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FAMILY LAW – II

DO WOMEN IN KERALA HAVE AN

INTEREST IN PROPERTY? AN INTROSPECT

INTO INTESTATE SUCCESION AND

WOMEN’S PROPERTY RIGHTS

SUBMITTED BY:

SIDDHARTH V ANAND

ID. NO. : 1758

2ND YEAR, B.A., L.L.B (HONS.)

DATE OF SUBMISSION: 13TH APRIL, 2011

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Contents
Contents..................................................................................................................... 2
TABLE OF CASES.........................................................................................................3
Table of Statues..........................................................................................................3
Table of Consitutions..................................................................................................3
Introduction............................................................................................................. 4
The Hindus – Matrilineal Succession...........................................................................5
Intestate Succession................................................................................................5
Christians – The Mary Roy case and the attainment of Gender Neutrality.................8
Muslims – From Custom to the Legal Matrix.............................................................10
Conclusion................................................................................................................ 13
Bibliography.............................................................................................................14
Books..................................................................................................................... 14
Articles..................................................................................................................14
Internet Sources....................................................................................................14

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TABLE OF CASES
1. Padmaraja v. Dhanavathi , AIR 1972 SC 2219

2. Madhavi Amma, 1988(2) KLT 174 FB

3. Chelamma Kamalamma, 1993(1) KLT 174 FB at p. 193

4. Mathen Mathew v. Kunjika Bharathi AIR 1968 Ker 12.

5. Mary Roy v. State of Kerala & Ors., AIR 1986 SCR (1) 371

6. Kapore Chand vs. Kadar Unnissa, 1950 SCR 747

7. Puthiya Purayil Abdurahiman v. Thayath Kancheentavida Avooma, 1956 MLJ 119

8. Nullikkodan v. Ayisumma, 1962 (3) KLT 883

9. Bappan vs. Mukki, 1883 ILR 6 Mad. 259.


10. Rajah Sir M.A. Muthiah Chettiar v. Wealth Tax Officer 1964 53 ITR 504 Mad.

Table of Statues
1. The Hindu Succession Act, 1956
2. The Indian Succession Act, 1925
3. The Madras Aliyasantana Act, 1949
4. The Madras Marumakkathayam Act, 1933
5. The Mappila Marumakkathayam Act, 1939
6. The Shariat Application Act, 1937.
7. The Travancore Christian Succession Act, 1916

Table of Consitutions
1. The Indian Constitution, 1950

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Introduction
Property rights for women has always been a debate between the patriarchal, male hegemonic
thought processes taking on the more gender neutral school, which advocates for women to
break the societal shackles and assert their property rights. The state that becomes the
researcher’s Family Law Laboratory is Kerala; the State has not been on the extremities of the
spectrum of intestate succession, owing to the presence of very unique forms of Matrilineal
Succession that are followed by both the Muslims, and the Hindus of the State, as their custom.1

The researcher has looked into the customs and traditions that governed the three Communities
in Kerala, viz. Hindus, Muslims and Christians, and has endeavored to bring out the extent of
interest that women in the respective communities command, in the intestate property. The state
of Kerala is one where unique social stratifications within Communities lead to unique methods
and customs of succession. The researcher has brought out the differences within communities to
show the various customs that give women property rights.

Thus, through this paper, the researcher tackles the following issues:

1. Do women in the state of Kerala have an interest in Property?

2. Is the interest of the women in the property linked to any extraneous societal factors?

3. How have the interests in property changed with Cases/Legislations?

4. Is the present scenario more gender neutral?

1
K. Sreedhara Variar, MARUMAKKATHAYAM AND ALLIED SYSTEMS OF LAW IN THE STATE OF
KERALA, 9(1st edn., 1988)

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The Hindus – Matrilineal
Succession
The Hindus in Kerala were a very diverse and socially stratified sect ranging from the Brahmins
and the Nairs occupying the upper echelons and the Ezhavas and the local tribes occupying the
lower ones. The stratification prevented a common fabric of succession and property division
amongst the Hindus of the state.

