Velu Pillai, J.
1. This second appeal arises in a suit by the first plaintiff, and her son the second plaintiff, to set aside a sale-deed dated the 6th Mithunam, 1118, by the second defendant who is the mother of the first plaintiff, in favour of the first defendant. The property sold belonged to the tarwad of the second defendant and was allotted to her on partition which took place on the 8th Medom. 1104. The first plaintiff was not born at the time. The plaintiffs impugned the sale-deed as not binding on the tazvazhi of the second defendant to which the property was said to belong. The first defendant contended that by the partition, the property belonged to the second defendant absolutely. Relying on the decision of the majority of the judges of the Travancore-Cochin High Court in Iravi Pillai Parameswaran Pillai v. Mathevan Pillai Ramkrishna Pillai, 1954 Ker LT 862 : (AIR 1955 Trav-Co 55) (FB), the Courts below decreed the suit. The correctness of the decision of the majority in the case cited was doubted by my learned brother. Madhavan Nair, J., and on a reference made by him, this appeal has been heard by us. The majority of the Judges had held in the case cited, that property obtained by a Nayar female towards her share, under an outright partition in her tarwad, will retain the character of tarwad property and become the property of her tavazhi on the birth of a child to her so as to destroy her absolute powers of disposal over it. Sankaran, J., as he then was dissented and held the contrary, and I am in entire agreement with his view.
2. Partitions of tarwad properties into shares, whether of individuals or of tavazhies, were not unknown to the customary Marumakkathayam Law, but such partitions were consensual and not compulsory. Books do speak of such partitions. A Full Bench of the Travancore High Court had decided in Swaminatha Pillai Maharaja Pillai v. Ramalekshmi, 44 Trav LR 126 at p. 138 (FB), that a partition deed entered into by the adult members of a tarwad is binding upon its minor members in the absence of fraud. The Travancore Nayar Act, 1088, which was the first of its kind, did not confer a right of partition, but the Cochin Nayar Act of 1095 conferred such right on collateral tavazhies, and on male children, and female children without issue who did not belong to any of such tavazhies. Then came the Travancore Nayar Act II of 1100 and the Cochin Nayar Act XXIX of 1113, which may be regarded as having conferred on every member of a tarwad (subject to certain restrictions prescribed by the former) the right to claim his or her share of the tarwad properties, that is, the right of individual partition as it is generally called. The present case is governed by the provisions of the Travancore Nayar Act of 1100; those which relate to partition find a place in Chapter VII. The following statement of objects and reasons may be referred to, though not for construing any of the provisions, as indicating the purpose of the enactment:
'This is new and the attempt is to give effect to the consensus of opinion freely, forcibly and persistently expressed by the members of the community that they require individual partition so as to remove the principal impediment in the path of their progress.'
3. Section 33 of the Travancore Nayar Act of 1100 has, subject to certain restrictions or limitations, conferred on every member, the right to claim his or her share of the tarwad properties. The restrictions or limitations were conceived, with a view to safeguard and protect the rights and interests of minor members or of the tavazm'es of the tarwad or of both, in the event of compulsory partition. The share of an individual or of a tavazhi is what shall fall to the individual or to the tavazhi, if a division per capita were made of the properties among all the members of the tarwad. The Travancore Ezhava Act III of 1100 also has by Section 30, subject to certain restrictions and limitations, conferred a right of partition on collateral tavazhies, and on male children and female children without issue, who are not included in such tavazhies. The restrictions on compulsory partition as between tavazhies or members thereof to be found in the Travancore Nayar Act, though not in the Cochin Act, were intended to prevent too rapid disintegration of the tarwad into individuals and to allow scope though to a limited extent, for the expansion of tavazhies on account of its female members. But within these restrictions and limitations, the right of compulsory partition conferred on every member, male or female, is absolute. A full bench of this Court has held in Velayudban Gopala Panickar v. Velumpi Kunji, 1958 Ker LT 253 : (AIR 1958 Kerala 178) (FB), that the restrictions or limitations to be found in Sections 28 to 30 of the Travancore Ezhava Act are such as may be waived by the members of the tarwad even in a suit for partition, and a Division Bench of this Court has held in Parukutty Amma v. Chellamma, 1957 Kef LT 176 : (AIR 1957 Kerala 69), that the restrictions to be found in Section 36 of the Travancore Nayar Act of 1100, have no application to a partition brought about by unanimous consent of the adult members of the tarwad. These enactments have also made provisions for the devolution of self-acquired or separate properties of males and females. Of course if the share obtained on partition by a member is not to be considered as his or her separate property, but as still possessing the incidents of tarwad property, these provisions do not apply. For example, under Section 17 of the Travancore Nayar Act, read with Section 12, the separate properties of a female devolve on her death, on her children and lineal descendants of deceased children who include children of sons, in equal shares; this cannot be, if her share is tarwad property. In effect. Section 39 of the Travancore Nayar Act of 1100 which corresponds to Section 62 of the Cochin Nayar Act of 1113 has declared, that the share of a member, whether male or female allotted on tarwad, partition, is, alienable and heritable, and this is without any reservations, condition or limitation. In other words, such share constitutes his or her separate property descendible to the heirs on intestacy.
