Under Marumakkathayam law, property obtained by a female and her children in partition retains its tharwad characteristics, ensuring rights for future descendants.

JUDGMENT :

SANJAY KAROL, J.

1. The instant appeal, preferred by the original defendants, assails the judgment dated 27.08.2009 passed by the High Court of Kerala in A.S. No. 563 of 1999 whereby the appeal was dismissed and the preliminary decree passed by the Trial Court in O.S.631/1999 was affirmed.

MARUMAKKATHAYAM CUSTOMARY LAW - AN INTRODUCTION

2. The present appeal concerns the devolution of property by way of traditional Marumakkathayam law. Prior to delving into the legal niceties, an understanding of certain foundation concepts is necessary.

3. The Hindu community being a vast and diverse community is governed by different schools of personal laws. Apart from the dominant Mitakshara school of law, some communities among Hindus have their own system of personal law like the Marumakkathayam law, the Nambudiri law or the Aliyasantana law. In the issue at hand, parties are admittedly governed by the Marumakkathayam law. With respect to Marumakkathayam law, this Court has stated in Achuthan Nair v. Chinnamu Amma, 1965 SCC Online SC 303:

“6. …The said law [Marumakathayam law] governs a large section of people inhabiting the West-Coast of South India. “Marumakkathayam” literally means descent through sisters' children. There is a fundamental difference between Hindu law and Marumakkathayam law in that, the former is founded on agnatic relationship while the latter is based on matriarchate. The relevant principles of Marumakkathayam law are well settled and, therefore, no citation is called for...”

4. Under this law, tharwad, thavazhi, karanavan are dominant concepts with respect to joint family. A tharwad is a Marumakkathayam joint family comprising of a female ancestor, her children, her daughter’s children, her daughter’s daughter’s children and all such other descendants, however remote, in the female line. By necessary exclusion, only the immediate male heir is part of the tharwad while his progeny are not. A person belongs to tharwad of his or her mother only.² [K. Sreedhara Variar Marumakkathayam and Allied Systems of law in the Kerala State, First Edition, 1969] Membership of a tharwad is acquired by virtue of birth alone and on death, his interest devolves upon the other members of the tharwad. Members of a tharwad do not have a fixed interest but a fluctuating one, subject to change as per the number of members of the tharwad. Unlike coparcenary in Mitakshara law which extends to three generations succeeding the last male holder of the property, the Marumakkathayam system gives equal rights to all persons, however remote.

5. A tharwad is a larger body which holds within itself many branches. These branches are known as thavazhi which is a group of descendants in the female line of a female common ancestor. A thavazhi can own properties, separate and distinct from tharwad properties. In other words, a marumakkathayee woman alongwith her children and further descendants, how low-soever, in a female line constitute thavazhi.

The concepts discussed above would be best explained by way of illustrations as under:

ILLUSTRATION:

A is married to AH. They have three children- two daughters, AD1 and AD2, and a son, AS. All members shown above with the exception of AS1 form the tharwad of:

A. This is in line with the matrilineal succession or in other words, the female being the ‘stock of descent’. AD2 with her children C, the daughter and B, the son and grandchildren C1 and C2 forms a thavazhi.

6. A karanavan is a manager of a joint family property. It is the oldest male member of the family. However, this customary position does not exclude a woman from managing the affairs of the tharwad or thavazhi if no male member is capable of taking up the required duties. Under Madras Marumakkattayam Act, 1932, it is defined as under:

“Section 3(c) ‘karanavan’ means the oldest male member of a tarwad or tavazhi, as the case may be, in whom the right to management of its properties vests or, in the absence of a male member, the oldest female member or