SYED UNNISA Vs. RAHIMUTHUNISSA AND ORS.
HIGH COURT OF MADRAS
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Krishnaswami Nayudu, J. -
(1.) THIS second appeal mainly raises the question of the scope and applicability of the Muslim Personal Law (Shariat) Application Act, Act No. 26 of 1937. The plaintiffs claiming to be the daughter and widow of one Fakruddin instituted the suit for a declaration that they are entitled to enjoy the properties mentioned in the plaint, manage the durgah, perform the Urs festival and receive all the incomes, endowments and perquisites thereof once in every eight years according to their turn on the ground that the properties originally belonged to four Mussalmans and they have been enjoyed from time immemorial for a number of generations in four equal shares by the respective descendants of four persons mentioned and that the plaintiffs and the defendants are the descendants of one Shaikh Mohammed. Their case is that their turn conies once in every eight years. In 1926 during their turn they performed the Urs festival and in April 1934 when arrangements were made for the celebration of the Urs festival there was objection by the defendants and therefore they sued for the declaration and injunction. Defendants denied the allegations as to the plaintiffs taking part in the Urs celebrations in 1926 and it was contended that the properties having been endowed as inams for the purpose of the maintenance of the suit Durga and rendering of religious services, the surplus income after meeting all the expenses was to be taken by the office -holder, and that the terms of the grant and immemorial custom governing institutions of this kind and the rules of Mohammadan law governing the parties prohibited the plaintiffs who are female members taking part or participating in the management of such institutions and enjoying the perquisites of the office. Both the Courts below have found against plaintiffs on the question of the custom pleaded and rejected their claim.
(2.) A great volume of evidence has been adduced in proof of the custom which has been elaborately dealt with by the trial Court and considered with approval by the learned Subordinate Judge who held that it has been established by unimpeachable evidence that the custom pleaded by the defendants was true. I am not persuaded to hold a different view other than that taken by the Courts below as regards the existence of the custom pleaded. Long course of events for nearly over a century and oral and documentary evidence have, in my view, established the essential attributes of a legally binding custom. But for the custom, it is not suggested that the Muslim Personal Law (Shariat) would debar the female members from taking part in the management of such institutions. During the hearing of the appeal the attention of the learned Subordinate Judge was drawn to a piece of legislation which became law relating to Succession and Inheritance governing Muslims (viz.) the Muslim Personal Law (Shariat) Act 26 of 1937. The learned Subordinate Judge disposed of the question by observing that the Act cannot apply to the present case as the suit was instituted prior to the Act taking effect. The appeal was disposed of on 29 -6 -1946 and by that time, Act 26 of 1937 had not been amended. Section 2 of the unamended Act is as follows :
"Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower,, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and "religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."
This section was amended by the Madras Act 18 of 1949 and the amended section is as follows :
"Notwithstanding any custom or usage to the contrary, in all questions regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, including tallaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."
(3.) THERE ; is no doubt that if the Act is applicable to the parties custom will cease to have any force and their personal law being applicable the plaintiffs would be entitled to participate in the management and to enjoy the emoluments of the trust properties and the prohibition of the female members taking part by reason of custom ceasing to have any effect. Basheer Ahmed Sayeed J. in - - 'M. Ayisumma v. Mayonioothy Umma', C R P No 1116 of 1950 (Mad) in a case relating to the Moplah Muslims whose rights to property were governed by the Marumakatayam law and with reference to a contention that the Marumakatayam Aliyasanthana Act governed the rights of the parties held that by reason of the repeal of Section 16 of the Civil Courts Act by Section G of Act 26 of 1937 after 1937 the customary rule of inheritance by survivorship which was still then applicable to Mappillah Muslims cannot be made applicable by Courts of law in this country and that all customs and usages contrary to the Muslim Personal Law became inapplicable as a rule of decision in cases where the parties were Muslims and that all customary law stood abolished and that the Muslim Personal Law took its place in all matters enumerated in Section 2 of Act 26 of 1937 and it may be added as amended by the Madras Act 18 of 1949.;
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