Decided on April 24,1952

Mukkattumbrath Ayisumma Appellant
Vayyaprath Pazhae Bangalayil Mayomoothy Umma Respondents


Basheer Ahmed Sayeed, J. - (1.) THIS civil revision petition is against the order of the learned Subordinate Judge of Tellicherry, dismissing the application of the petitioner, a third party, filed by her to get herself impleaded in the suit on the ground that the rights of Mappilla Tarwads stand unaffected even after the passing of the Muslim Shariat Act and that no individual member would have ,any heritable right in the tarwad properties unless he himself volunteered to become a divided member during his lifetime.
(2.) PLAINTIFFS 1 to 5 in O. S. No. 35 of 1949 on the file of the Subordinate Judge's Court, Tellicherry, brought a suit for partition of Mopla Tarwad property said to be governed by the Marumakathayam law. The petitioner is the widow of a member of the tarwad, namely, Kuttiatha Musaliar, who had died sometime before the filing of the suit for partition. It is alleged that before the suit had been filed, he had expressed no intention to separate from the tarwad. This Kuttiatha Musaliar died in July 1938, i.e., long prior to the coming into force of the Mapilla Marumakathayam Act (Madras Act 17 of 1939). Before this Act was passed by the Madras Legislature, the Central Legislature had passed an Act called the Muslim Personal law (Shariat) Application Act, (India Act 26 of 1937). It is common ground that the husband of the present petitioner died after the Muslim Personal law (Shariat) Application Act came into operation and before the Mapilla Marumakathayam Act (Madras Act 17 of 1939) was passed. The suit itself having been filed in 1949, the petitioner made an application to the court for being impleaded in the suit on the ground that she was entitled to the share of her deceased husband in the tarwad properties which were being partitioned at the instance of five of the members of the tarwad. The Muslim Personal law (Shariat) Application Act did not apply to agricultural lands; and, in order to remove the disability, the Madras Legislature passed Act 18 of 1949 which extended the scope of the Muslim Personal law (Shariat) Application Act to agricultural lands as well within the then province of Madras. Prior to this amending Act, there were two other Acts which had been enacted by the Madras Legislature. The first of them was Mapilla Succession Act, (Act 1 of 1918), which was enacted to amend and define the rules of law applicable to intestate succession among Mapillas governed by the Marumakathayam or the Aliyasanthana Law of Inheritance. There was also another Act called the Mapilla Wills Act, (Act 7 of 1928), intended to define the law relating to testamentary dispositions by Mapillas governed by the Marumakathayam or Aliyasanthana law of inheritance.
(3.) FOR consideration of the points that arise in this petition, it is necessary to briefly state the development of the law governing Mappillas of Malabar until it reached its final stage as evidenced by the amending Act, (Act 18 of 1949). Before the Mapilla Succession Act, (Act 1 of 1918) was enacted, any property owned by a member of a Mapilla tarwad belonged to the tarwad, whether it was self -acquired or otherwise and succession to such property was by right of survivorship. The tarwad property remained impartible although the members of the tarwad had a proprietary interest in the property and therefore entitled to maintenance The general Islamic law by which Muslims were governed in the rest of the country was not in force among the Mapillas of North Malabar and some parts of South Kanara, where Mapillas predominate. The customary law prevailed in the Mapilla society of North Malabar and parts of South Kanara. This system of inheritance, according to Marumakathayam law, is a deviation from the original Islamic law and had been adopted by the Mapillas by reason of a custom which had developed out of certain historic conditions and factors which it is not necessary now to go into.;

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