R.S.A. Nos.1394 of 2004 and 89 of 2005, Shakkummada ShaiKoYa v. Shakkummada Mohammed Koya and others and Sekkummada Sayed Mohammed Koya Thangal v. others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 10[TH] 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 10[TH] 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 10[th] 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:- **==> picture [500 x 237] intentionally omitted <==** R. S. A. Nos.1394/2004 & 89 of 2005 -: 2 :- 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 **==> picture [34 x 10] intentionally omitted <==** 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 -: 4 :- 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 -: 5 :- 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 -: 6 :- 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 14[th] 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 **==> picture [34 x 9] intentionally omitted <==** _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 **==> picture [34 x 10] intentionally omitted <==** _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 -: 9 :- 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 available for partition. The trial Court has rightly held so. The decree and judgment of the first appellate court to the contrary is liable to be set aside and I do so. Accordingly the Regular Second Appeals are allowed. The decree and judgment of the first appellate court is set aside and that of the trial court is restored. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge