PARAMESWARAN PILLAI Vs. RAMAKRISHNA PILLAI

JUDGEMENT

(1.) THE following two questions have been referred to the full Bench: (1) Does the property obtained by a Nair female tarwads her share under an out-right partition in her tarwad any longer retain a character of tarwad property? (2) Does that property cease to be her separate property and become the property of her thavazhi on the birth of a child to her so as to destroy her absolute powers of disposal in respect of that property? Had these questions concerned a co-parcener under the mithakshara Hindu Law the answers would have been unquestionably in the affirmative as would be clear from the following extracts: "the share which a co-parcener obtains on partition of ancestral property is ancestral property as regards his male issue. THEy take interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations it is separate property and if the co-parcener dies without leaving male issue it passes to his heirs by succession. " (Mulla's Hindu Law, 11th Edition, 1952, page 252, S. 223 (4 ). "on principle it would seem that where a father separates from his sons reserving a share for himself a son born after partition is a co-parcener with him in the share allotted to the father for by his birth he acquires a right in the ancestral property allotted to the father. THE father, therefore, can have no right to dispose of his share at his pleasure as against his after-born son. " (Mayne's Hindu Law, 11th Edition, 1950, page 450 ). "it has been held in several cases that when ancestral property has been divided among the sons the share allotted to each of the members is ancestral property in his hands as regards his own issue though it is looked upon as separate property as regards the separated members. " (Mitra, Joint Property and Partition in British India, page 39)

(2.) THE position would be the same regarding ancestral property in the hands of a sole surviving coparcener. This Court held in neelamma v. Ananchi Pillai 1953 KLT 515 (F. B.) resolving the conflict of judicial opinion that ancestral property in the hands of the last surviving co-parcener would exclusively belong to him and devolve upon his heirs. If, however, by the time of his death a child be begotten which on being born proves to be a son then the posthumous son who is a co-parcener with his deceased father would take the property by survivorship which but for him would have devolved upon the widow of the deceased as his heir (See Balakrishna kammathi v. Ganesha Pai 1954 KLT 87 F. B. ).

(3.) THERE is no difference between a male and a female member getting divided alone from a tarwad. A child born to the woman would be a member of the thavazhi with her and a child adopted by a male would be a member of a thavazhi or tarwad with him. In both cases the property obtained by the individual member male or female will be tarwad property in which the newly born or adopted member will be interested equally with the one that existed before the birth or adoption. The two questions have, therefore, to be answered in the same way as they would have to be had the questions related to a coparcener in a Mithakshara family. M. S. Menon, J. The view adopted in XXIII Cochin 495 (D. B.),1949 K. L. T. 21 (D. B.), A. I. R. 1954 T. C. 60 paragraph 13 (F. B.) and by Mr. Justice subramonia Iyer in this case appeals to me and I adopt that view in preference to that expressed by Mr. Justice Sankaran in the judgment just delivered by him. Sankaran, J. 1a. I regret I cannot agree to the answers proposed by my learned brother Subramonia Iyer, J. and in which my learned brother M. S. Menon, j. has concurred that the two questions before the Full Bench have "to be answered in the same way as they would have, had the questions relate to a co-parcener in a Mitakshara family. " The questions relate to the incidents of the property obtained by a Nair female towards her separate share under an outright partition of the properties of her tarwad. It is therefore obvious that the questions have to be answered according to the principles of the special law, i. e. , the Marumakkathayam Law, and in the light of the legislative enactments now in force which have made drastic changes in some of the fundamental principles of pure Marumakkathayam Law. 2a. The principles of the Marumakkathayam Law, even as they stood prior to such enactments, were not the same as, or similar to the principles under the Mitakshara Law. The principles under these two systems are fundamentally different. The basic feature of the Mitakshara Law is that the development of a joint family as conceived under it is exclusively along the male line. In a partition of ancestral property or joint family property, the female members get no share. Under Marumakkathayam Law, a tarwad traces its origin to a female and the tarwad is developed and perpetuated by descent exclusively along the female line. All the same, every member of the tarwad, male or female, has equal rights to be maintained out of the income of tarwad properties so long as the tarwad remains undivided. At the time of partition no discrimination is made as between the male members and the female members of the tarwad, so far as their shares are concerned. All of them get equal shares on the basis of a per capita division. Under the Mitakshara Law pious obligation is cast on the sons to discharge the debts of their father which are not tainted by illegality or immorality Such a concept is absolutely foreign to marumakkathayam Law. The junior members of a Marumakkathayam