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Mukkattumbrath Ayisumma Vs. Vayyaprath Pazhae Bangalayil Mayomoothy Umma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1116 of 1950
Judge
Reported inAIR1953Mad425; (1952)2MLJ933
ActsMarumakathayam Law; Muslim Personal Law (Shariat) Application Act, 1937; Mapilla Marumakathayam Act, 1939
AppellantMukkattumbrath Ayisumma
RespondentVayyaprath Pazhae Bangalayil Mayomoothy Umma and ors.
Appellant AdvocateB. Pocker, Adv.
Respondent AdvocateAtchuthan Nambiar, Adv.
DispositionPetition allowed
Cases ReferredKunhi Pathujma v. Sundara Iyer
Excerpt:
family - partition - marufmakathayam law, muslim personal law (shariat) application act and mapilla marumakathayam act, 1939 - suit for partition - whether customary law of devolution by survivorship as it obtained under marumakathayam system was or was not repealed by muslim personal law (shariat) application act - object of muslim personal law to put an end to all anti-islamic customs and rules that had obtained force of law and in their place to apply original principles of islamic law - right to succession by customary law of survivorship repealed by muslim personal law (shariat) application act - muslim personal law made applicable to all muslims including mapillas - held, interest of junior member of mapilla tarward is proprietary interest in property and such interest on his demise.....basheer ahmed sayeed, j.1. this civil revision petition is against the order of the learned subordinate judge of tellicherry, dismissing the application of the petitioner, a third party, filed by her to get herself impleaded in the suit on the ground that the rights of mappilla tarwads stand unaffected even after the passing of the muslim shariat act and that no individual member would have ,any heritable right in the tarwad properties unless he himself volunteered to become a divided member during his lifetime.2. plaintiffs 1 to 5 in o. s. no. 35 of 1949 on the file of the subordinate judge's court, tellicherry, brought a suit for partition of mopla tarwad property said to be governed by the marumakathayam law. the petitioner is the widow of a member of the tarwad, namely, kuttiatha.....
Judgment:

Basheer Ahmed Sayeed, J.

1. This civil revision petition is against the order of the learned Subordinate Judge of Tellicherry, dismissing the application of the petitioner, a third party, filed by her to get herself impleaded in the suit on the ground that the rights of Mappilla Tarwads stand unaffected even after the passing of the Muslim Shariat Act and that no individual member would have ,any heritable right in the tarwad properties unless he himself volunteered to become a divided member during his lifetime.

2. Plaintiffs 1 to 5 in O. S. No. 35 of 1949 on the file of the Subordinate Judge's Court, Tellicherry, brought a suit for partition of Mopla Tarwad property said to be governed by the Marumakathayam law. The petitioner is the widow of a member of the tarwad, namely, Kuttiatha Musaliar, who had died sometime before the filing of the suit for partition. It is alleged that before the suit had been filed, he had expressed no intention to separate from the tarwad. This Kuttiatha Musaliar died in July 1938, i.e., long prior to the coming into force of the Mapilla Marumakathayam Act (Madras Act 17 of 1939). Before this Act was passed by the Madras Legislature, the Central Legislature had passed an Act called the Muslim Personal law (Shariat) Application Act, (India Act 26 of 1937). It is common ground that the husband of the present petitioner died after the Muslim Personal law (Shariat) Application Act came into operation and before the Mapilla Marumakathayam Act (Madras Act 17 of 1939) was passed. The suit itself having been filed in 1949, the petitioner made an application to the court for being impleaded in the suit on the ground that she was entitled to the share of her deceased husband in the tarwad properties which were being partitioned at the instance of five of the members of the tarwad.

3. The Muslim Personal law (Shariat) Application Act did not apply to agricultural lands; and, in order to remove the disability, the Madras Legislature passed Act 18 of 1949 which extended the scope of the Muslim Personal law (Shariat) Application Act to agricultural lands as well within the then province of Madras. Prior to this amending Act, there were two other Acts which had been enacted by the Madras Legislature. The first of them was Mapilla Succession Act, (Act 1 of 1918), which was enacted to amend and define the rules of law applicable to intestate succession among Mapillas governed by the Marumakathayam or the Aliyasanthana Law of Inheritance. There was also another Act called the Mapilla Wills Act, (Act 7 of 1928), intended to define the law relating to testamentary dispositions by Mapillas governed by the Marumakathayam or Aliyasanthana law of inheritance.

