his children through her, and not the lineal descendants in the female line, and that therefore the property belonged only to the plaintiff and Defendants 1 to 4, and that Defendants 6 to 19 had no rights therein.
3. We cannot sustain the conclusion of the courts below on the construction of Exhibit B-l. The gift was to the wife and all the then existing children of Chathappa Kurup. It provides that the income is to be enjoyed by the donees and by any children born thereafter to the donor by Parukutty Amma. The document contemplated a living in commensality by all the donees. (Original in Malayalam omitted -- Ed.) It is well settled that a gift or bequest in favour of the wife and all the children, is presumed to be on behalf of the tavazhi. Disagreeing with the courts below, we have no hesitation to hold that Ex. B-1 enured for the benefit of the puthrava-kasam tavazhi of Parukutty Amma and her children.
4. The next question is: how is a division to be made? Section 48 of the Madras Marumakkathayam Act reads:
'48. Construction of bequests, gifts etc. to wife or wife and children: 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 properties 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 propertv 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 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.'
It was held by a Division Bench of the Madras High Court (Pandrang Row and King JJ.) in Krishnan v. Thala (AIR 1941 Mad 605) that the Section did not have any retrospective operation and that in the case of an acquisition prior to the date of the Act, the mode of division was per capita and not per stirpes The acqui-sition there was in the year 1881, by the husband Kelan in favour of his wife Manikkam. Two reasons were given in support of the decision: First that on the date of the Act Manikkam was not alive, that her union with her husband was not subsisting on that date as required by Section 4, and she could not be reparded as the 'wife' of Kelan, her husband, so as to attract Section 48 The second reason was that prior to the Marumakkathavam Act, there was a right of partition depending upon the consent of all the members of the family, and that on such partition, the division was always per capita. There were therefore vested interests in the members of tavazhi, who could expect the property to be divided in a certain way. The right of partition had merely been extended by Chanter VI of the Act, and there was no reason for restricting the same by making the proviso to Section 48 retrospective in its operation. The principle that Section 48 of the Act is not retrospective in its operation, was affirmed by another Division Bench (Somayya and Yahva Ali JJ.) in Thathamma v. Thanka-mma (AIR 1947 Mad 137): and aeain by Subb Rao and Panchapakesa Iyer JJ. in an unreported judgment in A. S. No. 301 of 1942. In this Court, the same view was taken by a Division Bench (M. S. Menon & Joseph JJ.) in Prabhakar Menon v. Gopala Menon (1960 Ker LJ 161) and by Raghavan J. in Sivasankaran v. Lakshmi (1966 Ker LT 327). See also Kunjamma v. Kunjiparvathi Amma (1972 Ker LJ 35). There is thus an imposing arrav of authority of the Madras High Court and of this Court in favour of the view that Sec-tion 48 is not retrospective.
5. In Kunju v. Vesamma, (1969 Ker LJ 475) a Division Bench of this Court (Krishnamoorthy Iyer & Sadasivan JJ.) ordered a division per stirpes of properties under a beauest which was held to enure to a puthravakasom tavazhi. The relevant dates are not seen from the judg-ment; but, as noticed by Subramonian Poti J., in a iudement to be referred to presently, and as seen from the records of the case available in this Court, the bequest in that case was in 1932 and became operative in 1947 (after the Madras Marumakkathavam Act). No question therefore arose of any retrospective operation of Section 48 of the Act But Kri-shnamoorthy Iyer J. made the following observations on which reliance has been placed by Counsel for the plaintiff-res-pondent:
'The proviso to Section 48 is really intended as a Provision as to the mode ofpartition of the property given by a maru-makkathavee in favour of his wife and children as tavazhi property. It is intended as a substantive provision forming part of Chapter VI of the Act dealing with partition..... The mode ofpartition of the tavazhi property given bythe father to his wife and children alsoknown as puthravakasom property is contained in the proviso to Section 48 of theAct and the division can only be perstirpes'.
On the facts of the case, the observation was purely obiter. Indeed, the learned Judge himself in a later judgment in Second Appeal No. 22 of 1972 (Ker) stated that the decision in (1969 Ker LJ 475) is not relevant as the retrospective operation of Section 48 was neither raised nor considered therein.
6. In Second Appeal No. 523 of 1966 (Ker) our learned brother Subramonian Poti J. noticed practically all the above decisions, and was of the view that Section 48 of the Madras Marumakka-yam Act did not apply to sifts or bequests before the Act and that Krishnamoorthy Iyer J. in 1969 Ker LJ 475 did not lay down any different principle. The learned Judge was also not inclined to accept the argument that the proviso to Section 48 of the Madras Marumakkathavam Act was a substantive provision by itself.