4. It seems to me that there is also another approach to the question. The term 'tavazhi of a female' is defined in the earlier and later Travancore and Cochin enactments including the Travancore Ezhava Act of 1100, in the same way, apart from certain verbal differences which do not count. The definition in the Travancore Nayar Act of 1100, is that it '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'; thus the tavazhi is either the group so united, or the survivor or survivors in that group. A group has first to be postulated, before a survivor in it can be predicated. A female member who has not given birth, is by herself neither a group of persons as defined, much less the survivor in that group and when she separates herself from the tarwad, she does so as an individual, like a male member who separates himself and with reference to whom the tavazbi is that of his mother. This may be contrasted with the scheme of the Madras Marumakkathayam Act, 1932, and the definitions in it. Section 3 (j) (i) of that Act has defined the tavazhi of a female as 'a group of persons consisting of that female, her children and all her descendants in the female line'. Section 38 of that Act may be referred to with advantage. . It reads : -
'38. (1) Any tavazhi represented by the majority of its major members may claim to take its share of all the properties of the tarwad over which it has power of disposal and separate from the tarwad:
Provided that no tavazhi shall claim to be divided from the tarwad during the lifetime of an ancestress common to such tavazhi and to any other tavazhi or tavazhies of the tarwad, except with the consent of such ancestress, if she is at member of the tarwad. (2) The share obtained by the tavazhi shall be taken by it with the incidents of tarwad property.
Explanation. -- For the purposes of this Chapter, a male member of a tarwad or a female member thereof without any living child or descendant in the female line, shall be deemed to be a tavazhi if he or she has no living female ascendant who is a member of the tarwad.'
The above Explanation serves not only to make up for the omission of the words 'such of that group as are alive' from Section 3 (j) (i), by the force of which a female member by himself can constitute a tavazhi, but also to enact that even a male member is to be deemed to be a tavazhi by himself, for the purpose of the chapter on partition in which Section 38 finds a place. This is in consonance with the scheme of partition envisaged by Section 38 (1) and (2). So the legislature knows to give effect to its intention by enacting suitable provisions and to avoid discrimination between a male and a females sharer. It is patent that the scheme of the Travancore and Cochin enactments is different.
5. On the above survey of the provisions of the concerned enactments and the relevant definitions in them, it seems plain that a disruption or breaking up of the tarwad into individuals or tavazhies of both, takes place on outright partition, the properties allotted to them losing their original character as tarwad properties and becoming instead their separate properties, in the case of individuals the sex being of no concern. Indeed, on outright partition, the tarwad itself ceases to exist. At this stage, I may quote from Sundara Iyer on Malabar and Aliyasanthana Law, page 187, paragraph 105 :-
'The other species of individual property usually met with, are (a) property allotted at partition (b) tarwad property in the hands of the last surviving member (c) inherited property. When property is inherited by undivided groups, they will of course take as groups with the incidents of tarwad property but where the individuals composing them are divided inter se or where there is only one individual entitled to inherit, inheri-ance becomes a source of, acquisition for individuals.'
