Buhari Koya v. Kasim Koya Haji — 1978 DIGILAW 191 (KER)

JUDGMENT P. Janaki Amma, J. 1. Defendants 2 to 8 in a suit for declaration of title and recovery of possession are the appellants. 2. The parties to the suit belong to the Amini Island in the Lakshadweep. The people of the island generally follow Marumakkathayam Law. The properties in the island are classified under two heads: Belliazcha properties are the properties of the tarwad or tavazhi which are governed by Marumakkathayam law. The Belasha properties are the properties of undivided members on which they have got disposing power. These properties devolve on the personal heirs of the owner, according to Mohammedan Law. The thirty eight plaintiffs are members of the Asaroda tarwad. The Asaroda tarwad, according to them, consisted of five branches, Asaroda, Ranakkal, Bapachinellala, Beredem and Kaniyam. The Bapachinellala and Ranakkal branches are now extinct. The plaintiffs belong to the Asaroda branch. The 1st defendant in the suit, now deceased, was the sole surviving member of the Beredem branch. Defendants 2 to 8 are his wife and children. Under the customary law prevailing in the island, no branch tarwad or tavazhi is competent to alienate or otherwise dispose of the Belliazcha properties belonging to the tarwad without the concurrence of the other members of the tarwad. On a branch becoming extinct the properties thereof would devolve on the members of the main tarwad. The plaint schedule items are properties registered in the name of the 1st defendant as per Ext. B-1, the property register maintained in the island during the year 1935. Being Belliazcha properties, they revert on the death of the first defendant to the members of the tarwad. Contrary to the custom of the island, the first defendant executed a gift deed, Ext. D-14 of which Ext. A-1 is a copy, transferring his rights in the properties to defendants 2 to 8. The suit was filed for a declaration that the document did not convey any right to the transferees. 3. The defendants contested the suit and denied that the 1st defendant belonged to the Asaroda tarwad or that the properties belonged to the Asaroda tarwad. They contended that the 1st defendant was a member of the Beredem tarwad, unconnected with the Asaroda tarwad and as the last surviving member of the Beredem tarwad he had the exclusive right to deal with the properties. They contended that the 1st defendant was a member of the Beredem tarwad, unconnected with the Asaroda tarwad and as the last surviving member of the Beredem tarwad he had the exclusive right to deal with the properties. There is no reversionary right vested in the plaintiffs as members of the Asaroda tarwad. The gift deed conveyed title to the other defendants and they have acted on that basis and have divided the items gifted among themselves. 4. The courts below concurrently found that Beredem Bappachinellala, Ranakkal, Kaniyam and Asaroda were branches of an ancient tarwad by name Asaroda, that the plaintiffs and the 1st defendant were members of that tarwad, that the plaintiffs are members of the Asaroda branch and that the 1st defendant was the last member of the Beredem branch. The Trial court held that there was a division of properties among the different branches, which must have taken place more than 100 years back, that the divided branches were enjoying the properties allotted to them and were being treated as separate entities. After referring to the documents produced in the case, the court held that the people of the islands were "lightly or wrongly under the compulsion of a conviction that tarwad properties obtained on partition cannot be alienated or disposed of and that they were to revert to the tarwad as and when the branches became extinct". The court also held that very often the last surviving members of the branch tarwads used to alienate tarwad properties with the consent of the reversioners and concluded therefrom that the customs set up is not well knit. The court characterised the custom as a restraint imposed as regards alienation of tarwad properties obtained on partition. Relying on the decision in Nellakoya v. Administrator, Laccadives ( 1976 KLT 395 ), the court held that the restraint on alienation being opposed to public policy and against the provisions of the Constitution cannot be given any legal recognition. 5. The learned Munsiff observed that even if the custom relied upon is still good, there was no evidence to show that the properties registered as Belliazcha properties in the register of the year 1935 were those that the Beredem branch got from the main Asaroda tarwad. 5. The learned Munsiff observed that even if the custom relied upon is still good, there was no evidence to show that the properties registered as Belliazcha properties in the register of the year 1935 were those that the Beredem branch got from the main Asaroda tarwad. If they were acquired by the Beredem branch after it got separated from the main Asaroda tarwad, the Beredem branch could dispose of them and the 1st defendant as the last surviving member of the Branch was competent to alienate them. The court finally held that the divided branches of the Asaroda tarwad were separate entities and that the plaintiffs could not claim themselves to be the reversioners of the 1st defendant; nor could the 1st defendant be considered as the reversioner of the plaintiffs. The suit was accordingly dismissed. 