RAMAN NAYAR, J. :- The question before us is whether, under the Marumakkathayam law, a subsequently conceived child gets a right by birth in the property obtained by its mother for her separate share in the partition of her tarwad, thus reducing her theretofore absolute powers of disposition to those of a joint family manager. In other words, whether, after such individual partition as it has been called, the property in the mother's hands continues to retain its character as tarwad property or becomes her individual property (I here use the expression, "tarwad property" not as meaning property still belonging to the tarwad but as meaning property with the incidents of tarwad property - of Section 38(2) of the Madras Marumakkathayam Act, 1932 before amendment by (Kerala) Act 26 of 1958 - and the expression, "individual property" to mean property bereft of these incidents and having instead the incidents of self-acquired property.) The expression, "separate property" within the meaning of Chapter IV of the Madras Marumakkathayam Act and of Chapters IV and V of the Travancore Nayar Act, 1100 seems to me wide enough to include "tarwad property" owned by one person in which no one else has got a share, and that is why I am using the expression, "individual property". This question was answered in the affirmative by a full bench of the Travancore-Cochin High Court in Parameswaran Pillai v. Ramakrishna Pillai, 1954 Ker LT 862 : (AIR 1955 Trav-co 55) (FB), and in the negative by a full bench of this Court in Kalliyani Amma Bhavani Amma v. Narayani Amma Madhavi Amma 1963 Ker LT 859 : (AIR 1963 Ker 358) (FB), in both cases by a majority of two to one. The correctness of the latter decision has been questioned and that is why the question is before us once again.

2. I think that the answer given by the earlier full bench is the right answer, and, but for the gentle rebuke administered by Velu Pillai J. in the later full bench case - see paragraph 10 of the report - I might have been tempted to express myself as emphatically as S. Govinda Menon, J. did in Naniamma Janakiamma v. Chandy Varghese 1949 Ker LT 21.

A Marumakkathayam tarwad like a Mitakshara coparcenary is a fluctuating body of persons (whether corporate or not we need not stop to consider) forming a joint family with community of property. (See the definition of "tarwad" in Section 3(1) of the Madras Marumakkathayam Act in section 2(6) of the Travancore Nayar Act. 1100 and in section 3 of the Cochin Nayar Act, 1113 as also in the several other Marumakkathayam law statutes. Community of inter-rest, unity of possession, right by birth,' and survivorship are incidents of joint family

property whether of a Marumakkathayam tarwad or a Mitakshara coparcenary but the existence of such property is no more necessary to constitute a tarwad than it is to constitute a coparcenary, although, where persons live together it is difficult to conceive of their possessing no joint property whatsoever. Indeed, until a division takes place, a female and all her descendants in the female line constitute a Marumakkathayam tarwad whether they own property in common or not). Admission to this body is by birth (or adoption) into the family, in the female line in the case of a tarwad, and in the male line in the case of a coparcenary, and membership thereof determines with death. Every member is a co-proprietor, with the result, of the joint family property and gets this right on birth. And, on the cessation of his membership on death, his interest lapses, or. as it is commonly put, passes by survivorship, to the remaining members. Thus, the property of the tarwad or coparcenary belongs to its members for the time being and it is property which, so long as it is not transferred and remains with the joint family, is to enure for the benefit not merely of the members in existence at a given time but also of the members to be admitted in the future.

3. On partition, a tarwad breaks up into separate un