PAKKIRICHIYAPURA SAROMMA v. DO. PATHUMMABI

BY ADVS. R1, R3 TO R12 BY ADV. SMT.NARAYANIKUTTY CHETTOOR R15 & R27 TO R33 BY ADV.SRI.K.P.SREEKUMAR R1, R3 TO R12, R34 TO R43 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R14, R16 TO 20 BY ADVS.SRI.S.V.BALAKRISHNA IYER SRI.P.B.KRISHNAN R22 TO R26 BY ADV.SRI.P.K.SURESH KUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16.10.2018, ALONG WITH AS.NO.797/1994, THE COURT ON 08.01.2019 DELIVERED THE FOLLOWING: A.S.Nos.796 & 797 of 1994 6 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY ,THE 08TH DAY OF JANUARY 2019 / 18TH POUSHA, 1940 AS.No. 797 of 1994 AGAINST THE ORDER DATED 14-11-1994 IN IA NO.38/1991 IN OS NO.6/1979 of SUB COURT, LAKSHADWEEP, KAVARATTI APPELLANTS IN A.S.-RESPONDENTS 3, 7, 8,9, 10,11 AND 13 IN I.A.38/91 IN THE SUIT: 1 2 3 4 5 6 7 PAKRICHIYAPPURA KUNHIBI, D/O.SAROMMA, RESIDING AT KEECHERI, ANDROTH, U.T. OF LAKSHADWEEP ISLANDS. -DO- LAILA, D/O.KUNHIBI, IN DO. RESIDING IN DO. DO. -DO- BASHEER, S/O.DO. IN DO. DO. -DO- RAFEEQ, S/O. DO. IN DO. DO. -DO- RAHIL, S/O. DO. IN DO. DO. -DO- MUMTHAS BEEGUM, D/O. DO. IN DO. DO. -DO- MOHAMMED NAZAR, S/O.DO. IN DO. APPELLANTS REPRESENTED BY THEIR POWER-OF-ATTORNEY HOLDER LAVANAKKAL NALLAKOYA, S/O.KADER, ANDROTH, LAKSHADWEEP. BY ADVS. SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.K.JAYAKUMAR (SENIOR ADVOCATE) SRI.P.B.KRISHNAN A.S.Nos.796 & 797 of 1994 7 RESPONDENTS 1 TO 12 IN A.S.-PETITIONERS IN I.A.- L.RS OF PLAINTIFF IN SUIT: 1 ***2 3 4 5 6 7 8 9 10 11 12 LAVANAKKAL KADHIYA, W/O.PAKRICHIYAPURA KADER,RESIDING AT KEECHERI,ANDROTHU.T. OF LAKSHADWEEP. KOYAMMAKOYA, S/O.KADER AND KADHIYA IN DO. DO. DIED. LRS IMPLEADED NALLAKOYA, S/O.KADER AND KADHIYA IN DO. DO. HAJEROMMABI, D/O.DO. IN DO. DO. ATTABI, D/O.DO. IN DO. DO. PATHUMMABI, D/O.DO. IN DO. DO. RAHMATHBI, D/O.DO. IN DO. DO. SAYEDMOHAMMED, S/O.DO. IN DO. DO. POOKOYA, S/O.DO. IN DO. DO. DO. KADHEEJOMMABI, D/O.SARA, RESIDING AT KEECHERI, ANDROTH, U.T. OF LAKSHADWEEP. MOHAMMED RAFEEQ, S/O.DO. IN DO. KUNHIBI, D/O.DO. IN DO. DO. A.S.Nos.796 & 797 of 1994 8 **13 14 15 *16 17 18 RESPONDENTS 13 TO 18 IN A.S.