The Nairs in Kerala follow the system of Marumakkathayam which is analogous to the
Aliyasantana form of inheritance in which the succession is traced through the female line.2 The
property descends in the line of the nephews (Marumakan)3. This Matriarchal system of law4 has
the eldest male as its head or Karnavan, except on proof of special custom where the eldest
female is recognized as the head of the family. This form of succession which leans heavily in
favour of the woman allows her to stay in her tarwad post marriage. 5

The Madras Aliyasantana Act, 1949 and the Madras Marumakkattayam Act, 1933 governs
the respective form of inheritances. In these matrilineal systems of inheritance, the woman forms
the propositus and her children, male and female, along with the mother, constitute one group, or
branch called the tavazhi, which literally means through the mother. In this type of inheritance,
the female is the fresh stock of descent. Thus the identity of a male in the family system is traced
through the female. 6

Intestate Succession
The principle of succession embodied in the Aliyasantana form of succession is a holistic one,
where the tavazhi, or the mother’s family, and the women are more than ostensibly preferred

2
AIR 1972 SC 2219
3
M.V. Sahanker Bhat, ALIYASANTHANA LAW, 11(1ST EDN., 2004)
4
Padmavathi vs.Dhanavati 1972 II SCC 100
5
Supra note 3, at 16.
6
Supra note 3, at 27.

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during property division. Sec. 19 of the Act states that when an Aliyasantana Male dies intestate,
has left surviving him, his lineal descendants, or descendants, and also his mother or a
widow/widows, the whole of the property shall devolve on them.7

In the absence of these lineal descendants, the property gets devolved to the mother’s tavazhi
(Sec. 22(2)). When the intestate male dies without leaving any lineal descendants, widows,
mother, father, or maternal grandmother, the property devolves to the mother’s maternal
grandmother or other female descendant in the female line (Sec.24)8

When an Aliyasantana female dies intestate, it proceeds in the order of lineal descendants, if
absent proceeds to the equal division of property between the Mother’s tavazhi, and her husband
(Sec. 25)

When the Sections of the act are examined, the duality of the act becomes lucid. It protects the
property from being alienated to another tarwad house, thus giving the husband the lowest
preference when it comes to interest in property. It also cements most of the property rights of
the family with the Mother’s Tavazhi, which includes most of the women in the family. Property
which is delved out to the men of the family returns in a way, through succession to the Mother’s
Tavazhi.

Conflict of laws
In the case of Madhavi Amma9, which was a landmark decision of the Kerala High Court,
concerned the succession to the property of a female Hindu from a matrilineal community.
Typically, when the deceased woman died, there arises a deadlock regarding the struggle for the
property between the mother and the husband. In the case of Chelamma Kamalamma10, where a
reference was made to Sec. 17 of the Hindu Succession Act, which made special provisions for
the succession through the matrilineal system, and held that the right of the mother overweighs
the right of the father to succeed to the property.11

7
Supra note 3, at 59.
8
Madras Aliyasantana Act, 1933.
9
1988(2) KLT 174 FB
10
1993(1) KLT 174 FB at p. 193
11
Werner Menski, MODERN INDIAN FAMILY LAW, 328(2nd edn., 2001)

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Thus, Section 17 of the HSA has been incorporated in the Hindu succession Act to protect the
system of matrilineal succession, protecting the property rights of the women in the
Marumakkathayam system. 12

The Ezhava community in Kerala was a very heterogenic community, following


Marumakkathayam, Makkathayam which is the patrilineal form of succession and a mixed
system called “Misradayam” where a separate or self acquired property of a dying man was
shared between his children and his tarwad.13

“Valsaravakasam” is a form of succession which is based on the idea that behind the self-
acquisition of property by the husband had the contributions of the wife, and thus becomes a
coparcener to the property.14 The wife is entitled to half the property of the husband which is
acquired after his marriage, thus giving their children a complete interest through the mother.

