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The law of succession or inheritance constitutes that part of any national system of laws, which is the most peculiar and distinct, and which is of most frequent use and extensive application.
The rules of succession to property, being in their nature arbitrary, are in all systems of law merely conventional. Admitting even that the succession of the offspring to the parent is so obvious as almost to present a natural and universal law; yet this very first rule is so variously modified by the usages of different nations, that its application at least must be acknowledged the founded on consent rather than on reasoning.
In India, there are a number of different succession laws, each purporting to reflect the diverse and differing aspirations, customs, and mores of the community. In the Hindu jurisprudence in particular, it is the branch of law, which specially and almost exclusively merits the attention of those who are qualifying themselves for the line of service in which it will become their duty to administer justice to our Hindu subjects according to their own laws.
One branch of Hindu Jurisprudence was Marumakkattayam and Aliyasantana system which were followed in Travancore-Cochin and districts of Malabar and South Kanara of India and were off late abolished. Through this paper I have tried to conceptualize their origin, practice, decline and reasons for such decline and try to analyze why the only matrilineal system of inheritance was abolished in this male dominated society.
Marumakkattayam TraditionIn the Marumakkattayam law, which prevailed in Kerala wherein the families were joint families, a household consisted of the mother and her children with joint rights in property. The lineage was traced through the female line. Daughters and their children were thus an integral part of the household and of the property ownership as the family were matrilineal. It is applicable to a considerable section of people in Travancore-Cochin and districts of Malabar and South Kanara. It is followed by non Brahmin castes, Nairs and Thyas, other cognate castes and Payyannur Graman of North Malabar.
As per Wikipedia Encyclopedia, it was a system of matrilineal inheritance prevalent in Malabar which is the northern part of the present Kerala State in India. Under the Marumakkattayam system of inheritance, descent and succession to the property was traced through females. The mother formed the stock of descent and kinship as well as the rights to the property was traced through females and not through males. Marumakkattayam literarily meant inheritance by sisters’ children as opposed to sons and daughters. Word ‘Marumakkal’ in Malayalam means nephews and nieces. It is generally agreed by scholars that matrilineal system was the direct result of some system of polyandry that existed among ancient races. Descent through females indicated uncertain paternity. The origin of this system is traceable to polyandry prevalent in ancient Malabar is an agreed fact by historians. The joint family under matrilineal system is known as Tarawad and it formed the nucleus of the society in Malabar.
his customary law of inheritance was codified by the Madras Marumakkathayam Act 1932. The definition of Marumakkathayam in Madras Marumakkattayam Act 1932 is ‘Marumakkattayam’ means the system of inheritance in which descent is traced in the female line and ‘Marumakkattayee’ means a person governed by Marumakkathayam Law of Inheritance. ‘Tarawad’ means the group of person forming a joint family with community of property governed by Marumakkathayam Law of Inheritance. A Tavazhi used in relation to the female, is defined as the group of person consisting of that female, her children and all her descendants in the female line. And a tavazhi used in relation to a male, is defined as the tavazhi of the mother of that female. This system of inheritance is now abolished by The Joint Family System (Abolition) Act, 1975 by the Kerala State Legislature. But still some Muslim families in Malabar and people of Lakshadweep are governed by this customary law system of inheritance as the Abolition Act applies only to Hindus. Muslims in Malabar happened to follow this system as they were originally Hindu converts and Lakshadweep people are believed to be persons migrated from Malabar.
Further as per Sec 3(h) of Hindu Succession Act, "Marumakkattayam law" means the system of law applicable to persons.-
(a) who, if this Act had not been passed would have been governed by the Madras Marumakkattayam Act, 1932, the Travancore Nayar Act, the Travancore Ezhava Act, the Travancore Nanjinad Vellala Act, the Travacore Kshatriya Act, the Travancore Krishnanavaka Marumakkathayee Act, the Cochin Marumakkathayam Act, or the Cochin Nayar Act with respect to the matters for which provision is made in this Act, or
(b) who belong to any community, the members of which are largely domiciled in the State of Travancore-Cochin or Madras (as it existed immediately before the 1st November, 1956) and who, if this Act had not been passed, would have been governed with respect to the matters for which provision is made in this Act by any system of inheritance in which descent is traced through the female line.
