Inheritance under Marumakkattayam law: Gifted properties presumed tarwad, tavazhi entitled to maintenance.

The judgment reaffirms that properties gifted to a mother and her children under Marumakkattayam law are presumed as tarwad property with customary incidents. Persons born into the tavazhi are entitled to maintenance but cannot claim partition. Individual members cannot alienate their shares or have them attached in personal decree execution. The judiciary stresses that any change to this presumption should be legislated. The decision aligns with established views under Marumakkattayam law, emphasizing the collective nature of property holdings within the tavazhi.

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Issues Involved:
1. Presumption of property as tarwad property under Marumakkattayam law.
2. Rights of persons subsequently born into the tavazhi.
3. Alienation and attachment of individual shares in the property.

Detailed Analysis:

1. Presumption of Property as Tarwad Property under Marumakkattayam Law
The judgment begins by addressing the decision of the Full Bench in Kunhacha Umma v. Kutti Mammi Hajee I.L.R. (1893) Mad. 201, which establishes that when a gift is made by a father to the mother and her children under Marumakkattayam law, there is a presumption that the property is intended to be the exclusive property of the branch or tavazhi consisting of the mother and her children. This presumption arises in the absence of express provisions to the contrary and is based on the customary holding and enjoyment of property among followers of the Marumakkattayam law. The decision has been widely accepted and followed in numerous cases, indicating that many transactions have proceeded on this basis. The judgment emphasizes that any change to this presumption should be made by the legislature, not the judiciary.

2. Rights of Persons Subsequently Born into the Tavazhi
The judgment clarifies that persons subsequently born into the tavazhi are entitled to maintenance but do not have the right to claim partition of the property. This follows the precedent set by the Full Bench decision and subsequent cases. The property is to be managed by the senior male member of the tavazhi, known as the karnavan, and is held with the incidents of tarwad property, which includes impartibility and the right by birth of persons born in the tarwad.

3. Alienation and Attachment of Individual Shares in the Property
The judgment explicitly states that an individual member of the tavazhi cannot alienate their share of the property, nor can it be attached and sold in execution of a personal decree against any of the members. This is consistent with the nature of tarwad property under Marumakkattayam law, where the property is held collectively by the tavazhi and individual members do not have alienable interests.

Separate Judgments:

T. Sadasiva Iyer, J.
Justice Sadasiva Iyer concurs with the decision in Kunhacha Umma v. Kutti Mammi Hajee I.L.R. (1893) Mad. 201, emphasizing that it aligns with the views universally held by communities following the Marumakkattayam law. He addresses objections based on the rule of perpetuity and the potential complexities arising from a woman marrying multiple husbands and having children by them. He concludes that such situations do not invalidate the holding of property by the tavazhi with the incidents of tarwad property.

Srinivasa Ayyangar, J. (Partly Concurring)
Justice Srinivasa Ayyangar provides a detailed analysis of the nature of group holdings in India, particularly under the Marumakkattayam law. He concurs with the Full Bench decision in Kunhacha Umma v. Kutti Mammi Hajee I.L.R. (1893) Mad. 201, and emphasizes that properties held by a tavazhi are held with the incidents of tarwad property. He addresses the objections raised by Sankaran Nair, J., and concludes that a tavazhi can hold property with the incidents of tarwad property even if it has not separated from the main tarwad. He also rejects the contention that a gift to a tavazhi amounts to a grant in favor of unborn persons, thereby violating the rule against perpetuities.

Conclusion:
The judgment reaffirms the presumption that properties gifted to a mother and her children under Marumakkattayam law are held as tarwad property with the usual incidents, including impartibility and the right by birth. Persons subsequently born into the tavazhi are entitled to maintenance but cannot claim partition, and individual members cannot alienate their shares or have them attached in execution of personal decrees. The judgment emphasizes the need for legislative action to change this presumption, if necessary.

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