tarwad have no liability for the debts incurred by their parents or by the karnavan of the tarwad. The liability of the tarwad is only for real debts incurred by the acredited representative of the tarwad and for necessities binding on the tarwad. THERE are other vital differences also between the two systems and I do not think it necessary to enumerate all of them here. 3a. The rules of Mitakshara Law have their origin in certain ancient Smrithis and also on custom which has gained the force of law. The principles of Marumakkathayam Law are essentially based on ancient customs which have been recognised as having gained the force of law. No doubt there are some features common to both these systems. The position of a marumakkathayam tarwad may be said to be somewhat similar to that of a joint family under Mitakshara Law. Similarly, the position of a karnavan of a marumakkathayam tarwad as also his powers in relation to the management of the tarwad may be said to bear similarity with the position of a manager of a mitakshara family and to his powers in relation to the management of that family. But the mere fact that there are some features common to these two systems is no justification to ignore the fundamental differences between the two systems and to answer questions arising under Marumakkathayam Law in accordance with the principles which are special to Mitakshara Law. All that is good or bad under Mitakshara Law need not necessarily be so under Marumakkathayam Law. As already pointed out, each system has its own peculiarities. The incidents of co-parcenery in relation to ancestral property are special features peculiar to mitakshara Law, and I can find no warrant or justification for engrafting such features into the Marumakkathayam Law in view of the fundamental differences between the two, as already explained. 4a. Even from very early times judicial decisions have laid particular emphasis on the essential differences between these two systems of law. In Alami v. Komu (I. L. R. 12 Mad. 126) the question that arose for decision was whether a testamentary disposition made by a Marumakkathayee of south Malabar in respect of his self-acquired properties could be accepted as valid. Under strict Marumakkathayam Law such properties were to vest in his tarwad at the time of his death. The documentary evidence adduced in that case was clearly to the effect that at least from the year 1826 onwards it was the common practice among the Marumakkathayees of South Malabar to will away their self-acquired properties. This was the main reason which induced the Court to recognise testamentary power in a Marumakkathayee of South Malabar in respect of his self-acquired properties. What is significant to note is that the Court was not prepared to hold that the rules regulating such testamentary dispositions under Mitakshara Law could as such be made applicable to marumakkathayees governed by a special law of their own. The three reasons which induced the court to recognise a similar power in a Marumakkathayee have been stated as follows: "first, that there is power to give inter vivos according to Marumakkathayam usage; Secondly, that there is evidence of usage showing that testamentary power has long been exercised in Malabar; and, thirdly, that it does not override the right of survivorship which takes effect at once on the testator's death". At the closing portion of the judgment in that case special mention is made of the fact that the Marumakkathayees follow a special usage and it is stated that there were "traces" in the evidence of the practice of making wills for more than fifty years. In Mitavelil Katutha krishnan v. Vengan Thiruvattan Thirian Ayppu (6 Travancore Law Reports 49) a full Bench of five judges of the Travancore High Court had occasion to consider the special features of Marumakkathayam Law. In that case it was pointed out that "the karnavan and seshakars are in some sense co-parceners, their rights, owing to the impartible character of tarwad property, being restricted to a provision for maintenance out of the income of the corpus of the property". They are said to be co-parceners only in some sense, indicating thereby that every incident of co-parcenary as recognised under Mitakshara Law is not recognised under Marumakkathayam Law. That the court was not prepared to apply by analogy the principles of Mitakshara Law to Marumakkathayam tarwads, is also obvious from the following observations of Kunhiraman Nair, J. , who wrote the leading judgment in that case: "the Mitakshara Law which is supposed to give to the father as head of joint family, the power of disposing of joint property during seasons of distress, for the sake of the family and especially for pious purposes, is not applicable to Marumakkathayam families, and, looking to the constitution of the latter, the members of which are sometimes remote relations, and the karnavan of which is a man whose duty and interests conflict, it is very unsafe to apply the law here by analogy". The later decisions of the Travancore High Court as also of the Cochin High Court and also of this Court, have been consistently upholding the position that there are fundamental differences between the guiding principles of Marumakkathayam Law and those under Mitakshara Law. Thus it is clear that the decisions in Balakrishna Kammathi v. Ganesha Pai (1954 k. L. T. 87) and in Neelamma v. Ananchi Pillai (1953 K. L. T. 515), which dealt with questions under Mitakshara Law, cannot be of much assistance in answering the present questions relating to Marumakkathayam Law. In this view of the matter, I do not propose to embark upon a discussion of similar questions which may arise under Mithakshara Law. It has also to be remembered that the answers to the present questions cannot depend entirely on the principles of strict marumakkathayam Law. THERE have been great inroads into that law by legislative enactments and hence the special provisions contained in such statutes now in force should be the main guides for determining the answers to the questions before the Full Bench. 