Kerala High Court

Shakkummada Shaikoya vs Shakkummada Mohammed Koya (Died) on 10 August, 2022

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                  THE HONOURABLE MR. JUSTICE SATHISH NINAN
         WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
                            RSA NO. 1394 OF 2004
AGAINST THE JUDGMENT DT.13.11.2001 IN OS 4/1996 OF MUNSIFF COURT, ANDROTT
   AGAINST THE JUDGMENT DT.17.07.2004 IN AS 2/2002 OF DISTRICT COURT,
                                LAKSHADWEEP
                                      -----
APPELLANT/3RD RESPONDENT/3RD DEFENDANT:

             SHAKKUMMADA SHAIKOYA,
             S/O.KAKARCHIKKADA SAYED, MOHAMMED KOYA, SHAKKUMMADA, ANDROTT
             ISLAND.

             BY ADV SRI.K.B.GANGESH



RESPONDENTS/APPELLANT AND RESPONDENTS 1,2 AND 4 TO 7/PLAINTIFF AND
DEFENDANTS 1, 2 AND 4 TO 7:

     1       SHAKKUMMADA MOHAMMED KOYA (DIED- Lrs IMPLEADED)
             S/O.C.EDAYAKAL SAYED KOYA, SHAKKUMMADA HOUSE, KANCHERY,
             ANDROTT ISLAND.

     2       SHAKKUMMADA SAYED MOHAMMAD, KOYA THANGAL,
             S/O.UMMATHABIYAPURA KUNHIKOYA THANGAL, SHAKKUMMADA HOUSE,
             ANDROTT ISLAND. (DIED- LRS IMPLEADED AS ADDL. R13 TO R21).

     3       SHAKKUMMADA ATTAKOYA,
             S/O.KAKHRCHIKKADA SAYED MOHAMMED KOYA, SHAKKUMMADA, ANDROTT
             ISLAND.

     4       MAPPIL AT MOOSANKAKKADA RASIYA MANZIL
             RAHMATHULLA BANU, S/O.SHAKKUMMADA KUNHISSATHIKOYA, ANDROTT
             ISLAND.

     5       MAPPIL AT MOOSANKAKKADA RASIYA MANZIL
             MOHAMMED SHAMEEM, S/O.SHEKKUMMADA KUNHISEETHIKOYA, ANDROTT
             ISLAND.

     6       S.M.MADDRASSA, BY PRESIDENT
             THACHARY PERALA KOYAMMA, NALLAL HOUSE, KANCHERY, ANDROTT
             ISLAND.
 RSA NO. 1394 OF 2004              -2-


     7     KANNATHIMMADA CHERIYAKOYA,
           S/O.SHAKKUMMADA NALLAKOYA, KANNATHIMMADA HOUSE, ANDROTT
           ISLAND.

* ADDL. R8 TO R12

     8     CHAMAYATH EDAYAKKAL KHADEEJOMMABI,
           S/O. SHAKKUMMADA MOHAMMED KOYA, ANDROTT ISLAND.

     9     CHAMAYATH EDAYAKKAL CHERIYABI,
           S/O. SHAKKUMMADA MOHAMMED KOYA, ANDROTT ISLAND.

    10     CHAMAYATH EDAYAKKAL HABEEBULLA
           S/O. SHAKKUMMADA MOHAMMED KOYA, ANDROTT ISLAND.

    11     CHAMAYATH EDAYAKKAL BURKATH
           S/O. SHAKKUMMADA MOHAMMED KOYA, ANDROTT ISLAND.

    12     CHAMAYATH EDAYAKKAL SALAMATH
           S/O. SHAKKUMMADA MOHAMMED KOYA, ANDROTT ISLAND.


           *(ADDL. R8 TO R12 IMPLEADED BEING THE LRS OF DECEASED R1 AS
           PER ORDER DATED 17/06/13 IN IA 23/13)

** ADDL. R13 TO R21

    13     KHADEEJOMMABI C.
           AGED 62 YEARS
           W/O. SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
           ANDROTH ISLAND 682 551, UNION TERRITORY OF LAKSHADWEEP.