6. The plaintiffs filed an appeal against the decree before the Subordinate Judge, Lakshadweep, Kavaratti. Pending appeal, the 1st defendant died and the other defendants were recorded as his legal representatives. The appellants moved for an amendment of the plaint by including a prayer for recovery of possession of the properties. That petition was allowed. The Subordinate Judge, after a review of the history of the island starting from the time when the early settlers migrated from the west coast of India, held that the concept of partition under which a divided branch got absolute right in the share of the properties allotted to it was not an incident of the Marumakkathayam law as prevalent in the Amini island and the division effected only conferred on the divided branches the right to enjoy the properties. The ' `mKw ' or petition in relation to the different tavazhies is in the nature of a maintenance arrangement. The divided branches could alienate the Belliazcha properties obtained from the main tarwad only with the concurrence of the reversioners who are the other members of the main tarwad. With regard to the Belliazcha properties acquired by the branches, the branches had absolute right and the last surviving member of the tarwad could dispose of them or convert them into Belasha properties. The learned Sub Judge, however, held that there is no evidence in the case to show that the properties registered in the name of the 1st defendant and included in Ext. The learned Sub Judge, however, held that there is no evidence in the case to show that the properties registered in the name of the 1st defendant and included in Ext. D-14 gift deed were all items belonging to the common Asaroda tarwad or whether they were items acquired by the Beredem tarwad. In the latter case, the first defendant as the last surviving member of the tavazhi could convey them by way of gift to defendants 2 to 8. If not so conveyed they would devolve on the main tarwad as "attaladakkam" heirs. The Subordinate Judge set aside the decree of the trial court holding that the first defendant was not entitled to execute any gift deed or other document in respect of the Belliazcha properties obtained by the Beredem branch tarwad of the 1st defendant from the Asaroda tarwad. The suit was remanded to the trial court with a direction to frame specific issues, whether the suit properties were those obtained from the Beredem tarwad from the Asaroda tarwad and also in respect of the claim for recovery of possession of the properties consequent on the amendment of the plaint. The second appeal is filed challenging the order of remand. 7. The contention put forward on behalf of the appellants is two-fold: (1) The learned Subordinate Judge travelled beyond the pleadings in holding that impartibility was the rule among the Marumakkathayam tarwads in the Islands and in assuming that there was no partition but only a maintenance arrangement among the several branches of the Asaroda tarwad. (2) There exists a custom in the island enabling the last surviving member of the branch tarwad to alienate properties allotted on partition. The claim of the plaintiffs being that they are the 'maranavakasis' of the first defendant, they are entitled to get only such properties of the tarwad as are left undisposed of by him. 8. Regarding the objection based on pleadings, it should not be overlooked that courts of the kind which have been functioning in the main land of India came into existence in Lakshadweep only about a decade back, and prior to that, there were no laws in force in the islands regulating procedure or pleadings. The people of the islands were mostly illiterate. The people of the islands were mostly illiterate. It would appear that until recently, the only enactments in force in the islands were the Laccadive Islands and Minicoy Regulation, 1912, the Madras State Prisoners Regulation, 1819, the State Prisoners Act, 1858 and the Schedule District Act, 1817. For the first time a period of limitation of 3 years was fixed for civil suits as per an amendment of the Regulation of 1912, introduced in 1926. Regular Courts and administration of justice as found in the main land were introduced in the islands only by Regulation.9 of 1965 which was brought into force from 1st November 1967. Regulation.8 of 1967, which came into force on 1st October 1967 enabled the President of India to extend the application of some of the pre constitutional statutes of the main land to Lakshadweep. The Civil procedure Code and the Criminal Procedure Code were made applicable to the Lakshadweep with effect from 1st November 1967. Even though Malayalam is the mothertongue of the people in the islands (except in places where Mahi is the language of the people), there are many peculiarities in pronunciation idiom and vocabulary. Until recently, pleadings were in the form of petitions to the Monegar. The petitions were not in chaste Malayalam but replete with colloquial expressions. Under the Regulation of 1912, the plaints were to be presented before the Amin having jurisdiction over the suit. No pleader was allowed in any court except with the special permission of the Collector. Even now Mukthiars or unqualified legal practitioners appear for parties to litigation Technical rules of pleadings are not observed by these Mukthiars. So long as the above situation continues courts are rot expected to be too strict in applying rules of interpretation of pleadings. What the parties meant should be gathered from the attendant circumstances and in the light of the prevailing practice in the islands. Therefore, the absence of appropriate words in the pleadings should not be a reason for interpreting the words "bhagom" and "Maranavakasis" otherwise than as understood in the islands. None of the statutes which have been recently introduced in the island deals with the personal law of the inhabitants of the islands or the law relating to devolution of property. 9. Therefore, the absence of appropriate words in the pleadings should not be a reason for interpreting the words "bhagom" and "Maranavakasis" otherwise than as understood in the islands. None of the statutes which have been recently introduced in the island deals with the personal law of the inhabitants of the islands or the law relating to devolution of property. 