1. In these connected Second Appeals a question of law has been taken whether a course of devolution of property among females to the exclusion of males is unknown in North Malabar and is repugnant to Marumakkattayam law as followed by Mappillas in that district. The Subordinate Judge and the District Judge who heard the first appeals have come to different conclusions on the point, and the authorities to which the District Judge refers in his judgment are neither clear nor uniform.
2. In Bivi Umah v. Keloth Cheriyath Kutti(1) (1910) M.W.N., 693., an instrument, of gift which limited the descent of property to the female line was held by Collins, C.J., and Parker, J., to be valid. The learned Judges observe that the gift was of the class known as strisothu or henumula and created an estate known to Marumakkattayam usage. They quote Kunhacha Umma v. Kutti Mammi Hajee(2) (1893) I.L.B., 16 Mad, 201., a Full Bench case, which is not however an authority upon the significance and legality of strisothu gifts On the other hand in Kunhamina v. Kunhambi(3) I.L.R. (1909) Mad., 315., Miller and Munro, JJ., refer to a similar gift to females excluding males as being an attempt
3. On the hearing of this Reference before Sir John Wallis, C. J., Spencer, J., and Kumaraswami Sastri, J., on 15th, 16th and 24th March 1921,
2. K. P. M. Menon for appellant, in Second Appeal For, 1493 of 1919 contended as follows:---The point referred does not arise. The gift deed in this case does not disable the males from inheriting the property; it only prevents them from selling or giving; the males have got equal rights of enjoyment. The only peculiarity of strisothu property is that in most cases females alone have the right of management. A gift prescribing a new mode of devolution is illegal; see Kunhamina v. Kunhambi (1). In none of the cases quoted in the Order of Reference this point arose for decision and the facts and decisions in them were different.
3. G. Madhavan Nayar (with B. Pocker).---There are two modes of succession known in Malabar, one through males and another through females; it is open to any one to choose either one or the other. This species of property is recognized as valid in Bivi Umah v. Keloth Cheriyath Kutti(2), and Second Appeal No. 1502 of 1894 (unreported) with reference to the document in question and in. Second Appeals Nos. 1127 and 1128 of 1892 and Soopi v. Mariyoma(3). In Kunhamina v. Kunhambi(1) I.L.R.(1909) Mad., 315., this question did not arise and the decision on this point is obiter. It was a case of competition only between two daughters and not one of competition between males and females. This is a special social custom which must be recognized whether it can be based on any recognized rule of law or not.
4. The Court (Wallis, C.J., Spencer, J., and Kumabaswami Sastri, J.) delivered the following
5. Opinions appear to be conflicting as to the validity among the Mappillas of North Malabar of a gift of property as strisothu or women's property which, it is said, means a gift to a female and her female descendants only, to the exclusion of her male descendants. In Second Appeal No. 1127 of 1892 Mr. Arthur Thompson, the District Judge of Tellicherry, expressed an opinion favourable to the legality of such a strisothu disposition but the High Court, Muthuswami Attar and Best, JJ., disposed of the case on the ground that the suit of the male karanavan questioning it was barred by limitation.
Collins, C.J., and Parker, J.