6. The notion that the share allotted to a male or female on tarwad partition can be regarded as a tarwad in embryo, or as still retaining its original tarwad character, appears to me to be far-fetched and unconvincing, and I see no compelling or valid reason to introduce this concept. The application of such a concept, especially to the share of a male member is beset with anomaly. It is said that so far as a male is concerned, an adoption may be made by him to continue the tarwad. The Cochin Acts of 1095 and 1113 do provide 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'. The meaning and object of this are plain. It presupposes the existence of a tarwad as such which is threatened with extinction, and confers a power on the karnavan to make an adoption, generally of female members, for perpetuating the family; an adoption by a sole surviving member is quite in accord with this. There is no corresponding provision in the two Travan-core enactments.
In my view, such a provision would have no application to a tarwad which has ceased to exist as sucb and which has already disrupted into individual members or tavazhies or both. In all my experience; limited though it be, I have not come across one instance in which a male member who has taken his share individually on partition, has made an adoption so as to hold such share with the adoptee as their tarwad property. It looks somewhat odd, that a separated male member might even though he has children living, adopt a nephew or a niece with a view to form a tavazhi. If this theory of adoption does not work in the case of a male, I fail to see why in the case of a female taking her share individually, such share should be deemed to possess the incidents of tarwad properties. To hold so would, in the language of Sankaran, J., be nothing short of discriminating between male and femable sharers. Alternatively, if property allotted to a female member as her individual share on tarwad partition can be regarded as her own, it is impossible to conceive that it would change its character or complexion afterwards so as to become tarwad property, the moment a child is born to her; even the notion of a throwing into the common stock seems hardly admissible, because no common stock exists.
Before leaving this part of the case, it is desirable to make at least a passing reference to Section 7 of the Hindu Succession Act, 1956, as indicative of the trend of statute law. That Section provides that when a male or female member on a tarwad dies after the commencement of that Act, his or her interest in the tarwad properties, meaning, the share thereof 'that would have fallen to him or her if a partition ..... per capita had been made immediately before his or her death among all the members of the tarwad ..... then living, whether he or she was entitled to claim such partition or not under the Marumakkatha-yam ..... law applicable to him or her', shall be deemed to belong to him or her absolutely, and shall devolve by testamentary or intestate succession as the case may be, as prescribed. So this is what takes place on succession; it is a matter for serious consideration whether there is any compelling reason to hold that the share obtained on individual partition would not be the absolute-property of the sharer.
7. There is no analogy whatever between the case of a male or female taking his or her individual share and the case of a sole surviving member in possession of tarwad properties, and all considerations founded upon such analogy are bound to be misleading. In the former case there is a disintegration of the tarwad into units, either individuals or tavazhies, and in the latter, there is nothing to destroy or alter the tarwad character of the properties, the tarwad still remaining in-tact, though its strength is depleted almost to the vanishing point, being left with a lone member, who by himself or herself represents the tarwad. As such representative, that member enjoys absolute power of disposal only till another member is born in the tarwad or is adopted into it. Still it is a moot point, on whom the properties would have devolved on the death of the last surviving member before the Hindu Succession Act. See the observations of Raghavan, J., in Kochunarayana Pillai v. Kumara Pillai, 1062 Ker LT 379 (FB). For these reasons I do not think that the case of the sole surviving member of a tarwad has any relevance.
8. I am wholly unable to agree with the-reasoning and the conclusions of Subramonia Iyer, J., in 1954 Ker LT 862 : (AIR 1955 Trav-Co 55) (FB). While I agree with the proposition-stated by the learned Judge, that a female separating herself from some of her children may remain as a tavazhi with the others from whom she has not separated, the further proposition, that even if she separates herself from all her children and lineal descendants, she would hold the property obtained on partition as a tavazhi with her after-born children, does not follow, and poses the-very question to be decided. I have endeavoured to establish that there is nothing to compare between an adoption by a separated member and an-adoption by a sole surviving member of the tarwad. The learned Judge has also drawn largely on the analogy in Hindu law of a son taking an interest by birth in property obtained by the father on partition. Though there are similarities with respect to the joint holding of property between the two systems of law, this is what the Supreme Court had to say in K. Kottarathil Kochunni v. States of Madras and Kerala, 1960 Ker LT (SC) 31 at p. 59 : (AIR 1960 SC 1080 at P. 1099):
'Marumakkathayam literally means descent through sister's children. It is a body of custom and usage which have received judicial re-cognition. Though Sundara Aiyar, J., in Krishna Nair v. Damodaran Nair, ILR 38 Mad 48 : (AIR 1916 Mad 751) (FB), suggested that 'Malabar Law is really only a school pf Hindu Law', it has not been accepted by others. There is a fundamental difference between Hindu Law and Marumakkathayam system in that the former is founded on agnatic family and the latter is based on matriarchate. Marumakkathayam family consists of all the descendants of the family line of one common ancestor and is called a tarwad.'