    14     BUSHRABI.C.,
           AGED 45 YEARS
           D/O. SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
           ANDROTH ISLAND 682 551, UNION TERRITORY OF LAKSHADWEEP.

    15     BEEBI.C.,
           AGED 43 YEARS
           D/O. SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
           ANDROTH ISLAND 682 551, UNION TERRITORY OF LAKSHADWEEP.

    16     MOHAMMED RAHMATHULLA .C,
           AGED 41 YEARS
           S/O. SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
           ANDROTH ISLAND 682 551, UNION TERRITORY OF LAKSHADWEEP.
 RSA NO. 1394 OF 2004                     -3-


    17      BASHEERABI.C.,
            AGED 38 YEARS
            D/O. SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
            ANDROTH ISLAND 682 551, UNION TERRITORY OF LAKSHADWEEP.

    18      MOHAMMEDALIYAUDHEEN THANGAL.C.,
            AGED 36 YEARS
            S/O. SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
            ANDROTH ISLAND 682 551, UNION TERRITORY OF LAKSHADWEEP.

    19      MOHAMMED ABDUL HAKKIM.C.,
            AGED 35 YEARS
            S/O. SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
            ANDROTH ISLAND 682 551, UNION TERRITORY OF LAKSHADWEEP.

    20      SYDHABI.C., AGED 32 YEARS,
            D/O. SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
            ANDROTH ISLAND 682 551, UNION TERRITORY OF LAKSHADWEEP.

    21      MOHAMMED ABDUL RAOOF.C.,
            AGED 29 YEARS
            S/O. SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
            ANDROTH ISLAND 682 551, UNION TERRITORY OF LAKSHADWEEP.


            **[ADDITIONAL RESPONDENTS 13 TO 21 ARE IMPLEADED AS                  THE
            LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT AS                  PER
            ORDER DATED 12/12/2109 IN I.A. NO. 03/2019 IN RSA                    NO.
            1394/2004.]

            BY ADVS.
            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




     THIS   REGULAR    SECOND   APPEAL    HAVING   COME   UP   FOR   ADMISSION    ON
10.08.2022, ALONG WITH RSA.89/2005, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                   IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                  THE HONOURABLE MR. JUSTICE SATHISH NINAN
         WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
                             RSA NO. 89 OF 2005
  AGAINST THE JUDGMENT DATED 17.07.2004 IN AS 2/2002 OF DISTRICT COURT,
                        LAKSHADWEEP KAVARATTI ISLAND
                                   -----
APPELLANT/1ST RESPONDENT/1ST DEFENDANT:

     1       SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, S/O UMMATHABIYYAPURA
             KUNHIKOYA THANGAL, ANDROTT ISLAND [DIED- LRS IMPLEADED]

* ADDL. APPELLANTS 2 TO 10 IMPLEADED

     2       KHADEEJOMMABI C.,
             AGED 60 YEARS
             W/O..SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
             ANDROTT ISLAND, UNION TERRITORY OF LAKSHADWEEP.

     3       BUSHRABI C.,
             AGED 43 YEARS
             D/O..SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
             ANDROTT ISLAND, UNION TERRITORY OF LAKSHADWEEP.

     4       BEEBI C.,
             AGED 41 YEARS
             D/O..SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
             ANDROTT ISLAND, UNION TERRITORY OF LAKSHADWEEP.

     5       MOHAMMED RAHMATHULLA C.,
             AGED 39 YEARS
             S/O.SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
             ANDROTT ISLAND, UNION TERRITORY OF LAKSHADWEEP.

     6       BASHEERABI C.,
             AGED 36 YEARS
             D/O..SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
             ANDROTT ISLAND, UNION TERRITORY OF LAKSHADWEEP.