4. For consideration of the points that arise in this petition, it is necessary to briefly state the development of the law governing Mappillas of Malabar until it reached its final stage as evidenced by the amending Act, (Act 18 of 1949). Before the Mapilla Succession Act, (Act 1 of 1918) was enacted, any property owned by a member of a Mapilla tarwad belonged to the tarwad, whether it was self-acquired or otherwise and succession to such property was by right of survivorship. The tarwad property remained imparfible although the members of the tarwad had a proprietary interest in the property and therefore entitled to maintenance The general Islamic law by which Muslims were governed in the rest of the country was not in force among the Mapillas of North Malabar and some parts of South Kanara, where Mapillas predominate. The customary law prevailed in the Mapilla society of North Malabar and parts of South Kanara. This system of inheritance, according to Marumakathayam law, is a deviation from the original Islamic law and had been adopted by the Mapillas by reason of a custom which had developed out of certain historic conditions and factors which it is not necessary now to go into.

5. When such was the position, in order to amend the law of intestate succession among the Mapillas governed by the said Marumakathayam or Aliyasanthana law of inheritance, the Mapilla Succession Act, (Act 1 of 1918) was enacted. It was made applicable to Mapillas domiciled in the Presidency of Madras who were governed by the Marumabathayam or Aliyasanthana law of inheritance and also in respect of immoveable properties situated within the presidency of Madras to Mapillas domiciled outside the presidency of Madras who were governed by the customary law. It defined the property in respect of which a deceased Mapilla should be considered to have died intestate. While so defining, it included all properties in respect of which the Mapilla who died had not made any testamentary disposition and also excluded the tarwad property, unless the person dying intestate was exclusively entitled to such tarwad property.

6. This Act, further defined that all such property shall, notwithstanding any custom to the contrary, devolve upon his heirs in the order and according to the rules of Muhammadan law. The effect of Mapilla Succession Act was that the self-acquired property of a Mapilla governed by the Marumakathayam or the Aliyasanthana law could thenceforth devolve on their heirs on his dying intestate and also by implication gave power to the Mapilla to alienate such property 'inter vivos'. This Act did not intend to legislate in respect of the tarwad property was loft intact, but confined itself only to the self-acquired property of the Mapilla and it made it clear that such self-acquired property could devolve upon the heirs according to Islamic rules of succession and not according to the rules of survivorship which applied to the tarwad property. In one sense, this Act may be considered to be a mild revolt against the Marumakathayam law which was governing the Mapillas until then in respect of all properties and this Act might be considered also to be a deviation from the customary law of Marumakathayam which was till then applicable to Mapillas of North Malabar and South Kanara.

7. Then Madras Act 7 of 1928 called the Mapilla Wills Act was enacted to define the law relating to testamentary dispositions by Mapillas governed by the Marumakathayam law or Aliyasanthana law of inheritance. It extended to the whole presidency of Madras and was made applicable to testamentary dispositions by Mapillas governed by the Marumakathayam or the Aliyasanthana law of inheritance in respect of property which, but for such testamentary dispositions would devolve in accordance with the provisions of the Mapilla Succession Act, 1918, Section 3 of this Act further provided that testamentary dispositions to which this Act applied should be governed by the Muhamadan law relating to Wills and not by the Malabar Wills Act. 1898. The purpose of this Act was to exclude Mapillas, to a further extent from the scope of the general law governing will that was prevalent then in Malabar which applied to all communities living there and to bring into effect the Islamic law governing the Wills so far as the Mapillas, who were then governed by the Marumakathayam or the Aliyasanthana law, were concerned.

8. In October 1937, the Muslim Personal law (Shariat) Application Act, (Act 26 of 1937), was enacted by the Central Legislature and the preamble to that Act states that it was enacted to make provision for the application of the Muslim Personal law (Shariat) to Muslim in British India, the term 'British India' having subsequently been amended into the provinces of India by the Amending Ordinance of 1948. Section 2 of that Act provided that: 'Notwithstanding any custom 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 of gift or any other provision of personal law, marriage, dissolution of marriage, including Talaq, ila, zihari, lian, khula and Mubaraat maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs (other than charities and charitable institutions and charitable and religious endowment), the rule of decision in cases where the parties are Muslims shall be the Muslim Personal law (Shariat).'