5a. Under strict Marumakkathayam Law no member of a tarwad was entitled to claim a separate share out of the properties of the tarwad. The idea was that the properties should be conserved for the tarwad for all time and that the members must be content with getting their maintenance out of the income of the tarwad properties. It is only by the subsequent legislations that right to partition was conferred on the members of the tarwad. Even in respect of this matter, the Legislature appears to have proceeded rather slow and only step by step. So far as this State is concerned, the earliest of such legislative enactments was the Travancore Nair Act, Act I of 1088. It is significant to note that this Act did not confer right on individual members of a tarwad to get divided from the tarwad. As the preamble to the Act indicates, the Act was intended "to define and amend the law of marriage, succession and family management of the Nairs". In the matter of testamentary succession as also of intestate succession, this Act made radical changes in the customary law that was till then in force. Under the Travancore wills Act, Act VI of 1074, the testamentary power of a Nair was restricted to one-half of the self-acquired or separate properties of the individual. But by s. 18 of Act I of 1088 this power was extended to the whole of the self-acquired or separate properties of a Nair. Under the pre-existing law, the whole of such self-acquired or separate properties, left undisposed of by an individual, had to devolve on his Marumakkathayam heirs. But by S. 12 of Act I of 1088, the rule of such devolution was confined to a half share in such properties, and provision was made for the remaining half share to devolve on the wife and children of a deceased Nair male. S. 15 stated that in the case of a Nair female, one-half of the self-acquired or separate properties left at her death would devolve on her thavazhi. A similar statute was brought into effect in the cochin State by the passing of the Cochin Nair Act, Act XIII of 1095. That Act also made provision for testamentary and intestate successions, on a par with the corresponding provisions in Act I of 1088 of Travancore. Express provisions for adoption and also for thavazhi partition were also made in the Cochin Act. The chapter on Partition made it clear that subject to certain exceptions, legislative sanction was given only for the disintegration of the common tarwad into thavazhies or branch tarwads. This is obvious from the mandate contained in S. 39 that no member of a tarwad shall claim or be compelled to divide from any member or members of his or her own thavazhi. In view of the provisions contained in these two earlier Acts, it could be said that even after thavazhi partition the properties taken by the respective thavazhies retained the incidents of tarwad property. But this idea appears to have been given the go-by when the later Acts in Cochin and Travancore (Act XXIX of 1113 and Act II of 1100 respectively) were passed conferring on individual members of a tarwad the right to claim a partition of tarwad properties and to get a share separate for himself or herself out of the tarwad properties, as the case may be. S. 33 of Act II of 1100 of Travancore states that subject to the provisions of Ss. 34 and 36, every adult member of a tarwad shall be entitled to claim his or her share out of the properties of the tarwad. Substantially the same provision is contained in S. 59 of Act XXIX of 1113 of Cochin. The change in the right thus conferred on the individual members of the tarwad is very significant. In place of the situation under which the law stated that no member of the tarwad shall claim or be compelled to divide from his or her own thavazhi, it was provided in the later Act that every adult member shall be entitled to claim his or her share in the properties of the tarwad. No doubt certain exceptions have been made to this rule. It is stated that if the individual member happens to be a female having minor children, she has to claim the shares of such minor children also along with her own share and will not be entitled to get herself separated from such minor children. As a corollary to this exception, it is further provided that where the tarwad consists of only one adult member along with minors, the adult member will not be entitled to get separated from the minors. Certain other restrictions have also been imposed on other adult members getting divided off from the tarwad during the lifetime of their female ascendant. Barring these exceptions, it is clear that an absolute right has been conferred on the adult members of the tarwad to get his or her individual share out of the tarwad properties and to deal with the same as his or her separate property. The provisions contained in the Chapter on'intestate succession' and also in S. 39 of the Travancore Act and in S. 62 of the Cochin act do give a clear idea as to the incidents attaching to the share obtained by a member