ODIVAFU KIRUBIYUGOTHI FATHIMA Vs. HASSAN ISMAIL

JUDGEMENT

(1.) This appeal arises from the judgment and decree of the sub-Judge of Kavarathi, U.T. of Lakshadweep in O.S. No. 7 of 1987.

(2.) The appellants were defendants in O.S. No. 7/87 before the sub-Court of Kavarathi. The suit was filed by the first respondent as plaintiff for partition of the plaint schedule property. The facts are that the plaint schedule property belonged to Dom Takru who was the husband of Amina of Minicoy Island. Both Dom Takru and Amina died. The plaintiff and defendants 1 and 2 are their children. Defendants 3 and 4 are the daughters of Dom Takru from another wife. The 5th defendant was the son of Amina from another husband. The. plaint schedule property belonged to Dom Takru and there is a building in it. It was alleged that the parties were governed by Shariat Law. Thus, it was alleged that on the death of Amina the property devolved on the plaintiff and defendants 1 and 2. Thus the suit was filed for partition of the plaint schedule property. Defendants 3 and 4 remained ex-parte and defendants 1, 2 and 5 contended that as per the prevalent custom in the Minicoy Island, the husband on marriage becomes a member of the wife's family and has to reside in the wife's house. If the wife abandons her house and joins the husband, she forfeits, her rights in her parental house. In that event the husband has to provide a house for the wife and that house will be treated as the absolute property of the wife. Amina belonged to Kiribayigothi house. After marrying Dom Takru she abandoned her house. Thus Dom Takru acquired the plaint schedule property and Amina resided in it. Thus as per customary law the plaint schedule property became the absolute property of Amina. It was also contended that as per the custom a man's right in his parental house is only a right of residence which is known as 'Kattilavakasam'. That right not alienable and inheritable. Thus it was contended that the right of the plaintiff was only the right of residence in the plaint schedule property. It was contended that Amina gifted the plaint schedule property to defendants 1 and 2 reserving the 'Kattilavakasam' of the plaintiff and the 5th defendant. Thus it was contended that the plaintiff has no right to claim partition of the plaint schedule property. After framing necessary issues the lower Court examined P.W.1 and D.W.1 and marked Exts. B1 to B3. After hearing both sides the lower Court considered the matter and held that the custom as contended was not proved. Thus it was held that the plaintiff was entitled to get 14 out of 48 shares. Thus a preliminary decree for partition was passed. Aggrieved by that judgment and'decree this appeal is filed.

(3.) Counsels for both sides were heard. According to the learned counsel appearing for the appellants the custom as contended was proved by the evidence of D.W.1 and that the lower Court went wrong in decreeing the suit for partition. Thus the only question arising for consideration is as to whether the custom as contended was proved.