-RESPONDENTS 1, 2, 4 TO 6 AND 12 IN I.A. IN THE SUIT. PAKRICHIYAPURA KIDAVE,RESIDING AT KEECHERI,ANDROTH, U.T. OF LAKSHADWEEP, LAKSHADWEEP ISLANDS. DIED. ADDL.R24 TO R30 IMPLEADED. SAROMMA, DO. DO. PATHUMMABI, RESIDING IN DO. DO. DO. KASMI, RESIDING IN DO. DO. DIED. LR IMPLEADED. HUSSAIN, RESIDING IN DO. DO. SAINULABID, RESIDING IN DO. DO. ADDL.R19 TO 23 IMPLEADED (LRS OF DECEASED R16): ADDL.R19 KARACHETTA NAFEESA BEEBI,W/O.LATE KASMI, AGED 26,KEECHERI, ANDROTH, LAKSHADWEEP. ADDL.R20 MINOR DO. SHEHNAZ BEEGUM, D/O.DO., AGED 5 IN DO. ADDL.R21 MINOR DO.SHEHEELA, D/O. DO. AGED 5 IN DO. DO. ADDL.R22 MINOR DO. SHAMSEER, S/O.DO. AGED 1 ½ IN DO.DO. ADDL.R23 MINOR DO. MOHAMMED SAJAD KHAN AGED 4 MONTHS IN DO. (MINORS ADL.RESPONDENTS 20 TO 23 REPRESENTED BY THEIR MOTHER AND GUARDIAN, KARACHETTA NAFEESA BEEBI ADDL.R19) *ADL.RESPONDENTS 19 TO 23 IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED R.16 AS PER ORDER DATED 25.2.99 ON CMP.5247/95. RESPONDENT NO.ADDL.R19 HEREIN IS APPOINTED AS THE GUARDIAN OF MINOR RESPONDENTS ADL.R20 TO ADL.R23 AS PER ORDER DATED 25.2.99 ON CMP.5248/95 ADDL.R24 TO R30 IMPLEADED (LEGAL REPRESENTATIVES OF DECEASED R13): ADDL.R24 TO R30 IMPLEADED(LEGAL REPRESENTATIVES OF DECEASED R13): A.S.Nos.796 & 797 of 1994 9 ADDL.R24 RAHMATH, D/O.KIDAVE,AGED 61, RESIDING AT LAVANAKKAL HOUSE, KEECHERI, ANDROTH, U.T. OF LAKSHADWEEP. ADDL.R25 KUNHIBI, D/O.DO., AGED 59, IN DO. DO. ADDL.R26 MARIYOMMABI, D/O.DO. AGED 57, IN DO. DO. ADDL.R27 PATHUMMABI, D/O.DO. AGED 55, IN DO.DO. ADDL.R28 BAMBATHBI, D/O.DO. AGED 53 IN DO. DO. ADDL.R29 MULLABI, D/O.DO. AGED 51, IN DO. DO. ADDL.R30 KAMARBAN, D/O.DO. AGED 40, IN DO.DO. **ADDL.RESPONDENTS 24 TO 30 IMPLEADED AS LR'S OF DECEASED R13 AS PER ORDER DTD.21.7.10. ON IA 366/10 ADDL.R31 TO R40 IMPLEADED (LEGAL HEIRS OF DECEASED R2) ADDL.R31 SAFIYABI, W/O.LATE LAVANAKKAL KOYAMMAKOYA, AGED 64 YEARS, MAYANPOKKADA, EDACHERRI, ANDROTH POST-682 551, LAKSHADWEEP DISTRICT, U.T.OF LAKSHADWEEP. ADDL.R32 HUSSAIN, S/O.LATE LAVANAKKAL KOYAMMAKOYA AGED 42 YEARS, MAYANPOKKADA, EDACHERRI, ANDROTH POST-682 551, LAKSHADWEEP DISTRICT, U.T.OF LAKSHADWEEP. ADDL.R33 SUHARABI, D/O.LATE LAVANAKKAL KOYAMMAKOYA