Jahandarunnissa Begum vs Mohd. Moinuddin and Others

This revision has come before us in the following circumstances:

A suit was brought by one Mohammed Moinuddin as against five persons stating that he and the five Defendants are the issues of one Ikramuddin Khan who died on 18-7-1950 leaving behind a son (the Plaintiff) and five daughters (Defendants 1 to 5). An interim allowance of Rs. 18,000/- was fixed as being payable to the deceased Ikramuddin Khan when his jagirs were taken over by the Government under the Jagir Abolition Regulation. He stated that he applied to the Jagir Administration for the payment of the allowance. He was directed to get his right established in a Civil Court. He also alleged that according to the custom prevalent in this family the daughters of the family were entitled to Rs. 100/- P.M. as allowance. He, therefore, stated that they be paid allowance at the rate of Rs. 100/- per mensem and the balance be paid over to him. Defendants 2, 3 and 4 did not contest the suit and stated that they were willing to receive a sum of Rs. 100/- per mensem as allowance. Defendants 1 and 5, however, contended that they should be given the share which they were entitled to under the Mohommedan Law. It was also contended by these Defendants that it was not open to the plaintiff to set up a custom which was in derogation of the Mahomedan Law and that he could not be allowed to load evidence as regards the alleged family custom. The trial court framed an issue in regard to this matter and heard arguments of the parties on this issue. After hearing the arguments, it came to the conclusion that evidence could be allowed to be adduced with regard to a family custom although such custom was in derogation of the principle of Muslim. Law. This finding therefore was against the Defendants I and 5. These Defendants have therefore filed a revision against this finding.

We have heard the arguments of the respective advocates. Although this is only a revision which is before us, still the question that requires consideration in our opinion, is one of considerable importance. The question that has to be decided is as to whether it is open to a party to lead evidence of a special family custom which is in variation of or against the principles of Mohammedan Law.

It has to be observed that Mahomedan Law does not admit the validity of an alien custom which is contrary to or in conflict with its principles. The intimate connection between Law and religion in the Mahomedan faith is very great. Any variation or modification of that Quranic Law is usually not permitted. The rigidity of the Quaranic Law has been well described by Roy in his Treatise on Customs and Customary Law in British India. He says:

Any attempt to repudiate the Law of Quran would amount to a declaration of infidelity such as would render the individual concerned liable to civil punishment by the Khazi in this world and to eternal punishment in the next."�Tagore Law Lectures on Roy''s Customs and Customary Law, at page 379.

In a case which went up to the Privy Council in 1868 on appeal from the Sadar Diwan Adalat, North West Frontier Province, Agra the question was not decided but their Lordships observed

whether it is competent for a family converted from the Hindu to the Mahomedan faith to retain for several generations Hindu usage and customs and by virtue of that retention to set up for itself a special customary law of inheritance which so far as their Lordships are aware has never been decided. It is not absolutely necessary for the determination in this appeal to decide that question in the negative and their Lord ships abstained from doing so." - Jowala Baksh v. Dharum Singh 10 Moo Ind App 511 (PC)

This was. a. case where the question was whether a Hindu who has converted himself to Mohommedanism could set up a custom to say that in his family a Hindu custom relating to inheritance was still retained. This question was not. considered by the Privy Council in this case as they thought it was not necessary for the determination of the appeal.

So far as the Indian High Courts are concerned, cases have arisen where a local custom or usage or a family custom has been allowed to be proved although it was in derogation of the principles of Mahomedan Law, because of special enactment in the various provinces which permitted evidence being led of such custom or usage although the custom was in conflict, with the principles of Mahomedan Law. For example, in Bengal, Bihar, Agra and Assam, Section 37, Bengal and Assam Laws Act, 1905, enacts that the civil courts of those provinces usually decide all questions relating to succession and inheritance, etc., by Mahomedan Law except where such Law has, by legislative enactment, been altered or abolished. So far as Allahabad was concerned, it was governed by the Bengal Civil Courts Act. As regards Bengal as I have already mentioned, the Bengal, Agra, and Assam Civil Courts Act 12 of 1887 applied. For Bombay, Regulation No. 4 of 1327 governed the trial of suits wherein it was enacted that the Acts of Parliament and Regulations of Government applicable to the case should be observed in the trial of suits and in the absence of such acts and regulations the usage of the country in which the suit arose. So far as Madras is concerned, the Madras Civil Courts Act, 3 of 1873 applied and u/s 16 of the aforesaid Act, it was enacted that all questions relating to succession, inheritance, marriage, etc., shall be decided in cases where the parties are Mahomedans by the Mahomedan Law or by custom having the force of law. So far as East Punjab was concerned, the Punjab Laws Act 4 of 1872 governed the case and under the provisions of Section s 5 and 6, Mahomedan Law was to be administered in the case of Mohomedans unless it had been altered or abolished by Legislative enactment or had been modified by any custom.

