Nurul Huda vs Aboobacker

S. Sankarasubban,J.

This appeal is filed against the judgment in O.S. No. 12 of 1981 on the file of the Sub Court, Kavaratti. The appeal has come before us on a reference by his Lordship Justice T.L. Viswanata Iyer, by order dated 9th November, 1993. The case involves questions regarding mode of inheritance and division of properties - per capita or per stripes in the Lakshadeep Islands. The properties in this case belong to one Ahammed of Avnepura Tarwad. He and his two sisters were members of the tarwad called Aynepura Tarwad. Plaint B Schedule properties were acquired by Ahammed, According to the plaintiff, on behalf to the tarwad. The two sisters of Ahammed are Ayinamma and Anjumma. The case of the plaintiffs is that after the death of Ahammed, the properties were divided by the sisters Ayinamma and Anjumma. The plaint B schedule properties were obtained by Anjumma, by predecessor in interest of the parties to the suit. Plaintiffs are descendants of Anjumma. Anjumma had four daughters, viz., - Mariyam, Huda, Aishomma and Asi. The plaintiffs are the Marmakkathayee descendants of Mariyam. The only Marumakkathayee descendants of Huda are her three sons and defendants 2 to 4. Aishomma''s only Marumakkathayee descendant is her only son, 5th defendant. Asi, the 4th daughter of Anjumma, died without any issues. Plaintiffs 1 to 53 are the Marumakkathayee descendants of Mariyam, namely her children, the children of her daughters and the children of the daughter of her daughter and so forth. As already stated, plaint B schedule properties were obtained by Anjumma. The first plaintiff as Karanavan was managing the properties obtained by Anjumma. The suit has been filed for partion of plaint A schedule and B schedule properties. According to the plaintiff, plaint B schedule properties are tarwad properties and plaintiffs are entitled to 54/59 shares of B schedule properties. So far as the plaint A schedule properties are concerned, item No. 1 is an amount of Rs.2550/- deposited in O.S. No. 3 of 1975 by the first respondent, who was the receiver of B schedule properties. Taking into account the one half portion retained by the first plaintiff, plaint A schedule item No. 1 is to be divided and plaintiff are entitled to 54/59 shares out of Rs.5100/-, and accordingly, plaintiffs are entitled to withdraw Rs. 2,117.76 out of the court deposit. A schedule item No. 2 is also liable to be divided in the same share. The suit was resisted by the defendant 1 to 4 by giving a joint written statement. They contended that plaint B schedule property was an acquisition made by Ahammed and it was on behalf of the tarwad. The acquisition enured to the benefit of his two sisters in equal halves. The sisters took it is equal halves although Ayinamma had more children than Anjumma. Anjumma treated plaint B schedule property obtained by her as her absolute property. On the death of Anjumma, her personal heirs became entitled to the same. The mother of plaintiffs 12 to 7, Mariyam and her sister (first defendant) have equal rights. It is stated that plaint B schedule property may therefore, be divided between plaintiffs and defendants 1 to 4 in equal shares. The properties left behind by Ahammed was not partitioned per capita among the descendants of Ayinamma and Anjumma. The plaint A schedule item No. 1 represents one half share which defendants 1 to 4 are entitled. The 5th defendant was not a party in O.S. No. 3 of 1975. Plaint A schedule item No. 2 is not partible and the entire amount is liable to be withdrawn by defendants 1 to 4.

No oral evidence was tendered before the court below. Only documents evidence was produced. After hearing the parties, the court below held that the plaintiffs and defendants are entitled to get 1/58 share each in the plaint schedule properties; that the plaintiff and defendants are allowed to get separate possession of their share after effecting a division of B Schedule property by metes and bounds; that the parties are allowed to apply for passing a final decree individually or in groups for effecting the partition; along with the final decree application parties will also apply for the issue of commission to effect the division by metes and bounds; parties are allowed to get 1/58 share each in plaint A schedule items 1 and 2 and also the amount held in deposit in court during the pendency of the suit; that the plaintiffs will pay the deficit court fee of Rs.811.25 within one month; and that the defendants if they apply for separation of their shares should pay the court fee on their shares. It is against the above judgment and decree the appeal has been filed by defendants 1 to 4.

Even though many contentions are taken in the appeal memorandum, at the time of argument, learned counsel for the appellant Sri. T.P.M. Ibrahim Khan submitted that the appellant only contention is that before the death of Anjumma, plaintiffs and defendants claim the properties per stirpes and not on per capita basis. Hence, he submitted that the decree of the Court below allotting 1/58 share each is not correct. The shares ought to have allotted as claimed in the written statement. Learned counsel for the appellants very fairly submitted that finding of the lower court that the plaint B schedule property is tarwad property is a finding, which is supported by evidence in this case, and it will be very difficult for him to prove that it was the absolute property of Ahammed and on his death two sisters took the property separately. Learned counsel argued that after the death of Ahammed, his sisters Ayinamma and Anjumma divided the properties per stripes, even though, according to the counsel, the members in both the families were not in equal number. Learned counsel contended that the plaint schedule property is situated in Kavaratti Island in the Lakshadweep. According to him, the people inhabiting this area are followers of pristine Marumakkathayam Law and the law has not been moulded by any statutory intervention. Learned counsel contended that as per the old Marumakkathayam Law, there was no right for anyone to compel partition, and even if partition was allowed, it was on per stirps basis. He contended that the present appeal is an example where if the per capita basis followed, the defendants will get very few shares. Sri. S.V. Balakrihna Iyer appearing for respondents contended that the lower court has correctly discussed the point and he supported the judgment of the Court below. Thus the issue to be decided in the case is, whether the plaint B schedule properties are to be divided among the children of Anjumma on per stirps basis or on per capita basis.