Thus, among the women of the Hindu community in Kerala, property rights have never been the
carrot dangling in front of the donkey. The women in the Marumakkathayam system are
coparceners to the family estate, and to the self acquired property of the men in the family, and
the property never leaves the tarwad, and the majority of the property never leaves the tavazhi,
where all the women of the family come under. Among the Ezhava community,
“Valsaravakasam” devolves property to the woman, by virtue of being the wife in an alien
tarwad.15 In her own tarwad, by virtue of the same practice being followed by her family, she
becomes a coparcener through her mother’s interest in her father’s estate. Thus, the property
rights of Hindu Women in Kerala have never been something which is alien. The governing
legislation was the Travancore Ezhava Act,16

The Kerala Model of Succession has inspired the 15th Law Commission to suggest fundamental
changes to the Hindu Succession Act, 1956 to ensure that women get an equal share in the
ancestral property. The Hindu Succession Amendment Bill, 2000 wants to give equal rights for
Women in coparcenary property.17
12
Supra note 10, at 329.
13
Meera Velayudhan, Reform, Law and Gendered Identity: Marriage among Ezhavas of
Kerala, Vol 33(38) Economic and Political Weekly 2480, 2482 (1998)
14
Supra note 11, at 2481
15
Supra note 11, at 2482
16
Mathen Mathew v. Kunjika Bharathi AIR 1968 Ker 12.
17
http://www.indianexpress.com/ie/daily/20000512/ina12053.html

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Christians – The Mary Roy case
and the attainment of Gender
Neutrality
The Hindus are followed by the Christians in terms of religious abundance in the state of Kerala.
A plethora of churches like the Roman Catholic Church, the Latin Catholic Church18, the
Orthodox Church, the Syrian Catholic Church exist in the state. Prior to 1949, the State of
Travancore and the law in force in the territories of the State with regard to the intestate
succession concerning the Indian Christian Community was governed by the Travancore
Christian Succession Act, 1092. 19

The overarching principle of the Act was one of property adhesiveness to the Males of the
family. Under the Travancore Christian Succession Act, a widow or mother shall have only a life
interest terminable at death or on remarriage, and a daughter could not be entitled to succeed to
the property of the intestate in the same share as the son, but she would be entitled to one-fourth
of the value of the share of the son, or Rs. 5000, whichever is Less. Even this amount will not be
granted to her if she was provided or promised Stridhan by the intestate or in the life time of the
intestate by his wife, husband or their heirs.20

Post 1949, when the State of Kerala was born by the merging of the princely states of Cochin
and Travancore, the commonality of the law came up as an issue, and the final nail of the
Christian Women’s right to property was nailed in by the landmark case of Mary Roy vs. State of
Kerala, and Ors. The question that arose in this case was whether the Travancore Christian
Succession Act was ultra vires the Constitution. Another related question that was raised before

18
They follow the bilateral form of succession and they are governed by the more liberal
Indian Succession Act, 1925.
19
AIR 1986 SCR (1) 371
20
Susan Visvanathan, Marriage, Birth and Death: Property Rights and Domestic
Relationships of the Orthodox/Jacobite Syrian Christians of Kerala 24(24) Economic and
Political Weekly 1341, 1345 (1989)

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the Court was as to the impact of the Part B States (Laws) Act, 1951, on the Travancore Act. The
Court decided the case holding that the Part B States (Laws) Act excluded the operation of the
Travancore Act and thereby obviated the need for examining the first question of the
constitutionality of the Act.21 It took the view that by virtue of Section 62 of the Part B States
(Laws) Act, 1951 and the inclusion of the Indian Succession Act, 1925 in the schedule to that
Act, the Travancore Christian Succession Act stood repealed from the appointed day under the
Part B States (Laws) Act, i.e. April 1, 1951. Hence, it reasoned, the law applicable to intestate
succession among Christians of Travancore area of the State of Kerala is the Indian Succession
Act, 1925, from April 1, 1951.22

The argument of the opposition, which included the Church, and the Government, was that this
form of gender neutrality would result in Christian Women dragging their siblings to court for
property, and their claim for property was not justified owing to the fact that they were given
stridhan, which would be derived from the intestate’s estate, which would mean a reduced share
for the brother.23

Thus, the Mary Roy Case, which repealed the more anachronistic Travancore Christian
Succession Act, and got the Syrian Christian Laws of Succession under the Ambit of the Indian
Succession Act, 1925. Thus, the Mary Roy case was a litmus test, and the result of gender
equality was proved at the end, when the Supreme Court delivered the judgement in the year of
1986. 24

The Other Christian Communities in Kerala, are governed by the Indian Succession Act, and
thus were gender neutral when it concerned property divisions. Thus, the Christian Women in the
State of Kerala, post Mary Roy has been entitled to equality when it concerns intestate
succession.25