Marumakkattayam is a matrilinear system of inheritance that is unique to Nair Tharavadus or Nair communities in Kerala state. It is exceptional in the sense that it was one of the few traditional systems that gave women liberty, and right to property. Under this system, women enjoyed respect, prestige and power. An exception is the community of Mannadiars of Palakkad, because they follow patrilineal system. Some historians believe that the Marumakkattayam system started after the Chera-Chola wars during the second Chera empire, as Nairs lost most of their men during the war.
In the Marumakkattayam system, the family lived together in a tharavadu which comprised of a mother, her brothers and younger sisters, and her children. The oldest brother was known as the karanavar and was the head of the household and managed the family estate. Lineage was traced through the mother, and the children "belonged" to the mother's family. All family property was jointly owned. In the event of a partition, the shares of the children were clubbed with that of the mother.The karnavar's property was inherited by his nephews and not his sons. Among the Marumakkathayees, it was the custom that the wife and children of a male member of a joint family used to reside in the joint family of which his wife is a member. During the past ten decades, there had been an urge for a thorough change in the old family customs.
The Marumakkattayam system is not very common in Kerala these days for many reasons. Kerala society has become much more cosmopolitan and modern. Nair men seek jobs away from their hometown and take their wives and children along with them. In this scenario, a joint-family system is not viable. However, there are still a few tharavads that pay homage to this system. In some Nair families, the children carry the last name of their mother instead of the father, and are considered part of the mother's family, and not the father's. Nairs connect to and trace their lineage to a tharavadu and not to a member of the family. Tharavadu names are quite an important element of social reckoning, though decreasing in importance these days. The Kerala rulers also followed the 'Marumakkattayam' system.
As a result of intense social pressure, legislative enactments sanctioned the claim to partition from the joint family and adopt Makkattayam system i.e. inheritance through male line. Due advantage has been taken of these legislation by the majority of the communities and the gradual but the steady breakup of the joint family system resulting in individual members leaving their joint family and setting up homes of their own has been a salient feature in the recent past. But legislation has not extirpated the Marumakkattayam customs and traditions. The divided members still cling to their old family names and titles. In the observance of the customary ceremonies and pollutions the affinity of the Marumakkattayam system is still evident.
Aliyasanthana TraditionThis system is applicable in South Kanara. The Bunts, the Billawas and the non Priestly class among the Jainas in Kanara are governed by this system. This tradition came into practice and was followed by every one in the Bunts' community with the belief that it was an ancient practice. Bunts still believe that this tradition was inherited from a King Bhutala Pandya who ruled Tulunaadu and introduced this system in 77 A.D.
As per sec 3(b) of Hindu Succession Act, "Aliyasantana law" means the system of law applicable to persons who, if this Act had not been passed, would have been governed by the Madras Aliyasantana Act, 1949, or by the customary Aliyasantana law with respect to the matter for which provision is made in this Act.
The Aliyasantana system is the system of inheritance through female line which gives property rights to the lady and all rights are centralized on her, example: Some of the surnames of Bunts come from the mother side; the name of the mother's ancestral house normally became the prefix or suffix of one's name. This may be because when men went to the battlefield, the wife took the whole responsibility of the family and became the decision-maker. So in the Aliyasantana system more importance is given to the mother's side of the family. More respect is given to maternal uncles than to the paternal uncles.
In this system the eldest member is known as ejaman and the eldest female member is known as ejamanthi. The senior-most member whether male or female, is entitled to carry on the family managements.\No member of the tarwad had a right to claim partition or separate possession of his share without the concurrence of other members. But the law was changed by the Marumakkattayam Act and Aliyasantana Act. A member was given a right to separate himself or herself from the joint family and claim partition. The ascertainment of the share at the partition is per capita and not per stripes.