of the tarwad on an outright partition. Act and S. 62 of the Cochin Act wherein it is stated that "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". The form in which these sections are worded clearly indicates, by antithesis, that, after partition, the share obtained by each member becomes his or her separate property liable to be seized in execution and in which the individual member has an alienable or heritable interest: in other words, the sections make it clear that on an outright partition the share taken by individual members loses its special features and incidents as tarwad property and takes the characteristic features of self-acquired property or separate property of the individual. No doctrine like "once a tarwad property, always a tarwad property" is known to law. It is worthy of note in this connection that the Legislature has not made any distinction as between the shares taken by male members and the shares taken by female members of the tarwad. On the other hand, the provisions made to regulate intestate succession in respect of the shares obtained by all these members are such as to demonstrate the intention of the Legislature that the separate shares obtained on partition by the male members and the female members are to be taken by them as their separate and absolute property subject to the incidents attaching to such property. These provisions are almost the same in Act II of 1100 of Travancore and in Act XXIX of 1113 of Cochin and hence it is unnecessary to reiterate the relevant sections of both the Acts. I shall refer to the sections of the Travancore Act which is the earlier Act. 7a. S. 11 states that on the death of a Nair male, leaving him surviving a widow or mother or both and also children or the lineal descendants of deceased children or both, they shall take the whole of the self-acquired and separate properties left undisposed or by him at his death. The mode of such devolution is specified in S. 12 where it is stated that sons and daughters of the deceased shall take the property in equal shares, provided that the lineal descendants of a deceased child shall take the share which such child would have taken, had it survived the intestate. It is also stated that the widow and the mother of the deceased shall each be entitled to a share equal to that of a son or a daughter. S. 17 states that on the death of a Nair female, leaving her surviving her children or the lineal descendants of deceased children or both, they shall take the whole of the self-acquired and separate property left undisposed of by her at her death and that the children shall take the property in equal shares as in the case of a deceased Nair male. The lineal descendants of a deceased child will also get only the share which the deceased child would have taken had it survived the intestate. THERE can be no doubt that the separate property referred to in these sections would include the share which the intestate had obtained towards his or her share under an outright partition of the properties of the tarwad. The mode of devolution of such properties as indicated in these sections makes it abundantly clear that the Legislature intended that subsequent to the partition of the tarwad the share taken by individual members should no longer retain the character of tarwad property. If the share taken by a member were to retain its tarwad character even after partition, such a feature must attach itself to the shares taken by all the members, males as well as females. If the share taken by a male retains the character of tarwad property, such share would devolve at his death on his mother thavazhi, and not on his wife and children, as provided in S. 11. Similarly, the provision in S. 17, directing that the share taken by a female member would devolve on her children in equal shares, would not have been made if the Legislature had entertained the idea that such share retained the character of tarwad property. If the property continues to be tarwad property, there is no scope for such property devolving on the heirs of the deceased member. In the case of females the children born to them will acquire right by birth in that property, and as such it cannot be said that the properties are devolving on them on the death of the mother. Similarly, the provision for the children taking as tenants-incommon the property left by the mother, would be out of place in such a situation. If the children take the property with the incidents of tarwad property, the provision would not be for all the children to get equal shares. On the other hand, the property would be taken by the entire thavazhi represented by the mother i. e. , her children together with all the issues in the female line how-low-so-ever, and the children of the deceased sons would get no share at the time when a partition is effected in that thavazhi. The Legislature has taken care to exclude all such possibilities in the case of the shares taken by individual members under an outright partition in the tarwad. Such being the nature of the statutory provisions, there appears to be no justification at all for attaching a disability to the share taken by a female member alone, as distinguished from the share taken by a male member. The Legislature has made no such discrimination. Even under Mitakshara Law the shares taken by all the co-parceners on a partition of ancestral property are subject to the same rights and liabilities and there is no discrimination as between the different sharers. 