21
Supra note 16, at 1346.
22
Sebastian Champapilly, Christian law of Succession and Mary Roy’s Case (1994) 4 SCC
(Jour) 9
23
http://indiatoday.intoday.in/site/story/kerala-sister-mary-gets-her-land/1/118255.html
24
Supra note 18, at 6.
25
Amali Philips, Rethinking Dowry, Inheritance and Women’s Resistance among Syrian
Christians of Kerala Vol 45(2) Canadian Anthropology Society, 245, 256 (2003)

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Muslims – From Custom to the
Legal Matrix
Muslims as a group are as stratified as the Hindus in Kerala, with their own caste system, and
their own customs and traditions which govern the way their property division takes place. The
two major schools of Islam prevalent in Kerala are the Sunnite and the Shiite schools.

The method of property division was on the Koranic basis, with the Koran giving specific shares
to specific people. The residue goes to the agnatic heirs, and failing them goes to the uterine
heirs. Bequests of an estate of a Muslim Man cannot go beyond one-third of the total worth of
the estate.26

The general principle of Islam which concerns itself with property division grants the female,
half the share of the male. The Muslims in Kerala are governed by the Hanafi School, where the
Wife, Mother, Grandmother, Full Sister, Half Sister and Uterine Sister form Class I heirs. The
division of interest in the property is one of a symbiotic one, where the interest in property of one
female is affected by the presence of others.

• The mother excludes the grandmother.

• The mother’s share is affected by the presence of children, or two or more brothers and
sisters.

• Her share is also greatly affected by the presence of the Husband/Wife and Father.27

26
Shruti Pandey, Property Rights of Indian Women available at
http://www.muslimpersonallaw.co.za/inheritancedocs/Property%20Rights%20of%20INdian
%20Women.pdf (last accessed on 12th April, 2011)
27
Supra note 19, at 10.

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Thus, the women in the family, under the Hanafi school of Islam, get property, through the above
said division. Property rights through Marriage has been laid down by the Supreme Court in the
case of Kapore Chand vs. Kadar Unnissa28, that Mahr ranks as a debt and the widow is entitled ,
along with the other creditors of her deceased husband, to have it satisfied out of his estate. Her
right, however, is the right of an unsecured creditor, as she is not entitled to a charge on the
husband’s property unless there be an agreement stating the same. The Supreme Court has laid
down that the Mahr as a debt has priority over all other heir’s claims. This is known as the
Widows right of retention.

The Muslim Community in Kerala, is also known to follow the Marumakkathayam system of
property division and inheritance.29 In the case of Puthiya Purayil Abdurahiman v. Thayath
Kancheentavida Avooma30, the question that was raised before the District Munsiff was
regarding a karar regarding property division that was split between the three tavazhis of the
tarwad, and whether the junior female member of the tarwad can claim property, under the
system of Marumakkathayam. The courts held that the female member can claim under the
Madras Marumakkathayam Act, and that the Shariat Application Act, 1937 is overshadowed by
the Madras Marumakkathayam Act, as the latter echoes the customary practices of the
community.

In the case of Nullikkodan v. Ayisumma31it was held that a Marumakkathayam female and her
children constitute a joint family whether or not she has any property obtained from her tarwad
by partition. Thus, the courts concluded that since the Mappila Marumakkathayam Act, was
very similar to the Madras Marumakkathayam Act, which concerns itself with the Hindu
Community, the rights of succession and property division was analogous with the Hindu
Marumakkathayam system.

The concoction of the Marumakkathayam system, and the Mohammedan system gave rise to
very unique customs in property division in the State. In the case of Bappan vs. Mukki32 it was
found among the Mappila Muslims that there existed a custom according to which junior
members of the Mappila tarwads were entitled to higher maintenance and larger interest in the
28
1950 SCR 747.
29
Rajah Sir M.A. Muthiah Chettiar v. Wealth Tax Officer 1964 53 ITR 504 Mad.
30
1956 MLJ 119
31
1962 (3) KLT 883.
32
1883 ILR 6 Mad. 259.

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property when living in the house of their consorts than when living single, and this interest
would be taken from the female members of the tarwad. It also spoke of a custom where the
Wife had to pay Stridhan to the husband to enable him to maintain her.