     7       MOHAMMEDALIYAUDHEEN THANGAL C.,
             AGED 34 YEARS,
             S/O.SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
             ANDROTT ISLAND, UNION TERRITORY OF LAKSHADWEEP.
 RSA NO. 89 OF 2005                 -2-


     8     MOHAMMED ABDUL HAKKIM C.,
           AGED 32 YEARS
           S/O.SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
           ANDROTT ISLAND, UNION TERRITORY OF LAKSHADWEEP.

     9     SYDHABI C.,
           AGED 30 YEARS
           D/O..SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
           ANDROTT ISLAND, UNION TERRITORY OF LAKSHADWEEP.

    10     MOHAMMED ABDUL RAOOF C.,
           AGED 27 YEARS
           S/O..SEKKUMMADA SAYED MOHAMMED KOYA THANGAL, CHODATH HOUSE,
           ANDROTT ISLAND, UNION TERRITORY OF LAKSHADWEEP.

           *(LEGAL HEIRS OF DECEASED APPELLANT NO.1 ARE IMPLEADED AS
           ADDL.APPELLANTS 2 TO 10 AS PER ORDER DATED 12.12.2017 IN
           IA.2884/2017.)

           BY ADV SRI.ESM.KABEER



RESPONDENTS/APPELLANT/PLAINTIFF/DEFENDANTS 2 TO 7:

     1     SEKKUMMADA MOHAMMED KOYA, (DIED- LRS IMPLEADED)
           S/O.C.EDAYAKKAL SAYED KOYA, AGED 68 YEARS, ANDROTT ISLAND.

     2     SEKKUMMADA ATTAKOYA, AGED 49
           S/O.KAKKARACHIKAKKAD SAYED MOHAMMED KOYA, ANDROTT ISLAND.

     3     SEKKUMMAA SHAIKKOYA, AGED 47
           S/O.KAKKARACHIKAKKAD SYED MOHAMMED KOYA, ANDROTT, ISLAND.

     4     MAPPILAT MOOSANKAKKADA RASIYA MANZIL
           RAHMATHULLA BANU, AGED 23 YEARS, S/O.SEKKUMMADA
           KUNHISEETHIKOYA, ANDROTT.

     5     SEKKUMMADA MOHAMMED SHAMEEM, AGED 21
           YEARS, S/O.SEKKUMMADA KUNHISEETHIKOYA, ANDROTT.

     6     S.M.MADRASSA BY PRESIDENT THACHERY
           PERALA KOYAMMA, AGED 60 YEARS, ANDROTT ISLAND.

     7     KANNATHIMMADA CHERIYAKOYA, AGED 26 YEARS,
           S/O.SEKKUMMADA NALAKOYA, ANDROTT ISLAND.
 RSA NO. 89 OF 2005                  -3-


** ADDL. RESPONDENTS NOS.8 TO 12

     8      KADEEJUMMABI,
            AGED 58 YEARS, W/O.SEKKUMMADA MOHAMMED KOYA, ANDROTT ISLAND.

     9      HABEEBULLA,
            AGED 48 YEARS, S/O.SEKKUMMADA MOHAMMED KOYA, ANDROTT ISLAND.

    10      CHERIABI,
            AGED 40 YEARS, D/O.SEKKUMMADA MOHAMMED KOYA, ANDROTT ISLAND.

    11      SALAMATH,
            AGED 21 YEARS, S/O.SEKKUMMADA MOHAMMED KOYA, ANDROTT ISLAND.

    12      BARKATH,
            AGED 24 YEARS, S/O.SEKKUMMADA MOHAMMED KOYA, ANDROTT ISLAND.


            **(LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS
            ADDL.RESPONDENTS 8 TO 12 AS PER ORDER DATED 12.12.2019 IN
            IA.687/2007.)

