MARIYUMMA Vs. KUNHAISUMMA

JUDGEMENT

(1.) These two appeals have been heard together since the essential question involved in both is the same and some of the parties are common. They may be disposed of by a common judgment.

(2.) A. S.219 of 1955, the later appeal, is from the later suit, O.S. 144 of 1952, a suit for the partition of a Mappilla Marumakkathayam tarwad called the Thurutheelakath tarwad governed by the provisions of the Mappilla Marumakkathayam Act (Madras Act XVII of 1939). The earlier appeal, A. S.179 of 1955, is from the earlier suit, O. S.74 of 1951, for the partition of a thavazhi, called the Thottinakkara Puthiapura, of the said tarwad. The main contention in both the suits was that the partition should be in accordance with Muslim law.

(3.) The decision on which the court below relied has since been overruled by a Division Bench of the Madras High Court in Abdurahiman v. Avoomma, AIR 1956 Mad. 244 . With due respect we think that this later decision embodies the correct view of the law, and we might add that all the parties who have appeared before us are agreed that the appeals must be allowed and the division effected in accordance with the provisions of the Mappilla Marumakkathayam Act. How exactly this should be done, we shall have to work out separately with reference to each suit. There are also certain other subsidiary questions which fall for decision.