PEEDIANGADI CHERIYAPURAYIL CHEERIA IMBICHI BEEBI Vs. PUTHIYANGADI CHERIYAPURAYIL SYED ALI AND PUTHIYANGADI CHERIYAPURAYIL SYED ALI HAMIDA ALIAS KOHYANBI KOYA TANGAL

JUDGEMENT

(1.) The parties to this suit are Muhammadans of Calicut. The plaintiffs claim is to recover a half share of certain claim is to recover a half shar of certain properties together with past profits for a period of 10 years prior to the suit and future profit till delivery. By a karar between the members of the family. Exhibit I, dated the 3rd September, 1893, it was declared that all the propetties comprised in it were dedicated as wakf by a deceased ancestor and managed as wakf property by the senior male member for the time being, the surplus income after defraying the expenses of the members of the wakf s family. The manner in which the administration of the property was carried on and the surplus and dissensions in the family and the object of the karar is stated to be to frame a scheme which would put an end to quarrels amount the members in the future, The karar is stated to be to frame a scheme which would put an end to quarrels amount the members in the future, The karar recites that the properties were indivisible, which they, of course, were as wakf. It then sets outt thte made agreed on for the future management of the properties. Briefly, what was done was this. Nine items were set apart for the probable expenses of the wakf, and it was declared that the senior made member for the time being should manage them and carry out the trust. The remaining properties were allotted to the members of the different branches of the family which they were to hold and enjoy without alienating them, the object of the stipulation against alienation being, no doubt, to prevent infringement of the rules of Mahammadan Law applicable to wakfs. Each branch was given the right to lease out the properties allotted to it and to enjoy it in any manner it pleased. There can be no doubt, and indeed it is not denied, that the karar creates a limited estate in favour of the donees to whom the allotments were made. The properties of which the plaintiffs claim a share were allotted to three parsons consisting of the plaintiffs mother and two of ther brothers. The allotment was made for the benefit of the donees and there issue.

(2.) One of the brothers and the plaintiffs mother are dead. The question raised for decision in the suit is whether the plaintiffs are entitled to ask for a division of the properties allotted tot their mother and her brothers. The parties are admittedly governed by the Mnhammadan Law of inheritance; but the first defendant contends that, though that is so, there is a custom in the family of the parties according to which the original family property as distinguished from the acquisition of individual members is lo be held as indivisible properly. It is not easy to understand this allegation. It does not appear that there are any so-called family properties apart from the wakf estate. There is no definite statement, by the first defendant to what property the custom of indivisibility attaches. It is contended that the recital in Exhibit I supports this vague allegation but the custom of indivisibility in the karar relates only to the wakf property. Exhibit I does not refer to any other property as being indivisible. WG must, therefore, overrule the contention that there is any family custom by which the plaintiffs claim for division can be resisted.

(3.) It is then urged that the plaintiffs mother and her brothers are treated by the karar as a tnvazhi, and that it was intended that the custom of indivisibility, which applies under the Marumakkatayam Law, should apply to the property allotted to the donees. But there can be no doubt that the word was loosely used to denote a branch of the family, as is often the case in Malabar in documents executed between parties who are not governed by the Marumakkatayam law. It is not suggested that the Marumakkatayam rules are applicable to this property. The karar does not vest the management in a single member of the donees of the branch as one would expect if it was intended to declare the allotted properties indivisible amongst the donees. We can find absolutely nothing in the karar to support respondent s contention that the property in question was intended to be indivisible. The general rule of law, it is admitted, is that the holders of limited estates in property are entitled to enforce partition of the properly as in the case of thong owning women s estates under the Hindu Law. We must, therefore, hold that the plaintiff are entitled to division. On the death of one of the brothers, the other two donees or their heirs must be held to have become entitled to his shares as the gift was a join one to the three donees for maintenance. The plaintiffs are also entitled to recover profits but only for three years under Article 109 of the Limitation Act. Articles 127 is inapplicable to Muhammadans: see Patcha v. Mohidin 15 M. 57. The lower Appellate Court has not recorded a finding on the question of the amount of the profits for the three years preceding the suit. We reverse the decrees of both Courts, and declare the plaintiffs entitled to a half share of the properties as claimed and the profits of the properties for three years prior to the suit and future profits till delivery of possession. The appeals are remanded to the lower Appellate Court, which will appoint a commissioner for making a proper division and then pass a final decree for partition, it will also pass a decree for the profits to which the plaintiffs are entitled. In the circumstances the patties will boar their respective costs up-to-date.