AGED 40 YEARS, MAYANPOKKADA, EDACHERRI, ANDROTH POST-682 551, LAKSHADWEEP DISTRICT, U.T.OF LAKSHADWEEP. ADDL.R34 POOKOYA, S/O.LATE LAVANAKKAL KOYAMMAKOYA AGED 37 YEARS, MAYANPOKKADA, EDACHERRI, ANDROTH POST-682 551, LAKSHADWEEP DISTRICT, U.T.OF LAKSHADWEEP. ADDL.R35 SABIJAN, S/O.LATE LAVANAKKAL KOYAMMAKOYA AGED 35 YEARS, MAYANPOKKADA, EDACHERRI, ANDROTH POST-682 551, LAKSHADWEEP DISTRICT, U.T.OF LAKSHADWEEP. A.S.Nos.796 & 797 of 1994 10 ADDL.R36 RAHAMATHULLA, D/O.LATE LAVANAKKAL KOYAMMAKOYA AGED 30 YEARS, MAYANPOKKADA, EDACHERRI, ANDROTH POST-682 551, LAKSHADWEEP DISTRICT, U.T.OF LAKSHADWEEP. ADDL.R37 MUHAMMED KASIM, S/O.LATE LAVANAKKAL KOYAMMAKOYA AGED 28 YEARS, MAYANPOKKADA, EDACHERRI, ANDROTH POST-682 551, LAKSHADWEEP DISTRICT, U.T.OF LAKSHADWEEP. ADDL.R38 NAJEEMA, D/O.LATE LAVANAKKAL KOYAMMAKOYA AGED 26 YEARS, MAYANPOKKADA, EDACHERRI, ANDROTH POST-682 551, LAKSHADWEEP DISTRICT, U.T.OF LAKSHADWEEP. ADDL.R39 SUBAIDA, D/O.LATE LAVANAKKAL KOYAMMAKOYA AGED 24 YEARS, MAYANPOKKADA, EDACHERRI, ANDROTH POST-682 551, LAKSHADWEEP DISTRICT, U.T.OF LAKSHADWEEP. ADDL.R40 RAHMATH, D/O.LATE LAVANAKKAL KOYAMMAKOYA AGED 22 YEARS, MAYANPOKKADA, EDACHERRI, ANDROTH POST-682 551, LAKSHADWEEP DISTRICT, U.T.OF LAKSHADWEEP. ***THE LEGAL HEIRS OF DECEASED R2 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 31 TO 40 AS PER SEPARATE COMMON ORDER DT.14.06.2018 (IN A.S.NOS.796/94 AND 797/94) A.S.Nos.796 & 797 of 1994 11 BY ADVS. R1, R3 TO R12 BY ADVS.SMT.NARAYANIKUTTY CHETTUR SRI.M.GOPIKRISHNAN NAMBIAR R17 BY ADVS.SRI.K.P.SREEKUMAR SRI.GOPINANADHAN SRI.MANU JOSEPH ADDL.R24 TO 30 BY ADV.SRI.K.P.SREEKUMAR ADDL.R19 TO R23 BY ADV.SRI.P.K.SURESH KUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16.10.2018, ALONG WITH AS.NO.796/1994, THE COURT ON 08.01.2019 DELIVERED THE FOLLOWING: A.S.Nos.796 & 797 of 1994 12 A.HARIPRASAD, J. -------------------------------------- A.S. Nos.796 and 797 of 1994 -------------------------------------- Dated this the 8th day of January, 2019 COMMON JUDGMENT Aggrieved by the final decree order passed by the trial court in a suit for partition, different respondents have come up in appeal.

