Under the Customary Marumakkathayam Law, a gift to a marumakkathayee female by way of Streedhanam would exclusively belong to her and would not enure to the tavazhi of her children or their lineal descendants.

K.S. Radhakrishnan, J.

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, O.S.12/33 was filed before the District Court, Thalassery to realize 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 Munsiff’s Court, Kannur which was subsequently settled. On the basis of the settlement first defendant had to pay an 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 has been in possession for more then 12 years continuously. The same was also 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 th