Kerala High Court
Mariyakutty vs Noorjahan on 25 August, 2004
Equivalent citations: 2004(3)KLT358
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, J.M. James
JUDGMENT K.S. Radhakrishnan, J.
1. Whether under the Customary Marumakkathayam Law applicable in the Malabar area prior to the passing of the Mappila Marumakkathayam Act, 1939, is there any presumption that a gift (Streedhanam) to the Marumakkathayee female exclusively would enure to the tavazhi of her children together with lineal descendants in the female line, is the question that has come up for consideration in these cases.
2. Plaintiffs 3, 4, 5 and 8 are the appellants in AS. 543/97 and defendants 5 to 9 are the appellants in AS.309/97. Suit is for partition. The first defendant, one Nabeesumma is the mother of first plaintiff and defendants 2, 3 and 4. Plaintiffs 2 to 5 are the children of deceased Katheessumma who was the daughter of the first defendant. Plaintiffs 6 and 7 are the children of first plaintiff and 8th plaintiff is the daughter of the 4th plaintiff and defendants 5 to 8 are the children of 4th defendant and 9th defendant is the daughter of 5th defendant. Plaintiffs case is that plaintiffs and defendants 2 onwards formed a tavazhi under the first defendant. Plaint A-Schedule properties were the tavazhi property of the plaintiffs and defendants given to the first defendant by the tarwad karanavar as Streedhanam for enjoyment by the female descendants. Properties were enjoyed by them as tavazhi properties. While so, items 2 to 4 of A-schedule were mortgaged by the Karanavar to Kannur V.G. Industrial Bank without the consent and knowledge of the first defendant. A suit, OS. 12/33 was filed before the District Court, Thalassery to realise the amount. First defendant got impleaded in the suit and contested. Contentions were rejected by the Court, however, permission was given to her to file a separate suit. First defendant later filed OS. 713/36 before Munsiffs Court, Kannur which was subsequently settled. On the basis of the settlement first defendant had to. pay ah amount of Rs. 1500/- to the Bank, the amount which was advanced by the Karanavar. That property was also enjoyed by the tavazhi. Items 3 to 5 of plaint A-Schedule is the property obtained by the first defendant by way of Streedhanam. A portion of item No. 5 was given as Streedhanam to Katheesumma who was the daughter of the first defendant and mother of defendants 2 to 5, at the time of her marriage. A suit was instituted by first defendant and others after the death of Katheesumma. However, the Court decreed the suit in favour of children of Katheesumma and the suit property was not included in the plaint. Item No. 3 is possessed by the 4th defendant as per a gift deed. She had been in possession for more than 12 years continuously. The same was not included in the plaint. Plaintiffs demanded defendants 2 to 3 to effect partition and allot their share separately. There are 17 members in the tavazhi. Plaintiffs are entitled to get 8 out of 17 shares and the plaintiffs are entitled to get one share each. The movables are shown in plaint B-Schedule. They are now in the possession of the first defendant Claim for improvements was also made.
3. Defendants 1 to 3 contested the suit. They maintained the stand that plaint A-schedule properties were given to the first defendant as Streedhanam by the then Karanavar of the tarwad. Properties were never enjoyed as tavazhi properties. Items 1 to 5 in plaint A-schedule were the self acquired properties of Tharayilpeedikayil Kunhammath. The above properties and the property given to Katheesumma by way of Streedhanam in the year 1947 and the property gifted to D4 in the year 1965 were given to the first defendant by the said Kunhammath as Streedhanam. Further they also pointed out that there was no direction from the donor and the properties were not enjoyed as a tavazhi properties. First defendant was enjoying and possessing the properties as her own property which she obtained by way of gift. Further it was also pointed that after the death of Katheesumma, the right devolved on her husband Abdurahiman and he gifted the same to the first plaintiff and the first plaintiff had conceded that the properties were given to the 4th defendant as Streedhanam property by the first defendant. It is also stated that item Nos. 6 and 7 of the plaint A-schedule is not the property obtained by the first defendant by, way of Streedhanam. Those properties were in possession of Kunhammad. Item No. 7 was in possession of a tenant and item No. 6 was in the direct possession of Kunhammad. Those properties were orally leased to the first defendant by Kunhammad long back. The tenancy right over item No. 7 was already assigned to D1 and D2. D3 was possessing item No. 6 and D2 was possessing item No. 7 separately. Therefore those properties are not tavazhi properties. Further, it is also stated that item No. 1 of plaint A-schedule was already leased to D2 and D3 by the first defendant on 20.12.62 and since then they were in possession of the same. Subsequently they had obtained jenm right also as per the order in CA. 6922/76 of Land Tribunal, Kannur. They have improved the properties substantially. Items 3 to 5 of A-schedule were the properties obtained by the first defendant by way of Streedhanam. The jenm right over the same was given to D2 and D3 by first defendant on 14.2.75. They obtained release from the then tenants of the property. Out of the same 2 1/2 cents was gifted to the Congress Committee on 24.6.76 and 2 cents were assigned to them. Item No. 5 in the plaint A-schedule is in the possession of Congress Committee. Further it is also stated defendants 2 and 3 alone have got right over item Nos. 3 and 4 and item No. 1 including item No. 2 is also in possession of D2 and D3 and item No. 6 exclusively belongs to D3 and item No. 7 exclusively belongs to D2.
