Mohamed Sandhukhan Rowther vs Ratnam alias Kadir Bibi Ammal and others

Rajamannar, C.J.—These two appeals arise out of 0. S. No. 65 of 1949 filed in the Court of the Subordinate Judge of Madurai, by Ratnam

alias Kadir Bibi Animal. She is the daughter of one Mahomed Abba Hussain Rowther who died on the 1st of May, 1938. The deceased father of

the plaintiff was the son of Mahomed Meera Rowther who had a brother, Nainakhan Rowther, and the contesting defendants 1 and 2 are the sons

of Meerasa Rowther, the son of the aforesaid Nainakhan Rowther The suit was filed for partition of the suit properties which are alleged to have

been left by Abba Hussain Rowther, the plaintiff claiming a half share. The defendants, other than defendants 1 and 2, were mainly alienees of

portions of the suit properties from defendants 1 and 2. The main plea with which we are concerned in this appeal raised by defendants 1 and 2 in

their written statement was that by immemorial custom and ancient usage, the family of the plaintiff and defendants 1 and 2 had been following the

Hindu Law of Property and Succession and not the Muhammadan Law of Succession, that the properties had been enjoyed as Hindu joint family

properties by the plaintiff''s father and defendants 1 and 2 as undivided members of a joint indo family and on the death of the plaintiffs father the

properties in suit passed in their entirely to them by right of survivorship. In paragraph 4 of the written statement it, was further stated that the

female members of the family neither participated in the income of the family estate nor claimed interest therein.

One of the issues raised on this plea, namely, issue No. (1) ran as fallows :

Whether the custom set up by defendants 1 and 2 that they have been following the Hindu Law of Property and excluding female heirs from

inheritance and succession is true, valid in law, and binding upon the plaintiff.

The suit came up for trial and was decreed on 16th February 1953 with defendants 1 and 2 and some of the other defendants remaining ex

parte. Subsequently, however, the ex parte decree as against them was set aside on terms and the suit again came on for trial The learned

Subordinate Judge in his judgment disposing of the suit originally on the 16th February 1953 dealt with issue No. (1) and held against defendants 1

and 2 on this issue following two decisions of this Court reported in Ayusumma v. Mayomoothy 66 L. W. 19 and Syed Unnissa v. Rahimath

Unnissa 66 L. W. 57. The learned Judge had held following them that it was not competent for defendants 1 and 2 to raise the plea in view of the

Muslim Personal Law (Shariat) Application Act, XXVI of 1937 and the Madras Act XVIII of 1949, which had the effect of applying the

provisions of the Central Act to agricultural lands in the estate. When the case came on for trial finally one of the learned Counsel appearing for

defendants 1 and 2, Mr. S. Sankaran, made an endorsement on the plaint that in view of the decision reported in Syed Unnissa v. Rahimath

Unniasa 66 L. W. 57., he was not letting in any oral evidence on issue No. 66 L. W. with regard to the custom set up. Apart from this

endorsement, the learned Judge has expressly noted in his judgment that it was conceded before him that in view of the two decisions above

interred to, it was not open to the defendants to set up that plea. Accordingly no evidence was let in on this plea as regards the custom act up and

the learned Subordinate Judge recorded a finding on issue No. (1) that the custom set up is invalid in law and not binding on the plaintiff. In the

result the learned'' Subordinate judge passed a decree for partition and separate possession of fourth share in the plaint schedule properties in

favour of the plaintiff It is against this decree that the fist defendant has filed App. No-.1054 of 1933 and this is the main appeal.

Mr. S. Ramachandra Aiyar, the learned Counsel for the appellant, levied on the later ruling of a Bench of this Court in Puthiya Purayil

Abdurahiman, Karnavan and Manager of the tavazhi tarwad and Another Vs. Thayath Kancheentavida Avoomma and Others, and contended that

the view taken in Ayusumma v. Mayamoothy 66 L.W.19 that after Central Act of n1937 and the Madras Act of 1949, the Muslin Personal law

applied in all cases of property rights so far as Muslims fire concerned in spite of any custom to the contrary, had been held to be not correct. In

the view taken in the later decision of the Bench he further contended that it was open to defendants 1 and 2 to. establish by evidence the plea

raised by them in their written statement. Mr. K. Bhaahyam, an the other hand contended that after the Sharing Act of 1937, neither the Hindu

Law nor custom applied at all to Muslims in aspect of any property rights. In any event; in the present case the Shariat Act clearly applied because

it was. case of succession. We (sic) accept this contention in (sic)the definite pronouncement of the Bench in Puthiya Purayil Abdurahiman,

Karnavan and Manager of the tavazhi tarwad and Another Vs. Thayath Kancheentavida Avoomma and Others, . It was there pointed out by us

that though S. 2 of the central Act as amended by Madras Act expressly mentioned "" intestate succession"", there was nothing either the Central

Act or in the Madras Amendment which attempted to specify the. properties to which the rules of succession would apply. It is only if there is a

case of intestate succession that the provisions of the Shariat"" Act would apply. But if in a particular case on account of a special custom there was

no question of an intestate succession, then obviously, the Shariat Act could not apply. It is sufficient to quote the following observations from that

decision :

If therefore a Muslim did not have at the time of his death any proprietary interest in property which would descend to his heirs as on in testate

succession hat would survive to other members of the family unit to which he belonged as for example, a tarwad, then, in our opinion, there is no

scope for the application of S. 2 of the Shariat Act.