2. Brief facts are thus: The suit for partition was filed by Pakkirichiyapura Khader, who was the husband of 1st respondent, father of respondents 2 to 9 and grandfather of respondents 10 to 12, seeking partition of Belliazcha properties (tarwad properties). The properties are in Androth Island in the Union Territory of Lakshadweep. According to the preliminary decree passed by this Court in A.S.Nos.231 of 1984 and 381 of 1984, 1/3rd share of the properties was allotted to deceased Khader and his marumakkathayee heirs. Khader died on 06.12.1990. Thereafter the respondents 1 to 12 filed an application for passing a final decree along with another application I.A.No.39 of 1991 seeking to get themselves impleaded in the proceedings. Trial court dismissed the impleading application and consequently the final decree application too was dismissed. Against dismissal of the applications, they filed C.R.P.Nos.1805 A.S.Nos.796 & 797 of 1994 13 of 1992 and 1806 of 1992. This Court set aside the orders challenged and directed the court below to hear the final decree application and impleadment application afresh.

3. Thereafter the court below allowed impleadment and then took up I.A.No.38 of 1991, the final decree application. According to the appellants, the court below without correctly understanding the legal questions arising for decision and on a total misunderstanding of law governing the parties, passed an order holding that respondents 1 to 12 herein would be entitled to get 1/3rd share in the property. According to both sets of appellants, the order passed by the court below is illegal and unsustainable. It is forcefully contended by the appellants that the property was allotted to Khader and his marumakkathayee heirs together as per the appellate decree and the appellants being the marumakkathayee heirs of deceased Khader, the court below ought to have seen that the respondents have no right over the property. It is also contended that the facts and law applied by the court below are incorrect.

4. Heard the learned senior counsel appearing for the appellants in A.S.No.797 of 1994 and the learned counsel appearing for the appellants in A.S.No.796 of 1994. Learned counsel appearing for the contesting respondents are also heard.

5. Bearing in mind the principles in Section 97 of the Code of A.S.Nos.796 & 797 of 1994 14 Civil Procedure, 1908 that the questions concluded at the stage of preliminary decree in a partition suit cannot be reopened and raked up in a final decree petition, I shall analyse the issues in the light of the judgment passed by a learned single Judge in A.S.No.231 of 1984. The decree in O.S.No.6 of 1979 before the Court of Subordinate Judge, Kavarathi was challenged in two sets of appeals as above and the learned single Judge after considering the rival contentions allowed the appeals. Various decisions governing the property rights in various Islands were considered and finally it was held in A.S.No.231 of 1984 thus : “Held : Partition in the sense in which it is known in the Marumakkathayam Law as administered in the main land was not in vogue in the Amini Island. It is more or less clear that the early settlers in the island migrated from the west-coast of India at a time when Marumakkathayam law was not codified. Impartibility was the rule as far as early Marumakkathayees were concerned. The privilege of individual partition was conferred on the members of a tarwad only in the subsequent statutes in the respective areas in the main land. The customary law relating to partition prevailing in the Amini and other islands of the Lakshadweep has to be appreciated in the above setting. The expression 'Partition has A.S.Nos.796 & 797 of 1994 15 also to be understood in the background that property in the island, at any rate, until recently, consisted of trees and not the land wherein they stood. If the right to the usufructs of the trees and not the land itself formed the basis of partition, the concept of partition in early times could not have taken in a division of the land where the trees stood. It is possible that when the number of members of individual tarwards increased, some of them started living separate from the main tarwad houses and by arrangement among the members, the members who left the tarwad houses must have taken with them particular properties for their maintenance. From the fact that right of reversion vests in the branches and concurrence of the other branches is required for alienation of the Belliazcha properties of a branch, it is clear that the members of each of the branches or unit of the tarwad retained rights in the properties of the tarwad held by the other branch tarwads. In other words, the tarwad must be deemed to be in existence so far as those properties are concerned. Such properties remain properties of the main tarwad and the possession thereof by individual branch tarwads is only for the purpose of convenient living.” In clear terms it has been held that the plaintiff Khader and his A.S.Nos.796 & 797 of 1994 16 marumakathayee heirs were to constitute one of the three thavazhies. This aspect has become final and cannot be disputed by any of the parties in this proceedings.

6. Various decisions have been cited before me by the learned counsel on both sides. All the decisions pertaining to the property rights, especially in the matter of succession in the Lakshadweep Islands, uniformly say that the partition in the sense in which it is known in marumakathayam law as administered in the main land was not in vogue in the Islands. With respect to Amni Island, the leading decision was rendered by a learned single Judge in Buhari Koya v. Kasimkoya Haji (1979 (1) ILR 730). It is a well settled proposition that among the Islanders there is no codified marumakathayam law in force and they are governed by customary law. Custom, according to the settled legal principles, is nothing but pristine marumakathayam law. It is also a well settled principle that the custom would vary from Island to Island (see the judgment of a learned single Judge dated 14.06.1991 in S.A.No.96 of 1986 and Cross Objection).