4. Defendants 4 to 9 have also filed a separate written statement. They conceded the averments in paragraphs 1 to 4 of the plaint except the averment about item No. 3. Item No. 3 of the plaintiff A-schedule is in exclusive possession of 4th defendant as a tenant. It is prayed that tenancy right of D4 over item No. 3 should be reserved in her favour. Further it is also stated that defendants 1 to 3 have attempted to take away the property in possession of the 4th defendant and the 4th defendant filed OS. 279/79 before the Munsiff's Court, Kannur. They also stated that they are unaware of the order in OA.6922/76. Plaintiffs in order to establish their case adduced oral and documentary evidence. Sixth plaintiff was examined as PW1. A1 to A6 are the documents produced by the plaintiffs. No witness was examined on the side of the defendants. In the suit they produced B1 to B16 documents. C1 to C4 are Court exhibits. Trial Court raised the following issues:
1. Whether the suit properties are tavazhi properties of the plaintiffs and defendants or whether they are the exclusive property of the first defendant?
2. Whether the 4th defendant has tenancy right in item No. 3 of the plaint schedule?
3. Whether the tenancy right set up by defendants 2 and 3 in respect of item Nos. 1, 2, 6 and 7 are true and valid?
4. Whether the plaintiffs are entitled to profits and if so, what is the quantum?
5. Whether the defendants are liable for damages for cutting trees?
6. Reliefs, and cost?
Issues No. 2 and 3 were referred under Section 125(3) of the K.L.R. Act to the Land Tribunal, Kannur for determination. Before the Land Tribunal on the side of the plaintiffs Exts.A1 to A6 documents were produced. On the side of defendants B1 to B71 documents were produced. X1 to X2 series of documents were also produced. Second defendant in the suit was the sole witness examined. Two reports of the Revenue Inspector were also produced. Land Tribunal after considering the oral and documentary evidence came to the conclusion that defendants 2 and 3 are in possession of the property in their individual capacity and have dealt with the property as their own. Tribunal noticed that the gift effected by Nabeesumma in respect of 1 aqre 25 cents to D4 was not challenged by the plaintiffs. Tribunal ultimately concluded that the properties were held and enjoyed by Nabeesumma as her individual property. With regard to item No. 6 Tribunal found that it is the individual property of D3 and that he has obtained Jenm right as per OA. 4684/76. With regard to item No. 7 Tribunal found that it is in the exclusive possession of D2. After rendering the findings records were forwarded to the Sub Court.
5. The Sub Court accepted the findings. The Sub Court also noticed that Land Tribunal did not record any finding regarding item Nos. 1 and 2. Sub Court found that the Tribunal has found that tenancy right set up by D4 for item No. 3 was not true and it was found that the tenancy right in respect of item No. 3 is with D2 and D3. In respect of item No. 6 Tribunal found that the third defendant is the cultivating tenant and in respect of item No. 7 the second defendant is the cultivating tenant. Sub Court therefore noticed that item No. 2 is part of item No. 1 and hence there is no necessity of considering item No. 2 separately. Sub Court accepted the finding of the Land Tribunal and found that item Nos. 3, 6 and 7 are not available for partition and then the Sub Court went on to examine the question as to whether item Nos. 1, 2, 4 and 5 are available for partition. After examining the oral and documentary evidence trial court opined as follows:
"The definite case of the plaintiffs is that the property was gifted to the first defendant by the then Karanavar for enjoyment by the descendants of the first defendant and as such it is to be treated as a tavazhi property. Issue No. 1 is answered accordingly".