The Laccadive Archipalego forms with the Maldives, a long narrow belt extending due north and south from the level of South Kanara District. The universal local tradition points to the period of anarchy and confusion on the coast which followed the era of Cheraman Perumal as the time when the islands were first occupied. One tradition asserts that the earliest settlers were ship wrecked members of an expedition that set out form Malabar in quest of the Perumal who was believed to have gone to Mecca. Whether there was any foundation is fact for this is or not, there must obviously have been also a very considerable voluntary immigration, especially of the lower classes from the coast. These islands supposed to have been peopled first are Ameni, Kalpeni, Androth, Kavaratti and Agathi. The upper classes of the first four of these islands will claim to trace their descent from Nayar or even Namboodiri families on the maintained and these islands are known in consequence as "tarawad" islands in distinction to the other, or Melacheri islands. (Courtesy to "A Short Account of Laccadive Islands and Minicoy by R.H. Ellis").

So far as the people inhabiting this area is concerned, the islands excepting Minicoy are following Islam. The religion is Mohammedan. They belong to Shafi school of the Sunni sect and acknowledge besides Koran the authority of Sunneh or customary law as interpreted by Shafi. So far as the law of inheritance is concerned. Ellis states that law of inheritance is peculiar. Owing to the monopoly of practically all the lands by the Bibi, the house from almost the only kind of real property known. Ellis also states that the women seem to enjoy much freedom as Europen women. The women have acquired considerable influence in public affairs and it is usual to consult them in matters affecting the islands. So far as the system of inheritance is concerned, it is also stated by Ellis in the book as follows:

"The island law is a curious mixture of Muhammadan Law with the Marumakkathayam Law of Malabar. Property is regarded as either ancestral or self acquired. Ancestral property is also known as Velliaricha (literally Friday property) pronounced Belliaricha on the Aminidivis. Self acquired property is known as Thingalaricha (literally Monday property) on the Malabar is islands and as Belaricha on the south Kanara islands. Velliyazcha properties are governed by ordinary Marumakkathayam Law i.e., descend through sisters children and devolution on the descendants in the female line. The editor of the Gazette of India is also of the same opinion. There is no codified law and the practice are governed by customs which differ from island to island. Tarwad properties can be partitioned only with the consent of the members of the tarwad. It is further stated that in Androth and Kalpeni, division of properties is between branches or thavazhies of the families, whereas in Kavaratti and Agathi all the members of the joint family are eligible for one share. The editor further says that self acquired or personal property is governed by Muhammedan Law of Succession."

In so far as we find plaint B schedule property is a tarwad property, it is Marumakkathayam law is followed with regard to inheritance. Ellis states that so far Kavaratti Island is concerned, the partition is with the consent of all the members and each member is entitled to one share. There is no statute or other written evidence to show that custom followed by this people. Learned counsel for the appellant tried to argue that when Ahammed died properties were divided equally among the two sisters. As rightly pointed out by the court below, there is no evidence to show the number of members belonging under the branches of two sisters at the time when partition was effected. Further, as have been held by author and judgments, even in a case where pre capita division is followed, it is open to the members of the family to accord partition as it thinks. It is the consent that is the basis for partition. Partition can be by stirps but that is different from saying that the custom that was followed in the family was to divide by per stirps and not by per capita. In the absence of any evidence or other proof to show the exact mode of division that was followed, we will have to explore into the old Marumakkathayam law to find out what was the law that was prevailiding regarding the mode of division.

Nani Kutti v. K.P.P.P. Achuthan NairAIR 1919 Mad 573, was a case where question that was raised is with regard to the binding nature of partition deed executed on minors. In considering the question, the Division Bench referred to the observation of Mr. Ormsby, who was the Chief Justice of Travancore, in his book on Marumakkathayam Law, which reads as follows:

"Where division takes place, it will usually be according to thieveries, or number of daughters of the original ancestress. Each tai vari may similarly be sub divided should be members consent thereto and so on, until individual proprietorship is arrived at. I am not aware that this rule was even been questioned."

Their Lordship then referred to the decision of the Privy Council in Sulaiman v. BiyathummaAIR 1916 PC 217, and relied on the following observation from that decision:

"They say that this division was merely an application of the rule that division for the purpose of partition is stirpital though as between the members of any class it is capital".

