Marumakkathayam Law | Property Obtained By Hindu Woman Post-Partition Without Legal Heir Would Be Her Separate Property & Not Joint Property : Supreme Court

The Supreme Court, in an appeal concerning property devolution under Kerala's traditional Marumakkathayam law, ruled that property acquired by a woman and her children post-partition does not become their separate property but remains part of the tharwad (joint property).

The bench comprising Justice CT Ravikumar and Justice Sanjay Karol held so while deciding a question of “whether the property obtained by a female and her children after partition would be considered their separate property or would it belong to her tharwad.”

Moreover, the Court in this regard also discussed a question of whether the property obtained by a female post-partition, without a legal heir, would still be considered as tharwad property or her separate property.

To answer this question, the Court did a detailed analysis of the Kerala High Court's Full Bench Judgment passed in the case Mary Cheriyan & Anr. v. Bhargavi Pillai Bhasura Devi & Anr. (1967). The majority view holds that a single woman (without legal heir) at the time of partition retains the property as part of the tharwad, treating it as belonging to a single-member thavazhi, preserving future claims by potential members through birth or adoption. Conversely, the minority opinion argues that if the woman is single during partition, the property becomes her separate property, even if she has children later, as partition inherently transforms jointly held tharwad property into her individual property.

The judgment authored by Justice Karol discarded the majority opinion in this regard and instead approved the minority opinion. Giving credence to the Mitakshara school of law, the Court ruled that the property held by the female without a legal heir after partition would be her separate property and not tharwad property.

The Court reasoned that partition fundamentally alters the nature of property ownership. It described partition as a process by which joint ownership is reduced to individual ownership. It puts an end to the joint status, separating members who hold their respective shares, which, on their death, will devolve upon their heirs. It held that once a partition occurs, the joint nature of the property is dissolved, and any property allocated to a Hindu female becomes her separate property. This holds good even if she later has children, as the partition establishes her individual ownership of the property going forward.

The Court explained the concept with an example:

“It may be that a parcel of land for instance, may at one time, be owned by fourteen people but after partition is affected between them, with two people wanting no longer to be associated, the size of the land owned alongside the number of persons registered as owners both being reduced. What flows from this instance is that the two persons who separated from this collection of fourteen are now sole owners of their respective portions - the nature of the ownership being changed from joint to single.”

Since, in the present case the property allocated to the female had a legal heir i.e., she wasn't single during partition, hence the Court considered the property as tharwad, and not her separate property.

Appearance:

For Appellant(s) Mr. CS Vaidyanathan, Sr. Adv. (NP) Mr. Chitambaresh, Sr. Adv. Mr. A. Raghunath, AOR Mr. Babu Malayil, Adv.

For Respondent(s) Mr. Ms Vishnu Shankar, Adv. Mr. Atul Shankar Vinod, Adv. Mr. Dileep Pillai, Adv. Mr. Kannan Gopal Vinod, Adv. Mr. M. P. Vinod, AOR

Case Title: RAMACHANDRAN & ORS. Versus VIJAYAN & ORS.

Citation : 2024 LiveLaw (SC) 913

Click here to read/download the judgment