Sub Court then came to the conclusion that item Nos. 1, 2 and 4 are available for partition. Court noticed that item No. 2 is merged with No. 1. Sub Court therefore passed a preliminary decree for partition of item Nos. 1 and 4 into 17 equal shares and to allot 8 such shares to the plaintiffs in a group. Defendants are entitled to get one share each in those items. Plaintiffs are equally entitled to get 8/17 shares of the movables shown in Exts.C1 and C2. Court held item Nos. 3, 5, 6 and 7 are not available for partition. Suit was disposed of accordingly by passing a preliminary decree.
6. The main question to be decided in these appeals is whether item Nos. 3, 5, 6 and 7 are available for partition. Appellants submitted that those properties are also partible being tavazhi properties. Contesting respondents submitted that those items are not partible since they are the exclusive property of first defendant. Respondents also want to sustain the findings by the Land Tribunal on reference. Counsel appearing for the appellants in AS.309/97 Sri. E.V. Nayanar submitted that the then Karanavar of the tarwad had gifted the property to first defendant and, all along first defendant treated those properties as tavazhi properties and therefore it would enure to the members of the tavazhi and all the lineal descendants. Counsel placed considerable emphasis on Ext.A2 which is certified copy of Razi decree dated 6.2.1926 in OS. 133 of 1925 between the Karanavar and his niece Katheesumma and other members of the tarwad. Counsel laid considerable stress on paragraph 4 of the said decree which reads as follows:
Counsel submitted the above mentioned recitals would positively show that the property belong to tavazhi tarwad consisting of Kunhammad, first defendant and others. Counsel also placed reliance on Ext.A4 marked in the suit which is plaint in OS. 713/36, a suit filed by first defendant against the bank. Counsel submitted the suit was compromised by giving an amount of Rs. 1500/- by the plaintiff to the bank. Counsel submitted amount was paid by the Karanavar himself on behalf of first defendant. Counsel referred to the recitals in Ext.A4. Reference was made particularly to paragraph 5 of Ext.A4 which reads as follows:
Counsel submitted the above mentioned recitals would positively show that the gift was given to first defendant so as to enure to the tavazhi consisting of the marumakkathayee female and her children.
7. Counsel also referred to the decision of a learned Single Judge of this Court in Illikka Mammad v. M. Usuf and Ors., 1971 KLR 222. Reference was also made to the decision of this Court in 1978 KIT 359. Counsel also attacked the finding of the Land Tribunal. Counsel submitted that on the basis of the above mentioned decisions the finding of the Land Tribunal that property obtained by Nabeesu on Streedhanam is her exclusive property cannot be sustained. Further the very same question was agitated in respect of claim of tenancy right in respect of items 1 and 2 in O A.6922/76 which was negatived by the Land Tribunal and also by the Appellate Authority in AA.573/84, which was upheld by this Court in CRP. 2455/90 and the SLP filed against the same was rejected. Counsel submitted the same principle would apply in respect of items 3 to 5 as well. Counsel submitted that D2 is dealing with the property only representing the tavazhi since D2 being the senior most male member of the tavazhi. . Whatever documents they have obtained can be characterised as documents on behalf of the tavazhi. Counsel submitted B1 cannot be accepted since the same was not registered. A42 was also attacked by the counsel saying that it is a fraudulent document since the rights of intermediaries and landlords are vested in the Government as on 1.1.1970. Counsel also submitted first defendant has no legal right to grant such lease of tavazhi property. Counsel also submitted the purchase certificate said to have been obtained by D2 and D3 are invalid and not binding on the plaintiffs and other defendants. In short, counsel submitted D2 and D3 are not entitled to get any tenancy right in respect of items 3, 5, 6 and 7 and those items are also to be partitioned.