7. As mentioned earlier in Buhari Koya's case (supra) an extensive survey had been done by the learned single Judge and general principles governing the pristine marumakathayam law has been stated in the following terms: A.S.Nos.796 & 797 of 1994 17 “30. The court below has given a decree for partition on per capita principle. In the light of the discussion I have made, I am of opinion that the decree of the court below is not in accordance with law. It has to be set aside. I do so. The division has to be effected on per stirpital basis and when the properties are so divided, it has to be divided into three tavazhies, viz. Plaintiff and his marumakkathayee heirs, Kuhi and her marumakkathayee heirs and Hajira and her marumakkathayee heirs, as stated in the written statement of D1 and D6. There will be a preliminary decree on the above terms.”

8. A division bench of this Court in a judgment dated 29.05.1972 in A.S.No.405 of 1968 had held that evidently if partition is allowed and properties are allotted to different branches, the allottees must get the shares in absolute right.

9. The question whether the parties intended by a document to effect a partition or was it only a maintenance arrangement, this Court had occasion to consider and declare the principles in various decisions. Judgment rendered by learned single Judges in S.A.No.25 of 1987 dated

23.09.1993, A.S.No.209 of 1977 dated 30.11.1982 and a division bench judgment in A.S.Nos.408 of 1968 and 336 of 1972 dated 26.02.1973 are A.S.Nos.796 & 797 of 1994 18 cited. Since those questions are alien to the present appeal, I am not elaborating on that aspect.

10. Contesting respondents placed reliance on a judgment of a learned single Judge in S.A.No.872 of 1990 dated 10.12.1997 wherein this Court considered the properties in Chetlat Island, which is a part of Amni group of Islands of Lakshadweep. Learned single Judge did not express any opinion as to what would happen if a sole surviving male member dies leaving any property behind him. It is contended by the respondents that in the event, the property will go to his personal heirs. That proposition is strongly disputed by the appellants. There is no material available herein to uphold the contentions of the respondents.

11. Learned counsel for the respondents contended that the decision in Buhari Koya's case will not apply to this case because in this case, actual division of property is sought for and not a maintenance arrangement. As mentioned earlier, this Court is not called up in this case to decide whether there was actual division or maintenance arrangement. It is an indisputable proposition that an actual division was intended by the preliminary decree passed by this Court in the aforementioned appeal suits.

12. Learned senior counsel for the appellants relied on a full bench decision of this Court rendered in the context of pristine A.S.Nos.796 & 797 of 1994 19 marumakathayam law prevailed among Hindus and submitted that the same principle can be applied in respect of Islanders who follow the same law unaffected by the codifications thereafter. Majority Judges in the above decision clearly held that under the marumakathayam law separate share obtained by a female member in tarwad partition will enure to the benefit of a subsequently conceived child and he/she would get right by birth in the property obtained by his/her mother for her separate share in a partition of her tarward. However, the questions decided by the full bench are clearly different from the questions raised in this case. Here, it is clear from the above quotation from the appellate judgment in the preliminary decree proceedings that the original plaintiff Khader and his marumakathayee heirs are together to constitute a thavazhy. Therefore, this is a case wherein the property was not allotted to a single female as in the case of the full bench decision. The rights and obligations of the properties are governed by the directions in the appellate judgment passed in the preliminary decree proceedings.

13. In my view, there is not much complication in this case as the learned single Judge in unmistakable terms has held that the property should be set apart to Khader and his marumakathayee heirs. That direction has become final. Whatever be the principles enunciated in other decisions, they cannot be mechanically applied to this case discarding the A.S.Nos.796 & 797 of 1994 20 directions in the appellate decision rendered at the preliminary decree stage. Therefore, the personal heirs of deceased Khader cannot succeed to the property and it will revert to the reversioners, viz., marumakathayee heirs of deceased Khader. This proposition is the only logical conclusion that can be arrived at in the facts and circumstances of this case. In the result, the appeals are allowed. The findings by the court below that the property allotted to Khader became his absolute property and therefore his personal heirs are entitled to succeed to his property are hereby vacated. The application for passing a final decree at the instance of the respondents is hereby dismissed. Parties are directed to suffer their All pending interlocutory applications will stand closed. A.HARIPRASAD, JUDGE. costs. A.S.Nos.796 & 797 of 1994 21 A.Hariprasad, J. A.S.Nos.796 & 797 of 1994 JUDGMENT 8th January, 2019