8a. The argument that the share obtained by a female member of a Maru- makkathayam tarwad on a partition of her tarwad property, would become tarwad property the moment a child is born, is based on a double discrimination. One is that the incidents attaching to the share taken by a female member are different from the incidents attaching to the share taken by the male member. The other is that the incidents attaching to the share taken by a female member who might give birth to a child or children, are different from the incidents attaching to the share taken by another female member who might not give birth to any child at all. When the statutory provisions are all definitely against any discrimination being shown as between the shares taken by the male members and female members of a tarwad, I fall to see how the argument resulting in a very obnoxious and unwarranted type of discrimination could be sustained. I am happy to agree with the observation of my learned brother Subramonia Iyer, J. , that "there is no difference between a male or a female member getting divided alone from a tarwad". But I do not find my way to agree with the further observations made by him, viz. , "a child born to the woman would be a member of the thavazhi with her and a child adopted by a male would be a member of the thavazhi or tarwad with him. In both cases the property obtained by the individual member, male or female, will be tarwad property in which the newly born or adopted member will be interested equally with the one that existed before the birth or adoption". No doubt when a Marumakkathayee tarwad is about to become extinct, the surviving members of the tarwad could achieve the object of perpetuation of the tarwad by adopting new members into the tarwad. But it is obvious from the very concept of Marumakkathayam tarwad that the adoptees should consist of females because the tarwad could continue only along the line of the issues of such females existing in the tarwad or brought into the tarwad. The position is made clear by the Cochin Act which makes an express provision for adoption. S. 72 of that act states that "where a tarwad consists of only male members, or of only female members past the period of child-bearing, or of both, the karnavan may, with the consent in writing of all the other members of the tarwad, make an adoption for the purpose of perpetuating the family. Such adoption may be of one or more females with or without males". It is clear that the adoption contemplated is into a tarwad which has not been disintegrated by an outright partition. So long as the tarwad remains joint and undivided, the property of the tarwad unquestionably retains its tarwad character. Naturally, therefore, the new members brought into the tarwad get all the rights in respect of such property as tarwad property, but it cannot be said that the same position will hold good even after an outright partition of the tarwad and in respect of the separate shares obtained by individual members. As already pointed out, there is no warrant for holding that the tarwad character of the property attaches itself perpetually to the property obtained by the individual sharers. Since the share obtained by a male member becomes his separate property, there is no tarwad or thavazhi in respect of that property so far as he is concerned. By a mere adoption of a male or female from a different tarwad, he cannot create a thavazhi or tarwad consisting of himself and the adoptee. This position has been explained by this court in a Full Bench decision in Kallianikutty Amma v. Devaki Amma (1950 K. L. T. 705) where it was ruled that a Marumakkathayam group as a legal entity or thavazhi cannot be created ad hoc. It was further held that to be a legal entity the group must be a natural group composed of a mother and her children and their descendants in the female line. No doubt where there has already been a natural group it could be perpetuated by adopting other females into that group where extinction of that group, i. e. , of the tarwad or thavazhi, is threatened. The thavazhi of a male as also the thavazhi of a female as defined in the Nair Act are also in accord with this position. "thavazhi of a female" means 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". "thavazhi of a male" means the "thavazhi of his mother". Thus in the case of a divided male member of a tarwad it is not possible for him to make an adoption and to create a thavazhi consisting of himself and the adoptee. He may settle all his properties on an adopted female. Herself and her issues may together form a new thavazhi or tarwad to which those properties may belong. But this is entirely different from saying that by adoption the share obtained by that male member from his tarwad becomes the tarwad property or thavazhi property of himself and the adoptee. Such a conception is the result of assuming that the share taken by a member on partition of Marumakkathayam tarwad still retains its tarwad character and of construing the principles of Marumakkathayam Law in the light of the incidents following an adoption under Mitakshara Law. In the hands of such a sharer the property remains as his absolute property and so long as he retains his ownership over it cannot take the character of thavazhi property or tarwad property even if he chooses to make an adoption. If such is the absolute nature of the share taken by a male member, the same should be the position in respect of a similar share taken by a female member. 