9. It may be appropriate at this stage to recall that S.21 of the Regulation of 1912 directed that all questions relating to any rights claimed or set up in the Civil Courts of the island should be determined "in accordance with any custom not manifestly unjust or immoral governing the parties or property concerned, and in the absence of any such custom, according to justice equity and good conscience". Therefore, for a decision on the points involved in the case, one may have to find out the custom of the community and whether the custom satisfies the requirements of law. 10. It is generally understood that the early settlers in the island were from the west coast of India and were following the matrilineal form of inheritance prevalent there viz., the marumakkathayam law of Kerala or the Aliyasanthana law of South Canara. The islanders though Hindus originally came under the influence of Arab traders and got themselves converted to Muhammadanism. That was how they happened to adopt Mohammedan Law for succession to personal properties of individual members of the family. R H. Ellis in his book on the Laccadive Islands and Minicoy writes: "Universal local tradition points to the period of anarchy and confusion on the coast which followed the era of Cheraman Perumal at the time when the islands were first occupied. One tradition asserts that the earliest settlers were the shipwrecked members of an expedition that set out from Malabar in quest of the Perumal, who was believed to have gone to Mecca. Whether there is any foundation in fact for this or not, there must obviously have been also a very considerable voluntary immigration, especially of the lower classes, from the coast. The islands supposed to have been peopled first are Ameni, Kalpeni, Androth, Kavaratti and Agatti. Whether there is any foundation in fact for this or not, there must obviously have been also a very considerable voluntary immigration, especially of the lower classes, from the coast. The islands supposed to have been peopled first are Ameni, Kalpeni, Androth, Kavaratti and Agatti. The upper classes of the first four of these islands still claim to trace their descent from Nayar or even Nambudiri families on the mainland, and these islands are known in consequence as "tarwad" islands in distinction to the other, or Melacheri, islands. That the claim is not unfounded is shown by many of the house names (e.g., Valiya illam, Kaka illam)." The law in the island is dealt with by the author at pages 74 and 75 as follows: "The island law is a curious mixture of the ordinary Mohammedan 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 islands. The reason for applying these terms to the different kinds of property is quite unknown. Velliaricha property is governed by the ordinary Marumakkathayam Law, i.e., descent is through a sister's children, while Tingalaricha property passes to a man's own children under the ordinary Mohammedan Law. The distinction as may be imagined leads to innumerable disputes which are often very difficult of decision. On the Amindivis, if a man has no sons he can constitute his Belaricha property the Belliaricha property of his daughters who become a tarwad within the tarwad so far as hereditary rights to that particular property are concerned. On the Amindivis ancestral property can be the subject of a mortgage but the right of redemption is reserved to the reversioners at the rate of Re. 1 per tree. There was until recent years no idea of property in land. The property consisted entirely of the trees or houses upon the land. A man had a right to plant a coconut in any vacant space provided he did not do so within a recognized distance of an existing tree within which the owner of the tree had exclusive right to plant. It is difficult to say how far even now an idea of property in land has developed. A man had a right to plant a coconut in any vacant space provided he did not do so within a recognized distance of an existing tree within which the owner of the tree had exclusive right to plant. It is difficult to say how far even now an idea of property in land has developed. All trees bear their owner's property mark and it is still a particular number of trees, not particular land that is given to a tenant. On the other hand, there is a growing tendency to demarcate the ground and to define plots of trees by boundaries in documents. The old system of planting has resulted in an extraordinary mixing up of properties, one man's trees being mixed up with another's in a way that is a fertile cause of disputes and adds considerably to the difficulty of selling them." 11. The Gazetteer of India -- Lakshadweep, by N. S. Mannadiar published in 1977 deals with property and inheritance in the islands at pages 97 and 98. "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. 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. The property is enjoyed by the joint family, consisting of brothers, sisters and sister's children. The children are not entitled for any share in the joint family property of their father. The property is managed by the eldest male member known as Karanavan. He is responsible for the upkeep of the trees in the land and for effecting improvements to the Tarwad properties. He can mortgage the Tarwad property for debts incurred and can also repay debts from the income therefrom. He has, however, no right to alienate or sell any portion of the joint family property. The Tarwad properties can be partitioned only with the consent of all members of the Tarwad. However, there are local variations in the criteria for partition. He can mortgage the Tarwad property for debts incurred and can also repay debts from the income therefrom. He has, however, no right to alienate or sell any portion of the joint family property. The Tarwad properties can be partitioned only with the consent of all members of the Tarwad. However, there are local variations in the criteria for partition. In Kavaratti and Agatti, for example, all the members of the joint family are eligible for one share. In Androth and Kalpeni, on the other hand, division of properties is between branches or tavazhis of the family. A tavazhi does not possess the right to mortgage or sell the Tarwad property so divided and has only the right to enjoy the income from property during the lifetime of the members of the tavazhi. Self acquired or personal property is governed by Mohammedan Law of succession. Here also there are variations in different islands .............." 