Jojy George Koduvath.

Introduction

The word “Marumakkathayam” means the system of inheritance through nephews and nieces; or descent-through-sisters’-children.

• It was essentially a way of life perfected into a custom among Hindus of ancient Kerala.
• The individuals, especially men, bound by this system officially accepted their parentage from their maternal uncle. That is, a man who follow Marumakkathayam would identify himself as the nephew of so-and-so, rather than son of so-and-so.

The vast majority of Hindus in Kerala were the followers of customary laws like the Marumakkathayam Law, the Nambudiri Law or the Aliyasanthana law. Among them, Marumakkathayam system was of primary importance (See: Leela Amma v. Aravindaksha Menon, 2012-2 KHC 169).

Marumakkathayam – the Common Ancestor was a Female

Almost all legal systems round the world, throughout history, claimed descent from their male ancestors. The peculiar characteristic of ‘Marumakkathayam’ is that the common ancestors in this system were females.

“Marumakkathayam” – a Body of Custom Received Judicial Recognition

Marumakkathayam, as a system of inheritance, eventually received judicial recognition as a body of custom. In K. K. Kochuni v. States of Madras and Kerala AIR 1960 SC 1080 at p. 1099 Subba Rao, J. observed thus:

• “Marumakkathayam law governs a large section of people inhabiting the West Coast of South India Marumakkathayam literally means descent through sisters’ children. It is a body of custom and usage which have received judicial recognition. Though Sundara Aiyar, J., in Krishnan Nair v. Damodaran Nair. ILR 38 Mad. 48: (AIR 1916 Mad. 751) (FB) suggested that ‘Malabar Law is really only a school of Hindu Law’. It has not been accepted by others.” (Quoted in Mary Cheriyan v. Bhargavi Pillai Bhasura Devi, AIR 1968 Ker 82)

Characteristics of a Marumakkathaym Law

Joint Family System was the essential feature of Marumakkathayam, as a way of life. Joint Family was referred to as “Tarwad”. Other characteristics of a Marumakkathaym system were the following-

• The property belonging to the Marumakkathayam tarwad was the property of all the males and females who composed of it.
• Tarwad composed of all children (both male and female) of the common ancestress; and all children of the females in the female line (that is, all children, both male and female, of the daughters of the common ancestress, and all children, both male and female, of the grand-daughters of the common ancestress and so on).
  • Though tarwad consisted of a mother and her male and female children (and the sons and daughters of those female children and so on), the the children of the male members were not considered as members of the the tarwad (at least for claiming shares).
• When a partition is effected in the Tarwad, the number of shares was fixed on the basis of the the number of the daughters in the female line and the sons of each female member alone – who were the members of Tarwad (and not the children of the male members).
• Every member of a tarwad (members in the female line and their children – both male and female; and not the children of the male members) had equal rights in the property (Kavalappara Kottarathil Kochunni @ Mooppil Nayar v. States of Madras and Kerala, AIR 1960 SC 1080).
• The aforesaid right of those members were obtained by reason of his or her birth in the tarwad.
• Partition could have been effected only by the consent or concurrence of all the members of the tarwad. One or more members of a tarwad could not have claimed partition and separate possession of his or their share in the tarwad property. (Legislation made changes to it. See- M. K. Balakrishna Menon v. Assistant Controller of Estate Duty -cum –lTO, AIR 1971 SC 2392).
• The affairs of the family were administered by one of the male members, usually the eldest one, called the “Karanavan”. (See:  Leela Amma v. Aravindaksha Menon, 2012-2 KHC 169)

PR Sundara Aiyar on Malabar & Aliyasanthana Law, is a locus classicus on the subject of Marumakkathayam Law, as pointed out by K.M. Joseph, J., in Kunhipappada Beefathummabi v. Kunhipappada Kunhikoya, AIR 2006 Ker 345 (FB) . The learned Author would state as follows:

• “The joint family in a Marumakkathayam Nayar tarwad consists of a mother and her male and female children, and the children of those female children, and so on. The issue of the male children do not belong to their tarwad but to the tarwad of their consorts. The property belonging to the tarwad is the property of all the males and females that compose it. Its affairs are administered by one of those persons, usually the eldest male, called the karnavan. The individual members are not entitled to enforce partition but a partition may be effected by common consent. The rights of the junior members are stated to be
  • (1) if males, to succeed to management in their turn
  • (2) to be maintained at the family house
  • (3) to object to an improper alienation or administration of the family property
  • (4) to see that the property is duly conserved
  • (5) to bar an adoption and
  • (6) to get a share at any partition that may take place.
• These are what may be called effective rights. Otherwise everyone is a proprietor and has equal rights.”