9. The third section of this Act gave power to make a declaration to any Muslim that he desires to obtain the benefit of the provisions of Section 2 of this Act and that therefore the provisions of that section should apply to the declarant and his descendants. It is not necessary to deal with that section in the present context. The fourth section gives power to the Provincial Government for making rules to carry into effect the purposes of the Act and it is not necessary to refer to that section either.

10. The material section of the said Act is Section 6, which repealed some of the legislations which enabled courts to apply rules of Muhammadan law, where the parties were Muslims in so far as they were inconsistent with the provisions of the Muslim Personal law (Shariat) Application Act. One of the sections that was repealed by this S. C. Muslim Personal law (Shariat) Application Act, was Section 16 of the Madras Civil Courts Act, 1873. Section 16 of the Madras Civil Courts Act, 1873, was in the following terms:

'Where, in any suit, or proceedings, it is necessary for any court, under this Act to decide any question regarding succession, inheritance, marriage or caste or any religious usage or institution.

(a) the Muhammadan law in cases where the parties are Muhammadans and the Hindu law in cases where the parties are Hindus or;

(b) any custom (if such there be) having the force of law and governing the parties or property concerned shall form the rule of decision, unless such law or custom has, by legislative enactment, been altered or abolished;

(c) in cases where no specific rule exists, the court shall act according to justice, equity and good conscience.

11. It will be seen that the whole of Section 16 of Act 3 of 1873 is sought to be repealed by Section 6, Muslim Personal law (Shariat) Application Act, (Act 20 of 1937), in so far as that section was inconsistent with the provisions of the said Muslim Personal law (Shariat) Application Act. If this Section 16 is analysed, it will be seen that Sub-clause (a) Section 16 is not inconsistent with the provisions of Muslim Personal law (Shariat) Application Act, for that sub-clause only states that the Muhammadan law in case where the parties are Muhammadans should be the rule of decision, unless such law had, by legislative enactment, been altered or abolished, and therefore, it is in consonance with the provisions of Section 2 of Act 26 of 1937. But Sub-clause (b) of Section 16 which says that 'any custom (if such there be) having the force of Jaw and governing the parties or property concerned, shall form the rule of decision', cannot be said to be consistent with Section 2, Muslim Personal law (Shariat) Application Act (Act 26 of 1937), and therefore, that sub-clause should be considered to be repealed by Section 6 of the said Act 26 of 1937; for Section 2 of Act 26 of 1937 enacts that 'notwithstanding any custom or usage to the contrary in all matters set out in the section, the rule of decision in case the parties are Muslims shall be the Muslim Personal law'. It is not necessary to deal with Sub-clause (c), Section 16, for that sub-clause only says that where no specific rule exists, the court shall act according to justice, equity and good conscience. That clause can be said to be affected only if it is inconsistent with the provisions of the Muslim Personal law (Shariat) Application Act. It is clear, however, that if there is any specific rule, then the decision will have to be according to that rule or law governing the Muslims and not according to equity, justice and good conscience.

12. As this Muslim Personal law (Shariat)Application Act excluded from its scope, questions relating to agricultural lands and as itwas felt necessary that the Muslim Personallaw (Shariat) Application Act should be madeapplicable also to agricultural lands in theprovince of Madras, the Madras legislatureamended Section 2 of Act 26 of 1937 by Act 18 of1949 by which the words 'save questions relating to agricultural lands' were omitted andin consequence thereof so far as the Provinceof Madras was concerned, the Muslim Personallaw (Shariat) Application Act was made applicable to all properties owned by Muslims including the agricultural lands. A furtheramendment was also made by Madras Act 18of 1949 by which the words found in the original Section 2 of Act 26 of 1937, namely, 'other thancharities and charitable institutions and charitable and religious endowments' were alsoomitted, so that the Muslim Personal law(Shariat) Application Act was made applicableeven to wakfs which included charities, charitable institutions and charitable and religiousendowments in the province or State of Madras.

13. A reading of the original Act 26 of 1937 and the amendment made by Madras Act 18 of 1949, would go to show that the intention and the object of this enactment was, so far as at any rate the State of Madras was concerned that the Muslim Personal law (Shariat) Application Act should govern the Muslims in all matters without any reservation.

