ABDULLA KOYA HAJI Vs. IMBICHIPATHUMMA BI

JUDGEMENT

(1.) THIS appeal arises out of a suit for partition. Parties are Mahomedans of Kozhikode, and the main question which arises for decision in the appeal is whether their rights in regard to the properties which are, sought to be partitioned are governed by the Mahomedan Personal Law (Shariat) or by the Marumakkathayam Law. Defendants 4 and 8 in the lower court are the appellants before us.

(2.) ONE Ahammed Koya Haji who died in 1934 and who was a member of a Mopla tarwad at Cannanore in North Malabar, following the marumakkathayam Law of inheritance, had by his wife, Kalmabi, three sons, namely defendants 1 to 3, and four daughters whose names were Pathummabi, kadeesabi, Ayissabi, and Mariyam Bi. Kalmabi died in 1905, even before her husband. All the four daughters are also now dead. Mariyam Bi died in 1914. She had two sons, one of whom is dead and the other is defendant 4. Ayissabi died in 1921 leaving two sons and one daughter, the sons being defendants 5 and 7 and the daughter defendant 6. Kadeesabi died in 1948 leaving no issue. The other daughter, Pathummabi, had pre-deceased her, in 1945, leaving a daughter whose name also was Kadeesabi. The properties sought to be partitioned, namely, plaint items 1 to 4, are acquisitions standing in the names of Kalmabi and her four daughters under a gift deed Ext. Al dated 27-6-1903, executed by Ahammad koya Haji in favour of Kalmabi for plaint item 1, an assignment (Ex. A3 dated 10-2-1912) executed by him in favour of his eldest daughter, Pathummabi, for plaint items 2 and 3, and another assignment deed (Ex. A2 dated 8-2-1912)executed by Kalmabis brother, Ussan Koya, in favour of Pathummabi for plaint item 4; and the main dispute in the appeal is whether devolution of these properties after the deaths of Kalmabi and her daughters would be governed by the rules of marumakkathayam Law of inheritance or by the rules of succession under the muslim Personal Law (Shariat ). Kalmabis mother Katheesabi, survived her and died only in 1926. Besides the daughter, Kalmabi, Katheesabi had two sons also. ONE of them was Ussan Koya, the person who executed Ex. A2 in favour of pathummabi. He died in 1945. The other son, Abubucker Koya Haji, died in 1929, and plaintiffs 1 and 2 are his widow and son respectively. Plaintiffs 1 and 2 are therefore the widow and son of Kalmabis brother. As started already, defendants 1 to 3 are Kalmabis sons and the brothers of her four daughters, defendant 4 is her grandson, being the son of her daughter (Mariyam Bi); and defendants 5 to 7 are her grandchildren being the issues of her daughter, ayisabi. Defendants 3 to 10 are persons who would be entitled to some rights in the properties belonging to Ayissabi and Mariyam Bi if they were governed by the Muslim Personal Law and not by the Marumakkathayam Law of inheritance. Mariyam Bis husband, Ali Koya Haji, survived her and died only in 1918. After mariyam Bis death, he married a second wife whose name was K. Katheesabi and who survived him and died only in 1923. After Ali Koya Hajis death his second wife, K. Katheesabi, married again, her second husband being Abubucker Koya who was the husband of Ayissabi, Mariyam Bis sister. After K. Katheesabis death in 1923 this Abubucker Koya married a third wife, Imbichipathummabi, who survived him and died only in 1931, and defendant 8 is his daughter by her. After abubucker Koyas death Imbichipathummabi was married a second time, and defendant 10 (Chekkunhi) is her second husband. At the time of the death of mariyam Bis second husband, Ali Koya Haji, his father (Mammadkoya Haji) was alive and defendant 9 is Mammadkoya Hajis daughter. Thus, through successive steps of inheritance defendants 8 and 10 would be entitled to a small portion of the estates left by Mariyam Bi and Ayissabi, and defendant 9 would be entitled to a small portion of Mariyam Bis estate.

(3.) DEFENDANTS 1 to 9 entered appearance in the lower court and filed written statements, some of them supporting the plaintiffs and some denying their right. As this appeal is only by defendants 4 and 8 and the other defendants have not appealed against the preliminary decree for partition which the lower court has given to the plaintiffs it is not necessary to refer here to the contentions of all the defendants. Defendant 4 contended that the shariat Law was not applicable to the plaint properties, that plaintiffs and defendants have got self acquired properties which are being held under the shariat Law and also other properties which are being held as tarwad properties under the Marumakkathayam Law, that the properties acquired by Kalmabi belonged to her thavazhi consisting of herself and her children and were being held as thavazhi-tarwad properties under the Marumakkathayam Law, that plaint item 1 was gifted by Ahammad Koya Haji in the name of Kalmabi for being held by her and her children as a strithavazhi, that Kalmabi was karnavastri of the said thavazhi till her death and after her death her eldest daughter, Pathummabi, became the karnavastri thereof, that plaint items 2 to 4 were also acquired for and on behalf of the said thavazhi, that Ex. B7 was executed in 1912 stating all these facts, that the said agreement is not void or invalid, that all the members of the thavazhi have accepted and acted in accordance with Ex. B7 and that instrument has taken effect, that plaintiffs have therefore no right in the plaint properties, that plaintiffs were also never in possession and enjoyment of the plaint properties, and that, even if they had any rights in the properties, such rights have therefore become barred by limitation. Defendant 8 merely stated that she totally denies all the allegations made in the plaint save those that are expressly admitted in her written statement and that it is necessary that she should get her lawful share out of the plaint properties duly partitioned and allotted to her separately and also duly freed of the joint possession thereof. At the time of the trial in the lower court the defendants also urged that, like her husband, Kalmabi also originally belonged to a Marumakkathayam tarwad, which was known as Kunheeryambalath tarwad, that therefore even apart from the creation of a thavazhi-tarwad by Ex. B7 there was a thavazhi-tarwad consisting of Kalmabi and her children, that the said thavazhi-tarwad was known as Kunheeryambalath Pudiya Purayil thavazhi, and that the plaint items belonged to that thavazhi-tarwad and were governed by the marumakkathayam Law.