Quantum of Share allotted to each Thavazhi

The quantum of share allotted to each thavazhi depended on thetotal number of members in each thavazhi; and not on the number of ‘daughters’ taken into consideration for fixing number of thavazhies. (Sreedevi Nethiar v. Peruvunni AIR 1935 Madras 71; Kunhipappada Beefathummabi v. Kunhipappada Kunhikoya, AIR 2006 Ker 345)

Legislations

As shown earlier, the Marumakkattayam laws were codified in the form of statutes. But, the erudite class considered it as an antiquated and anachronistic practice. This archaic system had paved way to as-of-right-marriages (against the wishes of the parties to the marriage) between the cousins! (It had been developed into a custom!!) It continued in spite of the codification of the Hindu Succession Act, 1956!!!

All those statutes that supported Marumakkathayam were done-away-with-in-one-shot, with effect from 01-12-1976 by the Kerala Joint Hindu Family System (Abolition) Act, 1975. The repealed Acts were the following:

• (1) The Madras Marumakkathayam Act, 1932 (XXII of 1933),
• (2) The Madras Aliyasanthana Act 1949 (IX of 1949),
• (3) The Travancore Nayar Act, II of 1100,
• (4) The Travancore Ezhava Act, III of 1100,
• (5) The Nanjmad Vellala Act of 1101 (VI of 1101),
• (6) The Travancore Kshatrlya Act of 1108 (VII of 1108),
• (7) The Travancore Krlshnanvaka Marumakkathayee Act, VII of 1115,
• (8) The Cochin Thiyya Act, VIII of 1107,
• (9) The Cochin Makkathayam Thlyya Act, XVII of 1115 ,
• (10) The Cochin Nayar Act, XXIX of 1113,
• (11) The Cochin Marumakkathayam Act, XXXIII of 1113,
• (12) The Kerala Nambudiri Act, 1958 (27 of 1958)

One of the important and progressive effects of these legislations was that it conferred on the members the right to demand partition in the tarwad property and to get their separate share allotted to them. After partition, each group of sharers  got joint shares independent of other groups. If it was to an individual sharer, he/she got the share as his or her individual property free of all incidents of tarwad property. It was the converse implication of Sec. 39 Nair Act, which reads-

• “39. Nature of right to tarwad property before partition–Until partition, no member of the tarwad shall be deemed to have a definite share in tarwad property liable to be seized in execution nor shall such member be deemed to have any alienable or heritable interest therein.”

Marumakkathayam System of Inheritance Among Muslims

In Kunhipappada Beefathummabi v. Kunhipappada Kunhikoya, AIR 2006 Ker 345 (FB), it is stated as under:

• “The settlers in the Lakshadweep Islands including Kalpeni migrated to the said Islands from the North Malabar area, as also from South Canara. Even though embraced Islam, they continued to follow the Marumakkathayam system of inheritance. Under the same, as we have already noted, the tarawad properties were impartible. The Mappilla Marumakkattayam Act (Act XVII of 1939) was enacted in the year 1939. Now, it applies to all Muslims following the Marumakkattayam Law who are either domiciled in the State of Kerala or have property situated within the State of Kerala. Section 13 provided an individual member of a Tarawad to claim his or her share of the properties of the Tarawad over which the Tarawad had power of disposal and separate from the Tarawad. Section 14 of the said Act reads as follows:
  • ‘Two or more members belonging to the same tavazhi, may claim to take their share of the properties of the tarwad over which the tarwad has power of disposal, separate from the tarwad, and enjoy the same jointly, with all the incidents of the tarwad property’.”

Tarwad and Tavazhi

In Eravipillai Parameswaran Pillai v. Mathevan Pillai Ramakrishna Pillai, AIR 1955 TC 55, a Full Bench of the Travancore Cochin High Court held that property obtained by a Nair female towards her share under an outright partition in her tarwad would be her separate property but retained the character of a tarwad property and became the property of her tavazhi on the birth of a child to her. The birth of a child destroys her absolute powers of disposal in respect of such property.

Whether a subsequently born member in a unit acquired right by birth in that unit (and thereby, began a tavazhi) was came for consideration before the Five Judge Bench of the Kerala High Court in Mary Cheriyan v. Bhargavi Pillai Bhasura Devi, AIR 1968 Ker 82.

The majority took the same view taken by Eravipillai Parameswaran Pillai v. Mathevan Pillai Ramakrishna Pillai, AIR 1955 TC 55. The substance of the view of the Majority (PT Raman Nayar, TC Raghavan, Gopalan Nambiar,JJ) in Mary Cheriyan v. Bhargavi Pillai Bhasura Devi, AIR 1968 Ker 82, was as under-

• So long as the property belongs to a single-member unit, that member has an alienable and heritable interest therein, liable to be seized in execution because he or she constitutes the unit. But, the moment another member is born in that single member unit, the single member ceases to be the sole owner and the single member unit turns into a joint family.