14. The question that arises now for consideration is, whether after Section 16 of the Civil Courts Act and particularly Sub-clause (b) thereof had been repealed by Act 26 of 1937 as being inconsistent with the provisions of that Act, the application by Courts of any custom or usage having the force of law, was still possible, and whether it could be made the rule of decision between the parties who were Muslims after the enactment of Act 26 of 1937 (The Muslim Personal law (Shariat) Application Act). Though Mapillas were Muslims, the customary rule of inheritance by survivorship was applied to them under Section 16(b), Civil Courts Act, 3 of 1873. In that Section 16 (b) is repealed by Section 6 of the Muslim Personal law (Shariat) Application Act, it is beyond question that, after 1937, the customary rule of inheritance by survivorship cannot be made applicable by courts of law in this country. It is the contention of the learned counsel for the petitioner that after the Muslim Personal law (Shariat) Application Act came into force, 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 the Muslim personal law look its place in all matters enumerated in Section 2 of the said Act (Act 26 of 1937). Applying the provisions of Section 2 of Act 20 of 1937, it is further contended by the learned counsel for the petitioner, that the proprietary interest of a member of the Mapilla tarwad, if such member dies intestate, would devolve upon his heirs according to the Muslim law and that the heirs would be entitled to inherit the same according to the rule of Muslim law and that all the rights and interests that attach to the properties belonging to a Muslim, who dies intestate, would also attach to the member of a Mapilla tarwad. A gradual evolution in the application of the Muslim Personal law to the members of the Mapilla tarwad which commenced with the enactment of the Mapilla Succession Act (Act 1 of 1918) culminated in the passing of the Muslim Personal law (Shariat) Application Act of 1937 as it was finally amended by the Madras Act 18 of 1949 and after the enactment of the Muslim Personal law (Shariat) Application Act of 1937, the courts had no more jurisdiction to apply any custom or usage to Muslims who were parties to any suit or proceedings in respect of the several matters enumerated in Section 2 of the said Act 26 of 1937 and the Mapillas of Malabar, being Muslims, from 1937 onwards, came within the scope of the same Muslim Personal Law (Shariat) Application Act without any exception.

15. In the present case, the Mapilla member of the tarwad died after the Muslim Personal Law (Shariat) Application Act came into force, but before Act 17 of 1939 was enacted. As already pointed out, Act 17 of 1939 was enacted to define and amend in certain respects the law relating to family management, partition and succession amount (about?) the Mapillas following the Marumakathayam law. Under Section 13 of this Act, any individual member of a tarwad may claim to take his or her snare of the properties of the tarwad over which the tarwad has power of disposal and separate from the tarwad. Section 14 provided: 'Two or more members belonging to the same tavazhi, may claim to take their share of the properties of the tarwad over which the tarwad has power of disposal, separate from the tarwad and enjoy the same jointly with all the incidents of tarwad property.' Section 18 is as follows:

'Succession to the property obtained by an individual member on partition shall be governed by the Islamic law of inheritance.'

It is under this Act that the suit for partition has been laid by the plaintiffs and the sections referred to above enable any member of the tarwad or tavazhi to claim partition of the property and that once that partition is effected and any member obtains any property under such partition, succession to that property is governed by the Islamic law of inheritance. It is curious that at the time when this law was enacted, no notice appears to have been taken of the existence of the Muslim Personal Law (Shariat) Application Act enacted by the Central Legislature. It appears to me that, on a strict interpretation of Act 26 of 1937, when this Act became applicable to all Mapillas from the date when it was enacted there was no need nor necessity for the enactment of the Mapilla Marumakathayam Act (Madras Act 17 of 1939). However, in so far as that Act has been only an enabling measure giving the right to the members of the tarwad family to claim partition of their share in the property belonging to the family, it may not be said to be inconsistent with the Central Act, (Act 26 of 1937) and it is also not necessary in the present context for me to examine the repugnancy or otherwise of this measure to the provisions of the Central Act. In so far as the customary law of survivorship was abolished by the Muslim Personal law (Shariat) Application Act and in so far as Marumakathayam Act (Act 17 of 1939) enabled any member of the Mapilla tarwad family to claim partition of the property belonging to the family, it is clear that the right of succession to the property or any proprietary interest that any member of the Mapilla tarwad possessed in the joint family when the succession was intestate, became governed by the Muslim Personal Law (Shariat) Application Act and not by any custom or usage after 1937. Therefore, it is clear that intestate succession of the property belonging to the Mapillas after 1937 could not be governed by any other rule of law except that of the Muslim Personal Law (Shariat) Application Act governing the Muslims,