In Marumakkattayam and Aliyasantana systems, the question of inheritance could arise only in the respect of individual property or in respect of the family of the extinct tarwad. The self acquired property of a male member of the tarwad, which has not been disposed off of by him during his lifetime, passed to the tarwad and formed part and parcel of its property.
The Marumakkattayam And Aliyasantana Laws and Mitakshara Law# Alike joint family and Coparcenary of the Mitakshara school the Marumakkattayam and Aliyasantana systems have their unit tarwad. The joint families under all these systems are corporate units and are joint in food, worship and estate, but the joint estate is impartible under these systems unless all the members agree. The rights of management and alienation invested in the Karanavan are analogous to the rights possessed of the karta of Mitakshara and Dayabhaga joint family.
# Similarly in both the systems, on the death of any one of its members, his or her interest devolves on the other members through survivorship.
# In both the systems on the death of anyone of its members, his or her interest devolves on the other member of the joint family by survivorship.
# The basic difference is that the Mitakshara Joint Family is based on patriarchal system while Marumakkattayam and Aliyasantana system is based on matriarchal system.
# In Marumakkattayam and Aliyasantana system every member whether male or female has equal right in tarwad (property) by virtue of his being born in that tarwad ( family) while in case of Mitakshara the only son, grandson and great grandson have the right by birth in the joint family property.
Marumakkattayam System V. Aliyasantana System# The only vital difference between the two systems is that in Aliyasantana system, the senior most member whether male (ejaman) or female (ejamanthi) is entitled to carry on the family management while in Marumakkattayam system the senior most male member (karnavan) has the right and power to carry on the family management and in the absence of male adult members the senior most female member (karnavathi) has the power to carry on family management.
# As per judicial decisions the self acquired property of a female member in Marumakkattayam system descended to her Tavazhi, i.e. to her own issues and in default of her issues, it devolved to her mother and her descendents. In case of male member if the property has not been disposed during his lifetime, lapses to the tarwad (joint family) and forms part and parcel of its property. While in Aliyasantana system there is no distinction as to the devolution of property of a male or female member. The self acquired property of a member goes to the nearest branch, and where there are more branches than one standing in the same degree of relationship, they inherit jointly.
Legal Enactments And ProvisionsThe Marumakkattayam and Aliyasantana laws are therefore essentially customary laws and there are no sacred writing binding on the followers of these systems. Even prior to the passing of Hindu Succession Act, the customary law of Marumakkattayam and Aliyasantana had been modified by the statutory law. The main enactments modifying the law are: Malabar Marriage Act, 1896, Malabar Wills Act, 1896, Madras Marumakkattayam Act, 1932, Mappilla Marumakkattayam Act, 1939, Madras Aliyasantana Act, 1949, Regulation of the State of Travancore-Cochin.
The law of succession of Marumakkattayam and Aliyasantana had been changed by legislative enactments. The Marumakkattayam Act and the Aliyasantana Act lay down the rule of succession to the property of a member of the tarwad dying intestate. Under the Madras Marumakkattayam Act the preferential heirs of a male member are: his mother, widow, and children.
The property can be inherited by tavazhi only when the intestate has died without leaving his mother or children or lineal descendants in the female line. The nearest heirs of the female member are: her children, lineal descendents in female line and in default of former: mother’s tavazhi, husband and maternal grandmother’s tavazhi. In default of either the whole is taken by other.
The testamentary powers under both the systems had also been recognised by legislative enactments. The Malabar Wills Act, 1896 provides rules for execution, attestation, revocation and revival of the wills of persons governed by Marumakkattayam and Aliyasantana system. Similar provisions have been enacted in Regulations of the State of Travancore-Cochin.
It was later realized that existing law of Marumakkattayam and Aliyasantana system was not satisfactory and along with reform in the Mitakshara and Dayabhaga system, a reform in the law of these systems was also necessary. The Hindu Succession Bill contained the provisions reforming the law of succession of Marumakkattayam and Aliyasantana system. The rule of succession of property of a male and female were different.
But the present act (Hindu Succession Act) has changed the scheme of the original bill. Section 7 of the Act deals with the devolution of interest in the property of tarwad etc. It repeals and replaces the law of intestate and testamentary succession applicable to these families.