12. The parties to the present suit being natives of the Amini Island, the issue involved here is the custom prevailing in that island. The definite case of the plaintiff is that even in cases where tarwad disintegrates into separate units or tavazhis, the members of the different branches do not have the right to alienate or otherwise dispose of the properties of the tarwad in the possession of their respective branches. Such properties being properties of the tarwad revert to the tarwad. The members of the remaining tarwad are known as the reversioners or Maranavakasis of the extinct branch. If the last surviving member of a particular branch wants to convert the properties of the tarwad (Belliazcha properties) in his possession and deal with them as his private properties (Belasha properties) he may have to seek the permission of the reversioners. If such properties are the properties acquired by his branch only, in the absence of other members of the branch he may dispose of them during his lifetime; if undisposed of, they devolve on the other members of the tarwad as is the case with 'attaladakkam heirs' under Marumakkathayam Law. 13. The plaintiffs in this case have produced a number of documents to prove the above custom. Ext. A-18 is the certified copy of the order in C.S. 60, 62 and 69 of 1947 of the Monegar Amindivi. 13. The plaintiffs in this case have produced a number of documents to prove the above custom. Ext. A-18 is the certified copy of the order in C.S. 60, 62 and 69 of 1947 of the Monegar Amindivi. One Thacheri Hamsa Musaliar requested for the conversion of 10 p.c. of his Belliazcha property (coconut trees) as Belasha as he wished the items to devolve on his wife and children. Melacheri Kidave Koya and Pakkinada Abusala Koya, who were his reversioners, objected to the conversion. The prayer was dismissed holding that "according to the island custom, Belliazcha properties cannot be ordered as Belasha without the consent of the reversioners". 14. Ext. A-19 is the order in C.S. 65 of 1961 of the Tahsildar, Amindivi, on a petition filed by Beliabeli Abdulla of Amindivi for converting certain Belliazcha properties obtained by him in partition as Belasha. The reversioner objected. An issue was framed -- "If after a razi is made between two parties regarding the partitioning of their properties, is one of the parties competent under the Island custom to dispose of as he pleases the property to his share as per the razi". The decision was that he could not without the consent of the reversioners. 15. Ext. A-20 is the order in Civil Case 100 of 1932. Two brothers who were the last surviving members of Nellala family sought approval of the Monegar of Aminidivi to a partition of their properties. It was reported by the assessors that the object was to convert the Belliazcha properties to Belasha properties which they could not do without the consent of the reversioners of the family. 16. Ext. A-22 is the order in C.S. 139 of 1953 on the file of the Tahsildar, Aminidivi. Pandaren Mohammed of Amini claimed to be the reversioner of Pallikunnel Amina and wanted certain transfers effected by the latter of Belliazcha properties to be declared null and void. According to the plaintiff, Melepandaran, the house of the plaintiff is the house from which Beliapandaran and Pallikunnu houses separated. When Beliapandaran house became extinct its properties reverted to Pallikunnu house the nearest reversioner. The claim was that on the extinction of the Pallikunnu house, the properties reverted to tarwad house viz., Melepandaran house of the plaintiff. The claim was upheld and the plaintiff was held to be the reversioner of the Belliazcha properties of Pallikunnel house. 17. In Ext. When Beliapandaran house became extinct its properties reverted to Pallikunnu house the nearest reversioner. The claim was that on the extinction of the Pallikunnu house, the properties reverted to tarwad house viz., Melepandaran house of the plaintiff. The claim was upheld and the plaintiff was held to be the reversioner of the Belliazcha properties of Pallikunnel house. 17. In Ext. A-23 although the objectors failed to prove that they were reversioners of the petitioners, it is seen admitted by both parties that conversion of Belliazcha properties into Belasha is allowed by Island custom only with the consent of all the reversioners. 18. The said custom is also recognised in Ext. A-25, the order in S.C. 106 of 1950. The following passage in Ext. A-25 throws some more light on the custom prevalent in the Island: "It is clear from Exts. D-3, D-6 and D-7 that a property not originated from the tarwad can be converted into Belliazcha or Belasha by the members of the family that acquired the property and that the reversioners who claim title by virtue of their relationship with the original tarwad house have no voice in the matter. As already explained any condition incorporated in Ext. P-1(a) which is repugnant to Island custom and usage cannot have any value whatever. In this case the property was the self acquired property of a karanavan of Nellala house as seen from Ext. D-9 and, therefore, the last member of the house viz., the late Nellala Kaderkoya could convert it into Belasha and dispose it of as he has done under Ext. D-3." 19. The defendants placed reliance on Exts. B-6, B-7, B-13, B-27 and B-28 in support of their case that the first defendant had disposable right in respect of the properties which stood registered in his name under Ext. B-1. But both the courts below rejected the documents as they did not relate to transactions in the Amini Island. Since, as mentioned in authorities cited above, the custom followed may not be the same in different islands, no reliance can be placed on the above documents. 