MARIYAM Vs. PATHUMMA

JUDGEMENT

(1.) This second appeal raises some interesting questions about what is called 'Streedhanam' among the Marumakkathayee Muslims of Malabar.

(2.) The suit is for partition of plaintiff's eleven-eighteenths share in five items of immovable property purchased under Ext. A4 dated May 6, 1933, in the names of plaintiffs 1 to 8, defendants 1 to 7 and Kathiyachumma, Katheesumma and Alima Umma who were the mothers of plaintiffs 1 to 3, 5 to 7, and 10 respectively. Defendants 1 and 2 contend that at the time of the 1st defendant's marriage in 1908, Moideenkutty the then karnavan of the tarwad, promised a stridhanam of 500 seers of paddy and Rs. 25/- per annum and assigned suit items 1 and 2 in lieu of 300 seers of paddy per annum leaving the balance of 200 seers of paddy and Rs. 25/- to be collected from the tarwad annually, and that the assignment Ext. A4 by the heirs of Moideenkutty could not affect the prior assignment by Moideenkutty himself and therefore did not convey any right in suit items 1 and 2 to the vendees thereunder to entitle the plaintiffs to claim a share therein. The plaintiffs do not dispute the promise of stridhanam having been made at the time of the 1st defendant's marriage, but contend that the promise was not acted upon and that the stridhanam, suit items 1 and 2 have never been assigned to the 1st defendant under any arrangement. The Munsif repelled the plea of stridhanam, and decreed partition of all the suit properties. The District Judge, on appeal, found the stridhanam arrangement true, but held it enured for the life of the 1st defendant only and therefore directed partition subject to such life - estate. It is against the exclusion of a life - estate in favour of the 1st defendant that the plaintiffs have preferred this second appeal.

(3.) It is freely conceded in this case that the suit properties were the self acquisitions of Moideenkutty. The appellants therefore contend that the suit properties could not have been given for stridhanam which even according to the plea of the defence, was a liability of the tarward. Reliance was also placed on the testimony of DW 1, the husband of the 1st defendant, that the possession of defendants 1 and 2 of suit items 1 and 2 was not under any stridhanam arrangement but under an oral will by which Moideenkutty demised the properties in absolute rights to them. Counsel for the defence on the other hand disowned the statement of DW 1 and relied on Ext. B1 in support of the plea. Ext. B1 is a marupat (counter lease) dated April 16, 1929, executed in favour of Moideenkutty and the 2nd defendant by Ahammadkutly, the father inlaw of P. W. 1, the eldest son of Moideenkutty. It makes express mention of suit items 1 and 2 having been granted by Moideenkutty as stridhanam to the 1st defendant in 1908 and of the 1st defendant having assigned the same as stridhanam to her daughter, the 2nd defendant. Nothing has been made out in evidence to discredit the recitals in Ext. B1 which came to be so early as 1929. The grant of stridhanam to 1st defendant by Moideenkutty may therefore be taken as true