It is commonplace to enumerate the differences between the two systems, but one of them which concerns this case may be noticed. Unlike what happens on partition of a Hindu family, both male and female members share on partition of a tar-wad. The notion of 'taking an interest by birth' can apply, if at all, only in the case of a female member of a tarwad and will not apply in the case of a male, apart from the theory of adoption which I hold to be unacceptable. In the nature of things there can be BO difference in the character of the properties taken by the sharers on partition of a Hindu family; but there would be such difference in the character of the properties taken by males and females on partition of a tarwad, if the contention were to prevail, that in the hands of females they always constitute tavazhi property.
9. The majority decision in 1954 Ker LT 862 : (AIR 1955 Trav-Co 55) (FB), follows Kochukrishna Menon v. Lakshmi Amma, 23 Cochin LR 495, in which on partition of a tarwad the plaintiff and his sister the first defendant, took separate shares, and afterwards a daughter was born to the latter; the question arose whether property allotted to the first defendant became her tavazhi property. The judgment of the High Court quoted elaborately from the judgment of the District Judge, who opening the discussion in his judgment with the statement, 'that properties obtained on partition in a Malabar tarwad always constitute tarwad property' proceeded to state, that 'even though the first defendant had absolute rights to deal with the property allotted to her, the moment the child was born to her, such powers ceased' and thereafter she had 'only the rights of a manager of a tarwad'. Though the District Judge was prepared to grant that property allotted to a female on tarwad partition may constitute separate property within the meaning of Section 19 of the Cochin Nayar Act of 1095, he thought that 'the said Section does not enact, that during the life-time of that female member she was possessed of absolute rights of disposal over the said property, when she had children born to her'.
This reasoning appears to me to be fallacious. After quoting from the District Judge's judgment, the High Court said, 'we agree with the learned Judge in thinking that the property became tavazhi property by the birth of the second defendant'.
10. In Naniamma Janakiamma v. Chandy Varghese, 1949 Ker LT 21, a Division Bench of the Travancore-Cochin High Court, accepting the contention that the female member of a tarwad took her share on partition as tavazhi property, remarked : -
'I may at once observe that the contention, to my mind, is unexceptionable, as it is founded upon the correct view to be taken regarding the character of the property under Malabar Law. To dispute the correctness of the above proposition, I am afraid, is to plead ignorance of the fundamental principles of Marumakkathayam Law.'
It is enough to state, that notwithstanding the strong language employed, I do not feel persuaded that the proposition can be regarded as correct. The bench did not also consider the case of a male member taking a share on partition. The referring order in Kamakshi Amma v. Gangadha-ran Pillai, AIR 1954 Trav-Co 60 at p. 63 (FB), which was also cited in the majority judgment in Iravi Pillai Parameshwaran Pillai's case, 1954 Ker LT 862: (AIR 1955 Trav-Co 55) (FB), followed 1949 Ker LT 21 (TC), without discussion. The head-note in Krishnan Narayanan v. Neelacanta Panicker, (1951) 6 DLR (TC) 208, which was extracted in full in the leading judgment in 1954 Ker LT 862 : (AIR 1955 Trav-Co 55) (FB), is not wholly correct and is misleading. That part of the head-note reading 'their rights (meaning the rights of after-born children) are confined to the share obtained by their mother' was based on the judgment of the lower Court, a summary of which was given in the first paragraph of the judgment of the High Court. What the High Court decided in that case was a question of impleadment, the decision being that the plaintiff having separated herself from the tarwad, her after-born children 'have no right to come in as additional defendants in the suit'.
