The main legal point established in the judgment is the application and interpretation of Marumakkathayam Law in determining the mode of partition and entitlement to separate shares in the properties.

Sankarasubban, J.

1. This appeal is filed by the plaint iff in O. S. No. 7 of 1978 on the file of the Subordinate Judge's Court, Kavaratti. The suit was filed for partition. In the plaint, the plaintiff had prayed for partition and allotment of separate share to the plaintiff. Plaintiff had claimed 1/9 share over plaint A schedule properties, 1/6 share over plaint B schedule properties and mesne profits from 8th August 1974. The parties belong to Androth Island of Laccadives. The parties follow the Marumakkathayam Law. So far as this appeal is concerned, only two points arise for consideration. The first question for our consideration is whether partition should be per capita or per stripes. There is no dispute that the parties are governed by Marumakkathayam Law. It is also known that in that system, in effecting partition, there are two types of division division per stripes and division per capita. Before the court below, some documents were marked. But, the lower court was not convinced on the basis of the documents that partition should be per stirpes or per capita. It then discussed the evolution of the principles of partition in Marumakkathayam system and came to the conclusion that the division shall be per capita. It is on that basis the court came to the conclusion that division shall be per capita. Learned counsel for the appellant, Sri M. C. Sen brought to our notice, certain passages by R. H. Ellis in his book A Short Account of Laccadive Islands and Minicoy, wherein he has stated thus: "Tarwad properties can be partitioned only with the consent of the members of the tarwad. It is further stated that in Androth and Calpem, division of properties is between the branches or tavazhies 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 Muhammadan Law of succession." Recently, this bench had occasion to decide a similar question in the Kavaratti Island of Laccadives in the decision reported in Nurul Huda v. Aboobacker ILR 2001 (2) Kerala 369=2001. The decision in that case is on the law of succession, mode of inheritance and division of properties in Kavaratti Island in Laccadives. In that decision, this Bench had held as follows:

"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. Even in a case where per 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 stripes but that is different from that the custom that was followed in the family was to divide by per stripes 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 prevailing regarding the mode of division. The partition should be per capita and not per stripes."

2. A learned Single Judge of this Court in Avvammada Pathummabi v. Awammada Sarommabi AIR 1992 Kerala 56 held that, "since there is no codified law regulating the management of the tarwads and the inhabitants in respect of tarwad properties in Lakshadweep, the pristine Marumakkathayam Law which was prevalent there has to be applied". It was further held in that case that, "A division of the tarwad property can only be on a per capita basis. Even then, an individual member cannot seek partition in the absence of any legislation conferring such a right". So far as the present case is concerned, we find that the partition is claimed by the plaintiff. Plaintiff is one Meriyamrnada Muthukoya Thangal. The other members are first defendant Meriyammada Sayed Muhammad Koya, second defendant Koyammakoya Thangal, thi