KUNHIPAPPADA BEEFATHUMMABI Vs. KUNHIPAPPADA KUNHIKOYA

JUDGEMENT

(1.) The parties to this Appeal, hail from the Kalpeni Island, which is a part of Lakshadweep, a group of Islands, which is a Union Territory since 1956. The question that has been referred to the Full Bench is whether, so far as the Velliyazhcha or Tarawad properties are concerned, a division should be per stripes or per capita.

(2.) Before we deal with the question of law, which has been referred to us, it is necessary to state the facts leading upto the Appeal. The first respondent laid a Suit for partition. There are 13 defendants. Plaint B schedule property is the Tarawad property of the parties. The plaintiff claimed that it is liable to be divided into three shares and each thavazhy is entitled to one share each. C Schedule property belongs to the plaintiff and the first defendant, and the 13th defendant has no share in the C schedule property. The genealogical table of the parties projected in the Plaint is as follows: <p>-------------------------------------------------------- | | Yatheefabi (dead) Sister (dead) | | ----------------------------------- Kunhibi (died) | | | | Kadeesommabi (dead) Beefathummabi | | |D1 D13 Plaintiff D2 | |D2 | ------------------------------------------------ | | | | | | | | | | | | | | | D3 D4 D5 D6 | D7 ----------------- | D8 to D12

(3.) Thus, it can be seen that the first defendant is the mother of the second defendant and defendants 3 to 7 are children of the second defendant and defendants 8 to 12 are the children of the 7th defendant. Defendant No. 13 is the grandson of the sister of the grandmother of the plaintiff and the 2nd defendant. The court below has found that the first thavazhy is the thavazhy of Yatheefabi and the second thavazhy is of her sister, and that the 13th defendant is the sole surviving member of the second thavazhy. Yatheefabi had two children, (1) Kadeesommabi who is the mother of the plaintiff, and (2) Beefathummabi, who is the 1st defendant and who is the mother of the 2nd defendant and grandmother of defendants 3 to 7 and further, the great grandmother of defendants 8 to 12. Finding that the plaintiff is a member of the sub-thavazhy of Yatheefabi's thavazhy, the court below found that B schedule property is to be divided into four shares and the plaintiff is entitled to only one such share while defendants 1 to 12 were found entitled to one share and the 13th defendant was declared as entitled to two shares. As regards C schedule property is concerned, the court below found that the 13th defendant has no right over the same and it was decreed that C schedule be divided into two, the plaintiff being entitled to one share and defendants 1 to 12 were found entitled to the other one half share. The oral evidence consisted of the testimony of the plaintiff and a witness examined as DW1. The documentary evidence adduced on behalf of the plaintiff consisted of Exts. A1 to A38. Ext. B1 was the sole document produced by the defendants. It is not in dispute that the parties follow the pristine Marumakkathayam system of law. In the Lakshadweep islands, the tarawad properties are called "Velliyazhcha" properties, while "Thinkalazhcha" properties are. the self-acquisitions of the islanders. As far as tarawad properties are concerned, they are to be dealt with in terms of the customary Marumakkathayam system of law. The case of the plaintiff was that in terms of the custom, the tarawad properties are to be divided among thavazhies. The Kunhipappada tarawad consisted of three thavazhies. The first thavazhi consisted of the plaintiff, the second thavazhy consisted of defendants 1 to 12 and the third thavazhy consisted of the 13th defendant/The contention taken on behalf of the 3rd defendant was that the custom followed in the Kalpeni island is against absolute partition. Properties are given only on maintenance arrangement. It reverts back on the death of the member concerned. It was contended that partition in the Kalpeni island is not per stirpes, but it was per capita. It was also contended that members of the tarawad were enjoying the plaint properties on the basis of a maintenance arrangement entered in 1950, and that it is contended that at present none of the members are entitled to seek a partition.