11. In the present case, the share taken by the second defendant must be considered to be her separate property notwithstanding the birth of the first plaintiff. The first defendant has a case in the written statement, that the second defendant took her share as distinct from her children in a separate schedule; if so, her intention to take her share absolutely was more pronounced. But the partition deed is not in evidence. The fact however was not disputed, and the case has proceeded on the footing, that the second defendant took her share of properties in a separate schedule; this is enough for the disposal of the present question.
12. In the above view, the sale-deed executed by the second defendant in favour of the first defendant must be regarded as valid and as not liable to attack by the plaintiffs. Accordingly, in reversal of the decrees of the two Courts, the suit is dismissed; as the plaintiffs and the lower Courts have relied on the decision of the Court in 1954 Ker LT 862 : (AIR 1935 Trav-Co 55) (FB), I think it proper to direct the parties to bear their costs throughout. The second appeal is allowed.
Madhavan Nair, J.
13. I agree with the decree proposed by my I learned brother, Velu Pillai, J., but like to state I my reasons therefor in my own way.
14. The 2nd defendant, admittedly governed by the Travancore Nayar Act, II of 1100, had obtained the suit property in 1104 as her own share in outright partition of her tarwad. The 1st plaintiff, born subsequently to her, claims the property to have become the common tarwad property of herself and the 2nd defendant as soon as she was born and seeks to set aside its sale by the and defendant as not been supported by tarwad necessity. The 1st defendant, the vendee, contends that, under the partition of 1104, the 2nd defendant got the property as -er separate property and that therefore the plaintiffs have no right to question its sale to him by the 2nd defendant. The Courts below have accepted the plaintiffs' case relying on the majority view in 1954 Ker LT 862 : (AIR 1955 Trav-Co 55) (FB), which is being reconsidered here.
15. In 1954 Ker LT 862 : (AIR 1955 Trav-Co 55) (FB), two questions were referred to the Full Bench and they were :
'(1) Does the property obtained by a Nair female towards her share under an outright 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?'
Subramonia Iyer, J., with whom M. S. Menon, J., (as he then was) concurred, observed:
'Principles applicable to Mithakshara Law have been applied to Marumakkathayees on account of the general application based on principles of equity and good conscience. The principle of severance in status is an example' and relying on
'(a) the proposition of the Hindu Law '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', and
(b) the provision in Section 38 (2), Madras Maramakkathayam Act, 1933 -
'The share obtained by the tavazhi shall be taken by it with the incidents of tarwad property.
Explanation: For the purpose of this Chapter, a male member of a tarwad or a female member thereof without any living child or descendant in the feamle line, shall be deemed to be a tavazhi if he or she has no living female ascendant who is a member of the tarwad.''
'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 tavazhi with her and a child adopted by a male would be a member of a tavazhi 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 co-parcener, in a Mitakshara family.'
Sankaran, J., (as he then was) dissented and held :
'The principles under these two systems -- the Mitakshara law and the Marumakkathayam law --are fundamentally different .......... in Section 39 of the Travancore (Nayar) Act and Section 62 of the Cochin (Nayar) Act ..... 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 tile individual member has an alienable or heritable interest; in other words, the sections make it clear that on an oat-right 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 .....
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 Marumakkathayana female alone will get itself transformed into her tavazhi property or tarwad property, thereby destroying the absolute rights she till then had in, respect of that property .....
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 charac-ter of tarwad property.
2. That property does not cease to be her separate property and it does not become the property of her tavazhi on the birth of a child to her, so as to destroy her absolute powers of disposal in respect of that property,'
I agree fully with the view expressed by San-karan, J., in the above extract.
16. The pristine Marumakkathayam Law followed by the Nayars in the pre-Nayar Act days recognised no right to individual partition. Such a right was conferred by the Nayar Acts only, It must then follow that the effect such partition must be sought in the provisions of the concerned statutes and neither the pristine Marumakkathayam. Law, nor the Hindu Law can be a reliable guide thereto.