6. also regarded such dispositions as valid in Bivi Umah v. Keloth Cheriyath Kutti(1) (1910) M.W.N., 693., and in Second Appeal No. 1502 of 1894 with reference to the documents now in suit. A deed of this kind came before Miller and Munro, JJ., in Kunhamina v. Kunhambi(2) I.L.R. (1909) Mad., 315, where the question was whether a gift could be regarded as a gift to the females mentioned therein as tenants-in-common or a gift to the donee and her female descendants as a sort of tavazhi. The Court took the latter view which was sufficient for the disposal of the case. The learned Judges, however, observed incidentally that it had not been contended that the condition of enjoyment could stand so for as it excluded males altogether. For the purposes of the case, it made no difference whether males were excluded or included as the intention to create a tavazhi was clear and that was enough to invalidate a disposition by one of the female donees only. In Soopi v. Mariyoma(3) (1920) I.L.B., 43 Mad., 393, it was not disputed that a woman, described as the Karnavathi, was the manager of the Marumakkattayam tarwad in a question which is referred to by the learned Judges as a strisothu tarwad, but the question whether the male members of the family were excluded from ownership as well as from management did not arise. Mr. Menon contended before us that this is the real meaning of a strisothu gift and that a strisothu tarwad in North Malabar is merely a tarwad in which the right of management is in the senior female instead of in the senior male, according to the system which prevails in the adjoining district of South Kanara with reference to Aliyasantana tarwads, and that otherwise the male members of the family have an equal interest with the females in the tarwad property. He also contended that the question had never arisen directly between the female members of a tavazhi claiming under such a gift and the male members. Coming now to the two suits, which have given rise to this reference, the District Munsif dealing with both suits purported to follow Kimhamina v. Kunhambi (1909) T.L.R., 32 Mad., 315, and held that Marumakkattayam usage only knew of tarwads and tavazhis and that its conception of a tarwad or a tavazhi is that it consists of a female common ancestor and her descendants, male and female in the female line, and that a tarwad or a tavazhi consisting of females only to the exclusion of male descendants of females was a thing so far unrecognized by Marumakkattayam usage. The appeal in one suit came before the District Judge, Mr. Reilly, and the appeal in the other before the Subordinate Judge, the late Mr. K. V. Karunakara Menon. The latter observed in his judgment that it had rightly been conceded before him that the gift deed did not exclude males from participating in the income of the properties, and that all that was contended for was that the right of management was in the females. This contention he rejected obserying that M in Kunhamina v. Kunhambi(1), a gift like this had been held to create a tavazhi consisting of males and females and that the present gift' must be taken to have been made to a tavazhi consisting of males and females. In the other appeal, the District Judge, Mr. Beilly, took a completely different view and held that Exhibit B created what was sometimes known as a strisothu tarwad or tavazhi consisting of a woman and her female descendants who alone have the right of management and that it was unnecessary to consider whether the male descendants would have any right of maintenance. He regarded the observations of Miller and Munro, JJ., in Kunhamina v. Kunhambi(1) (1909) I.L.E., 32 Mad., 315, as the obiter dicta of Judges whose experience had lain in South and not in North Malabar, tie usages of which vary in several respects. The farther observed that instances in which the devolution of property was confined to the females of a family had come to his own knowledge among the Marumakkattayam Mappillas of North Malabar and that he u nderstood that that course of devolution was recognized in South Kanara. Accordingly he held that the male member's of the family were not entitled to question the sale by the female members under Exhibit I.
7. As we regard the decisions and other materials before us as inconclusive we have decided before disposing of the reference to call for a finding from the District Judge of North Malabar in Second Appeal No. 1493 of 1919, in which the question necessarily arises, as to whether according to the custom or usage prevailing among the Marumakkattayam Mappillas of North Malabar property may be settled as strisothu on the female members of a tarwad or tavazhi to the exclusion of the males, or so as at least to authorize the female members to sell the family property otherwise than for necessary tarwad purposes without the consent of the males. Fresh evidence may be taken. Finding will be submitted in two months after the local vacation. Seven days will be allowed for objections.
8. In compliance with the order contained in the above judgment, the District Judge of North Malabar submitted a finding in the negative stating that neither side was ready with evidence to prove the usage and that he was not inclined to grant an oral application for adjournment for producing evidence.
9. On the 5th December 1921, the High Court, after the return of the above finding and on application of the parties to grant further time to adduce evidence made the following
10. Seeing that both sides were not ready on 25th July and applied for an adjournment and that the time allowed for returning a finding did not expire till 18th August, we think that the District Judge might properly have granted an adjournment.
11. Considering the importance of the question at issue, we are not inclined to decide it on the materials on record and we direct the District Judge to give the parties another opportunity for adducing evidence.
12. After the examination of oral and documentary evidence produced before him the District Judge again returned a finding in the negative.
14. When the case came on for hearing again on 21st February 1923 the Full Bench (Spencer, Kumaraswami Sastri and Ramesam, JJ.) gave the following
15. In calling upon the District Judge to record evidence of a custom or usage prevailing in Malabar of males being excluded from tarwads or tavazhies managed exclusively by females of certain Marumakkattayam Mappillas, we discussed in some detail all the decisions in which such a custom might be said to have been judicially recognized or its recognition refused, and we stated that we regarded them as inconclusive. The District Judge was therefore asked to return a finding on such evidence as might be produced before him to prove the existence of the particular custom in question. This he has done, and we agree with him in holding that it is wholly inadequate to prove the prevalence of any custom by which males are treated as having no right to be consulted in the management of the affairs of the tarwad or tavazhi and no right to participate in the income of the tarwad or tavazhi properties. It is not necessary to express any opinion as to the existence of tarwads in which the manager or Karnavathi is a female.
16. We therefore answer the reference made to us in the affirmative.