TMI Blog1957 (7) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... f his minor sons Moidu and Ahmed executed a document styled Stridhanam Gift Deed in favor of Aliyumma, grand-daughter of Pathumma and Mayan through their daughter Ummayya who was also by then dead. The legal effect of this document will be considered later in the judgment. At this stage, it may be mentioned that the said document recites that the property comprised therein belonged to Pathumma and that after her death, it belongs to the executants and to Avulia, the eldest son of Pathumma and Mayan. It further states that it has been given as gift to Aliyumma to provide maintenance to her husband Koyyotan Sooppi. It makes certain further recitals as to the manner of enjoyment and as to the devolution of the property. The property appears to have been demised on lease to one Govindan and another in favor of Avulia. Avulia, the eldest son of Pathumma and Mayan and who had not joined the original Stridhanam Gift Deed Ext. B5, executed on 27-4-1931 a registered Deed in favor of Aliyumma affirming the earlier Gift Deed executed in her favor by his father and other brothers. This consent deed has been filed and marked as Ext. B6 in these proceedings. Govindan, the original lessee appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt dated 30th June 1925 and later on accepted also by Avulla. After Aliyumma's death, he and the 2nd defendant are the heirs of Aliyumma under Mohammadan Law and therefore, he is entitled to the full rent till the date of death of Aliyumma and thereafter to half the rent on the basis that the other half will enure to the benefit of Ahmad. 5. The 1st defendant contended that the 2nd defendant alone is the sole heir of Aliyumma and she also pleaded discharge by payments of rent already made to the 2nd defendant. The 2nd defendant supported the 1st defendant and also admitted the receipt of rent. 6. As the main question in both the suits related to the title to the properties covered by Ext. B 5, by consent of parties both the suits were tried together and evidence was recorded in O.S. 205/46. It will be seen that Avulla the plaintiff in O.S. 205/46 was not a party in O.S. 1062/45. Otherwise the parties in the two suits were substantially the same. 7. Before the learned District Munsiff, as could be seen from paragraph 14 of the judgment, Avulla evidently did not dispute the right of Aliyumma and her husband to be in possession and enjoyment till Aliyumma's death in 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect that Pathumma was governed by Mohammadan law and not by Marumakkathayam law. As Pathumma had died before the Mappila Marumakkathayam Act (Act 17 of 1939) her interests must be deemed to have devolved on her Tavazhi consisting of Avulla and his brothers and her grand-daughter Aliyumma. The learned Judge took the view that as is well known among the Maphlas of North Malabar following the Marumakkathayam law it is customary to make Stridhanam grants on the occasion of the marriage of the family members of the Tarwad and that such grants are in the nature of a contribution made by the Tarwad for maintenance of the family member and the children that might be born. Though the husband enjoys the income to be utilized for the maintenance of his wife and children, according to custom the gift will revert back to the family on the death of the lady without issues. On the construction of Ext. B5, the learned Judge took the view that the said document had all the incidence of a Stridhanam grant under Marumakkathayam law and he also held that as Aliyumma died without any issue, the property would ordinarily revert to the Tavazhi. But as in this case the document provided that the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it is for those alleging among Mohammadans a custom of inheritance at variance with Mohammadan law to prove by clear and unambiguous evidence an ancient and invariable custom. This by itself does not support the contention of the appellant's counsel. Further, at p. 314 of the Report their Lordships observed as follows:- In India, however, custom plays a large part in modifying the ordinary law, and it is now established that there may be a custom at variance even with the rules of Mohammadan law governing the succession in a particular community of Mohammadans. But the custom must be proved. These observations clearly show that their Lordships are fully alive to the fact that particular sections of Muslims may follow by custom, a law other than the Mohammadan law in certain respects. Mr. Ramakrishna Ayyar also referred us to the several Madras enactments as supporting his contention that Mohammadan law will apply to Muslims, in all cases and that Marumakkathayam law is not applicable at all to them. Those enactments are (1) The Mophla Succession Act (Act 1 of 1918), (2) Mopla Wills Act (Act 7 of 1928) and (3) Mopla Marumakkathayam Act (Act 17 of 1939). We cannot accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Veettil Chakkra Kannan v Varayalankandi Kunhi Pokker and four others (I.L.R. 39 Mad. 317). In view of what is stated above, it follows that Pathumma and her children and grandchildren are Mophlas governed by the Marumakkathayam law. The legal effect of the document Ext. B 5 has to be considered in the light of the findings that the parties are followers of Marumakkathayam law. Ext. B 5 clearly states that it has been given as a gift to Aliyumma to enable her to provide maintenance to her husband Koyyotan Sooppi. It is also stated that the executants have no further rights over this property and that the property is to be enjoyed by Aliyumma and her husband on her behalf as owner and it is also stated that Aliyumma and her children should enjoy the property and income. It is very clear from the document that the sole object of the gift was to make provision for Koyyotan Sooppi to enjoy the income and maintain his wife and children. By executing the consent document Ext. B 6, whatever defects there may have been originally in Ext. B 5 by the non-joining of Avulla has been cured. Avulla, the Karnavan of the Tarwad has unequivocally accepted the Stridhana Adharam granted in favor of Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dan Law 13th Edition at p. 165 to the effect that when a gift is made subject to the condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no conditions were attached to it. He pursued this argument by contending that such an ulterior transfer conditional on the happening or not happening of a specific event can be valid only under sec. 28 of the Transfer of Property Act. But according to him sec. 28 which is in Chapter 2 of the Transfer of Property Act will not apply in view of sec. 2 of the said Act. The relevant portion in sec. 2 of the said Act says that nothing in the 2nd chapter of this Act shall be deemed to affect any rule of Mohammadan Law. In view of our finding that Pathumma, her children and grand-children are Mophlas following the Marumakkathayam law, the above contention of Mr. Ramakrishna Ayyar cannot also be accepted. In Govindaraja Pillai and others v. Mangalam Pillai and another (63 M.L.J. 911) his Lordship Mr. Justice Sundaram Chetty held that where the grant of an absolute estate is expressly or impliedly made subject of defeasance on the happening of a contingency and where the effect of such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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