Decided on November 23,1944

Kunhi Pathumma And Ors. Appellant
Sundara Ayyar And Anr. Respondents


Alfred Henry Lionel Leach, C.J. - (1.) THE first respondent instituted a suit in the Court of the District Munsiff of Taliparamba to enforce a mortgage of immovable property which had been executed by the second respondent on her own behalf and on behalf of the appellants who are her children. The family is a Moplah family of North Malabar. The mother and her children were made defendants. The only real question in the suit was whether the interests of the children were affected by the mortgage. It was alleged that their father and not their mother was their lawful guardian and as he had not signed the mortgage on their behalf it could not be enforced against them. This defence was successful and the decision was upheld by the District Judge on appeal by the plaintiff. The plaintiff then appealed to this Court and Horwill, J., reversed the decisions of the Courts below. He held that the mother was the lawful guardian of the minors and that consequently the mortgage decree should embrace the interests of her children as well as her own interest in the mortgaged property. This appeal is from the judgment of the learned Judge.
(2.) ADMITTEDLY there is no authority which has real bearing on the question involved in the appeal, and our decision must be based on first principles. In the District Munsiff's Court and in the District Court, the mother and her children were regarded as constituting a tavazhi; but it would appear that there is no tarwad, which means that they themselves constituted a tarwad. They are governed in all matters relating to property by the Marumakkathayam law unless the Mappilla Succession Act, 1918, applies. That Act says that when a Mappilla dies intestate, his private property shall devolve upon his heirs according to the rules of Muhammadan law. The Act has no application here. If the Marumakkathayam law applies in this case, admittedly the second respondent, the mother, as the head of the tavazhi or tarwad will be the guardian of the minors and they will be bound by her act. On the other hand if the Muhammadan law applies, the father of the children will be the guardian and they will not be bound. In Mr. P.R. Sundara Ayyar's treatise on the "Malabar and Aliyasanthana Law " it is said at page 234: At any rate it cannot be assumed as a fact that the Mahomedan Law governed the Mappilas previous to their adoption of the Marumakkathayam system. Such being the case, and the dominant prevailing system being Marumakkathayam, the presumption should be that the Mappilas are governed by all the rules of property of the Marumakkathayam law unless the contrary is established. We consider that that principle should be applied here. The family is governed by the Marumakkathayam law in all matters relating to property unless there happens to be private property undisposed of by will. Therefore in most matters the Marumakkathayam law must be regarded as governing the family, and we consider that Horwill J., arrived at the correct decision when he applied it in this case.
(3.) THE appeal fails and is dismissed with costs. Time for redemption will be four months from this date.;

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