MUTHUKOYA THANGAL Vs. SAYED MUHAMMED KOYA

JUDGEMENT

(1.) This appeal is filed by the plaintiff in O. S. No. 7 of 1978 on the file of the Subordinate Judge's Court, Kavaratti. The suit was filed for partition. In the plaint, the plaintiff had prayed for partition and allotment of separate share to the plaintiff. Plaintiff had claimed 1/9 share over plaint A schedule properties, 1/6 share over plaint B schedule properties and mesne profits from 8th August 1974. The parties belong to Androth Island of Laccadives. The parties follow the Marumakkathayam Law. So far as this appeal is concerned, only two points arise for consideration. The first question for our consideration is whether partition should be per capita or per stripes. There is no dispute that the parties are governed by Marumakkathayam Law. It is also known that in that system, in effecting partition, there are two types of division division per stripes and division per capita. Before the court below, some documents were marked. But, the lower court was not convinced on the basis of the documents that partition should be per stirpes or per capita. It then discussed the evolution of the principles of partition in Marumakkathayam system and came to the conclusion that the division shall be per capita. It is on that basis the court came to the conclusion that division shall be per capita. Learned counsel for the appellant, Sri M. C. Sen brought to our notice, certain passages by R. H. Ellis in his book A Short Account of Laccadive Islands and Minicoy, wherein he has stated thus: "Tarwad properties can be partitioned only with the consent of the members of the tarwad. It is further stated that in Androth and Calpem, division of properties is between the branches or tavazhies of the families whereas in Kavaratti and Agathi all the members of the joint family are eligible for one share. The editor further says that self acquired or personal property is governed by Muhammadan Law of succession." Recently, this bench had occasion to decide a similar question in the Kavaratti Island of Laccadives in the decision reported in Nurul Huda v. Aboobacker ILR 2001 (2) Kerala 369=2001. The decision in that case is on the law of succession, mode of inheritance and division of properties in Kavaratti Island in Laccadives. In that decision, this Bench had held as follows:

(2.) A learned Single Judge of this Court in Avvammada Pathummabi v. Awammada Sarommabi AIR 1992 Kerala 56 held that, "since there is no codified law regulating the management of the tarwads and the inhabitants in respect of tarwad properties in Lakshadweep, the pristine Marumakkathayam Law which was prevalent there has to be applied". It was further held in that case that, "A division of the tarwad property can only be on a per capita basis. Even then, an individual member cannot seek partition in the absence of any legislation conferring such a right". So far as the present case is concerned, we find that the partition is claimed by the plaintiff. Plaintiff is one Meriyamrnada Muthukoya Thangal. The other members are first defendant Meriyammada Sayed Muhammad Koya, second defendant Koyammakoya Thangal, third defendant Pookoya, fourth defendant Rahmabi. Defendant No. 5 onwards are the descendants of fourth defendant. In the suit plaintiff claimed partition by per stripes. The first defendant also claimed partition on the basis of per stripes. So far as the defendants 2 and 3 are concerned, they also agreed with the plaintiff. But defendants 4 to 8 contended that all the members of the tarwad arc entitled to equal rights over the property and there is no law stating that share is to be determined on the basis of tavazhies. A perusal of the facts of this case will show that plaintiff, defendants 1 to 3 are male members and fourth defendant is a female member. These four male members claim that they belong to different tavazhies. A thavazhy is understood to be claiming through woman. We do not know whether the plaintiff and defendants 1 to 3 can be said to be constituting separate tavazhies. There is no reliable evidence to show that partition should be per stripes. Even when partition is per stripes, there are authorities to show that the share is calculated on the basis of the number of persons in the tarwad. All the members in the tarwad are entitled to equal rights in the tarwad properties.

(3.) As was observed in Sreedevi Nethiar v. Peruvunm AIR 1935 Mad. 71 though in practice when a partition takes places, the children of one female remain joint with that female but separate from the others, and the shares of that female and her children are kept undivided as among themselves, yet, in fixing the number of shares, the principle of division per capita is the principle that is generally followed unless all persons interested agree to another mode of division. Learned counsel for the appellant brought to our notice the decision in Eswara Warrier v. Parukutty Warasiaru 1955 KLT 495 wherein it is held that, according to Marumakkathayam Law, the rule of division is a rule founded on "equality of equidistant stocks" or in other words, the mode of division should be per stripes and not per capita. But, so far as the facts of the present case is concerned, it is not established that partition is by per stripes. Hence we agree with the court below that the division should be per capita. The next question is whether defendants 14 and 15 are entitled for separate shares in the properties. The case of the plaintiff is that initially he filed O.S. No. 8 of 1974 before the Munsiff Court, Androth for partition and separation. That suit was returned as the Munsiff Court has no pecuniary jurisdiction. Defendants 14 and 15 were born after the filing of O.S. 8 of 1974 to the 5th defendant. Hence, according to the plaintiff, in determining the share of defendants 14 and 15 should not be taken into consideration. The court below rejected the contention stating as follows: "O.S. No. 8 of 1974 was returned by the court for presentation before the proper court for want of pecuniary jurisdiction. So the plaintiff ought to have filed the same plaint before this court with the necessary corrections regarding the valuation and court fee. But the plaintiff did not do so and instead filed a fresh plaint in this suit." So it was held by the court that the present suit is not a continuation of the old suit and, hence, it cannot be stated that on the filing of the palint a divided status was obtained. Learned counsel for the appellant brought to our notice the decision of this Court in Parameswaran Nair v. Lakshmi Amma 1968 KLT 51 it was observed as follows: