MUHAMMAD KUNHI Vs. PACKRICHI UMMA

JUDGEMENT

(1.) In these connected Second Appeals a question of law has been taken whether a course of devolution of property among females to the exclusion of males is unknown in North Malabar and is repugnant to Marumakkattayam. law as followed by Mappillas in that district. The Subordinate Judge and the District Judge who heard the first appeals hare come to different conclusions on the point, and the authorities to which the District Judge refers in his Judgment are neither clear nor uniform.

(2.) In Bivi Umah V/s. Keloth, Cheriyath Kutti [1910] M.W.N. 693, an instrument of gift which limited the descent of property to the female line was held by Collins, C.J., and Parker, J., to be valid. The learned Judges observe that the gift was of the class known as Strisothu or henumula and created an estate known to Marumakkattayam usage. They quote Kunhacha Umma V/s. Kutti Mammi Hajee [1893] 16 Mad. 201, a Full Bench case, which is not however an authority upon the significance and legality of strisothu gifts. On the other hand in Kunhamina V/s. Kunhambi [1909] 32 Mad. 315, Miller and Munro, JJ., refer to a similar gift to females excluding males as being an attempt "to create a perpetual succession confined to females, a course of devolution equally unknown to the Marumakkattayam and to the Muhammadan Law."

(3.) We might feel bound to follow this ruling, were there not certain observations in the judgment which indicate that the decision turned rather on a question whether the last survivor of a tenancy in common created by the gift deed had the power of disposing of the property to the exclusion of the descendants, if any, of the donees, than on the validity of the condition in the gift deed as to the exclusion of males, which the learned Judges describe as a condition of no real importance.