JUDGMENT
1. The parties, are Moplahs, and neither side pat forward any special plea as to the applicability, to the family they belong to of Marumakkattayam Law or any system other than the Muhammadan. The construction of the stridhanam deed, Exhibit A, will, however, unless it is governed by special custom, depend on which of these systems should be applied.
2. The District Munsif, without stating clearly whether he eventually proceeded on Muhammadan or Marumakkattayam Law or special custom, evidently considered that no ordinarily prevalent law would suffice for the decision of the case. For he referred to his ignorance of the incidents of such a transaction, the absence of authority and the evidence as to those incidents. The lower Appellate Court appears to have held that that evidence, so far as it was in the defendants’ favour, was counterbalanced by the effect of the decision in Packrichi v. Kunhacha 13 Ind. Cas 236 : 36 M. 385 : (1911) 2 M.W.N. 538 : 21 M.L.J. 122. In doing so it assumed what is not clear, that the document then under consideration was similar in terms to Exhibit A and was executed in similar circumstances. It also assumed that this authority was applicable to transactions between members of the plaintiffs’ family and represented a custom binding on all the community, to which they belong, of which the Court could take judicial notice. As observed in Kunhambi v. Kalanthar 24 Ind. Cas. 523 : 16 M.L.T. 17 : 27 M.L.J. 156 the Courts have power to take judicial notice of a custom, only when its existence among the class affected by it has been proved repeatedly before them, – In the present case the lower Appellate Court had before it only one instance of such proof and no clear evidence as to the class then in question, or its identity with that of the present parties.
3. In these circumstances, we cannot accept the lower Appellate Court’s decision and must call for a finding on the issues:
1. Whether the parties are governed by Marumakkattayam or Muhammadan Law?
2. What are the legal incidents attached to Exhibit A as between the parties with reference to special custom, or if special custom is not established, the ordinary law, to which they are subject?
4. Fresh evidence should be taken. Findings will be submitted in two months; and seven days will be allowed for filing objections.
5. In compliance with the above the District Judge of North Malabar submitted the following.
Findings
6. I am required by the terms of this reference to decide-
(1) Whether the parties are governed by Marumakkattayam or by Muhammadan Law?
(2) What are the legal incidents attached to Exhibit A as between the parties with reference to special custom or if special custom is not established, the ordinary law to which they are subject?
2. As regards the 1st issue both sides are agreed that they are governed by Marumakkattayam Law. I find accordingly.
3. As regards the second issue having regard to the 8th paragraph of 3rd defendant’s written statement and to the evidence of the trustworthy witnesses examined before me, I find that the parties are governed as regards the legal incidents of Exhibit A not by special custom, which is not now pleaded on either side, but by the ordinary Marumakkattayam Law. It is proved before me that direct Stridhanam donees cannot mortgage nor alienate their property. In the two panayams that preceded the kanom that forms the subject of the suit the donor joined; so if the kanom was proper so faras the stridhanam right is concerned, she would have been made to join in it. But this was not done.
4. There are two ways of regarding Exhibit A, I am asked by defendants’ Pleader to regard it as merging all previous rights under the stridhanam grants. If this be so, the legal incidents of Exhibit A are that two of the three donees cannot encumber nor part with the property. So the kanom is totally invalid.
5. If, as I hold, Exhibit A conveys the reversion of the rights of the donor to the donees in the stridhanam property already grunted and also a new gift of the house on item No. 2, but without disturbing the stridhanam rights, and arrangements already existing, the preservation of which rights and arrangements is the explanation for the clause forbidding the donees “creating any debts thereon by yourselves” then again the incidents attaching to Exhibit A are such as to make any kanom on stridhanam property invalid. It does not seem to me that Exhibit A is a simple deed of gift but that, as their Lordships have said, it is a stridhanam gift and, therefore, the ordinary incidents of such a gift attached to it, which is also borne out by the action of the executants of the kanom-deed who made their respective husbands attesting witnesses to it, which corresponds to what is said before me in evidence to-day, viz., that whatever may have been the custom long ago, stridhanam gifts are now-a-days invariably made in the names of wives who hand the property over to their husbands for management.