17. To me it appears that, as concerns the Travancore Nayar Act, the clearest indication in this regard occurs in its Section 39 which runs thus :
'Until partition, no member of the Tarwad shall be deemed to have a definite share in Tar-wad property liable to be seized in execution nor shall such member be deemed to have any alienable or heritable interest therein.'
Exceptio probat regulam de rebus non exceptis. (An exception proves the rule concerning things not excepted.) Section 39, when it says that until partition no member of the tarwad shall be deemed to have any heritable interest in tarwad property, has to be understood to say that what a member gets in partition of the tarwad is heritable property in his or her hands.
18. The parity attempted to be drawn between the last member of a tarwad under pristine Maruniakkathayam law and a person given individual share on partition under the Nayar Act, has, in my opinion, no substance. In the former case, the tarwad as such has shrunk in one person, whether the person be a young woman or a man; but in the latter case, the tarwad is put an end to by the severance of the individuals who composed it. Tarwad property in the hands of the last member thereof would descend to the members of the other tarwads divided oft earlier, called Dayadis, Kottukars or Attaladakkam heirs, the nearer excluding the more remote. See Lekshmi Narayani v. Pachootty Mathevi, 17 Trav LR 69; K. Mathevan Pillai Narayana Pillai v. Pothikutty, 18 Trav LJ 89 and Gopala Nair v. Raghawan Nair, AIR 1925 Mad 460. The above proposition is well illustrated in 18 Trav LJ 89. The parties were Ezhavas following Misravazhi (mixed system) inheritance under which one-half of one's properties descended to his widow and children and the other half to his Marumakkathayam heirs. It was contended in that case that, in the absence of Anandaravans, the widow and children succeeded to the entire property that was in the hands of the last member of a tarwad, in prefenerce to his 'divided Kottu-karar'. It was held :
'The above argument, though very ingenious, ignores the basic principles of the Marumakkathayam Law by which, with a slight modification, the parties are governed. The slight modification mentioned above is that one-half of the separate or self-acquired property of a deceased Ezhava governed by the Misravazhy system will devolve upon his wife and children. The other half will follow the line of succession according to the Marumakkathayam Law. Under the Marumakkathayam system the classes of heirs are recognised by our decisions viz. : the Anandravers or Seshakars having community of property with the deceased, and secondly the koottukars or Dayadis, having only community of pollution with him. The properties will descend in the first instance to the first class of heirs, and in their absence to the second class. Failing this class of heirs, the properties will escheat to the Crown. There is neither reason nor authority in support of the position that on failure of the first class of heirs the entire properties will go to the wife and children.'
Since Dayadis took in succession, and not by survivorship, they could not question bis alienations. In legal theory the last member of a tarwad got an absolute power of disposal of its properties, not because they were his own properties but because there was no body competent to question his alienations. It follows that, if property allotted to a member in partition were still tarwad property in his hands, it must descend on his death to members of collateral tavazhis separated by partition, the nearer excluding the more remote. But, it is agreed on all hands that the property allotted to an individual male in partition of his tarwad descends to his personal heirs only, and not to his Marumakkathayam heirs. It must then be conceded that such property is separate property in his hands, and not tarwad property. The one point on which ail the learned Judges were in agreement in 1954 Ker LT 862 : (AIR 1955 Trav-Co 55) (FB), was that there was no difference between a male member and a lone female member getting divided from the tarwad. It then follows that the property obtained by a Nayar female as her share in partition of her tarwad can only be her separate property.
19. Subramonia Iyer, J., has observed in 1954 Ker LT 862 : (AIR 1955 Trav-Co 55) (FB) :
'A child born to the woman (after her severance at partition) would be a member of the tavazhi with her and a child adopted by a male would be a member of a tavazhi 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 above observation does not appear to be warranted by any provision of the Cochin Nayar Act. The Travancore Nayar Act contains no provision for adoption. Section 72, the Cochin Nayar Act, 1113, provides:
'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 perpetuaing the family. Such adoption may be of one or more females with or without males.'