It would be convenient to refer to cases which have arisen in various provinces in regard to this matter. We might refer herein to the case which came up before the Allahabad High Court. In this case, the question was whether a custom by which daughters were excluded from inheritance which principle was in conflict with the principles of Mahomedan Law relating to succession by daughters could be regarded as good and valid custom and could evidence be led in this regard. The learned Judges held that Section 37 of the Act 12 of, 1887 forbade evidence of such custom being led, for they held that the words of Section 37, Bengal Civil Courts Act were different from the words used in Section 5 of the Act 4 of 1872 in that the latter enactment provided for evidence of custom being allowed which was not contrary to justice, equity and good conscience. Therefore they disallowed the leading of evidence with regard to the special custom which was at variance with Mohommedan Law - Mammya v. Diwan 23 All 20. This case was followed in a subsequent case of Allahabad High Court in the case of - Ismail Khan v. Imhaz Unnissa 4 All L J 792. In toe-above case, the Judges were reluctant to differ from the trend of the decisions of the Allahabad High Court and preferred to follow the Full Bench Ruling of the Allahabad High Court in - Michel Patrick Dunne v. William Francis Legge 1 Agra 38 and also the case reported in 23 All 20. This case of - ''Ismail. Khan v. lmliaz Unnissa went to the Privy Council and the Privy Council set aside the judgment of the Allahabad High Court. This case is reported in - Mohd. Ismail Khan v. Shivmukh Rai 18 Ind Cas 571 and ''Ismail Khan v. Imtiaz Unnissa''. This was a case which arose under the Bengal, North West "Frontier Provinces and Assam Civil Courts Act. Then-Lordships of the Privy Council considered that the suits should be remanded to the High Court to enable the parties to produce evidence with regard to the issue as to whether the Defendants could plead that the family in the matter of inheritance was subject to a custom which was supersession of the Mohommedan Law. They set aside the judgment of the Allahabad High Court in 4 All L J 792.

After this pronouncement of the Privy Council in the case of ''Ismail Khan v. Imtiaz Unnissa already referred to, another case went up in appeal to the Privy Council from the Court of appeal for Eastern Africa. There the parties. were Memons, a sect of Mohommedans which were converted, from Hinduism about the 16th Century but adhered to Hindu Law in matters of succession. In this case the Privy Council held that where Memons migrated from India and settled among Mahomedans, a presumption should be made that they have adopted Mahomedan custom of succession. Their Lordships held that the analogy in this case is rather to proof of a change of domicile than a change of custom�Vide - Abdul Rahim Haji Ismail Methu v. Halimabai 43 Ind App 35 (PC).

After this decision by the Privy Council there came up a case before the Allahabad High Court, viz., the case of - Ali Asghar v. Collector of Bulandashahr 39 All 574, Wherein, after adverting to the Privy Council cases referred to above the learned Judges held that evidence was admissible to prove the custom notwithstanding the fact that such custom was contrary to the Mahomedan Law.

After this decision of the Allahabad High Court, the Privy Council had to consider this question in an appeal which went up to the Privy Council from the Judicial Commissioner''s Court, Sind. So far as Sind was concerned, the Bombay Regulation 4 of 1827 was extended to it by a Notification and therefore this Regulation governed the trial of suits arising in Sind. As we have already observed, Section 28 of the above Regulation allowed the trial of suits having regard, to the usage of the country which meant that evidence as regards any particular usage which was in contravention. or in conflict with the principles of Mahomedan Law was allowed. In this case their Lordships observed "Custom binding inheritance in a particular family has long been recognised in India although such a custom is unknown to the law of this country (England) and is foreign to its spirit - Abdul Hussein v. Mt. Bibi Sona Dero 45 Ind App 10 (PC) . The aforesaid observations of their Lordships also lend sup port to the view that their Lordships considered that evidence of any particular custom or usage could be led notwithstanding that it was against the principles of Mahomedan Law.

The same question came up for discussion before the Allahabad High Court in the case of -- Mt. Jaffo v. Chitta 163 Ind Cas 650 where Sulaiman, C.J. held that in view of the pronouncement of the Privy Council, it must be held that a family custom which alters the personal law of the parties even though not in accordance with the strict Mahomedan Law can be allowed to be proved. These are the cases which have arisen in Allahabad.

The case which arose in the Province of Bombay was the case of - Ramarao Narayan v. Rustum Khan 26 Bom 198. The question in that case was where a graveyard was disused for over 30 years still the custom of the country was to the effect that it retained its sacred character in spite of disuse, whether such custom or usage could be allowed to be proved. The Bombay High Court held that u/s 26 of Regulation 4 of 1827, the courts were enjoined to decide according to the usage of the country and in that case usage was established.