8. Counsel appearing for the defendants 2 and 3 Smt. K.A. Sanjeetha has marshalled the facts well and argued her case with considerable persuation. She took strong exception to the finding of Sub Court that defendants 1 to 3.had not contradicted the fact that the property is treated as a tavazhi property. Counsel took us through the written statement and we notice that the contention was effectively contradicted, therefore it cannot be said that defendants had not contradicted the contention of the plaintiff that property is a tavazhi property. Counsel submitted that item Nos. 3, 5, 6 and 7 exclusively belong to the first defendant as Streedhanam property. Since properties were gifted as Streedhanam as per Marumakkathayam Law applicable to the Muslims in Malabar area counsel submitted that the property exclusively belong to the first defendant and she could deal with the property as if it is her own. Counsel submitted first defendant had filed OS. 713/36 which was settled. Counsel submitted that the contention of the plaintiffs that item Nos. 1 and 2 are tavazhi property cannot stand in view of the compromise decree in OS. 713/36. As per compromise the first defendant had paid an amount of Rs. 1500/-. Counsel refuted the contention of the plaintiff that since item 1 and 2 are tavazhi properties the rest of the items are also to be treated as tavazhi property. Counsel submitted the said contention cannot stand in view of the compromise decree in OS. 713/36. As per the terms of the compromise decree the first defendant had paid Rs. 1500/- to the bank and obtained the property in her favour. Counsel submitted items 3 and 5 were obtained by Nabeesumma as" per the compromise decree. Counsel pointed out total extent of item No. 3 is 2.79 acres, out of which D1 had gifted 1.25 cents in favour of 4th defendant vide Ext. A35 produced before the Tribunal. Counsel laid considerable emphasis on the recitals in Ext.B35 which reads as follows:
Counsel submitted the above recitals would indicate that the property exclusively belongs to first defendant. Counsel submitted 1 aqre 54 cents in item No. 3 along with items 4 and 5 were orally demised in favour of second defendant in the year 1962 and thereafter D2 and D3 were in exclusive possession of the property. Later in the year 1975 D1 gifted the Jenm right of the property as per A42 document produced before the Tribunal. Exts.B36 to 38 are the documents executed by the tenants in possession of the shops in favour of Nabeesumma. Counsel also referred to various other documents to establish that the above mentioned properties are in the exclusive possession of D2 and D3. Counsel also referred to the tenancy right set up by D4 and the orders passed by Civil Court. Counsel submitted those documents would indicate that D2 and D3 are in exclusive possession of the property and they are dealing with the properties as if it is their own. Counsel also pointed out plaintiffs had not adduced any oral evidence. With regard to item No. 5 counsel submitted possession is with the Congress Committee of Azhikode. 2 1/2 cents were gifted to the Congress Committee by D2 and D3 in memory of their father Ibrahimkutty and the balance 2 cents was assigned by D2 and D3 to the Congress Committee. It is also stated that a portion of item No. 5, that is, 2 acres 14 cents with building in Rs. 466/2 was gifted in favour of Kadeesumma. The said property was also subject matter of Streedhanam gift in favour of Nabeesumma. Counsel also pointed out that since item No. 5 is in the possession of Congress Committee nobody can claim right over that property. With regard to item No. 6 and 7 counsel submitted that those items are subject matter of gift in favour of Nabeesumma. Item No. 6 was outstanding in the possession of Nabeesumma as Kuzhikanam right from Kattiam Illath Govindan Namboodiri and Cheriya Govindan Namboodiri. Further item No. 7 was in possession of Puthumana Illath Govindan Namboodiri from whom Nabeesumma got possession as per assignment No. 481/39 dated 15.3.1939. Those two items according to the counsel, are self-acquired properties of Nabeesumma. Counsel also pointed out A2 Razi referred to by the counsel for the appellant was not signed by the first defendant, consequently it would not bind her. She also submitted there is no reason to interfere with the order passed by the Tribunal. Counsel furthey submitted that the decision reported in 1971 KLR 222 was later overruled by a Full Bench of this Court in Seetha and Ors. v. Krishnan and Ors., 1975 KLT 156. Counsel also placed reliance on the decision of this Court Kalliani and Ors. v. Leela and Ors,, 1976 (1) ILR 409 and contended the dominant consideration should be the manner in which the funds for the acquisition was raised and the intention of the parties, manifest or implied, as to the mode in which the property acquired was to be held and enjoyed, bearing in mind the concept of family life prevalent during the time of acquisition.