6. This second appeal coming on for final hearing on the 12th of August 1915, after the return of the findings of the District Court upon the issues referred by this Court for trial, and having stood over for consideration till this day, the Court delivered the following.
JUDGMENT
7. The questions that have to be determined in this appeal have reference to the rights of three sisters, the 1st plaintiff and the 1st and 2nd defendants, and of the 3rd defendant who claims under the 1st and 2nd defendants in regard to two parambahs or plots of land.
8. It is admitted that these two plots of land together with a third to which these proceedings do not relate, originally belonged to the mother of the three sisters. The mother purported to grant, on two occasions, certain rights over the two plots of land, and over a house built on the first of the two plots.
9. On the first of these occasions the grants were oral. They have been conveniently, though not very accurately, referred to as stridhanam gifts. They consisted of three separate gifts of the three plots of land respectively made to the sisters at the time when they were married–about 20 years prior to the suit.
10. On the second occasion there was one grant by Exhibit A executed on the 13th August 1902.
11. In 1901, i.e., after the first and before the second of these occasions, the said house had been built by the mother on the first of the plots of ground (which had been granted as stridhanam to the 1st defendant) and that house and the moveables in it are also included in the grant under Exhibit A.
12. As the 3rd defendant derives his title from two of the three sisters (the 1st and 2nd defendants and not from the 1st plaintiff), it is necessary to consider (1) what interest the 1st and 2nd defendants acquired in the first and second items of property under the stridhanam gifts, in order to determine what they were competent to transfer to the 3rd defendant; (2) whether the 1st and 2nd defendants acquired any further interest in the said properties under Exhibit A and if so, (3) whether the interest was transferable and (4) whether it has been validly transferred to the 3rd defendant.
13. The so-called stridhanam gifts were ostensibly made to the husbands of the three sisters. But it has been admitted before us that the real beneficiaries are the sisters themselves, and that the gifts must be construed as though they were to the sisters.
14. There was some dispute before us as to the law by which the various transactions must be governed.
15. In order that we may determine the effect of the stridhanam gifts, Packrichi v. Kunhacha 13 Ind. Cas 236 : 36 M. 385 : (1911) 2 M.W.N. 538 : 21 M.L.J. 122 was cited to us, in which it is stated that under Muhammadan Law a girl when married passes over to her husband’s family, and that there is no obligation on the members of her natural family to maintain her after her marriage, even if she is divorced. But under Muhammadan Law though after marriage the wife goes to live in the house of her husband, there is no severance of the family ties. Her right to maintenance from her blood relations is no doubt suspended so long as she can claim maintenance from her husband. The claim against her husband, however, is lost, on divorce, and then her right against her relations by blood may revive, though she might then be under some other personal disability (such as possession of property) preventing her from claiming any maintenance from her blood relations. But the law of maintenance under Muhammadan Law is somewhat elaborate, and need not be referred to for the present case.
16. In Packrichi v. Kunhacha 13 Ind. Cas 236 : 36 M. 385 : (1911) 2 M.W.N. 538 : 21 M.L.J. 122 it is, however, merely decided that for the reasons stated, the gift which had to be considered in that case did not become void on the wife being divorced. The gift then under consideration was, it seems, similar in the following ‘ respects to the gift in the present case, viz., (1) it was also referred to as stridhanam gift (2), it was mada at the time of marriage and (3) for the maintenance of the wife, (4) but ostensibly to the husband. We see no reason to doubt the correctness of the result arrived at in Packrichi v. Kunhacha 13 Ind. Cas 236 : 36 M. 385 : (1911) 2 M.W.N. 538 : 21 M.L.J. 122 even though the reference to the Muhammadan Law of maintenance was not quite accurate; but it would not affect the present, case in which there is no dissolution of the marriage by divorce or death, and no allegation that the stridhanam gifts had become void. But there are Other difficulties to which we shall allude below in the way of our importing the terms of the gift that was under Consideration in Packrichi v. Kunhacha 13 Ind. Cas 236 : 36 M. 385 : (1911) 2 M.W.N. 538 : 21 M.L.J. 122 into the gift we have to consider.
