BUHARI KOYA Vs. KASIM KOYA HAJI

JUDGEMENT

(1.) DEFENDANTS 2 to 8 in a suit for declaration of title and recovery of possession are the Appellants.

(2.) THE parties to the suit belong to the Amini Island in the Lakshadweep. The people of the island generally follow Marumakkathayam Law. The properties in the island are classified under two heads: Belliazcha properties are the properties of the tarwad or tavazhi which are governed by Marumakkathayam law. The Belasha properties are the properties of undivided members on which they have got disposing power. These properties devolve on the personal heirs of the owner, according to Muhammadan Law. The thirty eight Plaintiffs are members of the Asaroda tarwad. The Asaroda tarwad, according to them, consisted of five branches, Asaroda, Ranakkal, Bapachinellala, Beredem and Kaniyam. The Bapachinellala and Ranakkal branches are now extinct. The Plaintiff, belong to the Asaroda branch. The 1st Defendant in the suit, now deceased, was the sole surviving member of the Beredem branch. Defendants 2 to 8 are his wife and children. Under the customary law prevailing in the island, no branch tarwad or tavazhi is competent to alienate or otherwise dispose of the Belliazcha properties belonging to the tarwad without the concurrence of the other members of the tarwad. On a branch becoming extinct the properties thereof would devolve on the members of the main tarwad. The plaint schedule items are properties registered in the name of the 1st Defendant as per Ext. B -1, the property register maintained in the island during the year 1935. Being Belliazcha properties, they revert on the death of the first Defendant to the members of the tarwad. Contrary to the custom of the island, the first Defendant executed a gift deed, Ext. D -14 of which Ext. A -1 is a copy, transferring his rights in the properties to Defendants 2 to 8. The suit was filed for a declaration that the document did not convey any right to the transferees.

(3.) THE courts below concurrently found that Beredem Bappachinellala, Ranakkal, Kaniyam and Asaroda were branches of an ancient tarwad by name Asaroda, that the Plaintiffs and the 1st Defendant were members of that tarwad, that the Plaintiffs are members of the Asaroda branch and that the 1st Defendant was the last member of the Beredem branch. The Trial court held that there was a division of properties among the different branches, which must have taken place more than 100 years back, that the divided branches were enjoying the properties allotted to them and were being treated as separate entities. After referring to the documents produced in the care, the court held that the people of the islands were "rightly or wrongly under the compulsion of a conviction that tarwad properties obtained on partition cannot be alienated or disposed of and that they were to revert to the tarwad as and when the branches became extinct". The court also held that very often the last surviving members of the branch tarwads used to alienate tarwad properties with the consent of the reversioners and concluded therefrom that the customs set up is not well -knit. The court characterised the custom as a restraint imposed as regards alienation of tarwad properties obtained on partition. Relying on the decision in Nellakoya v. Administrator, Laccadives, 1976 K.L.T. 395 the court held that (he restraint on alienation being opposed to public policy and against the provisions of the Constitution cannot be given any legal recognition.