This was the case of the residual Muslim Community who were governed by their local customs,
traditions and practices, had a very huge disconnect with the Shariat Application Act, 1937.
According to those local customs and traditions, daughters were excluded, and widows occupied
the lower echelons of the succession order. The High Court of Kerala pointed out that as per the
practice followed by the Muslim population; a Muslim woman was entitled to her due share in
intestate property in her various roles as mother, daughter, sister and wife.33 The Shariah law was
based on the principle of rights according to responsibilities and obligations. According to the
rule, a person having less responsibility in “the human social structure” would have to content
with less rights and vice versa.34 In the Shariah law, all legal heirs were relatives of the deceased
by blood. The general rule of inheritance was “nearer in degree excludes the remoter.” It said the
law gave special importance to women in the case of maintenance. The Shariah law of
succession/inheritance was unique. Law on inheritance by birth was unknown to the Shariah law.
Besides, no distinction was made between self-acquired and ancestral properties. The property
inherited by one was his/her absolute property in the Shariah law.

The affidavit pointed out that the subject “Personal Laws” was included in entry 5 in List III —
concurrent List of the Seventh Schedule of the Constitution — and therefore, legislatures had the
competence to amend or modify the matters under the entry.35

Thus, the Muslim Women of Kerala, post the Shariat Application Act, 1937 are entitled to their
own share of property in accordance of their roles as a wife, mother, sister etc.

33
http://www.hindu.com/2011/03/16/stories/2011031651000300.htm
34
Supra note 32.
35
Supra note 32.

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Conclusion
This paper has attempted to bring to light, the interest in intestate property that the women in
Kerala enjoy- the Hindus, Christians and the Muslims. The Hindus in the state are divided into
the upper strata, and the lower Strata, and both these strata have granted interest to their women,
in the form of a matrilineal form of succession (Marumakkathayam). The anthropological
principle that the lower strata pin of the Hindu society accord to grant their women property is
one that echoes gender neutrality and granting an equal pedestal to women, when it concerns
property rights.36

The researcher has arrived at the conclusion that gender tranquility existed within the forms of
intestate succession among the Hindus. The tranquility was brought about by the Mary Roy case
among the Syrian Christian Community, and the imposition of the Shariat Application, 1937,
among the Muslims. The mosaic of local customs, traditions and practices among the Christians
and the Muslims lacked gender neutrality, as was evident from the Travancore Christian
Succession Act, 1916 and the customs which prevailed among the Muslims that did not follow
the matrilineal form of intestate succession.

The current scenario, looks back at the ghost of its past and scorns at it, as situation has reached
one of almost complete gender neutrality with the court intervention in the case of Muslims, and
the Mary Roy case. The current scenario has reached one of gender tranquility.

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The principle where women get an interest in property, owing to the contributions that
they make in the husband acquiring property, which grants them an interest in half of the
property.

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Bibliography
Books
1. K. Sreedhara Variar, MARUMAKKATHAYAM AND ALLIED SYSTEMS OF LAW
IN THE STATE OF KERALA, (1st edn., 1988)

2. M.V. Sahanker Bhat, ALIYASANTHANA LAW, 11(1ST EDN., 2004)


3. Werner Menski, MODERN INDIAN FAMILY LAW, (2nd edn., 2001)

Articles
1. Meera Velayudhan, Reform, Law and Gendered Identity: Marriage among Ezhavas of
Kerala, Vol 33(38) Economic and Political Weekly 2480, 2482 (1998)
2. Susan Visvanathan, Marriage, Birth and Death: Property Rights and Domestic
Relationships of the Orthodox/Jacobite Syrian Christians of Kerala 24(24) Economic and
Political Weekly 1341, 1345 (1989)
3. Shruti Pandey, Property Rights of Indian Women available at
http://www.muslimpersonallaw.co.za/inheritancedocs/Property%20Rights%20of
%20INdian%20Women.pdf
4. Sebastian Champapilly, Christian law of Succession and Mary Roy’s Case (1994) 4 SCC
(Jour) 9
5. Amali Philips, Rethinking Dowry, Inheritance and Women’s Resistance among Syrian
Christians of Kerala Vol 45(2) Canadian Anthropology Society, 245, 256 (2003)

Internet Sources
1. www.jstor.org

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2. www.indiatoday.com
3. www.westlaw.com
4. www.indlaw.com
5. www.google.com

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