But, the minority (Govindan Nair, J. Krishnamoorthy Iyer, J.), applying the converse implication of Sec. 39 Nair Act, 1100, took the view that if a woman got share on partition in a Marumakkathayam tarwad, her subsequent born child would not get an interest by birth. The findings of the Minority was to the following effect-

• If individual partition and allotment of property separately to each member in a tarwad was possible such partition should bring about a severance of the community of rights among the members of the tarwad with the result that the property allotted to the separate share of each member was neither tarwad property (nor tavazhi property, by the birth of a new member) in the hands of the sharer.
• Such separate property could not again be converted into tavazhi property by the birth of a child to a female member or even by adoption by the male member.
• The intention and purpose of the enactment in conferring that right was to make the share separately allotted to the member heritable and alienable in his hands.
• The decision in 1963 Ker LT 859 (AIR 1963 Ker 358) laid down the correct law – that, the share obtained by a Nair female in an outright partition in her tarwad continued to be her separate property notwithstanding the birth of a child to her after the date of the partition.

The majority view in the Five Judge Bench in Mary Cheriyan v. Bhargavi Pillai Bhasura Devi, AIR 1968 Ker 82, was followed in subsequent decisions including Remadevi v. A S R Gopalakrishnan,2008-2  KLT 757. It is held in Remadevi v. A S R Gopalakrishnan,2008-2  KLT 757 as under:

• “The property obtained by a Marumakkathayee female towards her share under an outright partition in the tharavad or thavazhi will be her absolute property just like that of a male.  So long as she remains single, she can alienate it just like a male member and no one could question it. But the property retains the character of tharavad or thavazhi property and becomes the property of the thavazhi on the birth of a child to her so as to destroy her absolute powers of disposal in respect of it when in the partition property was allotted to the mother and her then existing children, which is a natural tavazhy the allotment could only be taken as to that tavazhy.”

Partition by ‘per stirpes’ and ‘per capita’

Marumakathayam system, in its pristine form, stood for partition by per stripes (per group – thavazhi). This was, mainly, because, it was not open to overturn the minors, in the partition. Ormsby who was Chief Justice of Travancore, in his book on Marumakathayam Law, says at p. 2, para 4:

• “Where division takes place it will usually be according to the taivaries, or number of daughters of the original ancestress. Each taivari may similarly be subdivided, should the members consent thereto and so on, until individual proprietorship is arrived at. I am not aware that this rule has ever been questioned.” (Quoted in Kunhipappada Beefathummabi v. Kunhipappada Kunhikoya, AIR 2006 Ker 345.)

However, the courts differed, in case to case, as to the principles to be adopted in partition – whether ‘per stripes’ or ‘per capita’ (as pointed out in detail in Kunhipappada Beefathummabi v. Kunhipappada Kunhikoya, AIR 2006 Ker 345).

No Presumption As To Joint Family Property

Following Srinivas Krishnarao Kango v. Narayan Devli Kango, AIR 1954 SC 379, and Surendra Kumar v. Phoolchand,  AIR 1996 SC 1148, 1996 SCC (2) 491, the Supreme Court in Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade,  AIR 2007 SC 218, (2007) 1 SCC 521, held that there was no presumption as to joint family property, and who alleges the existence of joint family property must prove it.

If Sufficient Joint Family Nucleus, the Burden Would Shift

Following Mst. Rukhmabai v. Lala Laxminarayan, AIR 1960 SC 335, and Achuthan Nair v. Chinnammu Amma, AIR 1966 SC 411, it was held in held Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade,  AIR 2007 SC 218, that if one  proves that there was sufficient joint family nucleus out of which the property under consideration could have been acquired, the burden would shift to the member of the family setting up the claim that it was his personal property to establish that the said property had been acquired without any assistance from the joint family property.

It is held in Achuthan Nair v. Chinnammu Amma, AIR 1966 SC 411, it is held as under:

• “Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law.”

Unilateral Act of One Did Not Change the Character of Joint Family Property

Following Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, AIR 1986 SC 79; 1986-1 SCC 366, it was pointed out in Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade,  AIR 2007 SC 218, that the character of the joint family property did not change with the severance of the status of the joint family and a joint family property continued to retain its joint family character so long as the joint family property was in existence and was not partitioned amongst the co-sharers; and that by a unilateral act it was not open to any member of the joint family to convert any joint family property into his personal property.