16. In this connection, the question has been raised by the learned counsel for the respondents, Mr. Achuthan Nambiar, that no member of a Mapilla tarwad has any separate proprietary interest in the tarwad, and, unless and until there was a proprietary interest in the tarwad) there was nothing that could devolve on his heirs on his dying intestate. He has relied upon the decision in -- 'P.P. Kunhamod Hajee v. P.P. Kuttiah Hajee', 3 Mad 169. The question that arose in that case was the grant of a very improvident lease following on a course of conduct pursued for some years, in which the interests of a tarwad were persistently disregarded and it was held that such a grant was sufficient ground for removing a karnavan from the management of the tarwad property. The passage appearing at p. 175 in this decision relied upon by the learned counsel for the respondents is that a junior member cannot will away his share in the property belonging to the tarwad, that he is incompetent to alienate the estate and he asserts that the individual member in a Mapilla tarwad has no separate interest in the tarwad property and therefore nothing could devolve on his heirs on his death. I do not think that this decision is authority for the proposition set forth by the learned counsel for the respondents. This decision was long prior to the various enactments which had the purpose of slowly taking out the Mapillas from the application of the customary Marumakathayam law in matters of succession, Wills and partition. The learned counsel for the respondents has also relied upon the decision in 'Moidin Kutti v. Krishnan', 10 Mad 322. In that decision the suit was for a declaration that the debt for which the decree was obtained was not a debt properly due by the plaintiffs' tarwad and it appeared that the plaintiffs and defendants 1 and 2 alone of the members of the tarwad were parties to the suit and that there were several members of the tarwad not parties to the suit. It also appeared that the plaintiffs did not in their plaint purport to sue on behalf of the tarwad. On p. 327, Kernan J. observes as follows:

'The members of the tarwad not parties to this suit, are not bound thereby. In these circumstances I am of opinion that individual members of the tarwad, as regards tarwad property have no rights vested in them separate from the tarwad, and that they can only sue as regards tarwad property in a suit, when all the members of the tarwad are either joined as plaintiffs or are made parties as defendants to the suit. Members of a tarwad can consent to partition. It is the tarwad alone, as a body that can sue and this only for the tarwad not for the benefit of any individual. The question was thus referred to a Bench composed of Muthuswami Aiyar, Brandt JJ. and myself, whether the two plaintiffs being members of a tarwad, arc entitled to maintain this suit in the absence of the other members of the tarwad. See -- 'Arunachala v. Vythialinga', 0 Mad 27. I am not able to agree in the opinion of my learned colleagues that the plaintiffs, in the absence of the rest of the tarwad, have any right of suit as regards tarwad property. The tarwad is a quasi-corporation & the individual members have no separate right to or in respect of tarwad property, save right of maintenance. A karnavan may sue to be declared a karnavan, but all the members of the tarwad should be parties. The right of a karnavan is not separate from the right of the tarwad. He represents in many instances the tarwad, and manages for the tarwad. I do not think that this is a question of procedure. It is one that goes to the root of the plaintiffs' title.'

