MARIYAKUTTY Vs. NOORJAHAN

JUDGEMENT

(1.) WHETHER under the Customary Marumakkathayam Law applicable in the Malabar area prior to the passing of the Mappila Marumakkathayam Act, 1939, is there any presumption that a gift (Streedhanam) to the Marumakkathayee female exclusively would enure to the tavazhi of her children together with lineal descendants in the female line, is the question that has come up for consideration in these cases.

(2.) PLAINTIFFS 3, 4, 5 and 8 are the appellants in AS. 543/97 and defendants 5 to 9 are the appellants in AS.309/97. Suit is for partition. The first defendant, one Nabeesumma is the mother of first plaintiff and defendants 2, 3 and 4. Plaintiffs 2 to 5 are the children of deceased Katheesumma who was the daughter of the first defendant. Plaintiffs 6 and 7 are the children of first plaintiff and 8th plaintiff is the daughter of the 4th plaintiff and defendants 5 to 8 are the children of 4th defendant and 9th defendant is the daughter of 5th defendant. Plaintiffs case is that plaintiffs and defendants 2 onwards formed a tavazhi under the first defendant. Plaint A-Schedule properties were the tavazhi property of the plaintiffs and defendants given to the first defendant by the tarwad karanavar as Streedhanam for enjoyment by the female descendants. Properties were enjoyed by them as tavazhi properties. While so, items 2 to 4 of A-schedule were mortgaged by the Karanavar to Kannur V. G. Industrial Bank without the consent and knowledge of the first defendant. A suit, OS.12/33 was filed before the District Court, Thalassery to realise the amount. First defendant got impleaded in the suit and contested. Contentions were rejected by the Court, however, permission was given to her to file a separate suit. First defendant later filed OS.713/36 before Munsiff's Court, Kannur which was subsequently settled. On the basis of the settlement first defendant had to pay an amount of Rs. 1500.00 to the Bank, the amount which was advanced by the Karanavar. That property was also enjoyed by the tavazhi. Items 3 to 5 of plaint A-Schedule is the property obtained by the first defendant by way of Streedhanam. A portion of item No. 5 was given as Streedhanam to Katheesumma who was the daughter of the first defendant and mother of defendants 2 to 5, at the time of her marriage. A suit was instituted by first defendant and others after the death of Katheesumma. However, the Court decreed the suit in favour of children of Katheesumma and the suit property was not included in the plaint. Item No. 3 is possessed by the 4th defendant as per a gift deed. She had been in possession for more than 12 years continuously. The same was not included in the plaint. Plaintiffs demanded defendants 2 to 3 to effect partition and allot their share separately. There are 17 members in the tavazhi. Plaintiffs are entitled to get 8 out of 17 shares and the plaintiffs are entitled to get one share each. The movables are shown in plaint B-Schedule. They are now in the possession of the first defendant. Claim for improvements was also made.

(3.) DEFENDANTS 4 to 9 have also filed a separate written statement. They conceded the averments in Para.1 to 4 of the plaint except the averment about item No. 3. Item No. 3 of the plaintiff A-schedule is in exclusive possession of 4th defendant as a tenant. It is prayed that tenancy right of D4 over item No.3 should be reserved in her favour. Further it is also stated that defendants 1 to 3 have attempted to take away the property in possession of the 4th defendant and the 4th defendant filed OS.279/79 before the Munsiff's Court, Kannur. They also stated that they are unaware of the order in OA.6922/76. Plaintiffs in order to establish their case adduced oral and documentary evidence. Sixth plaintiff was examined as PW1. A1 to A6 are the documents produced by the plaintiffs. No witness was examined on the side of the defendants. In the suit they produced B1 to B16 documents. C1 to C4 are Court exhibits. Trial Court raised the following issues: 1. Whether the suit properties are tavazhi properties of the plaintiffs and defendants or whether they are the exclusive property of the first defendant? 2. Whether the 4th defendant has tenancy right in item No.3 of the plaint schedule? 3. Whether the tenancy right set up by defendants 2 and 3 in respect of item No. 1, 2, 6 and 7 are true and valid? 4. Whether the plaintiffs are entitled to profits and if so, what is the quantum?