K DASA NAICKEN Vs. PULIKALATH KUNHA AHAMAD KOYA

JUDGEMENT

(1.) The only question in this Letters Patent Appeal is whether Ex. DD, gift deed dated the 7 September, 1884 is valid. Mr. Justice Krishnan held that the donor purported to create an estate unknown to Muhammadan Law and therefore the gift failed. The relevant portion of the document is as follows: As it is you, our mother that have brought us up, we have given to you on Ochara Udama, gift of proprietary right as tarwad property, the schedule-mentioned moveable and immoveable properties. Therefore we have executed this deed to you with our free will and consent granting the said properties to be occupied as tarwad property for ever by children existing now and by those who will be born to them by the aforesaid Avarankutti, Aullakoya and Ummar and their children.

(2.) The donors made a gift of their property to their mother and to their three brothers to be enjoyed by them as a tarwad. It is admitted before us that the word used is children and therefore the contention that was raised before Mr. Justice Krishnan that only the sons and their sons were entitled to be benefited by the gift has been given up. The question is whether a Muhammadan who is governed by the ordinary Muhammadan Law can create,by a deed,a tarwad with the incidents of a Malabar tarwad. The clause in the Will makes a gift of the property to the mother as a tarwad property and provides that it should be occupied as tarwad property for ever by "the children existing now and by those that will be born hereafter." The document contains also the following recitals: The seniormost male member being the manager at the respective times and the rest are to abide by his orders. It is hereby agreed that these properties which are set apart as tarwad property should never be partitioned or sold or mortgaged and that if any such thing is done it will not be valid. Kulichit (rent agreement) in respect of the above mentioned shops should be obtained in the name of the seniormost female members at the respective times.

(3.) From these clauses it is quite clear that the intention of the donors was to create a tarwad consisting of their mother and her children and that the tarwad should have all the incidents of a Malabar Marumakkathayam tarwad. The parties are Muhammadans and under the Muhammadan Law a gift to a person enures for his benefit and the creation of a tarwad with all the incidents of a Marumakkathayam tarwad is opposed to the ordinary Muhammadan Law. But in the case of the Moplahs of North Malabar the Customary Law by which property could be held by a tarwad applies to them. In other words, the North Malabar Moplahs follow the Marumakkathayam Law. But such a custom does not obtain among Moplahs of Calicut and they are governed by the ordinary Muhammadan Law and are not entitled to make a gift of property to a woman and her children to be held as tamad property. That devolution of property under a bequest or gift which is repugnant to the personal law of the testator or donor is invalid, as was held in the well-known Tagore case.