20. Apart from the documents referred to above, the plaintiffs have produced other documents to prove transactions in their own tarwad which would also prove the above custom. In R. C. 32 of 1901, the proceedings which are borne out by Ext. A-15 [translation of which is Ext. A-15(a)] and Ext. 20. Apart from the documents referred to above, the plaintiffs have produced other documents to prove transactions in their own tarwad which would also prove the above custom. In R. C. 32 of 1901, the proceedings which are borne out by Ext. A-15 [translation of which is Ext. A-15(a)] and Ext. A-16, Ummathumma, the last surviving member of Bappachi Nallala branch of Asaroda tarwad wanted to settle her house and 50 coconut trees on Asaroda Beeyasha. Beredem Saina and Kaniyam Beyosa objected. The Monegar took the opinion of assessors and found that the custom of the island did not permit the petitioner to direct that the Belliazcha properties of her tarwad should devolve on particular persons but that she could dispose of those properties with the concurrence of the reversioners. It was also held that since Ranakkal and Beredam branches separated from the Asaroda tarwad earlier than Kaniyam and Bappachinallala those branches were not competent to object to the disposal of the property. Their rights still remained vested in the tarwad and they would be getting their rights when they return to the tarwad. The objections of Asaroda and Kaniyam were upheld and with their concurrence, the petitioner was allowed to dispose of twenty five coconut trees. 21. Ext. A-4 is the order in Revenue Case 113 of 1121 of Monegar Aminidivis Islands permitting the first defendant and his mother (petitioners 3 and 4) to convert a portion of their Belliazcha properties as Belasha. Petitioners 1 and 2 therein were Asaroda Hussainkutty and Kaniyam Beyasha. The transfer was effected on condition that the first defendant and his mother would not encumber their remaining Belliazcha properties of Beredem thereby indicating that the objectors were the reversioners of the Beredam tarwad. In Ext. A-3, there is a categoric admission by the first defendant and his mother that Asaroda and Kaniyam are the "maranavakasikal" (which according to the plaintiffs means reversioners) of Beredam. 22. Ext. B-16 is the copy of a petition by Konikkam Kadeesabi, wife of the first defendant in Revenue Case No. 24 of 1927 for registering the Beredam house and the land and the trees appurtenant thereto in her name, on the ground that the same had been gifted to her by the first defendant and his mother. In Ext. 22. Ext. B-16 is the copy of a petition by Konikkam Kadeesabi, wife of the first defendant in Revenue Case No. 24 of 1927 for registering the Beredam house and the land and the trees appurtenant thereto in her name, on the ground that the same had been gifted to her by the first defendant and his mother. In Ext. A-7 order, it is stated that the first defendant had no exclusive title in the item and no alienation could be effected without the concurrence of the reversioners. Ext. A-5 is the razi signed by the first defendant, Asaroda Kadirkoya and Kaniyam Beyasha and others. Therein, it is stated that the first defendant would not do any acts in respect of the Beredam properties which would prejudice the "maranavakasikal" and that he would not put forward any claim to the properties of the Asaroda tarwad. The first defendant is seen to have signed in the razi. The transfer of the Beredam house was allowed as per the terms of the razi. 23. Ext. A-8 is the order in Revenue Case No. 80 of 1928. Ranakkal Kadirkoya and Ranakkal Kadisabi requested for the partition of their Belliazcha properties. Subsequently a razi was filed by them along with members of the Asaroda and Kaniyam houses for declaring the items as their Belasha properties. The terms of the razi were not admitted by the members of the Asaroda house stating that they agreed to the conversion of 100 coconut trees alone as Belasha properties. Ext. A-9 is the objection filed by the 1st defendant against the conversion on the ground that he was a reversioner of the petitioners. Ext. A-10 is the statement of the first defendant. He admitted that on his death the properties of his house (tavazhi) would go to Asaroda. The implication is that the consent of the Asaroda branch was required for the conversion of his tavazhi properties into Belasha. Exts. A-11, A-12 and A-13 relate to devolution of the Belliazcha properties of Ranakkal Kadeesabi of Ext. A-8. Ext. A-12 is the razi in C. S.216 and 15 7 of 1946 under which the 1st defendant of Beredam and the Asaroda and Kaniyam branches made a division of the properties among themselves. They described themselves as the 'maranavakasi' of Ranakkal Kadisabi. 24. A-8. Ext. A-12 is the razi in C. S.216 and 15 7 of 1946 under which the 1st defendant of Beredam and the Asaroda and Kaniyam branches made a division of the properties among themselves. They described themselves as the 'maranavakasi' of Ranakkal Kadisabi. 24. A contention was raised by the appellants (defendants) that what is claimed by the plaintiffs is only that they are the 'maranavakasi' of the 1st defendant and that this meant only that if any property was left undisposed of by the 1st defendant they would devolve on the plaintiffs. In other words, according to the appellants, the right that the respondents plaintiffs have is only in the nature of attaladakkom, prevalent in marumakkathayam tarwads. This does not appear to be correct. From the documents produced, what is made out is that in the case of Belliazcha properties obtained from the main tarwad, the last surviving member of a branch which separated therefrom has no disposing power, in respect of tarwad properties otherwise than with the concurrence of the reversioners. The term 'maranavakasi' in such cases is a loose term used for "reversioners". This is made clear at page 8 of Ext. A-22, the order in C. S.139 of 1953. 