KELUKUTTY Vs. MAMMAD

JUDGEMENT

(1.) In these appeals by certificate only one question arises for decision and that is whether Chandu, the undivided younger brother of Kelu or the grandchildren of Kelu through his daughter were the legal heirs of Kelu.

(2.) Before going into that question we may dispose of the contention advanced on behalf of the appellants that there is no satisfactory evidence to show that Chandu was the undivided brother of Kalu. The pleadings in this case proceed on the footing that Chandu and Kelu were the members of an undivided family. The evidence also discloses that fact. The judgments of the Courts below proceed on that basis. Hence the appellants cannot now be permitted to raise the contention in this Court that Chandu is not proved to be the undivided brother of Kelu. In considering the question formulated above, we shall proceed on the basis that Kelu and Chandu were the members of an undivided family.

(3.) Kelu was a Thiyya resident of Calicut Taluk (at present known as Kozhikode Taluk). He was governed by the customary law known as Makkathayam. He died on November 15, 1935 leaving behind him besides his two brothers Chandu and Chekku, his widow Manikka, daughters Ichira and Ichira's son and daughter who were the appellants before the High Court. He left behind him three items of immovable property which are the subject matter of the present appeals. Kelu's widow Manikka and his daughter Ichira as well as his brother Chekku died prior to 1944 long before the institution of the suits from which these appeals arise.