1. First defendant in O. S. No. 123 of 1977 on the file of the Court of Munsiff, Alathur is the appellant in this Second Appeal.

2. 7th respondent herein filed the above suit for partition and separate possession of 3 out of 30 shares in the plaint schedule property together with damages and value of improvements.

3. It is the plaintiffs case that the plaintiff and defendants belong to Nair community, that the plaint schedule property belonged in jenmi to the Kuthanoor Naduvath family, that Pathiyil Gopalan Nair and his brother Raman Nair were holding the property on verumpattom right, that in 1922 they executed a gift deed in respect of their rights in favour of the plaintiffs mother Bhargavi Amma, the 1st defendant and their mother Mookambi Amma, that Mookambi Amma died in 1953 and her rights devolved upon her children Bhargavi Amma and the 1st defendant, that Bhargavi Amma died in 1966 and her rights devolved upon her children, plaintiff, defendants 2 to 4 and the deceased Chamukuttan Nair, that Chamukuttan Nair died in 1977 and his legal heirs are defendants 5 to 7, and that plaintiff is entitled to 3/30 shares, 1st defendant to 15/30 shares, each of the defendants 2 to 4 to 3/30 shares and each of defendants 5 to 7 to 1/30 shares. She also averred that she had spent Rs. 3,000 for improvements of the house and that she was entitled to get the said amount, if it was not possible to allot the improvements to her.

4. 1st defendant in his written statement contended that the house in the properties was constructed by selling trees in the properties and utilising the amount received as sale consideration and by using the timber of demolished thavazhi house.

5. Defendants 2 to 7 filed written statement contending that the improvements to the house were effected by Chamukuttan Nair, brother of the plaintiff and defendants 2 to 4 and husband of 5th defendant, that plaintiff was not entitled to get allotted any improvements or value thereof, that 1st defendant has got no right over the building that there were movables purchased by deceased Chamukuttan Nair which were in the possession of plaintiff and that they were also liable to be partitioned.

6. The trial court passed a preliminary decree for partition of the plaint schedule properties in 30 equal shares and allotment of 3 shares each to plaintiff and defendants 2 to 4 and one share each to defendants 5 to 7 on payment of court fee. It also held that the plaintiff is not entitled to any improvements or damages, but gave a direction to allot the properties in the possession of the plaintiff to herself as far as possible.

7. Aggrieved by the judgment and decree, defendants 2 to 7 filed A. S. No. 120 of 1978 before the Court of Subordinate Judge, Palghat. Learned Subordinate Judge held that Ext. A-1 gift was in favour of thavazhi of donees and not in favour of the specified persons named therein and in that view of the matter, passed a preliminary decree for partition of the plaint schedule property into 6 equal shares and for allotment of one share each to the plaintiff and defendants 1 to 4 and one share to defendants 5 to 7 together. Learned Subordinate Judge also held that no equities or reservations need be made in favour of any of the parties.

8. In this Second Appeal, 1st defendant has challenged the finding of the learned Subordinate Judge that the gift Ext. A-1 was in favour of thavazhi of Mookambi Amma. Learned counsel for the appellant contended that neither the plaintiff nor the defendants raised a plea that the gift under Ext. A-1 would enure for the benefit of thavazhi or the shares mentioned in the plaint are wrong and that in the absence of any specific pleading or issue, the lower appellate court committed substantial error of law in entertaining such a plea and interfering with the judgment of trial court on the basis of such a plea. According to him gift deed Ext. A-1 was executed by two brothers in favour of three specified persons. He contended that the provisions of S.48 of Madras Marumakkathayam Act are not applicable to a gift created under Ext. A-1 before the came into force. He further argued that even assuming without conceding that gift under Ext. A-1 is in favour of a thavazhi, lower appellate court had to consider the question as to whether the gift was in favour of a natural thavazhi or puthravakasom thavazhi and in what manner divisions have to be made for the purpose of allotment of shares.

9. Learned counsel for defendants 2 to 5 on the other hand contended that it was only a question of interpretation of Ext. A-1 and finding out the legal effect of the gift made thereunder and that therefore there was no illegality committed by the lower appellate court in interpreting the document and coming to the conclusion that the gift was intended to enure for benefit of thavazhi of Mookambi Amma and children and not merely to benefit three specified individuals mentioned therein. He also contended that there was an issue in regard to the shares to which the parties are entitled, but that issue was struck off by the lower court without assigning any reason and that really stood in the way of the trial court in construing the document Ext. A-1 with reference to the legal principles enunciated in the decided cases.

10. It is recited in the document that there are no other members in the thavazhi of executants and after their death, their thavazhi would become extinct, that Mookambi Amma and other donees are the wife and children of 1st executant and the 2nd executant was living with them and that it was in these circumstances they created the document.

