Appakoth Kombi Avulla Karnavan and Manager and Others vs Erachavanveetil Kottayi Matha and Others

Krishnan Pandalai, J.—The plaintiffs appeal from a decree of the learned Subordinate Judge of Tellicherry reversing a decree of the District

Munsif of Nadapuram and dismissing their suit brought to recover certain properties leased by the first plaintiff''s predecessor-in-title one

Kunhisoppi to Chappari by Ex. E in 1887 and renewed by Ex. A in 1898 to the original lessee''s wife from whom Ummachi the ancestor of the

contesting defendants(8 to 14) respondents here, obtained the leasehold right and possession thereunder by assignment. The suit was thus

extremely simple in character but has been complicated by the introduction of several irrelevant matters which have lengthened the trial and in the

end misled the learned Judge.

The properties belonged to one Beeyathumma whose descendants effected a partition by Ex. L, in December, 1886 It is now established that

the parties to the partition were Muhammadans governed by the Muhammadan Law and not Marumakathyis. In the partition however three

properties, items 71, 72 and 73, were left undivided and allotted to the seven women mentioned therein as streesothu (woman''s property) to be

taken by them and their female descendants existing or to be born thereafter. It was also provided that the properties were to be held in possession

and managed by certain males in the order of seniority beginning with Kunhisoppi the person who leased the suit properties to the defendant''s

predecessor-in-title. The managers were directed to take the income of the properties and with it to get the tarwad house, as it is called, thatched

and with any balance left protect the members of the family. Kunhisoppi was in possession taking the income of properties and after him one or

two others in order of seniority. It was admitted that at the time of this suit and also at the time of the melcharth by the first plaintiff to the second

plaintiff, on which the suit was brought, the first plaintiff was the person entitled on the footing of the partition deed to remain in possession and

management of the property. The property leased under Ex. A remained in the hands of strangers as lessees until 1909 when one Ummachi, a

member of the family, herself obtained the leasehold right by assignment under Ex. J. The contesting defendants 8 to 14 are the descendants of this

Ummachi. Having thus obtained possession of the leasehold right Ummachi and her descendants fell into arrears of rent and not only would they

not pay the rent but having sublet the property to others as if it were their jenm refused to give up possession. Their contention when they and their

sub-lessees were sued in this suit was strangely enough that the provision in the partition deed allotting property to a streesothu tarwad is invalid

and that no rights are created thereby. The District Munsif who went into this matter at great length stated as his opinion that the constitution of an

artificial tarwad consisting of a woman and her female descendants was invalid according to the Muhammadan law but he held that that invalidity

did not affect the allotment of the properties to the seven women mentioned in the partition deed who would take the properties unfettered by the

invalidity of the streesothu tarwad and that the provision for the management of the property assented to by all the owners to which no invalidity

could attach would also remain valid. He therefore held that as lessees in possession of property the contesting defendants had no right to question

the title of their lessors and their successors-in-interest and gave a decree for arrears of rent and for possession in favour of the second plaintiff

who was the subsequent lessee from the first plaintiff who had obtained a melcharth in 1925. The learned Subordinate Judge took the opposite

view and held that if the constitution of the streesothu tarwad is invalid the appointment of a manager for the streesothu property cannot stand for a

moment. On this ground he dismissed the suit holding that the first plaintiff had no power of management under the partition deed and that the

second plaintiff derived no title under the melcharth.

The learned Subordinate Judge''s view is in my opinion wrong. The partition deed was entered into by all the persons who were entitled to the

properties now in question and its provisions are binding on them and on their successors. The words which are supposed to constitute the illegal

disposition are as follows:

The property item No. 71, the property item No. 72, which is the tarwad house as well as the property item No. 73 have been allotted as

belonging to the streesothu tarwad for Nos. 5, 6, 11, 12, 13, 18 and 19 as well as their female children now existing and, those that may be born

hereafter.

The provisions about management then follow. It will be observed that in the above disposition there is nothing illegal whatever except the

limitation that the property is to descend to those(female children) that may be born hereafter and the description of the property as belonging to

the streesothu tarwad. The rest of the disposition which allots the property to the seven females named as well as their children then existing is

perfectly valid because there is nothing to prevent the allotment of property at a partition to members of the family male or female then alive and to

their children male or female alive. It is only where you try to create a new line of succession or to constitute a new group of persons called a family

or tarwad hot known to the personal law of the parties that the latter attempt is rendered futile.

