Date of judgement :
25 March 1983
Bench:
Justice N Sundaram
Parties:
Petitioner - Moulvi Mohammed
Respondent -Mohaboob Begum
Issue
Whether a custom allowing adoption would prevail over Muslim Personal law in case of adoption.
Facts of the case
- The appeal for revision was earlier rejected by the same Judge on the 21st of December 1982. At that instance, the respondent was not represented. Consequently, according to the order (C. M. P, No. 2461 of 1983), dated 21st of December 1982 was, dismissed because the respondent offered a persuasive explanation for absence at the time when the revision was heard before and the Court felt that the matter should be disposed of after hearing all the parties.
- The petitioners, Zaina Bi (since deceased) were granted Ryotwari Patta under Tamil Nadu Act 30 of 1963 by the Settlement Officer, by order-dated 28th of April 1979.
- Zaina Bi filed an appeal (C. M. A. 57 of 1979) before the tribunal (Additional Subordinate Judge) of Chingleput and while the said appeal was pending, she died on 21st of July 1980. The petitioners herein are the respondents in the present appeal.
- The respondent in this appeal is the daughter of Chotima Bi (sister of Zaina Bi). Also, it is admitted that the respondent herein cannot, on the above-mentioned reasons, assert herself to be an heir of the deceased, Zaina Bi. She later filed an appeal (I. A. 462 of 1980) to make herself, on record, the legal representative of the deceased appellant, Zaina Bi, and to prosecute the appeal.
- Despite a challenge by the petitioners (who are respondents in this appeal before the Court) the application has been allowed, and the present revision appeal is directed against the judgements of the Tribunal.
Petitioner’s contentions
- The counsel for the Petitioners argued that Muslim Personal Law does not recognize adoption as a mode of lineages or ancestries.
- Enabling the respondent to plead and prove such a Custom which validates her claims that the adopted daughter of the deceased appellant is a legal heir is against the Muslim Personal Laws.
Respondent’s contentions
- The learned counsel for the Respondent succumbs that even though the Muslim Personal Law does not identify adoption as a mode of ancestry, there is a custom that does. Recognizing adoption as a mode of ancestry and that custom stands well-preserved despite the Muslim Personal Law (Shariat) Application Act 26 of 1937.
- The counsel for the Respondent also drew the Court's attention towards Section 2, as amended by the Madras Shariat (Amendment) Act 18 of 1949 and Section 3 (1) of the Shariat Act, and they run as follows- 2. Notwithstanding any custom......Muslim Personal Law. 3. (l). Any person who satisfies......wills and legacies were also specified.
- The counsel further drew the Court’s attention to a former judgment of a Bench of this Court, in the case of Puthiya Purayil Abdurahiman v.T. K. Avoomma1 which supported their statements, that the above-mentioned provisions of the Shariat Act did not in terms abolish the custom and usage in respect of matters other than these enumerated in Sections, 2 and 3 thereof.
Judgement
The High Court observed that as per Section 16 of the Madras act, 1873, the status of custom, once proved to be valid, will prevail over Personal law. Also, there is no inconsistency between the provisions in question. The Court also upheld the case of Puthiya Purayil Abdurahiman claiming that the Shariat Act did not entirely abolish the custom and usage regarding matters other than those specified in Sections 2 and 3 (1) of the Act.
Relevant Paragraphs
The Court held that Clause (b) of Section 16 of the Madras Act III of 1873 reflects that any custom having the power of law and governing the groups concerned shall form the rule of judgment in respect of subjects specified in the main part of the section unless such custom, by legislative enactment, has been reformed or abolished.
The absence of other subjects (such as adoption) regarding which valid custom could rule and be binding on the parties does not mean that it is not lawful for the parties to rely on such a valid custom if there is one.
Section 6 of the Shariat Act was repealed, as it was not consistent with the provisions of the Shariat Act. This repeal is of no importance for this case as it serves no purpose in these circumstances. First of all, because Section 16 of the Madras Act III of 1873 does not explicitly refer to adoption. Second of all, even in Sec. 2 of the Shariat Act, adoption is not one of the specified subjects, regarding which custom or usage is ruled out.
Even if the present matter, has been brought within the horizon of Section 2 of the Shariat Act, by the benefit of a declaration under Section 3 (1), in the instant case, there is no such pronouncement and there will be no inconsistency between the provisions. Hence, in the absence of any prohibition on custom, relating to adoption under 'the Shariat Act, in such instances, it is feasible to plead and establish such a custom or usage having, the force of law amongst the concerned parties.
In this context, the Court felt compelled to implement the ratio of the Bench in the Puthiya Purayil Abdurahiman case, that the Shariat Act did not entirely abolish custom and usage regarding matters other than those specified in Sections 2 and 3 (1) thereof.
The Respondent's counsel also claims that even if it is proved that there is a lack of proof of a valid custom regarding adoption as per the said custom, the respondent can very well indict the appeal as the individual in custody of property at the time of the death of Zaina Bi, can be taken within the explanation of a 'legal representative'.
In the supporting affidavit filed, the respondent has asserted that she is in custody and gratification of the property after the death of Zaina Bi. But this feature has not been examined by the Court below to provide a verdict one way or the other and the Court was content to receive the plea of custom regarding the adoption and is only based on the request by the respondent to come on record as the legal representative of the deceased Zaina Bi was permitted.
This question also requires inquiry and mediation by the Court based on the evidence already arranged and the parties. As stated before, The Court finds that even on the issue of proof of custom and the factum of adoption, there has not been a proper judgment earlier and in the Court’s view, all the questions require a proper investigation and verdict by the Court. In this view, this review is allowed and the matter (1. A. No. 462 of 1980) will now stand submitted to the file of the Court for it to consider the same afresh in the light of the directions given, instructions, and different observations made above.
There, will be no order as to costs in the present revision.
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