9a. It is agreed on all hands that if the share obtained by a female member by partition of tarwad property continue to be her separate property up to the time of her death, it will devolve on her heirs in the manner specified in S. 17 of Act II of 1100 of Travancore and in S. 35 of Act xxix of 1113 of Cochin and that the incidents of tarwad property will not come into play in that connection. At the same time it is argued that the share taken by a female member who has subsequently given birth to a child or children will fall outside the scope of these sections for the reason that the effect of the child or children having been born to her is to convert the property, which was till then her separate and absolute property, into property belonging to her thavazhi, and as such it could no longer be deemed to be her separate property. The argument is no doubt ingenious, but I can find no merit or substance in it. If all the other items of the separate property and the self-acquired property owned by such a female member could remain unaffected by her giving birth to children, there is no reason why the position should be different in respect of the separate property which she obtained towards her individual share on a partition of her tarwad properties. Similarly, if the tarwad nature of the property disappears and is put an end to in respect of the male sharers, and also of the female sharers, having no prospect of issues, there is no reason to suppose that the tarwad nature of the property is lying dormant in the case of the other female sharers capable of giving birth to issues. Such a highly discriminatory idea cannot be read into the statutory provisions of the Nair Act, which have treated the separate properties obtained by the male sharers and the female sharers on a par with their self-acquired properties for all purposes and for all stages subsequent to the acquisition of separate ownership over these different categories of properties. If the legislature had any idea that one type of separate property, i. e. , the property obtained by a male or female member on partition, should undergo a radical change in the nature of its ownership and incidents at any stage, a clear provision to that effect would have been made in the statute. When the Nair Act (Act I of 1088) of Travancore and the Nair Act (Act XIII of 1095) of Cochin were passed, the Legislature was careful to maintain the integrity of the different thavazhies in a tarwad and with that idea in view, express provisions were made to the effect that no member of a tarwad shall claim or be compelled to divide from any other member or members of his or her own thavazhi. Similar safeguards were made in the Madras Marumakkathayam Act (Act XXII of 1933) also while making provision for thavazhi partition. The Explanation added to S. 38 in Chapter VI of that Act which made provision for thavazhi partition is very significant. That Explanation runs as follows: "for the purpose of this Chapter, a male member of the tarwad or a female member thereof without any living child or descendant in the female line shall be deemed to be a thavazhi if he or she has no living ascendant who is a member of the tarwad". This shows that when the Legislature wanted the property taken by such thavazhies on partition to retain its tarwad character, express provision in that direction was made. The significant absence of any such indication in Act II of 1100 of Travancore or in Act XXIX of 1113 of Cochin, is consistent with the other express provision contained in these statutes treating the shares obtained by the male members and the female members under an outright partition of the tarwad properties as their separate and absolute properties for all purposes. In this view of the matter, no weight can be attached to the point raised that it is not expressly stated in the sections dealing with intestate succession that the share taken by a fertile female member will continue to be her separate property even after she gives birth to a child or children. The obvious answer to such an objection is that the Legislature could not have anticipated that the absence of such a redundant provision could be put forward as an argument to undo the legal effect of the other clear provisions treating the shares obtained by all the members of the tarwad as their separate properties for all purposes. The supplemental provisions contained in S. 44 of the Travancore Nair Act and S. 74 of the Cochin Nair Act, cannot also be invoked in support of the argument that the share taken by a female member alone stands the risk of re-transformation into tarwad property as soon as a child is born to her. The relevant provision contained in the aforesaid sections merely states that nothing in the Act shall "affect the existing rules of Marumakkathayam law, custom or usage except to the extent hereinbefore expressly provided for". The incidents attaching to the shares obtained by the individual members on an outright partition of tarwad properties are expressly provided for in the Nair Acts of Travancore and cochin. THERE is clear provision to the effect that such share is alienable and heritable and is also liable to be seized in execution of decrees against the sharers. In the Chapter on intestate succession, the shares obtained by male members and female members are treated alike and put on a part with their self-acquired properties. Provision is also made that if such separate property is left undisposed of by the sharer at the time of death, the same shall devolve on the heirs of the deceased in the manner specified. The