A M ABDUL KARIM Vs. A M MAMOO

JUDGEMENT

(1.) THE plaintiff is the appellant. THE suit was one for partition on the averment that the plaint schedule property belonged to the thavazhi consisting of the plaintiff and his mother. THE parties are Muslims of North Malabar governed by Marumakkathayam law. One Achamma had four children, Mammu, Moosa, Beechumma and Mariyumma. THE plaintiff is the son of Mariyumma. Defendants 2 to 4 are the children of beechumma. Defendants 5 to 9 are the children of Moosa who is no more. Mammu is the first defendant. THE plaint schedule properties were gifted under Ext. A1 dt. 9-9-1940 in favour of Achamma and her four children by the 'wife and children of the brother of the husband of Achumma. THEre was an earlier suit for partition O. S. 26 of 1975 on the file of the Subordinate Judge's Court of tellicherry filed by Mammu impleading his sisters Beechumma and Mariyumma and the legal representatives of Moosa. It must be noted that the plaintiff herein, the son of Mariyumma was not a party to that suit. That suit proceeded on the basis that the properties obtained by Achumma and her children under Ext. A1 were taken by the donees as coownership properties and that Achumma having died the four children of Achumma took a share each in the properties. In fact it was endorsed in the plaint in that case that a preliminary decree for partition may be passed dividing the plaint schedule property into 30 equal shares and allotting to Mammu 8 out of those shares, defendants 1 and 3 to 7 therein together 15 out of 30 shares and to the 2nd defendant therein, the mother of the present plaintiff 7 out of 30 shares, THEre was also a final decree in that suit by which the plaint schedule property which was essentially the building and the appurtenant land was allotted to defendants 1 and 3 to 7 herein, namely beechumma and her children. It was also provided therein that the allottees of the property should pay a sum of Rs. 12,045. 40 to Mammu the plaintiff therein towards owelty and to the second defendant therein Mariyumma, the mother of the plaintiff in the present suit Rs. 11,884. 40 as owelty. Mammu received the amount directed to be paid to him as owelty and agreed to a satisfaction of the decree being recorded. And that was done. As far as the second defendant therein was concerned the execution was taken for evicting her from the house which had been allotted to Beechumma and her children in that earlier partition decree.

(2.) IT is at that stage that the present plaintiff came forward with the present suit for partition on the averment that the plaint schedule property is a property which enures to the thavazhi of Achumma and her children including himself and that he is therefore entitled to a share on his own in the plaint schedule property. According to him since he was not a party to the earlier decree which proceeded as if the four children of Achumma were coowners, the said decree would not bind him and he is therefore entitled to seek a fresh partition of the property on the basis that it is thavazhi property. IT was contended by the defendants in the suit especially by beechumma and her children that the acquisition under Ext. A1 in favour of achumma and her four children did not enure to the thavazhi and that the property was never treated as thavazhi property. According to the contesting defendants the property was merely a coownership property and the plaintiff had no right over it so as to enable him to enforce a partition. The only evidence adduced at the trial was the production of Ext. A1 the gift deed executed by the wife and children of the brother of the husband of Achumma. The court below interpreted the said document to hold that the allotment therein was not in favour of a thavazhi but the property belonged to the donees mentioned in the document Ext. A1 and that therefore the present plaintiff is not entitled to claim any share. The trial court therefore dismissed the suit. The plaintiff has come up with this appeal.

(3.) DEALING with the first aspect what is emphasised by the learned counsel for the respondents is that what is stated in the document is that the donees therein are to hold and enjoy the property as joint owners (Iqhiminebn) According to the learned counsel for the respondents the parties being marumakathayees if it was intended that the gift should enure to the thavazhi of Achumma it should have been normal to use the words "xmhgnbmbn" and not to use the words "iqhiminebn". There is some difficulty in accepting this argument of the learned counsel for the respondents. The words "iqhiminebn according to me cannot exclude the concept of a gift being in favour of the thavazhi because the thavazhi would also be holding the property in joint rights. It is no doubt true that there is no specific words in the document that the property is to be enjoyed by the donees as a thavazhi. The omission however may not really matter if on the basis of the settled law it is possible hold that a gift in favour of a marumakkathayee female and all her children would enure to the thavazhi of that female.