7. We may then notice the decision of Krishnamoorthy Iyer J. in S. A. No. 22 of 1972 (Ker). The two gifts and the will which conveyed properties in favour of a puthravakasom tavazhi. were all before the Marumakkathavam Act (the will became operative also before the Act). As stated in paragraph 5 of the judgment the terms of the documents were sufficient to spell out the tavazhi character, and it was not necessary to decide whether the benefit of the presumption under Section 48 of the Madras Marumakkathavam Act can be invoked in respect of the pre-Act documents. Nevertheless, the learned Judge discussed the position with respect to the case law (noticing practically all the decisions referred to earlier) and was of the view that Section 48 was declaratory in character and that the proviso thereto prescribes the mode of division of puthravakasom property. The learned Judge was inclined to think that the decisions in 1966 Ker LT 327 and in Second Appeal No. 523 of 1966 required reconsideration, and would have referred the matter to a Division Bench, but for the fact that the case could be disposed of on the basis of Section 7(1) of the Hindu Succession Act 1956. In the course of the, judgment the learned Judge stated that if the property is puthravakasom property on the date of the Act, the mode of divi-sion has to be on the basis of the proviso to Section 48 of the Act. Very strong reliance has been placed by Counsel for the plaintiff-respondent on the observation of the learned Judge in this judgment.
8. With respect we cannot regard Section 48 of the Madras Marumakka-thayam Act 1933 as declaratory of the law, nor the proviso thereto as embodying a substantive provision in itself. Prior to the Marumakkathayam Act, the position under the customary marumukkathayam law was, the (that) a presumption of the tavazhi nature of the gift or beauest or acquisition would be raised only if the same was in favour, or in the name/names, of the wife and all the children, or of all the children alone, who by themselves constitute a tavazhi. A gift beauest or acquisition in the name or names of the wife alone, or of the wife and one or more of the children alone to the exclusion of the others, would not give rise to such a presumption See AIR 1947 Mad 137 and 1960 Ker LJ 161). We are not in the circumstances prepared to regard Section 48 as declaratory of the law. As far as the proviso to Section 48 is concerned, its language will show that it is linked with the main provision. It refers to 'the property' dealt with under the main part of the Section. It would be anomalous to hold that the main part of the Section has no retrospective effect, but the proviso has. Prior to the Madras Marumakkathavam Act the consensual partition that was recognised in the Malabar area was almost always on the per capita principle. See the decision of Madhavan Nair and Anatha-krishna Iyer JJ. in Sreedevi v. Peruvunni Nair (ILR 58 Mad 36) = (AIR 1935 Mad 71). (In the Travancore area there is authority that the division is stirpital). It is a per capita division that is recognised under Section 38 in Chapter VI of the Act The modification or restriction on that right is provided by the proviso to Section 48; and neither on principle nor on authority would we be justified in giving the said proviso anything more than a restricted interpretation. We are therefore of the opinion that neither the main part of the Section nor the proviso thereto can be given any retrospective operation.
9. Counsel for the plaintiff-respondent stated that he was not contending that the main part of Section 48 had retrospective operation, but would contend that the proviso could be applied to all cases where partition is sought since the date of the coming into force of the Act We are unable to interpret the Section this way. If properties granted to the puthra-vakasom tavazhi under a gift long prior to the Act have been partitioned per capita on the footing that the lineal descendants in the female line are entitled to rights, we do not think it is liable to be re-opened in a suit after the Act on the mere ground that partition should be per stirpes.
10. Counsel for the appellant contended before us, that on the death of the original plaintiff, Ananthan Nambiar his legal representatives had been impleaded by the lower appellate Court by order on I. A. No. 2946 of 1968 dated 9-2-1970 on the ground that they are his wife and children. Counsel attempted an argument that it had not been established that there was a legal or valid marriage between the deceased Ananthan Nambiar and Paru Amma, impleaded as his wife. We were taken through the evidence. It is enough to state that we are satisfied that the Counsel has not made good his contention, and that the order impleading the legal representatives was correct and proper.
11. In the result we allow this second appeal, and, in reversal of the judg-ment and decree of the courts below direct that the properties be partitioned on a per capita basis. It was agreed before us that on this basis, the plaintiff would be entitled to a 1/18 share and defendants 1 to 4 and 6 to 18 to a 1/18 share each. We pass a preliminary decree for partition accordingly on the said basis. In the circumstances, we direct the parties to bear their costs.