mode of succession and devolution prescribed by the statute is totally irreconcilable with the conception that such property could at any time regain its tarwad character which was put an end to at the time of the partition. When the provisions of the statute are so clear as to make out that the shares obtained by male sharers and female sharers under an outright partition of their tarwad properties are taken by them as their separate and absolute properties for all purposes, I fail to see any justification for ignoring the effect of these provisions and for invoking not only the principles of the ancient marumakkathayam Law, but also of the special rules governing the devolution of ancestral properties under Mitakshara Law and to evolve a theory that the separate share obtained by a Marumakkathayam female alone will get itself transformed into her thavazhi property or tarwad property, thereby destroying the absolute rights she till then had in respect of that property. The accident of child birth cannot have such an adverse effect on one variety of her separate property, as distinguished from other varieties of separate properties owned by her and over which she was having absolute powers of disposal. As already pointed out, the attempt in that direction involves a discrimination of a highly objectionable type. It will also have the disastrous effect of upsetting any number of transactions which third parties may have entered into with such female sharers in the honest belief that just as in the case of the male sharers the Legislature had conferred absolute rights on the female sharers also in respect of the properties allotted to their individual shares. No doubt such a consideration will be out of place if the relevant provisions are clear so as to lead to a contrary conclusion as to the incidents attaching to the share taken by the female members. But the intention of the Legislature as demonstrated by the provisions of the Nair Acts already adverted to, is definitely in favour of perfect equality in respect of the incidents attaching to the shares taken by the male members and female members under an outright partition of their tarwad properties. Consistent with this position, the answers to the questions referred to the Full Bench have to be in the negative. 10a. The dictum to the contrary as laid down in Janaki amma v. Varghese (I. L. R. 1950 T. C. 477 -1949 K. L. T. 21) cannot, therefore, be accepted as correct. It is seen that the relevant provisions of the Nair Acts now in force have not been considered in the light of the several aspects dealt with above, by the learned judges who participated in that decision. That decision proceeded mainly on the decision in Kochukrishna Menon v. Lekshmi Amma (23 Cochin Law Reports 495), where the view taken was that the rules of mitakshara Law regulating the incidents attaching to the shares obtained on partition of ancestral properties, should serve as guidance in determining the incidents attaching to the share obtained by a Marumakkathayee female on partition of her tarwad properties. This view cannot be accepted as correct. The effect of an outright partition in a Marumakkathayam tarwad has to be considered and decided in accordance with the principles of Marumakkathayam Law and in the light of the statutory provisions conferring the right of partition on individual members to get their separate shares and to deal with the same as their separate properties. The decision in Janaki Amma v. Varghese 1949 K. L. T. 21 (I. L. R. 1950 Travancore - Cochin 477) appears to have been cited with approval by the Division Bench in the order of reference in Kamakshi Amma v. Gangadharan (A. I. R. 1954 Travancore-Cochin 60 ). But the Full Bench in that case had no necessity or occasion to examine the correctness of that decision. The full Bench did not advert to that question at all. The Full Bench was only concerned with the scope and effect of S. 31 of the Travancore Nair Act (Act II of 1100 ). In the case reported in Narayanan Erran v. Neelakanta Panicher (1951, 6 D. L. R. Travancore-Cochin 208) also the present question did not at all arise for consideration. The only question that arose for decision was whether the children born of a female member, who had sued for partition, could claim any share out of the properties left in common in the tarwad after separating the mother's share. It was held that since the mother had got herself separated with the institution of the suit, the rights of the children are confined to the share taken by the mother. But it was not decided there that these children acquire any right by birth in the mother's share. It is only in the present case that the correctness of the decision in Janaki Amma v. Varghese 1949 k. L. T. 21 (I. L. R. 1950 Travancore-Cochin 477) has directly come up for consideration. For the reasons already stated, I am definitely of the view that the dictum in that case cannot be accepted as correct. According to me the decision in Janaki Amma v. Varghese 1949 K. L. T. 21 (I. L. R. 1950 Travancore-Cochin 477)has to be overruled. 11a. The two questions referred to the Full Bench are answered as follows: 1) The property obtained by a Nair female towards her share under an outright partition in her tarwad, does not any longer retain the character of tarwad property. 2) That property does not cease to be her separate property and it does not become the property of her thavazhi on the birth of a child to her, so as to destroy her absolute powers of disposal in respect of that property.