The law is that where property is given for an estate of inheritance to a person or persons accompanied by a limitation to heirs in a line not

sanctioned by the law the disposition in favour of the persons named will stand and the invalid limitation of heirs will drop out. The best instance of

this is the Tagore case (1872) 9 Beng. L.R. 377 although it was a case of Hindus. It was there held that:

if an estate be given by a Hindu to A without words of inheritance, it will, in the absence of any conflicting context, give an estate inheritable as the

law directs; if to it be added an imperfect description of it as a gift of inheritance not excluding the inheritance imposed by law, an estate of

inheritance would pass; if a gift be in terms of an estate inheritable according to law with superadded words restricting the power of transfer which

the law annexes to that estate, that restriction is to be rejected.

Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1872) 9 Beng. L.R. 377. In this case there is no doubt that the partition deed intended the

seven women mentioned in the clause now material to take an estate of inheritance; but instead of describing that estate as to heirs generally or

according to law it limited or attempted to limit those heirs to those in the female line. According to this decision that limit drops out and the estate

remains. The same is the inference to be drawn from the decision in Muhammad Kunhi v. Packrichi Umma ILR (1923) 46 Mad. 650 , which was

the case which for the first time authoritatively decided that the institution of a streesothu tarwad is unknown to Marumakkathayam law. But it was

there assumed without question that the persons to whom the property was given, took the estate as one of inheritance according to the

Marumakkathayam law including the male heirs who were excluded as well as the female heirs who were included. This is further emphasised by

the decision which has perhaps only a collateral bearing on the point in Moithiyan Kutty v. Ayissa I.L.R.(1928) 51 Mad. 574 : 55 M.L.J. 208. It is

thus clear that the effect of the attempt to create a streesothu tarwad in the partition deed is not to make the whole of that disposition and its

consequent dispositions invalid but it invalidates only that which is legally invalid, the remainder which may be validated being left. Although it is not

necessary to decide the point as all the parties are not before the Court it would seem that by the partition deed the seven women mentioned and

their female children then living get the properties 71, 72 and 73 absolutely unfettered by the restriction to female heirs to be subsequently born.

The point in this case is however that the invalidity of the streesothu tarwad as a legal conception has not the effect, as the Judge thought it had, of

invalidating the provision for the management of the property to the extent to which the owners to whom they were legally allotted had the power

to provide. I can see no objection to the owners of the property by mutual agreement stipulating for the management and enjoyment of what is their

own by a number of persons one after the other and for the income to be utilised in a particular manner. It has not been shown how such a

provision is invalid except by reference to the invalidity of the streesothu tarwad which as I have said has no connection with it. It is unnecessary

for this case to decide for what length of time the provision for management contained in the partition deed could be valid. Undoubtedly it would

be valid at least till the death of the last survivor of those to whom the properties were allotted in the partition deed. It is admitted that some of

them are still alive. It is not disputed that if the provisions as to management and possession of the properties in the partition deed are valid, the

plaintiff as one of the persons named as manager in the partition deed is entitled to be in management and for that purpose to lease the property as

he has done. The respondents have no answer to the suit for possession.

The only other matter mentioned is that there was no proper notice to quit. The learned Judge has not dealt with this as it was not necessary for

him to do so. But the District Munsif has dealt with it in paragraph 25 of his judgment. He gives there several reasons for holding that there was no

necessity for any notice being given and also that in fact a notice was sent but refused. That notice is Ex. C which shows that the addressee, the

second defendant, refused to accept it. However that may be, there was no notice to quit needed in the case. The lease Ex. A expired in Edavam

1085 and Ummachi, the predecessor-in-title of defendants 2 and 3, came into possession as lessee just six months prior to that. It was admitted

and in fact made a point of defence that Ummachi and her successors never paid any rent. Therefore on the date of suit as the term had expired

and no rent had been paid or even alleged to be paid there was no need for any notice to quit. But it is said that the plaintiffs said that they had

received rent. That was part of their case. But it being part of the defendant''s case that they never paid any rent it does not lie in their mouths now

to complain that they had not received notice to quit. This point must be found against the respondent. No other question was raised.

In the result, the decree of the lower Appellate Court must be reversed and that of the District Munsif restored with costs here and in the court

below.