NURUL HUDA Vs. ABOOBACKER

JUDGEMENT

(1.) This appeal is filed against the judgment in O. S. No. 12 of 1981 on the file of the Sub Court, Kavaratti. The appeal has come before us on a reference by his Lordship Justice T. L. Viswanata Iyer, by order dated 9th November, 1993. The case involves questions regarding mode of inheritance and division of properties - per capita or per stripes in the Lakshadweep Islands. The properties in this case belong to one Ahammed of Aynepura Tarwad. He and his two sisters were members of the tarwad called Aynepura Tarwad. Plaint B Schedule properties were acquired by Ahammed, According to the plaintiff, on behalf of the tarwad. The two sisters of Ahammed are Ayinamma and Anjumma. The case of the plaintiffs is that after the death of Ahammed, the properties were divided by the sisters Ayinamma and Anjumma. The plaint B schedule properties were obtained by Anjumma, the predecessor in interest of the parties to the suit. Plaintiffs are descendants of Anjumma. Anjumma had four daughters, viz., - Mariyam, Huda, Aishomma and Asi. The plaintiffs are the Marumakkathayee descendants of Mariyam. The only Marumakkathayee descendants of Huda are her three sons and defendants 2 to 4. Aishomma's only Marumakkathayee descendant is her only son, 5th defendant. Asi, the 4th daughter of Anjumma, died without any issues. Plaintiffs 1 to 53 are the Marumakkathayee descendants of Mariyam, namely her children, the children of her daughters and the children of the daughters of her daughter and so forth. As already stated, plaint B schedule properties were obtained by Anjumma. The first plaintiff as Karanavan was managing the properties obtained by Anjumma. The suit has been filed for partition of plaint A schedule and B schedule properties. According to the plaintiff, plaint B schedule properties are tarwad properties and plaintiffs are entitled to 54/59 shares of B schedule properties. So far as the plaint A schedule properties are concerned, item No. 1 is an amount of Rs. 2550/- deposited in O. S. No. 3 of 1975 by the first respondent, who was the receiver of B schedule properties. Taking into account the one half portion retained by the first plaintiff, plaint A schedule item No. 1 is to be divided and plaintiffs are entitled to 54/59 shares out of Rs. 5100/-, and accordingly, plaintiffs are entitled to withdraw Rs. 2,117.76 out of the court deposit. A schedule item No. 2 is also liable to be divided in the same share. The suit was resisted by the defendants 1 to 4 by giving a joint written statement. They contended that plaint B schedule property was an acquisition made by Ahammed and it was not on behalf of the tarwad. The acquisition enured to the benefit of his two sisters in equal halves. The sisters took it in equal halves although Ayinamma had more children than Anjumma. Anjumma treated plaint B schedule property obtained by her as her absolute property. On the death of Anjumma, her personal heirs became entitled to the same. The mother of plaintiffs 1 to 7, Mariyam and her sister (first defendant) have equal rights. It is stated that plaint B schedule property may therefore, be divided between plaintiffs and defendants 1 to 4 in equal shares. The properties left behind by Ahammed was not partitioned per capita among the descendants of Ayinamma and Anjumma. The plaint A schedule item No. 1 represents one half share which defendants 1 to 4 are entitled. The 5th defendant was not a party in O. S. No. 3 of 1975. Plaint A schedule item No. 2 is not partible and the entire amount is liable to be withdrawn by defendants 1 to 4.

(2.) No oral evidence was tendered before the court below. Only documents evidence was produced. After hearing the parties, the court below held that the plaintiffs and defendants are entitled to get 1/58 share each in the plaint schedule properties; that the plaintiff and defendants are allowed to get separate possession of their share after effecting a division of B Schedule property by metes and bounds; that the parties are allowed to apply for passing a final decree individually or in groups for effecting the partition; along with the final decree application parties will also apply for the issue of commission to effect the division by metes and bounds; parties are allowed to get 1/58 share each in plaint A schedule items 1 and 2 and also the amount held in deposit in court during the pendency of the suit; that the plaintiffs will pay the deficit court fee of Rs. 811.25 within one month; and that the defendants if they apply for separation of their shares should pay the court fee on their shares. It is against the above judgment and decree the appeal has been filed by defendants 1 to 4.

(3.) Even though many contentions are taken in the appeal memorandum, at the time of argument, learned counsel for the appellants Sri. T. P. M. Ibrahim Khan submitted that the appellants only contention is that after the death of Anjumma, plaintiffs and defendants claim the properties per stirpes and not on per capita basis. Hence, he submitted that the decree of the Court below allotting 1/58 share each is not correct. The shares ought to have allotted as claimed in the written statement. Learned counsel for the appellants very fairly submitted that finding of the lower court that the plaint B schedule property is tarwad property is a finding, which is supported by evidence in this case, and it will be very difficult for him to prove that it was the absolute property of Ahammed and on his death two sisters took the property separately. Learned counsel argued that after the death of Ahammed, his sisters Ayinamma and Anjumma divided the properties per stirpes, eventhough, according to the counsel, the members in both the families were not in equal number. Learned counsel contended that the plaint schedule property is situated in Kavaratti Island in the Lakshadweep. According to him, the people inhabiting this area are followers of pristine Marumakkathayam Law and the law has not been moulded by any statutory intervention. Learned counsel contended that as per the old Marumakkathayam Law, there was no right for anyone to compel partition, and even if partition was allowed, it was on per stirpes basis. He contended that the present appeal is an example where if the per capita basis followed, the defendants will get very few shares. Sri. S. V. Balakrishna Iyer appearing for respondents contended that the lower court has correctly discussed the point and he supported the judgment of the Court below. Thus the issue to be decided in the case is, whether the plaint B schedule properties are to be divided among the children of Anjumma on per stirpes basis or on per capita basis.