CHIRAKKAL PUDIAMADATHUMMAL PERINGATI KOYATTI HAJI Vs. CHIRAKKAL PUDIAMADATHUMMAL PERINGATI KOYAMAN KUTTY HAJI; MANAGER OF HIS TAWAZHI TAWAD

JUDGEMENT

(1.) IN this case two persons applied for certificatie succession to a deceased man who was a member of a Muhammadan family in Malabar. The appellant was an anandravan of the deceased s tavazhi and the respondent was the Karnaran of the tavazhi as well as of the main tarwad. The appellant asked for a certificate with respect to certain property, which he alleged was the self-acquired property of the deceased. The learned District Judge has dismissed the petition of the appellant, on the ground that by virtue of a certain karar whatever property the deceased might acquire in his life-time, belonged to the tavazhi; so that the Will under which the appellant claimed the certificate was not operative in respect of the property of the deceased. The karar is a family settlement and what is its effect, so far as this matter is concerned, depends upon the proper interpretation of paragraph 5. What that paragraph says is: The properties acquired, by the members of each tavazhi as their own as well as those that may be so acquired, shall, on the death of such acquirers, lapse only to their tavazhi." There is nothing in this language to show that the acquirer of the property debarred himself from dealing with it during his life-time either by alienation inter vivos or by means of a Will. All that it says, is that on his death the property shall descend to the tawazhi. This is like any, similar provision in an ordinary Will and it does not preclude the person making such a provision from dealing with it in his life-time either by an inter vivos or a testamentary disposition. We think, therefore, that the appellant has a prima facie title under the Will to a succession certificate.

(2.) BUT there is also another question in the case which has not been clearly determined by the learned District Judge, and that is whether the properties in question were the self- acquisitions of the deceased or belonged to the family. If they are not the self-acquisitions of the deceased, then the Will in favour of the appellant can have no operation. The District Judge has not come to any finding on the point. He touches on the point, but leaves it undecided. Before the petition could be disposed of, there ought to be a finding on the question whether the property was the self-acquisition of the deceased or family property. If the District Judge finds that it is self-acquired property, then the appellant would be entitled to a succession certificate. With these observations, we remit the case to the District Judge to dispose of it according to law. It will be open to each party to adduce fresh evidence. The exists will abide the result.