Muhammad Kunhi vs Packrichi Umma and Others

Spencer, J.—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.

In Bivi Umah v. 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. 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. 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.

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.

To a certain extent the statement that the condition in the gift deed excluding males was invalid was thus an obiter dictum.

The District Judge (Mr. Reilly) states in his judgment that he has come across instances in North Malabar of devolution of property being limited

to females, and a case of a strisothu tarwad came before-Bakweell, J., and myself in Thazhath Soopi v. Pallikkal Mariyoma [1920] 43. Mad. 393.

Such an usage was judicially recognized by Mr. Thompson the District Judge of North Malabar, in Appeal Suit Nos. 641 and 647 of 1891 on the

file of that Court which came on appeal to the High Court in Second Appeals Nos. 1127 and 1128 of 1892.

In view of the divergence of opinion both in the Courts below and in this Court as to the validity of such a provision occurring in a gift, I think

that the question of law as stated above should be referred to a Full Bench of this Court.

Ayling, J.

I agree to the reference proposed by my learned brother, though I should personally be content to simply follow Kunhamina v. Kunhambi

[1909] 32 Mad. 315.

JUDGMENT

Opinions appear to be conflicting as to the validity among the Mappillas of North Malabar of a gift of property as strisothu or women''s

property which, it is said, means a gift to a female and her female descendants only, to the exclusion of her male descendants. In Second Appeal

No. 1127 of 1892 Mr. Arthur Thompson, the District Judge of Tellicherry, expressed an opinion favourable to the legality of such a strisothu

disposition but the High Court, Muthuswamy Ayyar and Best, JJ., disposed of the case on the ground that the suit of the male karnavan

questioning it was barred by limitation.

Collins, C.J., and Parker, J., also regarded such dispositions as valid in Bivi Umah v. Keloth Cheriyath Kutti [1910] M.W.N. 693, and in

Second Appeal No. 1502 of 1894 with reference to the documents now in suit. A deed of this kind came before Miller and Munro Kunhamina v.

Kunhambi [1909] 32 Mad. 315, where the question was whether a gift could be regarded as a gift to the females mentioned therein as tenants-in-

common or a gift to the donee and her female descendants as a sort of tavazhi. The Court took the latter view which was sufficient for the disposal

of the case. The learned Judges, however, observed incidentally that it had not been contended that the condition of enjoyment could stand so far

as it excluded males altogether. For the purposes of the case, it made no difference whether males were excluded or included as the intention to

create a tavazhi was clear and that was enough, to invalidate a disposition by one of the female donees only. In Thazhat Soopi v. Pallikkal

Mariyoma [1920] 43 Mad. 393, it was not disputed that a woman, described as the Karnavathi, was the manager of the Marumakkattayam

tarwad in question which is referred to by the learned Judges as a strisothu tarwad, but the question whether the male members of the family were

excluded from ownership as well as from management did not arise. Mr. Menon contended before us that this is the real meaning of a strisothu gift

and that a strisothu tarwad in North Malabar is merely a tarwad in which the right of management is in the senior female instead of in the senior

male, according to the system Which prevails in the adjoining district of South Kanara with reference to Aliyasantana tarwads, and that otherwise

the male members of the family have an equal interest with the females in the tarwad property. He also contended that the question had never

arisen directly between the female members of a tavazhi claiming under such a gift and the male members. Coming now to the two suits, which

have given rise to this reference, the District Munsif dealing with both suits purported to follow Kunhamina v. Kunhambi [1909] 32 Mad. 315, and

held that Marumakkattyam usage only knew of tarwads and tavazhs, and that its conception of a tarwad or a tavazhi is that it consists of a female

common ancestor and her descendants, male and female in the female line, and that a tarwad or a tavazhi consisting of females only to the

exclusion of male descendants of females was a thing so far Unrecognized by Marumakkattayam Usage. The appeal in one suit came before the

District Judge, Mr. Reilly and the appeal in the other before the Subordinate Judge, the late Mr. K.V. Karunakara Menon. The latter observed in

his judgment that it had rightly been conceded before him that the gift deed did not exclude males from participating in the income of the properties,

and that all that Was contended for was that the right of management was in the females. This contention he rejected observing that in Kunhamina

v. Kunhambi [1893] 16 Mad. 201, a gift like this had been held to create a tavazhi consisting of males and females and that the present gift must

be taken to have been made to a tavazhi consisting of males and females. In the other appeal, the District Judge, Mr. Reilly, took a completely

different view and held that Exhibit B created what was sometimes knewn as a strisothu tarwad or tavazhi consisting of a woman and her female

descendants who alone have the right of management and that it was unnecessary to consider whether the male descendants would have any right

of maintenance. He regarded the observations of miller and munro, JJ., in Kunhamina v. Kunhambi [1909] 32 Mad. 315, as the obiter dicta of

Judges whose experience had lain in South and not in North Malabar, the usages of which vary in several respects. He further observed that

instances in which the devolution of property was confined to the females of a family had come to his own knowledge among the

Marumakkattayam Mappillas of North Malabar and that he understood that that course of devolution was recognized in South Kanara.

Accordingly he held that the male members of the family were not entitled to question the sale by the female members under Exhibit I.

As we regard the decisions and other materials before us as inconclusive we have decided before disposing of the reference to call for a finding

from the District Judge of North Malabar in Second Appeal No. 1493 of 1919, in which the question necessarily arises, as to whether according

to the custom or usage prevailing among the Marumakkattayam Mappillas of North Malabar property may be settled as strisothu on the female

members of a tarwad or tavazhi to the exclusion of the males, or so as at least to authorize the female members to sell the family property

otherwise than for necessary tarwad purposes without the consent of the males. Fresh evidence may be taken. Finding will be submitted in two

months after the local vacation. Seven days will be allowed for objection.

ORDERS

Seeing that both sides were not ready on 25th July and applied for an adjournment and that the time allowed for returning a finding did not

expire till 18th August, we think that the District Judge might properly have granted an adjournment.

Considering the importance of the question at issue, we are not inclined to decide it on the materials on record and we direct the District Judge

to give the parties another opportunity for adducing evidence.

OPINION OF THE FULL BENCH

In calling upon the District Judge to record evidence of a custom or usage prevailing in Malabar of males being excluded from tarwads or

tavazhies managed exclusively by females of certain Marumakkattayam Mappillas, we discussed in some detail all the decisions in which such a

custom might be said to have been judicially recognized or its recognition refused, and we stated that we regarded them as inconclusive. The

District Judge was therefore asked to return a finding on such evidence as might be produced before him to prove the existence of the particular,

custom in question. This he has done, and we agree with him in holding that it is wholly inadequate to prove the prevalence of any custom by which

males are treated as having no right to be consulted in the management of the affairs of the tarwad otavazhi and no right to participate in the income

of the tarwad or tavazhi properties. It is not necessary to express any opinion as to the existence of tarwads in which the manager or Karnavathi is

a female.

We therefore answer the reference made to us in the affirmative.