The rule of succession applicable to the property of a female or male members of the Marumakkattayam and Aliyasantana system have been enacted under Section 17 of the said Act. The section provides that, with certain modifications, the rules applicable are the same which are applied to Hindu male or female under the Hindu Succession Act, 1956. This section specifies that in case a male dies intestate, his property shall devolve: Firstly, upon the heirs, being relatives specified in class I of the schedule. Secondly, if there is no heir of class I, upon heirs of class II of the schedule. Thirdly, if there is no heir of any two classes, upon his relatives whether agnates or cognates.
The rules applicable for the distribution of property among class I and class II heirs are the same as are applicable to other Hindus, i.e., as per sec 10 and 11 of the Act.
As per sec 17 the property of a female dying intestate shall devolve on the following: Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the mother. Secondly, upon the father and the husband. Thirdly, upon the heirs of the mother. Fourthly, upon the heirs of the father. Lastly, upon the heirs of the husband.
Any property inherited by a female from her husband or from her father in law shall devolve in the absence of any son or daughter of the deceased (including the children or any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
Also under the Kerala Joint Hindu Family System (Abolition) Act, 1975, the acts pertaining to Marumakkathayam and Aliyasantana system were abolished and it was an act to abolish the joint family system among Hindus in the State of Kerala.
Under Sec 7 of this Act both these system based on custom and usage were abolished. Section 7 states that:(1) Save as otherwise expressly provided in this Act, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.
(2) The Acts mentioned in the Schedule, in so far as they apply to the whole or any part of the State of Kerala, are hereby repealed.
It repealed the following acts pertaining to the above 2 systems (as per schedule under Sec 7(2))
a. The Madras Marumakkathayam Act, 1933 (XXII of 1933)
b. The Madras Aliyasantana Act, 1949 (IX of 1949)
c. The Travancore Krishnavaka Marumakkathayee Act (VII of 1115)
d. The Cochin Marumakkatyam Act, XXXIII of 1113
Decline of The SystemsThis empowering system disintegrated with time. The period of wars was over. Land ceiling laws reduced the extent of possession under the tharavadu and they gradually dwindled in size and wealth. Economic changes in society and ideological and cultural perspectives acquired by the educated middle class and the changes in the value system affected the joint family tharavads. The unitary nuclear family suited people better. The structure of the matrilineal tharavadu changed between the 18th and the 20th Century, which concurrently affected the rights of women within the household. The very structure of the matrilineal kinship also underwent tremendous change. The real reason for the disappearance of the tharavadu was the selfishness and the untold greed for money in siblings in matrilineal families.
The new laws and legal procedures that were introduced in Malabar and also in Travancore and Cochin from the 19th Century onwards had an adverse impact on the rights of women in Nair tharavads. Nair reform movements challenged the unmitigated powers of the karanavar. Patriarchal values influenced men and women alike. Women supported the partition of joint family systems and in the 1930s women took the initiative in the partition of many tharavads. In Travancore, within five years of the Marumakkattayam Law of 1933, which sanctioned the dismantling of the tharavadu and the partition of property, 32,900 families were partitioned. Rules of matrilineal kinship were twisted and interpreted and adapted to political, economic and legal exigencies.
The Marumakkattayam system is not very common in Kerala these days for many more reasons. Kerala society has become much more cosmopolitan and modern. Nair men seek jobs away from their hometown and take their wives and children along with them. In this scenario, a joint-family system is not viable. However, there are still a few tharavads that pay homage to this system. In some Nair families, the children carry the last name of their mother instead of the father, and are considered part of the mother's family, and not the father's. Nairs connect to and trace their lineage to a tharavadu - not to a member of the family. Tharavadu names are quite an important element of social reckoning - though decreasing in importance these days. The Kerala rulers also followed the 'Marumakkattayam' system.
The Kerala Legislature's abolition of matrilineal kinship, which varied enormously across time and regions, was the culmination and a predictable consequence of two centuries of legal change and social reforms. Presently, matrilineal kinship occupies merely a shadowy and at times nostalgic part of collective Keralite memory.