These observations have been relied upon by the learned counsel for the respondents to show that the junior member's right is only to maintenance and therefore, the Muslim Personal Law (Shariat) Application Act cannot apply to Marumakathayam tarwad, because the junior member has no separate right in the tarwad to devolve on his intestacy. Except the right to maintenance, he has no separate right or interest in the tarwad property. I do not think that in the light of the subsequent enactments referred to above regulating the succession and inheritance to the property of Mapilla, who is a member of the tarwad, this decision is of any avail in the present context. On the other hand, I am inclined to agree with the learned counsel for the petitioner that the rule of decision in -- 'Achuthan v. Kunjunni Nair', 13 Mad L J 499, where it has been held that a claim by the junior members of a tarwad against the karnavan to enforce their rights to participate in the joint enjoyment of the tarwad property according to a family Karar is not 'a suit relating to maintenance' within the meaning of Article 33, Schedule II to Act 9 of 1887 but is 'a suit for the enforcement of a right to or interest in immoveable property' and is not cognizable by a court of small causes under Article 11, Schedule II, Act 9 of 1887, applies to the facts of the present case. In that suit, the difference between the claim of a female member of a joint Hindu family under the Mitak-shara law to Separate maintenance and the right of a junior member of tarwad to enforce his right to participate in the joint enjoyment of the tarwad property has been clearly brought out. Even so, in -- 'Ammini Animal v. Padmanabha Menon', 35 Mad L J 509 a Bench of this court has held that it is clear that the right of a member of a tarwad for an allowance is an incident of co-proprietorship in the property of the tarwad and that consequently that right could not be denied, unless circumstances show that the tarwad is not in a position to give separate allowance. It has been held further that the claim for the separate allowance by a junior-member of a tarwad is an indicia of proprietorship and not founded upon moral or quasi-legal obligations or on inability to maintain himself or herself. The various decisions in which the right to allowance was recognised to be based on the right of co-ownership of. the property have been referred to in this decision. In -- 'Seshappa Heggede v. Chandayya Heggade', 37 Mad L J 402, a Bench of this court has again held that the right to maintenance which a member of an Aliyasanthana family or a junior member of a tarwad property possesses is property and therefore the first portion of Section 6. T. P. Act is complied with. The various decisions relating to the point have been again reviewed in this decision and it was observed that the T. P. Act was not opposed to the assignability of the maintenance of a member of a Malabar tarwad or a member of an Aliyasanthana family; and it was finally held that if it is in the nature of a right in property and a right to maintenance that has been purchased, it cannot be the subject-matter of a suit in a Small Cause court. Besides these the learned counsel for the petitioner has referred to 'A Treatise on Malabar and Aliyasanthana law' by Mr. P.R. Sundara Aiyar, late Judge of the Court, p. 133 of 1922 Edn. The learned Author states as follows:

'The word 'maintenance' is loosely applied to designate the right of the junior members to participate in the enjoyment of the family property. It is not a 'jus in re aliena' like that of a widow. It is an incident to and a mode in which the proprietary right of each individual member of the Malabar tarwad is enjoyed. To such a claim Article 227 and not Article 128 of the Limitation Act applies. Unlike mere claims for maintenance, their right when defined may be assignable. A suit for maintenance of this sort does not fall within the clause relating to maintenance in the schedule to the Small Cause Courts Act. The right of the junior member is ordinarily restricted to his being maintained in the family house. In other words, no junior is ordinarily entitled to claim separate maintenance, if the karnavan does not choose to allow it. There is nothing to prevent the Karnavan from allotting a separate maintenance to one member and refuse to do so to another. It is not open to an Anandravan to claim separate maintenance for himself merely on the ground that it is allowed to another. In consequence of the absence of the right to partition, the question as to circumstances under which a junior member is entitled to claim separate maintenance is of great importance in the Marumakathayam law.'

17. It must be observed that at that time the Malabar tarwad was impartible and it is only later that the right to partition was vested in the members of the tarwad property under the later enactments. Therefore, I do not see any point in the learned counsel for the respondents contending that when the junior member of the tarwad is entitled to is not a proprietary interest in the tarwad property but that he is merely entitled to maintenance, in the sense in which such maintenance is available to women in the Mitakshara family.

