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2022 Supreme(Online)(KER) 26930
HIGH COURT OF KERALA
Sathish Ninan, J
SHAKKUMMADA SHAIKOYA – Appellant
Versus
SHAKKUMMADA MOHAMMED KOYA (DIED) – Respondent
RSA 1394 2004
SRI.N.AJITH SRI.S.V.BALAKRISHNA IYER SR.SMT.GEETHA P.MENON SRI.HARISH R. MENON SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.R.SURAJ KUMAR SRI.P.B.SUBRAMANYAN SRI.ESM.KABEER SRI.K.B.GANGESH
Self-acquired properties in Andrott are governed by Marumakkathayam Law, and a valid will can authorize disposition in line with personal law.
Headnote:
Inheritance - Partition Dispute - Marumakkathayam Law & Mohammedan Law - Sections Not Specified - The court concluded that the self-acquired properties were governed by Marumakkathayam Law, validating the will executed by Ummabi, establishing its binding nature under the applicable personal law, thus denying partition claims.
Fact of the Case:
The case involves a dispute over the self-acquired properties of Ummabi, which were bequeathed to certain defendants through a will. The plaintiff contended that without his consent, the will was invalid under Mohammedan law, seeking partition of the properties.
Issues: The issues revolved around the classification of the properties as self-acquired or family properties, the applicable law governing such properties, and the validity of the will under the relevant personal law.
Ratio Decidendi: The court emphasized that the self-acquired properties in Andrott are governed by Marumakkathayam Law, ruling the will valid and asserting the non-availability of the properties for partition.
Final Decision: The Regular Second Appeals are allowed, restoring the trial court's judgment.
J U D G M E N T
These appeals are by the defendants 1 and 3 in a suit for declaration and partition.
2. The parties belong to one Shekkummada Tarwad of Andrott Island. A genealogical tree is given hereunder for an easy understanding of the relationship between the parties:- 3. The senior most member of the Thavazhi is, Shareefa. Plaintiff is the son of Beebi, a daughter of Shareefa. The first defendant is the son of Kunhibi, a son of Shareefa. Defendants 2 and 3 are the children of Attabi, another daughter of Shareefa. Shareefa had two other children Kunhikoya and Ummabi. They both died unmarried and issueless. The issue involved in the present appeal is confined to plaint 'C' schedule items 1 to 8 and hence the discussions are being confined to that. Ummabi executed Ext.B6 Will whereunder, the plaint 'C' schedule items 1 to 8 were bequeathed to defendants 1 to 3. The validity of Ext.B6 Will is under challenge. According to the plaintiff, the plaint 'C' schedule items 1 to 8 bequeathed under Ext.B6 Will are the self acquired properties-Thinkalazhcha properties of Ummabi; that Mohammedan law applies to the Thinkalazhcha properties and that unless it is held that the plaintiff has consented to the Will, under the Mohammedan law the Will cannot be held valid. Declaration is sought that the Will does not affect the rights of the plaintiff over the plaint schedule properties. Relief is also sought, for partition.
4. The trial court found that the properties in question are the self acquired properties of Ummabi; that Marumakkathayam Law applies to the properties and that Ext.B6 Will is valid. On appeal by the plaintiff, the first appellate court affirmed the finding that the properties are self acquired properties of Ummabi. However, it was found that Mohammedan Law applies to Thinkalazhcha properties. It was also held that the plaintiff had not consented to the disposition. Accordingly, the Will was held to be not valid as opposed to the Muslim law. It is challenging the same that these appeals have been filed.
5. Heard Sri.K.B.Gangesh and Sri.E.S.M. Kabeer learned counsel for the appellants and Sri.M.K.Sreegesh on behalf of the respondents, on the following substantial questions of law:- (1) Are the plaint 'C' schedule items 1 to 8 Thinkalazhcha properties (self acquired) or Velliyazhcha properties (family property) of Ummabi?
(2) Which is the law applicable to Thinkalazhcha properties, whether it is Marumakkathayam Law or Mohammedan Law?
(3) Is Ext.B6 Will valid under the personal law applicable to the parties?
6. Whether the plaint 'C' schedule items 1 to 8 are Thinkalazhcha (self acquired) properties or Velliyazhcha (family) properties, is the first question posed. Though much was argued by the learned counsel for the appellants by referring to the mode of division in Exts.A2 and A3 Partition Deeds and the shares allotted thereunder, to contend that it indicates division of the properties as in a Marumakkathayam Tarwad, and hence the properties are Velliyazhcha properties, the said arguments are without any force. Pertinently, there is no contention in the written statement that the properties in question are Velliyazhcha (family) properties. That apart, DW1 who is the third defendant has admitted in his evidence that the properties in question are the self acquisitions (Thinkalazhcha properties) of Ummabi. Obviously, it must be for the said reason that no contention is urged in the courts below that the properties in question are not Thinkalazhcha properties. In the light thereof, it need only to be concluded that the properties in question are Thinkalazhcha properties of Ummabi.
7. This Court has held, in decisions more than one that, in Andrott island succession to personal properties/self acquired properties (Thinkalazhcha properties) is governed by Marumakkathayam Law. It would be appropriate to refer to the decision of this Court in Avvammada Pathummabi v. Avvammada Sarommabi ( AIR 1992 Ker. 56 ), wherein it was held thus:
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