25. In Ext. A-15 (a), the proceedings in R. C. 32 of 1901 filed by the last surviving member of Bapichanallala, the Monegar states: xxxxxxx In Ext. A-10, The Statement of the 1st defendant in Revenue Case 80 of 1920 is as follows: xxxxxx 26. It would appear from the above that from the main Asaroda tarwad the Ranakkal branch left the tarwad house first and then the Beredam branch of the first defendant followed by the Bappichanallala branch. It was, thereafter that the Kaniyam branch separated. The remaining members form the present Asaroda branch. What is gathered from Ext. A-10 and Ext. A-15(a) is that when a branch wants to convert Belliazcha properties into Belasha, the concurrence of the branches which left the tarwad earlier need not be taken because the presumption is that the properties would revert to the main tarwad, and the branches which went away earlier would get them on their return to the main tarwad. It is also open to the branches to divide the properties among themselves for engagement as was done in Ext. A-12, the razi in C.S. 216 and 157 of 1946. It is also open to the branches to divide the properties among themselves for engagement as was done in Ext. A-12, the razi in C.S. 216 and 157 of 1946. The necessary inference is that as per the custom followed in the island the first defendant had no disposing power in respect of the Belliazcha properties which are to revert to the main tarwad, without the concurrence of the members of the Asaroda. 27. The learned Munsiff found that the above rule of custom is opposed to Art.19(1)(f) of the Constitution of India and as such it is not enforceable in a Court of law after the Constitution came in to force. Reliance was placed on the decision in Nallakoya v. Administrator Laccadives (1967 KLT 355). In that case as per a razi filed in the Amin's Katchery of Androth two tavazhies of Sheikriyammadath, an ancient tarwad of the island agreed that the properties of the tarwad should be managed by two brothers, Sheik Koya and Muthu Koya who formed a tavazhi, that they should pay half the income to the tavazhi of the petitioner in the case and that in case of default, the properties should be divided by metes and bounds. Alleging that half the income was not paid, Saudabi of the petitioner's branch brought a Civil suit for partition. The matter same up before the Administrator. The Administrator ordered division, but while doing so, directed that in the light of the custom prevailing in the island the properties should not be alienated, sold or hypothecated even after partition. The petitioner filed an application for a writ of certiorari or other writ or order for quashing the above direction of the Administrator. Mathew, J. referred to Art.19(1)(f) and the decisions of the Supreme Court in Babu Ram v. Baijnath Singh ( AIR 1962 SC 1476 ) and Sant Ram v. Labh Singh ( AIR 1965 SC 314 ), and observed: "Here, we are concerned with a custom of total prohibition against any alienation of properties given on partition in the context of the fundamental rights conferred on the people of the country; and any amount of recognition given to that custom by the courts in the Islands or the parties in their transactions cannot make it reasonable. If that be so, the custom has become void after the advent of the Constitution". 28. If that be so, the custom has become void after the advent of the Constitution". 28. The learned Judge, however, held that "the High Court cannot under Art.226 or 227 quash an order of a court of competent jurisdiction on the ground that the order violated the fundamental right under Art.19(1)(f)." The petition was accordingly dismissed. 29. The learned Subordinate Judge did not follow the above decision. According to the learned Judge, "here a divided tavazhi (or the last member of it) is not entitled to alienate the Belliazcha properties obtained from the original tarwad not because of any custom imposing a restraint on the power of alienation of the share, but because of the custom by which an absolute partition was not effected and absolute rights were not created in the tavazhies." The learned Subordinate Judge held that under the law prevailing in the island, the members of the tarwad do not partition their properties in the sense in which the term partition or ' `mKw ' is understood under the codified Marumakkathayam law and the division that is effected is in the nature of maintenance arrangement and, therefore, the properties remain all the while the properties of the tarwad. When any tavazhi becomes extinct the property till then enjoyed by it reverts to the other members of the tarwad. 30. I think that the learned Subordinate Judge is right in holding that partition in the sense in which it is known in the Marumakkathayam law as administered in the main land was not in vogue in the Amini Island. The passages from the book of Ellis and the Gazetteer of India; Union Territory of India, Lakshadweep extracted above confirm the above conclusion. It is more or less clear that the early settlers in the island migrated from the west coast of India at a time when Marumakkathayam law was not codified. Impartibility was the rule as far as early Marumakkathayees were concerned. Sri P. R. Sundara Iyer who is recognised as an authority on Malabar and Aliyasanthana Law states in his book on the subject that so far as Malabar is concerned the law of impartibility has been laid down by the highest Court ever since 1814 (See page 14). Impartibility was also a feature of the Aliyasanthana law in early times. (See page 245 - Sundara Iyer's Malabar and Aliyasanthana Law). 31. Impartibility was also a feature of the Aliyasanthana law in early times. (See page 245 - Sundara Iyer's Malabar and Aliyasanthana Law). 31. The following passages in Manual of Malabar Law by Kadaloor Ramachandra Iyer (1883) would also throw some light when partition was inferred in later years: (MALAYALAM) In his outlines of Marumakkathayam Law as administered by the High Court of Travancore (1884) W. E. Orrby has referred to the following observations in Art.218 of 1054: "There can be no doubt that in theory division is wholly opposed to the principles of Marumakkathayam Law. According to that law all members live together enjoying an absolute community of goods, the males of the family succeeding in turn to the Managership of the entire family possessions". (See page. 2). "Where in a deed allotting property for separate enjoyment a provision is entered that the parties in possession are not to alienate, such provision will be evidence that a mere family arrangement and not an absolute division was intended. (S. A. 59 of 1054)." (See page 3.) 