            BY ADVS.
            SRI.S.V.BALAKRISHNA IYER SR.
            SRI.K.B.GANGESH
            SRI.K.JAYAKUMAR
            SRI.P.B.KRISHNAN




     THIS   REGULAR   SECOND   APPEAL   HAVING   COME   UP   FOR   ADMISSION   ON
10.08.2022, ALONG WITH RSA.1394/2004, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                        SATHISH NINAN, J.
          = =   = = = = = = = = = = = = = = = =
        R. S.   A. Nos.1394 of 2004 & 89 of 2005
          = =   = = = = = = = = = = = = = = = =
        Dated   this the 10th day of August, 2022

                      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:-

R. S. A. Nos.1394/2004 & 89 of 2005

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 R. S. A. Nos.1394/2004 & 89 of 2005

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 R. S. A. Nos.1394/2004 & 89 of 2005

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 R. S. A. Nos.1394/2004 & 89 of 2005

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 R. S. A. Nos.1394/2004 & 89 of 2005

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:

"9. Mr. Ellis is of the opinion that the islanders under the influence of Arab traders were converted to Muhammadanism at sometime, probably in the 14th century. Still the inhabitants of the island follow the marumakkathayam system of inheritance which their forefathers had brought to the island at the time of migration. On this aspect Sri. Ellis says thus:

"The island law is a curious mixture of the ordinary Muhammadan Law with the Marumakkathayam Law of Malabar. Property is regarded as either ancestral or self acquired. Ancestral property is known as Velliaricha (literally Friday property), pronounced Belliaricha on the Amindivis. Self acquired property is known as Tingalaricha (literally Monday property) on the Malabar islands and as Belaricha on the South Kanara island."

Velliyazhcha properties are governed by the ordinary marumakhathayam law i.e. descend through sister's children and devolution on the descendants in the female line. The editor of the Gazetteer of India is also of the same opinion. There is no codified law and the practices are governed by customs which differ from island to island. The tarwad properties can be R. S. A. Nos.1394/2004 & 89 of 2005

partitioned only with the consent of all the members of the tarwad. In Androth and Kalpeni division of properties is between branches or thavazhies of the families whereas in Kavarathi 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. Here also there are variations in different islands. In Androth island to which the parties to this suit belong succession to personal property is governed by marumakkathayam law unless it is specifically laid down in the will of the deceased that it should go to his wife and children. Self acquired property can however be disposed of in any manner one likes."

In Sainabi v. Aboobackerikoya (2001) 2 KLT 555, the very same

view was followed by a Division Bench of this Court. It

would be appropriate to refer to paragraph 12 of the

judgment which reads thus:-

"12. In Gazetteer of India, Union Territory of Lakshadweep at page 97, it is stated as follows:

Property in the islands is either ancestral or self acquired. Ancestral property is known as Velliazhcha (literally Friday property) pronounced as Belliazhcha in the Amindivis.

R. S. A. Nos.1394/2004 & 89 of 2005

Self acquired property is known as Thinkalazhcha (literally Monday property) on the Laccadives and Belasha on the Amindivis.

Ancestral or Tarwad property is governed by the Marumakkathayam Law of inheritance prevalent on the Kerala coast. However, there is no codified law and the practices are governed by customs which differ from island to island. Broadly speaking, property right descends through the female line, the male members having only right for sustenance during their lifetime. (Self-acquired or personal property is governed by Muhammedan Law of Succession).

Here also there are variations in different islands, In Androth, succession to personal property is governed by Marumakkathayam Law unless it is specifically laid down in the Will of the deceased that it should go to his wife and children. The self-acquired property can, however, be disposed of in any manner one likes."

8. Though the learned counsel Sri.M.K.Sreegesh

appearing for the contesting respondents would contend

that the custom claimed to be prevailing in the Andrott

island whereby self-acquired properties are governed by

Marumakkathayam Law has not been proved, and further R. S. A. Nos.1394/2004 & 89 of 2005

that the custom is contrary to the statute law in force

in the main land and hence void, in the light of the

judgments of this Court referred to above, the

contentions are only to be repelled and I do so.

9. Thus, Ummabi was competent to bequeath plaint

schedule items 1 to 8 to defendants 1 to 3 and Ext.B6

Will is valid. Therefore, the said items are not