9. We have also gone through the oral and documentary evidence adduced before the Tribunal as well as before Sub Court. We have also gone through the argument notes submitted by counsel on either side. We have already indicated that the cardinal question to be decided is whether a gift made to a Marumakkathayee female by way of Streedhanam would enure to her exclusively as per the Marumakkathayam Law applicable to the Muslims in Malabar area. Once this question is decided and if we hold that it would enure to her exclusively the subsequent conduct of the parties and the mode in which the properties were held and enjoyed would be relevant. For resolving this issue we have to proceed on some admitted facts. So far as this case is concerned gift of the property is an oral one. It is admitted by either side that the gift was in the year 1936 exclusively in favour of first defendant. Contention was raised by the appellants that even if the property was gifted to first defendant exclusively as Streedhanam it has got the characteristic of a Marumakkathayam property and therefore it enures to the members of the tavazhi. Stand of the respondent is that since it being a gift it is the exclusive property of the first defendant and therefore it will not enure to the tavazhi. A learned Single Judge of this Court in Illikka Mammad Haji's case (supra) had occasion to consider a gift made by a father to the daughter. It was not a gift by way of Streedhanam. All the same it was a gift by the father to the daughter. In that case Ext.A1 was a gift. It would be appropriate we may refer to the terms of the gift in the above mentioned case which reads as follows:
Interpreting A1 gift the learned Judge held as follows:
"The donor is aware that the female member is a stock of descent and when he gives a gift in favour of such a female member it is not unlikely that he would have desired to benefit not only the person mentioned as eo nominee party to the gift but the descendants also along with whom she could constitute a tavazhi".
Later a Full Bench of this Court in Seetha v. Krishnan, 1975 KLT 156 held the proposition laid down in Illikka Mammad's case cannot be regarded as a correct statement of the legal principle applicable in respect of the Malabar area. Full Bench has exhaustively dealt with the customary law prevalent prior to the Madras Marumakkathayam Act in the Malabar area. Question raised before the Full Bench was whether the Customary Marumakkathayam Law which obtained in the Malabar area prior to the passing of the Madras Marumakkathayam Act there is a presumption that in the case of a gift, bequest or acquisition made by a person in the sole name of his marumakkathayee wife or in the joint names of the wife and one or more of her children to the exclusion of some others the benefit of such transaction is to enure to the tavazhi constituting of the wife and all her children together with the lineal descendants in the female line. Reference was made to the Full Bench because of an apparent conflict between the views expressed on the said question in two Division Bench rulings of this Court in Prabhakara Menon v. Gopala Menon and Ors., 1960 KLJ 161 and in Lakshmi Amma v. Anandan Nambiar, 1973 KLT 753. While resolving the apparent conflict the Full Bench referred to some of the decisions of the Madras High Court in Kunhacha Umma v. Kutti Mammi Hajee, ILR 16 Madras 201, Koroth Amman Kutti v. Perungottit Appu Nambiar, ILR 29 Madras 322, Pattathemvath Pathumma v. Mannamkunniyil Abdulla Haji, ILR 31 Madras 228, Kalliani Amma v. Govinda Menon, ILR 35 Madras 648, Chakkra Kannan v. Kunhi Pokker, ILR 39 Madras 317, Kundankutty v. Parkum Natukandi, AIR 1917 Mad. 726, Kalliani Amma v. Kanhiyani Amma, AIR 1927 Madras 299, Tatha Amma v. Thankappa, AIR 1947 Madras 137, Bhaskaran v. Kavunni, AIR 1954 Mad. 987 and several other decisions. Ultimately the Full Bench concluded as follows:
"The conclusion that emerges from the foregoing discussions is that under the rules of customary marumakkathayam law which were applicable in Malabar prior to the introduction of the Madras Marumakkathayam Act, it is only in cases where the gift or acquisition is made in favour of a marumakkathayee woman and all her children or in the names of all the children who by themselves constitute a tavazhi (the mother behind dead) that a presumption would arise that the acquisition is for the benefit of the tavazhi. There is no scope for raising any such presumption in cases where the gift, bequest or acquisition is in favour of the wife alone or of the wife and some of the children alone leaving out the others. The underlying principle is that the presumption would be attracted only in cases where the transaction is in favour of all the members of a group who constitute a natural tavazhi capable of acquiring and holding property."