32. M. P. Joseph in his book 'the Principles of Marumakkathayam Law' (1926) writes: "It is usual in Marumakkathayam tarwads to allot specific immovable properties in lieu of maintenance. The allotment may be to a branch or to an individual. The right of the allottee is to use the usufruct of the lands thus allotted for their maintenance. The corpus remains with the tarwad" 33. The earliest of the statutes in the west-coast dealing with Marumakkathayam law, viz., The Travancore Regulation of 1088 (1913) did not provide for partition. The Cochin Nair Act of 1095 which came into force in June, 1920 allowed partition only among tavazhies and no member was entitled to claim division from the other members of the tavazhi during the life time of his or her lineal ascendant in the female line. The Madras Marumakkathayam Act of 1932 was also in the above line. The privilege of individual partition was conferred on the members of a tarwad only in the subsequent statutes in the respective areas in the main land. 34. The customary law relating to partition prevailing in the Amini and other islands of the Lakshadweep has to be appreciated in the above setting. The privilege of individual partition was conferred on the members of a tarwad only in the subsequent statutes in the respective areas in the main land. 34. The customary law relating to partition prevailing in the Amini and other islands of the Lakshadweep has to be appreciated in the above setting. The expression 'partition' has also to be understood in the background that property in the island, at any rate, until recently, consisted of trees and not the land wherein they stood. If the right to the usufructs of the trees and not the land itself formed the basis of partition, the concept of partition in early times could not have taken in a division of the land where the trees stood. If the people in the island originally consisted of those who migrated from the West coast such migration must have taken place at a time when the Marumakkathayam law did not recognise partition. If that be so, the people who migrated could have carried to the island only the law as it existed in the main land at the time of migration. It is possible that when the number of members of individual tarwads increased, some of them started living separate from the main tarwad houses and by arrangement among the members, the members who left the tarwad houses must have taken with them particular properties for their maintenance. From the fact that right of reversion vests in the branches and concurrence of the other branches is required for alienation of the Belliazcha properties of a branch, it is clear that the members of each of the branches or units of the tarwad retained rights in the properties of the tarwad held by the other branch tarwads. In other words, the tarwad must be deemed to be in existence so far as those properties are concerned. Such properties remain properties of the main tarwad and the possession thereof by individual branch tarwads is only for the purpose of convenient living. 35. In the passage quoted already, from the book by Ellis, it is mentioned that in Aminidivis, a man without male issues could constitute Belasha properties as Belliazcha properties of his daughters in which case the daughters would become a tarwad within a tarwad so far as hereditary rights in that particular property are concerned. 35. In the passage quoted already, from the book by Ellis, it is mentioned that in Aminidivis, a man without male issues could constitute Belasha properties as Belliazcha properties of his daughters in which case the daughters would become a tarwad within a tarwad so far as hereditary rights in that particular property are concerned. It is not unlikely that the branch tarwads who live away from the main tarwad also have similar properties of their own which are different from the properties of the main tarwad. There are no materials available which suggests that the other members of the main tarwad have any right in such properties unless they are left undisposed of by the tavazhi or branch tarwad concerned or the last member thereof, on its becoming extinct. Leaving such properties apart what emerges from the above details is that the reversionary right that vests in the members of one tarwad in respect of the properties in the possession of another tarwad is by virtue of their being branches of one main tarwad to which the properties still belong. There is no evidence that a regular partition in the sense in which it is understood in the main land has taken place among the branches. 36. How far Art.19(1)(f) of the Constitution has application in relation to the restrictions on alienation of tarwad properties in the possession of the last surviving member of a branch tarwad has to be decided in the light of the evidence discussed above. Under Art.19(1)(f), all citizens have the right to acquire, hold and dispose of property. The right of disposal in the context in which it is mentioned presupposes right to hold the property. An individual member of a tarwad has no right to hold an item of property belonging to the tarwad otherwise than in his capacity as member of the tarwad. In other words, the ownership of the property vests in the tarwad, and, therefore, the right of disposal is available only to the tarwad. It is the right of every member of the tarwad, under the customary Marumakkathayam law to see that the properties of the tarwad are conserved and to object to any improper alienation. The concurrence of the reversioners that is mentioned in the different documents referred to already is only an incident of the membership of the tarwad which owns the property. The concurrence of the reversioners that is mentioned in the different documents referred to already is only an incident of the membership of the tarwad which owns the property. The very fact that the property can be disposed of with the concurrence of the reversioners who are also members of the tarwad shows that there is no prohibition against alienation by the tarwad. 