Bench:
Chief Justice Bajamannar, Justice Panchapakesa Ayyar
Appellant:
Puthiya Purayil Abdurahiman
Respondent:
Thayath Kancheentavida Avoomma
Issue
I) Whether the Madras Shariat (Amendment) Act,1949 is ultra vires of Article 19 of the Indian Constitution?
II) Whether the property of the deceased shall lapse onto second tavazhi/widow and her heirs?
Facts
- Abdulla Kalpha who was a member of a Marumakkathayamtarwad. On 30th October, 1918; the members of the tarward executed a Karar by which the main tarward was partitioned into three tavazhis.
- On 10th January 1952, Abdullah died and he was a member of the three tavazhis and one of the executants of the document. The document provided that if one tavazhi becomes extinct then the properties of the said tavazhi will pass on to the other tavazhi.
- The question is dispute was whether the property of the deceased Abdullah who was the third tavazhi will pass on to second tavazhi as per the Karar which was executed between the members or will it pass onto Abdullah’s widow and his heirs.
- Thus, the widow of Abdullah filed a suit before the District Munsif for the partition of the property and other separate possession of certain properties as specified in the plaint of the Schedule A.
- Appellant’s Contentions
- Theplaintiff asserted that she and the other personal heirs or defendants, became entitled to the properties, due to the provisions of the Madras Shariat (Amendment) Act of 1949.
- Respondent’s Contentions
- One of the defendants contended that the said Act was void because it was repugnant to the provisions of Article19, Clause (1)(f) of the Constitution.
Judgment
- The Hon’ble court held that the surviving heirs of the deceased junior member would be entitled to claim partition of the property and have their share or shares separated from the property and also mentioned that the Madras Shariat (Amendment) Act,1949is not repugnant to Article 19(1)(f) of the Constitution.
Relevant Paragraph
On 10th January 1952, Abdullah Kalpha died and he was a member of the three tavazhis. On 30th October, 1918; the members of the tarward executed a Karar by which the main tarward was partitioned into three tavazhis. He was one of the executants of the document. The document provided that if one tavazhi becomes extinct then the properties of the said tavazhi will pass on to the other tavazhi. Abdulla Kalpha was a member of a Marumakkathayam tarwad.
The question is dispute was whether the property of the deceased Abdullah who was the third tavazhi will pass on to second tavazhi as per the Karar which was executed between the members or will it pass onto Abdullah’s widow and his heirs.
The Hon’ble Court asserted that the Shariat Act including the Madras Amendment Act did not claim to nor did itrestrain the rights and incidents of a Mappilla Marumakkathayam tarwad.
Under the Muslim Personal Law (Shariat) Application Act, it could have been available to a junior member of the tarwad or his heirs to apply for a partition of the property of the tarwad. Also,objected that this enactment was, so far as at any ratethe State of Madras was concerned, that the Muslim Personal Law (Shariat) Application Act would administer the Muslims in all the matters without any reservation. And, it’s not right to mention that when a junior member of a tarwad dies "his share" survives to the other members of the tarwad.
The Court held that the Muslim Personal Law has been made available to all the Muslims including Mappillas, there can be no weightage in the contention that the junior member of the tarwad ought to have claimed partition before his demise in order that his heirs may claim a right to an interest in the tarwad properties.
Regardless of whether the junior member did or didn't guarantee a privilege during his lifetime to partition, when his interest gets inheritable under the Muslim Personal Law (Shariat) Application Act, at that point, on his death, his beneficiaries would turn out to be naturally qualified for guarantee the correct which has been left by him to the extent that it has not been discarded by any testamentary disposition. He would be deemed as per to a pass on intestate in respect of his right or interest in the tarwad property and the enduring beneficiaries of the deceased junior member would be qualified for guarantee partition of the property and have their share or shares separated from the property. Further, no inquiry of the constitutional legitimacy of Madras Act XVIII of 1949 can emerge and the response to the reference is that the said Act isn't disgusting to Article 19(1)(f) of the Indian Constitution.
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