Hegde, J.—The questions of law referred for the decision of the Full Bench are:

"1. Whether, by virtue of the Explanation to Sub-section (1) of section 30 of the Hindu Succession Act, 1956, the interest of the first defendant in the share taken by him as the sole member of a nissanthathi kavaru, became capable of being disposed of by will?

and 2. Whether Sub-section (3), (4) and (5) of section 36 of the Aliyasanthana Act are inconsistent with the Explanation to Sub-section (1) of section 30 of the Hindu Succession Act, 1956 and, do they, by the operation of Sub-section (1) (b) of section 4 of the Hindu Succession Act, cease to apply?"

(2) The material facts are not in dispute and they are fully set out in the order of reference. As per the preliminary decree dated 26.8.1952, the deceased first defendant had been allotted a 75/360th share in the family properties. He died on 25.7.1956. he had left behind him a will executed on 19.6.1956 bequeathing the properties allotted to his share as per the preliminary decree, to his wife and children who are the appellants in this case. As per section 36(3) of the Madras Aliyasanthana Act (to be referred to as the "Aliyasanthana Act" hereinafter) he got only a life interest in the share allotted to him. This was admittedly the position on the date of the preliminary decree. But, it is contended that the life interest so secured got itself enlarged because of the Explanation to section 30(1) of the Hindu Succession Act (to be referred to as the "Act" hereinafter). In the alternative, it is urged that the scheme of section 36 of the Aliyasanthana Act being repugnant to the provisions contained in section 7(2) and Explanation to section 30(1) (section 7 is not referred to in the order of reference) of the "Act" the same is void under Article 254 of the Constitution; further it was argued that the provisions contained in section 36 impliedly stand repealed by virtue of section 4(1)(b) of the "Act".

(3) To appreciate the contentions advanced before us, it is necessary to have a brief Survey of the customary Aliyasanthana law in the matter of composition of joint families (otherwise known as 'Kutumbas') the partition of Kutumba properties, shares to be obtained at a partition and the devolution of those shares. Under the customary Aliyasanthana law, a "Kutumba" was a family Corporation and every member of a Kutumba has equal rights in the property by reason of his or her birth in the Kutumba; on the death of any member, his or her interest in the Kutumba property devolved on the members of the Kutumba by survivorship; as both male and female members have equal rights in the Kutumba property, the limited estate of a Hindu woman so familiar in Mitakshara law is unknown to the Aliyasanthana system. Further under that customary law, as interpreted by judicial decisions one or more members of Kutumba could not enforce a partition of the Kutumba properties; partition could have been effected only with the consent or concurrence of all the adult members thereof. Aliyasanthana Kutumbas like the Marumakkattayam Tarwads are governed by a matriarchal system the devolution being through the female line. In other words, while the children of the female members in the family are coparceners in the Kutumba, the wife and children of the male members are not the members of that Kutumba.

As noticed earlier the members of a Kutumba under the customary law could not have enforced partition through Courts. But under certain circumstances they were entitled to claim separate maintenance which expression includes not merely food and raiment, but also medical expenses, expenses for schooling, etc. This was the State of law till the passing of the Aliyasanthana Act (Madras Act IX of 1949) (See Appendix III of Mayne on Hindu law and Usage, Eleventh Edition). The Aliyasanthana Act defined and amended in certain respects the law, relating to marriage, maintenance, guardianship, intestate succession and partition, appli