1. The following two questions have been referred to the Full Bench:

(1) Does the property obtained by a Nair female tarwads her share under an out-right partition in her tarwad any longer retain a character of tarwad property?

(2) Does that property cease to be her separate property and become the property of her thavazhi on the birth of a child to her so as to destroy her absolute powers of disposal in respect of that property?

Had these questions concerned a co-parcener under the Mithakshara Hindu Law the answers would have been unquestionably in the affirmative as would be clear from the following extracts:

"The share which a co-parcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations it is separate property and if the co-parcener dies without leaving male issue it passes to his heirs by succession." (Mulla's Hindu Law, 11th Edition, 1952, page 252, S. 223(4).

"On principle it would seem that where a father separates from his sons reserving a share for himself a son born after partition is a co-parcener with him in the share allotted to the father for by his birth he acquires a right in the ancestral property allotted to the father. The father, therefore, can have no right to dispose of his share at his pleasure as against his after-born son." (Mayne's Hindu Law, 11th Edition, 1950, page 450).

"It has been held in several cases that when ancestral property has been divided among the sons the share allotted to each of the members is ancestral property in his hands as regards his own issue though it is looked upon as separate property as regards the separated members." (Mitra, Joint Property and Partition in British India, page 39)

2. The position would be the same regarding ancestral property in the hands of a sole surviving co¬parcener. This Court held in Neelamma v. Ananchi Pillai 1953 KLT 515 (F.B.) resolving the conflict of judicial opinion that ancestral property in the hands of the last surviving co-parcener would exclusively belong to him and devolve upon his heirs. If, however, by the time of his death a child be begotten which on being born proves to be a son then the posthumous son who is a co-parcener with his deceased father would take the property by survivorship which but for him would have devolved upon the widow of the deceased as his heir (See Balakrishna Kammathi v. Ganesha Pai 1954 KLT 87 F.B.).

3. As in the case of self-acquired property a co-parcener to whom is allotted ancestral property at a partition or who becomes the sole surviving co-parcener can alienate the ancestral property in his lifetime and bequeath it by his will to take effect after his death. On intestacy the property would devolve upon his heirs. That is to say, ancestral property would be his separate property and can be dealt with by him in the same way as he could deal with his self-acquired property. This power is, however, subject to the condition that at the time of alienation or of his death no male issue is born to him who would be a co¬parcener with him with a right by birth in ancestral property in the hands of his father. This limitation would apply also to a case where a son, though not born, is adopted either by the co-parcener himself or after his death by his widow. This rule of Hindu Law is not based upon any specific text but is based upon the right by birth possessed by a co-parcener in an ancestral property.

4. The question then is whether this rule of Hindu Law would apply to a Marumakkathayam tarwad. The questions referred being general they fall to be answered on general principles in the absence of proof of custom. Marumakkathayam is customary law whose main features are well known and have been adverted to in Narayanan v. Raman, 1953 K.L.T. 216 (I.L.R.