A case arose in the Madras Province which related to the Lubbai Mahomedans of Coimbatore District. The suit was brought to recover a share in the estate of one Mohd. Hussain Rowlat. The defence was that the parties were governed by a custom whereby females were excluded from inheritance. The Subordinate Judge who tried the case held that the plea of the Defendants was untenable and he also held that it was not established. He therefore declared that Mahomedan Law alone would govern the case. The Defendants appealed to the High Court and the High Court reversed the decision of the lower Court and dismissed the suit. The Chief Justice of the Madras High Court held that the evidence was sufficient to show that, the Defendants family like most lubbais of that district adhered to the Hindu rule, excluding the succession of females. This case came up before the Privy Council and although in the particular case �their Lordships held that the evidence fell far short of the standard proof requisite to establish a custom or a usage excluding females from succession, they observed that "in India, however, custom plays a large part in modifying an ordinary law. And it is now established that there may be a custom at variance even with the rules of Mahomedan Law governing succession in a particular community of Mahomedans." - Mahomed Ibrahim v. Shaik Ibrahim 49 Ind App 119 (PC) .

11 . Their Lordships of the Privy Council had occasion to consider about this question in another case which went up in appeal from the Court of the Judicial Commissioner, N. W. F. P. This was governed by Section 27, N. W. F. P. Regulation, which was the same as Section 5 of the Punjab Laws Act, 1872 where the Courts were to administer Mahomedan Law excepting in cases where it had been varied by any custom or usage. Adverting to this question their Lordships held

Where a custom is pleaded a duty is imposed upon the court to endeavour to ascertain the existence and nature of the custom." - Vaishnu Ditti v. Mt. Rameswari 55 Ind App 407 (PC).

This is the state of Law so far as the former British Indian Courts are concerned. So far as this Court is concerned, the then Judicial Committee has held in the case of - Munwar Begum v. Najib Mirza 7 Nazare Osmania 463 that any custom which is in direct contravention or in complete variation of any principle of Mahomedan Law could not be proved. They held that it has not been stated in Sharai Shariff (Mahomedan Law) that local or family custom would have preference over Sharai Shariif. They also held that such a custom could not be allowed to be proved unless such custom is allowed to be proved by enactment.

So far as the Part ''A'' States of the Indian Union are concerned, the, matter has been set at rest by the Shariat Act of 1937 under which by virtue of Section 2 of the Act, notwithstanding any custom or usage to the contrary in all questions regarding intestate succession of special property of females including personal property inherited or obtained under direct gift or by any provision of personal law the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). Thus the Muslim Personal Law alone would apply and all evidence of custom would be shut out. But this enactment has not been applied to Part ''B'' States, by virtue of Part ''B'' States Laws Act, Act 3 of 1951. Therefore, it could not be said that the particular act forbids evidence of custom. Nevertheless as would appear from the series of decisions that have been referred to in the foregoing paragraphs evidence of custom has been allowed to be led only where there were special enactments permitting evidence of custom or usage being allowed to be led though in derogation of the principles of Mohommedan law. So far as Hyderabad State is concerned, the Judicial Committee which was the highest Tribunal in the land has also held the same view that no evidence of custom could be allowed unless it has been allowed under any special enactment.

Moreover, in this particular case, the Plaintiff-Respondent''s contention is that the alleged family custom exists only so far as the Atiyat property is concerned. After the Hyderabad (Abolition of Jagirs) Regulation No. LXIX of 1358 F., it is. clear that nobody can now be a Jagirdar. Under the Hyderabad Jagirs (Commutation) Regulation, No. XXV of 1359 F., a commutation has been allowed and it is for a share in that commutation amount that the suit has been filed. The plea of the Plaintiff is that under a family custom pertaining to a devolution of Atiyat property, the Defendants are entitled to only maintenance. The Plaintiff''s learned Advocate conceded before us that so far as the ordinary private (Non-Atiyat) Property of the deceased was concerned, there is no such custom in the family and such a custom cannot be proved. It is contended that only to the limited extent of the Atiyat property which has now been discontinued and commutation allowed for the same, it is that the above custom is alleged. We fail to understand how the family custom can be set up with respect to a particular property while it is conceded that it cannot be set up with regard to all other properties. The idea underlying the argument seems to be based upon the powers of the grantor of the Jagirs & the then sovereign has made it clear in his various Firmans that he could dispose of the jagir property as he liked and it is stated that invariably in all the successions pertaining to jagirs, the Defendants or such or similar ladies were only given maintenance, though under the ordinary Mahomedan Law of succession then ought to have got a share in the property. Now that the jagirs have been abolished and a share in the income or commutation amount pertaining to a jagir has been made the subject of a civil right which only civil courts can decide the courts will naturally decide according to the civil law prevalent in the country. Orders on the atiyat or the former jagir side of the Government whatever their nature, cannot influence the opinion of the civil courts. Thus the custom alleged cannot be allowed to be proved.

For all the above reasons, we ore of opinion that evidence could not be allowed to be led and the lower court was wrong in permitting evidence to be led. The revision is allowed, the order of the lower court is set aside and the case will go back to the trial Court for trial of other issues. The Petitioner will be entitled to the costs of the revision petition. Advocate''s fee Rs. 50/-. This order will also govern the other connected revision petition.