37. In Nallakoya v. Administrator, Laccadives ( 1967 KLT 395 ) already referred to, the Administrator in whom judicial powers had been conferred prior to the constitution of regular courts ordered division of the Sheikriyammadath tarwad and made a direction apparently basing on some custom prevailing in the Androth island that the properties so divided should not be alienated, sold, gifted or hypothecated even after partition. The contention raised in the writ petition was that no such custom was proved in the case and that even if proved, it offended Art.19(1)(f) of the Constitution. The petitioner had also a case that no opportunity had been given to him to produce the necessary documents. The learned Judge did not accept the case that no opportunity was afforded to the petitioner to adduce evidence and observed that there were several instances where the parties "proceeded under the compulsion of a conviction" that the custom prohibiting alienation existed in the island. Though it was held that the custom offended Art.19(1)(f) of the constitution, the learned Judge did not quash the order of the Administrator for the reason that powers under Art.226 and 227 of the Constitution are not to be invoked for quashing the order of a court of competent jurisdiction. Though the petitioner filed an appeal against the above decision, it was dismissed on the sole ground that the petition filed under Art.226 and 227 was not maintainable. See Nallakoya v. Administrator Union Territory of Laccadives ( 1968 KLT 60 ). Whatever be the custom prevailing in the island, there is no doubt that the Administrator's order in the case exhibited absolute prohibition of alienation of properties and as such violated Art.19(1)(f) of the Constitution. But the decision has no application in the instant case. In the first place, the authorities of Ellis and the Gazetteer of India Lakshadweep show that when it conies to details there are variations in the customary law prevalent in the different islands. But the decision has no application in the instant case. In the first place, the authorities of Ellis and the Gazetteer of India Lakshadweep show that when it conies to details there are variations in the customary law prevalent in the different islands. The judgment in the case does not reveal whether the Administrator had occasion to examine the documents produced by the parties in the background of the theory of absence of right to partition in pristine Marumakkathayam law. It is not made out whether according to the custom of the Androth Island the property in the possession of the branches reverts to the main tarwad and whether for transferring the properties in the possession of a branch the concurrence of the other branches is required. The observations of the learned Judge that a custom prevailed in the island prohibiting alienation of land and that it violated Art.19(1)(f) are in the nature of obiter dicta because the Court disposed of the case on the preliminary ground that an order of a Court of competent jurisdiction is not to be interfered with by the High Court either under Art.226 or under Art.227 of the Constitution. This means that the Administrator's order prohibiting alienation was not interfered with. 38. The foregoing discussion shows that the custom in the Amini island of obtaining concurrence of the reversioners before converting Belliazcha properties into Belasha properties of a branch has its origin in the concept that the properties belong to the common tarwad and are in the possession of the branches, the constituent units of the tarwad. The custom of getting concurrence of the reversioner is intimately connected with the right of reversioners to get the properties in case a branch becomes extinct. The right of a branch to deal with the properties is thus circumscribed by the right that the reversioners have in the items. A branch which is in possession of the properties of the tarwad holds them only subject to the right of the reversioners to object to any alienation made without their concurrence. Such a restriction is necessary to conserve the interests of the other branches which constitute the common tarwad. In the nature of things the restriction on alienation is not unreasonable. To borrow the words of the Regulation of 1912 the custom is not manifestly unjust or immoral and there is no violation of Art.19(1)(f). Such a restriction is necessary to conserve the interests of the other branches which constitute the common tarwad. In the nature of things the restriction on alienation is not unreasonable. To borrow the words of the Regulation of 1912 the custom is not manifestly unjust or immoral and there is no violation of Art.19(1)(f). Any change in the existing state of things is possible only by appropriate changes in the prevailing custom by legislation or otherwise. 39. Both the trial court and the Subordinate Judge held that there is no evidence whether the properties in the gift deed executed by the 1st defendant were Belliazcha properties which the Beredem branch got from the Asaroda tarwad or as a branch of that tarwad or whether they were properties acquired exclusively by the Beredem tarwad for the benefit of that branch. The learned Subordinate Judge was, therefore, right in remanding the case to the trial court in order to find out whether the properties registered in the name of the 1st defendant and included in the impugned gift deed really belonged to the main Asaroda tarwad or whether the items were acquired exclusively for the benefit of the Beredem branch. If they or any of the items belonged to the Beredem branch, the 1st defendant as the last surviving member of the branch should have the right of disposal. The trial court will also decide the issue relating to recovery of possession of the items consequent on the amendment of the plaint. The Court may consider how far the undertaking by the first defendant borne out by Ext. A-3, Ext. A-4 and other documents would affect the right of parties. The second appeal is dismissed. The parties will bear their respective costs.