ADIYALATH KATHEESUMMA Vs. ADIYALATH BEECHU ALIAS UMMA

JUDGEMENT

(1.) This appeal arises out of a suit for partition by 15 out of 20. members of a Moppla Marumakkattayam tarwad. The first defendant in the suit is the karnavan of the tarwad, and defendants 2 to 5 are the remaining members. The sixth defendant was impleaded in the suit on the allegation that the first defendant had created a sham lease in his name over an item of the family property in anticipation of the suit for partition. The plaintiffs claimed a share in the properties described in Schedules B and C attached to the plaint. A preliminary decree for partition was passed by the learned Subordinate Judge of Tellicherry directing a division of the properties belonging to the tarwad as found by him into 20 equal shares and of delivery of possession of 15 out of such 20 shares to the plaintiffs. He also granted other reliefs which are not material for the purpose of this appeal and which are not now in dispute.

(2.) The appeal is by defendants 3 and 4 and is confined to three points raised on their behalf. The first point is whether the tarwad house and the paramba attached to the house should be left undivided for the common residence and use of the members or whether it should be divided. The point is covered by issue two in the case, and the learned Subordinate Judge upholding the contention of the plaintiffs held that it should not be divided. The parties being Mopplas governed by the Marumakkattayam law and the right to claim partition is governed by the Mappilla Marumakkattayam Act, 1938 (Madras Act XVII of 1939). With reference to the division of tarwad house, Section 16 of that Act provides: In a partition of tarwad properties, unless two-thirds of the members of the tarwad desire to the contrary, the tarwad house including the site or sites of any building appurtenant thereto, and such other land as is necessary for the convenient enjoyment of the tarwad house shall be kept undivided for the common use of all the members of the tarwad in which ca se, the charges of upkeep and maintenance of the tarwad house shall be borne by the member or members that live in the house.

(3.) Besides the site of the tarwad house there is land of the extent of 89 cents appurtenant to the house. The contention of the appellants is that so much of the land is not required for the convenient enjoyment of the tarwad house and that therefore the Court should have reserved only a reasonable portion of that extent for the convenient enjoyment of the tarwad house and divided the rest. The plaintiffs and the other defendants are opposed to such division. No material was placed before the lower Court to enable it to decide what proportion of the 89 cents of the land was essential for the convenient enjoyment of the tarwad house, and whether all of it is not required for the common use of all the members of the tarwad. In the absence of such evidence it is impossible to hold that the entire extent was not required for the convenient enjoyment of the tarwad house and that a portion alone would suffice. It was incumbent upon the appellants to establish by evidence that all the extent was not required for the convenient enjoyment of the tarwad house by the members. This they neglected to do and in the circumstances it cannot be said that the conclusion of the learned Judge on issue 2 is erroneous.