In my opinon, this Section does not authorise a male who divided off from his tarwad to adopt a child to constitute a tarwad thereby. It authorises only the 'karnavan' of a 'tarwad' to adopt one or more females (with or without males) for perpetuating the 'tarwad'. Tarwad is defined in the Cochin Nayar Act as the members of a joint family with community of property governed by the Marumakkathayam Law. An individual who has separated from all the other members of his old tarwad cannot be a tarwad under that definition. He is not thereafter governed by the Marumakkathayam Law of inheritance but by a different system of inheritance provided by the statute; and 'community of property' connotes a plurality of persons. The plurals used in Section 72, Cochin Nayar Act, are, in my view, advisedly put in; and a divided individual, male or female, cannot make an adoption under it.
Thus none of the reasons given in 1954 Ker LT 862 : (AIR 1955 Trav-Co 55) (FB), to support the dictum of the majority there appeals to me; and with the reasons must go the dictum itself.
20. S. Govinda Menon, J., speaking for an earlier Division Bench of the Travancore-Cochin High Court in Nani Amma Janaki Amma v. Chandi Varghese, 1950 Trav-Co LR 477, has observed :
'He contends that though this property was obtained by the first defendant separately on account of her individual share in her tarwad properties in partition at a time when she had no children and therefore constituted for the time being property over which she had absolute power of disposal, the moment her first child was born it became the property of the sub-tarwad or tavazhi composed of herself and her child and thereafter it could be alienated by her only for tarwad necessity and binding consideration. I may at once observe that the contention, to my mind, is unexceptionable, as it is founded upon the correct view to be taken regarding the character of the property under Malabar Law. To dispute the correctness of the above proposition, I am afraid, is to plead ignorance of the fundamental principles of Marumakkathayam Law. Under Maruma-kkathayam Law every female of a tarwad by herself, and if she has children along with them, constitutes a tavazhi or sub-tarwad. Propertiesobtained in family partition separately by a child-less female member form and continue in herhands as tavazhi properties.'
In the above observation, the learned Judge seemsto have assumed the proposition as 'fundamental'requiring no authority to support. For the reasons already mentioned (supra), I cannot agreewith these observations. The assumption that every female is a tarwad is against the very definition of a tarwad in the Nayar Act. I am afraid that bis Lordship in his fondness of the principles of pristine Marumakkathayam law had overlooked some of the provisions in the statute which was designed deliberately to make large inroads therein. The Travancore Nayar Act, 1100, came into force on the rst Chingom 1101 (August 17, 1925). The decision in 1950 Trav-Co LR 477 was delivered on August 29, 1949. Till then no lawyer in Travancore urged, at least so far as my experience at the Bar went, that the properties obtained in individual partition by a childless female became the tarwad property of herself and her child when one was born to her. If contempora-nea expositio is of any indication, it was certainly In conformity with the view expressed by Sanka-ran J. in 1954 Ker LT 862 : (AIR 1955 Trav-Co. 55) (FB) and he was a Judge who had occasion to deal with a large number of cases concerning partition and devolution among Nayars in the north, middle and south Travancore areas.
M.S. Menon, C.J.
21. I would dismiss the second appeal.
22. In T954 Ker LT 862 : (AIR 1955 Trav-Co. 55) (FB), I said :
'The view adopted in 23 Cochin LR 495, 1949 Ker LT 21 (TC), AIR 1954 Trav-Co 60 (FB) (Paragraph 13) 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.'
Nothing that has happened since then or anything stated in the judgments of Velu Pillai and Madha-van Nair JJ. induces me to a different conclusion.
23. The oldest form of ownership was family, or corporate ownership and the most modern --at any rate till the concepts of State ownership came into being--was separate or individual ownership. The change from aggregate to individual ownership--a change by no means complete --has been the product of many centuries and in the slow process of change many restricted and intermediate forms of ownership have been left on the way. Some of them survive and are still with us : joint tenancy, tenancy in common, coparcenary, and the ownership of tarwad and tavazhi.
24. Property has often been the vehicle of dormant rights and liabilities, apart from consent or contract; and I see nothing incongruous in saying that the property that a female member obtains in tarwad partition becomes her tavazhi property on her becoming a mother. Two things coalesce to produce the result : the antecedents of the property; and the arrival of the child.
BY THE COURT
25. The second appeal is allowed; but without costs.