The main legal point established in the judgment is that the self-acquisitions of a female member of a Marumakkattayam tarwad do not lapse to the tarwad of which she dies a member, but descend to her tavazhi, based on the customary law of Malabar.

Ralph Sillery Benson, C.J.

1. The question referred for our decision is "whether the self-acquisitions of a female member of a Marumakkattayam tarwad would, on her death, lapse to the tarwad of which she dies a member, or whether they would descend to her nearest heirs or her tavazhi."

2. I have no doubt but that, according to the customary or common law of Malabar, such self-acquisitions descend to her Savazhi. That was the customary law, as I understood it, when [ was District Judge of that district for several years before I became a Judge of this Court. That there is abundant evidence to support that view is clear from the order of reference to the Full Bench in Govindan Nair v. Sankaran Nair (1909) I.L.R., 32 Mad., 851 (F.B.), It is, however, contended before us that the majority of the Full Bench in that case held that the case law of this Court since Kallati Kunju v. Palat Erracha Menon (1864) 2 M.H.C.R., 162, shows that the self-acquisitions of a male lapse to his tarwad, and do not pass by inheritance to his nearest heirs, and that the decision, though it does not in terms apply to the self-acquisitions of females, yet is based on reasoning applicable to both alike, and that we should hold that the self-acquisitions of a female lapse to her tarwad in preference to descending to her tavazhi or heirs.

3. I cannot accede to this contention. In the suit out of which the reference arose, there was a question as to the descent of the self-acquisitions of a female, as well as of a male, but the order of reference was limited to the self-acquisitions of a male, and the referring Judges notwithstanding the decision of the Fall Bench, decided that the self-acquisitions of the female in that suit descended to her own children and did not lapse to the tarwad. It is, therefore, clear that the learned Judges in that case did not regard the decision of the Full Bench as involving a decision that the self-acquisitions of a female on her death lapse to her tarwad. No case has been quoted to us, nor am I aware of a single case, in which it has been directly ruled that the self-acquisitions of a female pass to her tawad in preference to her tavazhi. The dictum in Ummanga v. Appadorai Patter (1911) I.L.R., 34 Mad., 387 at p. 391, was, I have no doubt, intended to apply only to the self-acquisitions of males, as is shown by the fact that it purports to state the result of the "decisions," and the decided cases refer only to the self-acquisitions of males.

4. Even in the case of the self-acquisitions of a male it may wall be doubted whether the customary or common law of Malabar requires them to pass to his tarwad in preference to his tavazhi. But, assuming, as held by the Full Bench in Govindan Nair v. Sankaran Nair (1909) I.L.R., 32 Mad., 351 (F.B.), that it is now too late to give effect to the true customary law in the case of males in face of the decisions since 186d, there is certainly no reason to apply a similar rule to the self-acquisitions of females, which are not dealt with by the decisions, in opposition to what I think is the well established customary law. It may be added that since the decision of the Katama Natchiar v. The Raja of Sivaganga case (1863) 9 M.I.A., 539 at p. 543, and the application of the principle of that decision to the Malabar cases-Ryrappan Nambiar v. Kelu Kurup (1882) I.L.R., 4 Mad., 150, Alami v. Komu (1889) I.L.R., 12 Mad., 126, and Achutan Nayar v. Cheriotti Nayar (1899) I.L.R., 22 Mad., 9, it has become logically impossible to hold that the members of a tarwad succeed to the self-acquisitions of one of its members on his or her death by virtue of survivorship. If they succeed, it can only be as heirs of the deceased, and it would be strange if the more distant relatives included in the tarwad should succeed equally as heirs with the issue and other near heirs of the deceased.

5. My answer to the reference is that the self-acquisitions of a female member of a Marutnakkattayam tarwad on her death d