18. In this case when the husband of the petitioner died he had a proprietary interest in the tarwad property and on his death, that proprietary interest did not become merged or extinct but devolved on his heirs under the Personal Law (Shariat) Application Act; and under Madras Act 17 of 1939 a junior member of the tarwad had a right to ask for partition of his share in the tarwad property. Even if the Mapilla Marumakathayam Act, Madras Act 17 of 1939 was not enacted, the position would not have been different, for under the Muslim Personal law (Shariat) Application Act, it would have been still open to a junior member of the tarwad or his heirs to apply for a partition of the property of the tarwad under the Muslim Personal law (Shariat) Application Act. For, it cannot be denied that the object of the Muslim Personal Law (Shariat) Application Act was to put an end to all the anti-Islamic customs and rules that had obtained the force of law and in their stead to apply the original principles of Islamic law itself. Therefore, when the customary law had to give way to the principles of Islamic law governing inheritance and such other subjects so far as Muslims were concerned and which were equally applicable to Mapillas as to Muslims of other parts of the country, there can be no substance in saying that what has been sought to be repealed by Section 6 of the Muslim Personal Law (Shariat) Application Act was not the Marumakathayam law of inheritance, but only a custom- The Marumakathayam law of inheritance is based on a custom which was prevalent in the parts of the country where the Mappillas lived and it is that custom which has gained the force of law and it was that custom that was being applied to Mapillas under Section 16(b) of the Civil Courts Act, III of 1873. But for the fact that that customary rule of inheritance, which is known as Marumakathayam law had obtained the force of law, the courts would have had no jurisdiction to apply that custom to Mapilla families which lived as tarwad families. This distinction that is made between custom and Marumakathayam or Aliyasanthana law by the learned counsel for the respondents is without substance and meaning. 'Custom' recognised by courts of law have obtained the force of law without any further proof, and therefore it is such customs which have gained the force of law that are sought to be put an end to by the Muslims Personal Law (Shariat) Application Act and the application by Section 6 of the said Act, 26 of 1937. Custom happens to be the basis of customary law and therefore, all customs contrary to the Islamic Personal Law, cannot have any force or validity after enactment of the Muslim Personal Law (Shariat) Application Act.

19. The learned counsel for the respondent has, however, contended that in Section 6 of Act 26 of 1937, Madras Act 1 of 1918 is not repealed but only Section 16, Civil Courts Act, has been repealed and that, because Section 2 of the said Madras Act 1 of 1918 and the explanation thereof exclude the tarwad property from intestate succession, it is contended that Muslim Personal Law (Shariat) Application Act does not apply to tarwad properties. I am unable to follow the force of this argument. Madras Act 1 of 1918 itself had the effect of deviation from the then existing customary law applied to the Mapillas of North Malabar who were governed by the Marumakathayam customary law and took the self-acquired properties of the Mapillas out of the scope of Marumakathayam rule of inheritance.

20. Therefore, it cannot be said that this Act 1 of 1918 required to be repealed because, in substance, it was in consonance with the aims and objects of the Muslim Personal Law (Shariat) Application Act. Though that enactment (Act 1 of 1918) did not touch the tarwad property as such, still in so far as customary succession to the tarwad property gets repealed by the Muslim Personal (Shariat) Application Act, there is no meaning in saying that Act 1 of 1918 should also have been repealed by Section 6 of Act 26 of 1937. Even so, Act 1 of 1928 which relates to the Wills of Mapillas as already set out made the Muslim law applicable to such wills made by Mapillas and the Muslim Personal Law (Shariat) Application Act has not made any reference to Act VII of 1928. As a matter of fact Section 2 of the Muslim Personal law (Sharial) Application Act does not deal with testamentary succession, but primarily concerns itself with intestate succession.

21. A further point has been raised by the learned counsel for the respondents that unless the individual member of the tarwad had claimed partition during his lifetime, he could not be deemed to have left anything to devolve on his heirs on his death. In the present case, the husband of the petitioner not having claimed the partition himself and not having expressed any intention to separate from the tarwad, the learned counsel contends that on the death of such a member of the tarwad no question of inheritance or succession by his present heirs would arise. The learned Subordinate Judge would appear to have accepted this contention when he observes in the last portion of para. 4 of his judgment that:

'The rights of Mapilla tarwad stand unaffected even after the passing of the Mussal-man Shariat Act and no individual member would have heritable right in the tarwad properties unless he himself volunteered to become a divided member during his lifetime. So it would appear that the petitioner would have no claim to any share in the tarwad properties.'

