Document Fragment View

Matching Fragments

14. Taking the example of the present case, it will be noticed that if Lakshmikutty Amma, on her death, was governed by the Hindu Succession Act, her mother would be her legal heir under Section 17(ii)(a) inasmuch as under that clause, the legal heirs of the properties of the females are only the sons and daughters and the mother. In the present case, since Lakshmikutty Amma did not have sons or daughters, the property would go under Section 17(ii)(a) to her mother, Chellamma. Succession to a female on her death under the Travancore Nair Act in a case where the deceased had no male or female children, would have been governed by Section 18 of the Travancore Nair Act. That Section stated that on the death of a Nair female leaving no lineal descendants surviving her, the whole of the self-acquired and separate property left undisposed of by her at her death shall devolve on her mother's tavazhee. Section 2(3) of the Travancore Nair Act had defined "Thavazhee of a female" as "a group of persons consisting of that female and her issue how-low-so-ever in the female line, or such of that group as are alive". In other words, before the passing of the Hindu Succession Act, 1956, if a Nair female died without leaving any male or female lineal descendants surviving her, her property would have gone to her mother and the mother's issues how-low-so-ever in the female line, or such of that group as are alive. This succession was altered under Section 17 of the Hindu Succession Act to the extent that instead of the property devolving on the mother's thavazhee, it would devolve on the mother alone.

Section 7 deals with devolution of interest in the property of a tarwed, tavazhi, kavaru or illom. It is necessary to extract Section 7(1) which reads as follows ;

"7. Devolution of interest in the property of a tarwed, tavazhi, kutumba, kavaru or illom:--
(1) When a Hindu, to whom the marumakkathayam or nambudiri law would have applied if this act had not been passed, dies after the commencement of this Act, having at the time of his or her death an interest in the property of a tarwad, tawazhi or illom, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the marumakkatayam or nambudiri law.

Secrtion 15 of the Hindu Succession Act deals with general rules of succession in the case of female Hindus, and it reads as follows :

"15. General rules of succession in the case of female Hindu dying intestate shall devolve according to the rules set out in Section 16 --
(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father;

69. Point No. 4: Certain communities in Kerala were following a system of law called the 'Marumakkathayam law'. It is a body of customs and usages which received judicial recognition. The main characteristic and distinguishing feature of this system of law is that the descent is traced in the female line. While under the Hindu Mitakshra law the members claim their descent from a common ancestor, the members of a marumakkathayam tarwad are descended from a common ancestress. The joint family is called the tarwad and the seniormost male member will be the manager who is called 'Karnavan'. The interest of a member in tarwad property was neither heritable nor alienable and on his death it would devolve on the other members by survivorship. Under the pristine Marumakkathayam law, the separate property of a member also would devolve upon members of the tarwad and not on his wife and children. In the case of a female member her self-acquisitions descend to her thavazhi or sub-tarwad constituted by her children and further descendants in the female line. A member had no right to demand partition of tarwad properties. Impartiality was the rule and there could be no partition without the concurrence of all the members of the tarwad.