17. Similar remarks apply to the unreported case mentioned in Packrichi v. Kunhacha 13 Ind. Cas 236 : 36 M. 385 : (1911) 2 M.W.N. 538 : 21 M.L.J. 122. We have, however, looked into the records of Second Appeal No. 1746 of 1895 and we find that the decision was arrived at after evidence had been taken as to custom. That evidence cannot affect the present case.
18. In the present case we have a finding by consent that the parties govern themselves by the Marumakkattayam Law. In determining the appropriate system of law that has to be selected by the Court for deciding any question before it, the fact that the parties have been governing themselves in regard to similar transactions by a particular system of law or by some special custom may be of great assistance; and tie choice of the law is in to me matters made by the Legislature to depend entirely upon this circumstance. But in the present case we find that there is no evidence that the parties considered themselves to be bound, in regard to such transactions as those with which we have to deal, by any specific rule either of a recognised system of law or of custom proved in the present case.
19. Hence in accordance with justice, equity and good conscience the proper course would be to give effect as far as possible to the intention of the parties, unless there is something repugnant to any legislative enactment or to public policy. Nawab Umjad Ally Khan v. Musammat Mohumdee Begum 11 M.I.A. 517 at p. 548 : 10 W.R. 25 (P.C.) : 2 Suth. P.C.J. 98 : 2 Sar. P.C.J. 315 : 20 E.R. 195.
20. The District Munsif was, therefore, right in turning to the evidence in this case for determining what the intention of the parties was when the oral stridhanam gifts were made; and the Subordinate Judge erred in considering that the incidence of the gift referred to in Packrichi v. Kunhacha 13 Ind. Cas 236 : 36 M. 385 : (1911) 2 M.W.N. 538 : 21 M.L.J. 122 (the terms of which were contained in a document) had necessarily to be imported into the gifts in the present case. It is true that if it is known that on certain occasions (e.g. on marriage) gifts are customarily made amongst members of a certain community or other class of persons with specific incidents, and the Court has to determine the incident of a gift made on a similar occasion by a member of the said community, it is legitimate to infer in the absence of something to the contrary that the gift in question must have been with the incidents known to be usual or customary: Indian Evidence Act, Section 114. But this presupposes the existence of some usual or common course of conduct brought within the cognisance of the Judge either by his taking judicial notice of the fact or through evidence adduced before him. Kunhambi v. Kalanathar 24 Ind. Cas. 523 : 16 M.L.T. 17 : 27 M.L.J. 156. In the present case the District Munsif expressly disclaims any experience as to similar gifts, which he says have seldom come before him for decision. Nor does the Subordinate Judge rely on any such experience, but after referring to the evidence, consisting of the 1st plaintiff’s admissions which as he says “would tend to give some support to the 3rd defendant’s contention,” adds “but there is distinct authority for holding that it is not legal and sound” and cites Packrichi v. Kunhacha 13 Ind. Cas 236 : 36 M. 385 : (1911) 2 M.W.N. 538 : 21 M.L.J. 122. That decision as already pointed out turns upon the construction of a particular document of gift. The construction of that gift cannot merely owing to its having some common features affect the decision in the present case, unless in some such way as we have mentioned, e. g., if a common form so to say of such gifts had been within the cognisance of the Court.
21. The Subordinate Judge has already dealt with the evidence and it is clear that he would have arrived at the same conclusion as the District Munsif, if he had not thought that he was bound by authority to come to a different conclusion.
22. The result is that the so called stridhanam gifts must, in the present case, be taken to have been intended to enure for the lives of the donees and their descendants, how low soever, and not terminable on the death or divorce of the donee. With reference to the interests taken by the three donees under Exhibit A, we are of opinion that the principle of Kunhacha Umma v. Kutti Mammi Hajee 16 M. 201 : 2 M.L.J. 226 re-affirmed in the recent Full Bench case Machikandi Parkum Maramittath Tharuvil Mootha Chettian Veettil Ghakkara Kanna v. Varayalankandi Kunhi Pokker 30 Ind. Cas. 155 : 18 M.L.T. 255 : 29 M.L.J. 481 supports the conclusion at which both Courts have arrived, that that interest must have the incidents of tarwad property.
23. The appeal will, therefore, be allowed and the District Munsif’s decree restored with costs here and in the lower Appellate Court.