Views And Criticism
After studying the two systems its my view that these systems were part of very few of the traditional systems that gave women liberty, and right to property. Under these systems, women enjoyed respect, prestige and power. Since ancient time India has been a male dominated country. All the systems and customs were formulated by men, like Narada, Manu, Yajnavalkya etc. If we study the Hindu law we can easily derive the conclusion that that all laws were made as per convenience of the ‘Man’. A woman has been given a subordinate place in our society since its inception. She had no right to inherit property and was confined to four walls of the house without any right to education to her. In my view these laws were discriminatory and biased in favor of ‘Man’ since there inception.
In this environment, these two systems proved to be a soothing air for the women. These two systems prevelant in few parts of South India gave women the basic rights and succession carried on through matrilineal system as oppsed to rest of the country. Under these two systems women had the rights, which were claimed by men in rest of the country. Throuh many studies it has been proved that women can manage house and property better than man. This has been proved through the success of The Marumakkattayam and Aliyasantana system.
But this is a male dominated world and it is through their instinct that they can’t remain subordinate to a women. So this conception led to decline of these two systems through legislative enactments, which resulted in giving full fledged power and domination into the hands of man again. In the guise of modernism and cosmopolitanism the Marumakkattayam and Aliyasantana system were repealed in the fake name of development and unanimity with rest of the country. There was intense social pressure from all corners of the society and as a result of intense social pressure, legislative enactments sanctioned the claim to partition from the joint family and adopt Makkattayam system i.e. inheritance through male line, thus breaking away the unique historical systems of inheritance through female line.
Thus patriarchy had superseded the matriarchy. This has changed the whole system and practice and The Karanavan, who has lately taken over from the female, is entitled to the full possession and management of the property. The junior members legally have no claim to residence and maintenance. The Karanavan is not accountable to any one member and he is not under obligation to support any member of the Tarawad (family). Therefore now the male member enjoys autonomous right over the property and may exclude other on his whims and fancies.
In these syastems the oldest brother was known as the karanavar and was the head of the household and managed the family estate and the lineage was traced through the mother. All family property was jointly owned. In the event of a partition, the shares of the children were clubbed with that of the mother. The karnavar's property was inherited by his nephews and not his sons. It is clearly evident that under this system also, the family management and property was under the male head. Only succession was through women. Here the property belonged to all jointly unlike another systems like Dayabhaga and Mitakshara system, where the property rests in the hands of male members only i.e. Karta and the Coparceners. So joint ownership was the golden point of these two systems. But due to selfish reasons and social and political pressure from all over the country these systems were abolished ignoring there substantial rules.
The real reason for the disappearance of the Marumakkattayam and Aliyasantana system was the selfishness and the untold greed for money in siblings in matrilineal families which resulted in adverse impact on the rights of women. Man for his selfish interest let down this system, which led to a darker aspect in the life of women.
Since the inception of the mankind women has been discriminated against and being subservient by the male dominant society. The Marumakkattayam and Aliyasantana system were the only systems prevalent in India which provided property rights and ownership to women as against men. But these two systems were abolished by the Kerala Joint Hindu Family System (Abolition) Act, 1975. There was no concrete reason given by the Kerala Legislature before passing this act, but it clearly culls out that the only intention of this act was to expressly repeal the custom of giving property rights to the women and it vested property rights in the hands of men, as prevalent in rest of the country.
Therefore the actual reason for the disappearance of the Marumakkattayam and Aliyasantana system was the selfish interest of men, issues and siblings which led to disappearance of the interest of women.
Through this paper I have learnt that this world is still male dominated. Neither law nor the constitution in terms of Art 14 comes to the rescue. A woman has to tread her own way to come out and win in this male dominated society and fight against this patriarchal male dominated society where she is subverted.
14. Mayne, Hindu law and Usage, 971-994
15. Paras Diwan, Family Law, Allahabad Law Agency, 5th ed, 2005
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ISBN No: 978-81-928510-0-6