The principle laid down by the Full Bench is a complete answer to the point raised in these appeals as well. Admittedly the gift was made in favour of first defendant exclusively. Contention was raised, as we have already indicated, since karanavar was gifted the property which has got characteristics of marumakkathayam property the property has to be treated as marumakkathayam property and even if it is gifted exclusively to the daughter as Streedhanam it would enure to all the children and their descendants. We are of the view that a person governed by marumakkathayam law can make a gift to an entity called a "tavazhi" in which case the members of the said "tavazhi" take the property with all the incidents of "tarwad" property, when a gift is made to a wife and her children or to all the children or the entire group constituting the "tavazhi", a presumption could be drawn that the gift is for the tavazhi. However, when the gift is to a wife or only to some of her children there is no scope for invoking any presumption that it belongs to the tavazhi. In such a case the donor has never intended that it would enure to all the members of the tavazhi. Only in cases where gift or acquisition is made by a person in favour of his daughter and all her children who by themselves form a tavazhi that there is a presumption in the Malabar area that the acquisition is for the benefit of the tavazhi as a whole. The mere fact that property has got the characteristic of the Marumakkathayam property that itself is not an indication to hold that it would enure to the tavazhi especially when the gift is given as Streedhanam. to a marumakkathayee female. We therefore hold that a gift to a marumakkathayee female governed by the Customary Marumakkathayam Law prior to the coming into force of the Mappila Marumakkathayam Act, 1939, by way of Streedhanam given to her would exclusively belong to her and would not enure to the tavazhi of her children or their lineal descendants.
10. We are also of the view that when the acquisition is made exclusively in the name of marumakkathayee female the manner in which the property was enjoyed by the marumakkathayee female and the intention of the parties, manifest or implied are also the relevant criteria to determine as to whether the property has been given to the marumakkathayee female exclusively. .In this connection, we may refer to the decision of this Court in Kalliyani and Ors. v. Leela and Ors., 1976 (1) ILR 409. That was a case where acquisition, was made in favour of woman and all her children before the Madras Marumakkathayam Act, 1933 came into force. The learned Judge held that it enures to her tavazhi. All the same the learned Judge took the view that the manner in which the funds for acquisition was raised and the intention of the parties, manifest or implied as to the mode in which the property acquired was to be held and enjoyed are also relevant. The subsequent conduct of the first defendant and others would indicate that the property gifted to D1 is meant to be enjoyed by her exclusively.
11. We have already found that the properties belonged to D1 exclusively. D2 and D3 have specifically stated that they have got item No. 1 vide Ext.B1 dated 20.12.1962. B1 is Kuzhikanam Marupattam of 1962. We have pointed out so far as item No. 3 is concerned, 1 acre 54 cents was in possession and enjoyment of D1 excluding 1 acre 25 cents which was gifted to 4th defendant as per Ext.B35. We have already indicated this property along with item Nos. 4 and 5 were orally demised in favour of D2 and D3 by Nabeesumma in the year 1962 and thereafter D2 and D3 are in exclusive possession. In the year 1975, D1 gifted the jenm right of the property along with the shops therein as per Ext.A42. Since we have found that D1 has got exclusive right over the property in question all those documents executed subsequently were legally executed would enure to the benefit of D2 and D3. Same is the case of other properties also. With regard to items 6 and 7 also we have found that the claims of D2 and D3 are justified. Item No. 6 was outstanding in the possession of Dl as Kuzhikanam right. So also item No. 7 was in the possession of D1 as per assignment No. 481/39. Those two items are self acquired properties of D1. The documents produced before the Sub Court and L and tribunal would indicate that those properties are self acquired properties of D1. It is unnecessary to elaborate those facts since the Tribunal has elaborately considered those documents in its order dated 28.2.1995. Since we have already found that the properties gifted to Dl were Streedhanam properties exclusively belonged to her the consequence will follow. That being the legal position we find no illegality in the finding rendered by the Land Tribunal which was accepted by the Sub Court.
12. Result is that both these appeals would stand dismissed. The Court below is directed to pass final decree on the basis of the preliminary decree already passed within a period of 3 months from the date of receipt of a copy of this judgment. Considering the entire facts and circumstances of the case the parties would bear their respective costs in these appeals.