These observations were no doubt made in a case where it was contended that the property of the deceased Muslim would survive to the other

members of a Malabar tarwad In the present case the plea of defendants 1 and 2 is that the properties would survive to the other members of the

joint family to which the deceased belonged along with defendants 1 and 2, under the custom pleaded by them viz., that the parties followed Hindu

Law in spite of being Muslim If that is established it follows that there is no property left by Muhammad Abbu Hussain Rowther which devolved as

on intestate succession and therefore there was no scope for the application of the Shariat Act.

Some point was sought to be made by Mr. K. Bhashyam for the plaintiff respondent that the endorsement referred only to Syed Unnissa v.

Rahimath Unnissa 66 L.W.57 and that decision had not been held to be bad law, nor was there any thing in that decision which can be said to

have been overruled by the subsequent Bench decision in Puthiya Purayil Abdurahiman, Karnavan and Manager of the tavazhi tarwad and Another

Vs. Thayath Kancheentavida Avoomma and Others, . That endorsement must be read in the light of what had transpired in the Court and which

was recorded in the judgment under appeal. The learned Subordinate Judge had already held in the same suit earlier on the 16th February 1953

that it was the Shariat Act that would supply relying on the decision of Basher Ahmed Sayeed J. in Ayusumma v. Mayomoothy 66 L.W.19. This

decision was cited apparently with approval in the later decision in Syed Unnissa v. Rahimath Unnissa 66 L.W.57., which is more concerned with

the Amending Act, 1949 and its applicability to pending proceedings. It is quite clear that read together these two decisions undoubtedly had the

effect of shutting out all evidence of any custom such as was pleaded by defendants and 2, We have no hesitation in holding that the attitude taken

up by the Counsel for the defendants 1 and 2 namely not to let in any evidence was because of the view taken by Basheer Ahmed Sayeed J. in

Ayusumma v. Mayomoothy 66 L.W. 19, and which had practically been affirmed by Krishnaswami Nayudu J. in Syed Unnissa v. Rahimath

Unnissa 66L.W.57.

It was next contended by Mr. Bashyam that an Advocate was within his authority if he abandoned any issue on any ground whatever and a

party could not go behind such conduct of the Advocate. We are unable to appreciate the contention Here no one is challenging the right of the

Advocate to have represented to the Court that he would not take up the time of the Court unnecessarily by letting in evidence on an issue which

so far as the trial Court was concerned was conclusively prohibited by a decision of this Court. Such an attitude cannot be taken as a deliberate

abandonment of any part of the case of the defendants. An Advocate arguing before a Bench of this Court may not press a point which so far as

this Court is concerned is concluded by a Full Bench decision. But that cannot mean that in a higher Court he cannot urge the ground that the Full

Bench decision is wrong. Actually in this case at the time of the trial, the view taken in a reported decision of this Court had the effect of shutting

out altogether any plea of custom in derogation of the Muslim Shariat law. It was because of this view that the Advocate for defendants 1 and 2

refrained from letting in any evidence on issue No. (1) Now that the view taken in the decision of Basheer Ahmed Sayeed J. had been held by a

Division Bench to be not correct, we think it will be grossly unjust to deny to the defendants 1 and 2 an opportunity of letting in evidence under this

issue which would be open to them now. The ruling in Venkatanarasimha Naidu v. Bhashyaharlu Naidu 25 Mad. 367. which Mr. Bhaahyam has

referred to has no bearing on this point.

We are therefore of opinion that there should be a finding on issue No. (1) after an opportunity is furnished to both aides to let in such evidence

as they may choose to let in under this issue. That issue, however, has to be recast. Any custom merely excluding female heirs from inheritance and

succession cannot be pleaded in view of the provisions of the Shariat Act. If there is property which could be the subject of intestate succession,

then obviously, any custom in derogation of the rules of Muslim Shariat law cannot be pleaded. All that can be pleaded and established, if possible,

by defendants 1 and 2 is that by custom the deceased father of the plaintiff and defendants 1 and 2 should be treated as members of an undivided

Hindu family to which the rule of survivorship would apply. The issue will be recast as follows :

Whether the custom set up by defendants 1 and 2 in paragraph 3 of their written statement that the family of plaintiff and defendants 1 and 2 have

been following the Hindu Law of property is true and whether the suit properties have been enjoyed by the deceased father of the plaintiff and

defendants 1 and 2 as properties belonging to an undivided Hindu family, and therefore the properties passed to defendants 1 and 2 by right of

survivorship.

Both plaintiff and defendants 1 and 2 are permitted to let in such evidence as they may desire on this issue and on this issue only. On such

evidence the learned Subordinate Judge will submit his finding to this Court. Time for submission of the finding, three months from the date of

receipt of records in the Court below. Objections, one week after the receipt of the findings. Mr. Bashyam referred to the fact that the second

defendant himself has not appealed and also made a representation about the costs of the suit and appeal These questions will be dealt with after

the receipt of the findings.