Mohamed Sandhukhan Rowther v. Ratnam And Others

P.V. Rajamannar, C.J.

1. These two appeals arise out of O. S. No. 65 of 1949 filed in the court of the Subordinate Judge of Madurai, by Ratnam alias Kadir Bibi Ammal. 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.

2. 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 Hindu family and on the death of the plaintiff's father the properties in suit passed in their entirety 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.

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

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 success on is true, valid in law, and binding upon the plaintiff.

The suit came up for trial and was decreed on 18th 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 Ayisumma v. Mayomoothy Umma, ( 66 Mad LW 19: AIR 1953 Mad 425) (A) and Syed Unnissa v. Rahimuth Unissa, ( 66 Mal LW 57: AIR 1953 Mad 445) (B).

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 lauds 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 ( 66 Mad LW 57: AIR 1953 Mad 445) (B), he was not letting in any oral evidence on issue No. (1) 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 referred 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 set 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 a fourth share in the plaint schedule properties in favour of the plaintiff. It is against this decree that the first defendant has filed App. No. 1054 of 1953 and this is the main appeal.

4. Mr. S. Ramachandra Aiyar, the learned counsel for the appellant, relied on the later ruling, of a Bench of this court in Abdurah man v. K. Avoomma, 1956 1 Mad LJ 119: (AIR 1956 Mad 244) (C) and contended that the view taken in ( 66 Mad LW 19 : AIR 1953 Mad 425) (A), mat after Central Act of 1937 and the Madras Act of 1949, the Muslim Personal law applied in all cases of property rights so far as Muslims are 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. Bhashyam, on the other hand, contended that after the Shariat Act of 1937, neither the Hindu Law nor custom applied at all to Muslims in respect of any property rights. In any event, in the present base the Shariat Act clearly applied because it was a case of succession. We cannot accept this contention in view of the definite pronouncement of the Bench in 1956 1 Mad LJ 119: (AIR. 1956 Mad 244) (C). 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 in the Central Act or in the Madras Amendment which attempted to specify the properties to which the rules of intestate 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 intestate succession but 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 Muslims. 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.

5. Some point was sought to be made by Mr. K. Bhashyam for the plaintiff-respondent that the endorsement referred only to ( 66 Mad LW 57: AIR 1953 Mad 445) (B), and that decision had not been held to be bad law, nor was there anything in that decision which can be said to have been overruled by the subsequent Bench decision in 1956-1 Mad LJ 119: (AIR 1956 Mad 244) (C). 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 apply relying on the decision of Basheer Ahmed Sayeed J. in ( 66 Mad LW 19 : AIR 1953 Mad 425) (A).

This decision was cited apparently with approval in the later decision in ( 66 Mad LW 57: AIR 1953 Mad 445) (B), which is more concerned with the Amending Act, 1949 and its applicability to pending proceedings. It is quite clear that read together these two derisions undoubtedly had the effect of shutting out all evidence of any custom such as was pleaded by defendants 1 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 ( 66 Mad LW 19: AIR 1953 Mad 425) (A), and which had practically been affirmed by Krshnaswami Navudu J. in ( 66 Mad LW 57 : AIR 1953 Mad 445) (B).

6. It was next contended by Mr. Bhashyam 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. Bhashyakarlu Naidu ILR 25 Mad 367 (PC) (D) which Mr. Bhashyam has referred to has no bearing on this point.

7. We are therefore of opinion that there should be a finding on issue No. (1) after an opportunity is furnished to both sides 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 the 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.

8. Mr. Bhashyam 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.