11. Learned counsel for the respondents submitted that since the gift was in favour of the mother and all the children who form a natural thavazhi, there is a presumption that the gift was intended for the benefit of their thavazhi and not to the benefit of the specified individuals therein. In support of his contention, he invited our attention to a Full Bench decision of this Court in Seetha and others v. Krishnan and others 1975 KLT 156. It was held therein that in a case where a gift or acquisition is made in favour of a Marumakkathayee woman and all her children or in the names of all the children who by themselves constitute a thavazhi, the mother being dead, a presumption would arise that the acquisition was for the benefit of the thavazhi under rules of customary Marumakkathayam Law which were applicable in Malabar prior to introduction of Madras Marumakkathayam Act. It also held that there is no scope for raising any such presumption in cases where the gift, bequest or acquisition is in favour of wife alone or of the wife and some children alone leaving out some children. The same is the view expressed in the decisions of two Full Benches of Madras High Court in Chakkra Kannan v. Kunhi Pokker ILR 39 Madras 317 and Kunhacha Umma v. Kutti Mammi Hajee ILR 16 Madras 201. In Kalliyani and others v. Leela and others ILR 1976 Ker. 409 a learned Single Judge of this Court explained the logic behind this presumption by saying that the concept of individual acquisition might have been remote from the minds of the persons who were under the influence of Marumakkathayam way of life. Learned Judge however added that it cannot be said that there could not have been any acquisition of property at all for enjoyment as tenants in common by those who would constitute themselves into a natural thavazhi and that what was important is the manner in which the funds for the acquisition were raised and the intention of the parties, manifest or implied, as to the mode in which the property acquired is to be held and enjoyed, bearing in mind the concept of family life prevalent at the time when the acquisition was made. In Janaki alias Nangeli Amma v. Krishnan Nambisan 1958 KLT 516 a Division Bench of this court held that the presumption is rebuttable and if there are clear words in the instrument of gift itself showing a contrary intention, effect has to be given to such intention. The Division Bench interpreted the expression kamhImiambn Fs {]Xnn[nbpsS nebn as indicating the intention of the testator that the bequest was for the benefit of his wife and children alone and that they were to take the properties as tenants-in-common with separate and equal rights.

12. In the instant case, the bequest is in favour of mother and all the children, who are the wife and children of the 1st executant. One of the executants is the patternal uncle of minor donees. This aspect was highlighted by the learned counsel to contend that a presumption of thavazhi character cannot be raised in the case of a gift by a paternal uncle in favour of his nieces and their mother. We do not think that this fact will in any way affect the issue. Learned counsel also contended that the recital in the document that the donees have all rights of alienations subject to the right of executants to reside in the property during their lifetime would indicate that the executants only intended to benefit the specified persons named in the document. This may be a circumstance in favour of the appellant, but that by itself is not conclusive.

13. There is force in the contention of learned counsel for the appellant that neither the plaintiff nor other defendants had any case in their pleadings that the property enured for the benefit of the thavazhi of Mookambi Amma and children, that all proceeded on the basis that the gift was in favour of the named persons, and that was a clear indication that all concerned understood the gift as one created in favour of the named persons alone. Plaintiff, daughter of Bhargavi Amma who would be benefitted if gift was to enure for the benefit of thavazhi, has claimed shares only on the basis that the gift under Ext. A-1 was to the three specified individuals. This position has not been controverted by defendants 2 to 5 in their written statement. There is also force in the contention of learned counsel that the learned Subordinate Judge ought not to have entertained a plea for the first time in the appeal in the absence of pleading and modified the preliminary decree on the basis of his finding that gift would enure for the benefit of thavazhi.

14. In this connection, learned counsel placed before us the following observations of the Supreme Court in M/s. Trojan and Co. v. R. M. N. N. Nagappa Chettiar AIR 1953 SC 235 [LQ/SC/1953/35] :

"It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case."

He also invited our attention to the decision of Privy Council in Siddik Mahomed Shah v. Mt. Saran and others AIR 1930 PC 57 [LQ/PC/1929/93] (1), where it was held that where a claim has never been made in the defence presented no evidence however voluminous cannot be looked into regarding a plea which was never put forward.

15. What emerges from the principles enunciated in the decisions referred to above is that though there is a presumption that a gift of bequest made in favour of the wife and all the children, or all the children, constitute a natural thavazhi that presumption is rebuttable and the final conclusion has to rest upon the intention of the parties as can be gathered from the expressions used in the document and the attendant circumstances. Viewed in this light, we feel that the trial court was right in passing a preliminary decree on the basis that Ext. A-1 was intended to benefit the persons named therein and not to the thavazhi of the named persons. We are fortified in this conclusion by the fact that the right of alienation is conferred under Ext. A-1 on those specified persons and not to the thavazhi. That That parties also treated the gift as a gift to the named persons is clear from the fact that all parties proceeded on the basis that it was intended to benefit the named persons. The plaintiff would have been benefited if the gift was treated as one for the benefit of the thavazhi and we do not find any reason for the plaintiff not to claim shares on the basis that the gift was intended to enure for the benefit of the thavazhi, if really that was the intention. It is also plain that the trial court did not raise any issue in regard to shares of the plaintiff and defendants as there was no dispute on that aspect. In the circumstances we are unable to sustain the judgment and decree of the lower appellate court.

In the result, Second Appeal is allowed, judgment and decree of lower appellate court is set aside and the decree of the trial court is restored. Parties will bear their respective costs.