Finally, their Lordships held that, "Further we have to bear mind that a partition in Malabar depends upon the consent of all the parties, and if we were to uphold the plaintiff''s contention, the one result would to set this partition aside, and to restore the original state of unity because division per capita would in this case be without the consent of all the adult members. It appears that with regard to some of the properties of this family, it was decided per capita by Ext.B. That division is not attacked in the present case and we have not to consider it".

The decision in Nani Kutti''s case (supra came up for consideration before the Madras High Court in Akavande Mulahur Vatakethil Kizhakke Nayar Veetil Karna Vastri Sreedevi Nethiar and Others Vs. Akavande Mulahur Elayat Vatakke Nair Veetil Karnavan Peruvunni Nair and Others, . Separate judgments were given in that case by Madhavan Nair, J. and Anatakrishna Iyer, J.Madhavan Nair, J. held as follows:

"The law is well settled that the properties of a Malabar tarwad belong to all the members constituting the tarwad. Each member of the tarwad is a co-owner of the properties along with the other member and on this co-ownership depends amongst other right, his right to be maintained by the Karanavan and his right to a share of the properties if a partition were made and the tarwad is broken up by common consent. In suits for maintenance, each individual can claim maintenance for himself or herself and as rule as per capita share is allowed to the claimant by the court. If the right to partition is based on co-ownership of the tarwad properties, then I fail to see how on principle such co-ownership can be enforced except by ordering per capita partition as is done in the case of maintenance. Partion according to the tavazhies being fraught with difficulties with respect to a male who cannot be the root of a tavazhi, as in the present case, the only alternative is to hold that partion of the tarwad properties should be per capita. Their Lordships also referred to the "Report of Nair Regulation Committee (1905)", where it is stated that according to the customary law, partition is per capita and not per stirpes".

Anantakrishna Ayyar, J. in the above judgment observed as follows:

"Separation of one member from a joint Hindu family does not imply that all the other members necessarily became separated from one another inter se. There is no presumption either way. It is not open to all the other members to remain joint or to some of them only to remain joint. Similarly, it is open to the members of a Marumakkathayam tarwad also, when a partition takes place, to elect for some members remaining joint. They need not necessarily be children of one female; though usually, persons forming one tavazhi or tarward being descendants of one female generally elect to remain joint though separated from the others. Thus, in practice, when a partition takes place, the children of one female remain joint with that family but separate from the others and shares of that female and her children are kept undivided as among themselves, yet, in fixing the numbers of shares, the principles of division per capita is the principle that is generally followed".

The learned Judge quoted the following observation of Buchanan''s Travel''s Vol.II, Canara and Malabar, Page 96, that a man''s movable property after death is divided normally among the sons and daughters of all his sisters. His landed estate is managed by the eldest male of the family; but each individual has a right to share of the income. The learned Judge further states that "I have come across several cases of partition in Marumakkathayam Tarwards". Far from the principle of per capita being disregarded, it is followed to such an extent that when a female member was in the family way when the partition arrangement is being settled, she is allotted another extra share for the child in her womb. This is considered quite natural, just and proper, and the claim is not at all considered extra ordinary. In the above judgment, reference is also made to an article by Sunder Ayyar, J. namely Topics on Malabar Law in 22 Mad. 337 (6) Journal portion, where the view expressed is that division should be per capita and not per stirpes.

In Maynes Hindu Law and Usage, 12th Edition, page 1175, it is observed as follows:

"The mode of partition, whether it ought to be per stirps or per capita was subject of conflicting judicial opinion. The accepted view is that partition should be per capita ad this was affirmed by S. 40 of Madras Marumakkathayam Act and also by S.36 of the Madras Aliyasanthana Act. Owing to the absence of a right of compulsory partition, and consequent increase in the number of members and the impossibility of living together under one roof, instances have often arising where branches of a tarwad have lived separate for long enjoying the properties of the tarwad separately. The result of an agreement entered into by all the members of a tarwad to have a partition of the properties would seem to be that the incident of impartibility attaching to the property as tarward property would not longer hold good and the member thereafter would hold the properties is common."

On a conspectus of the above decision, we agree with the lower court that the partition should be per capita and not per stirpes. Further we are of the view that to confine to partition by per stirps would cause hardships to the members of the tarwad. If there is a consent for partition, the consent can be inferred to give the shares for all the members. As was held Anantkrishna Ayyer, J. even after getting a share, if any of the shares want they can live together and jointness can be kept in tact. Thus we confirm the judgment and decree of the court below.

Before we part with this case, we bring to the notice of the concerned persons that necessary legislation must be made to make it beyond doubt the rules to be followed for partition and inheritance. When rest to the citizens of the country enjoy similar benefits, why that is denied to a handful of people for the only fault that they are settling in an island. The islanders shall not be cut off from the rest of the country. Modern amenities have reached them. They get the benefit of satellites and the communications through the television. If these thing can be provided, why can''t the authorities steamline the personal laws governing them.

The appeal is dismissed.