I do not think that this contention has any substance. I cannot agree with the learned Subordinate Judge in his view that the member through whom the petitioner claims a right to be impleaded as a party should have himself claimed partition during his lifetime, for as I have already observed, the interest of a junior member of a Mapilla tarwad is a proprietary interest in the property of the tarwad and that proprietary interest on his demise must be available to be succeeded to or inherited by the heirs or successors. When once the right to succession by the customary law of survivorship has been repealed by the Muslim Personal law (Shariat) Application Act and the Muslim personal law has been made applicable to all Muslims including Mapillas, there can be no force in the argument that the junior member of the tarwad should have claimed partition before his death in order that his heirs might claim a right to his proprietary interest in the tarwad properties. Whether the junior member did or did not claim a right during his lifetime-to partition when his proprietary interest becomes heritable under the Muslim. Personal law (Shariat) Application Act, then, on his demise, his heirs would become, automatically entitled to ciaim the right which has been left by him in so far as it has hot been disposed of by any testamentary disposition. He would be deemed therefore to have died intestate in respect of his proprietary right or interest in the tarwad property and 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. It is not nrcessary, in my view, that this proprietary interest of a junior member of a tarwad should have been already separated in order to make it available to his heirs on his dying intestate. The proprietary interest or right whether separated or not during his lifetime, would enure for the benefit of his heirs according to the law that was enacted in 1937 and the devolution of that right in the tarwad property owned by any member jointly with others would according to the law, devolve on his heirs when the junior member dies intestate. Prior to the enactment of Act 26 of 1937 the position might have been different, but after the enactment of Act 26 of 1937, the devolution based on custom having been put an end to by the said Act, Act 26 of 1937, the only method by which the right of the junior member in the property would now devolve is, according to the Muslim Personal law (Shariat) Application Act. That portion of the Marumakathayam Customary law which was till then in force having been repealed by the Muslim Personal Law (Shariat) Application Act, the jurisdiction of the courts to administer any such customary law in cases where the parties are Muslims having been taken away, it will be only proper and right that courts should now administer the Muslim personal law between Muslims in accordance with the provisions of the Muslim Personal Law (Shariat) Application Act. The mere fact that the Madras Legislature enacted a subsequent measure, viz., Act 17 of 1939 by which it was sought to regulate the partition of tarwad properties, cannot be said to militate in any way against the provisions of the Muslim Personal law (Shariat) Application Act, nor could it be said that this provincial measure resuscitates or continues in existence the customary law which has been repealed by the provisions of the Central Act (Act XXVI of 1937). I do not see any substance in the observation of the learned Subordinate Judge that the Mapilla Marumakathayam Act, (Act XVII of 1939) recognises the legal existence of Mapilia Marumakathayam tarwads owning properties even after the Muslim Shariat Act. He has relied upon the decision in -- 'Katheesumma v. Beechu : (1949)2MLJ268 . In that decision Satyanarayana Rao J. on a difference of opinion between himself and Panchapagesa Sastri JJ. observed,

'In the case of Mapillas governed by the Marumakathayam law an indefeasible right to claim partition by a member of the tarwad was conferred for the first time by the Mapilla Marumakathayam Act, 1938, Act XVII of 1939. The provisions of the Nayar Manimakathayam Act and the Mapilla Marumakathayam Act being analogous, there is no reason for not applying the ' principle of --- 'Kunchi Amma v. Minakshi Amma'. 70 Mad L J 114: 59 Mad 693 to members of Moppla tarwads'.

In this case, the point that has been considered was whether a member of a Mitakshara Hindu joint family or a member of the tarwad governed by the Marumakathayam law can become divided in status by issuing a notice of intention to separate, to the manager of the joint family or the karnavan of the tarwad without issuing notice to the other members. Viswanatha Sastri J. answered the question in the affirmative on a difference of opinion between Satyanarayana Rao and Panchapagesa Sastri JJ.

22. The question that has now arisen in this petition was not the subject-matter of any discussion in the said decision, nor is there any reference to the Muslims Personal Law (Shariat) Application Act) in the course of the judgment of Viswanatha Sastri J. on the point as to whether the customary law of devolution, by survivorship as it obtained under the Marumakathayam system was or was not repealed by the Muslim Personal law (Sharjat) Application Act. I do not think that this decision is of any assistance or avail to the learned counsel for the respondents. It must be remembered that this suit in which the petitioner applied for being impleaded as a party is itself one for partition by five of the members of the tarwad and when once five such members have expressed their intention to get themselves separated from the tarwad and want separate possession of their shares nothing could prevent the petitioner to come on record to claim that share which she became entitled to on the demise of her husband, who died intestate and who was entitled to a right of share in the same property. The said husband having died, the Muslim Personal Law (Shariat) Application Act having come into effect which in turn repealed the customary law of survivorship and left the right of the deceased husband intact to be succeeded to and inherited by his heirs.

23. The learned counsel for the respondents has invited my attention to two other decisions which he has relied upon in the course of his arguments. The first of their, is the decision in -- 'Mohiuddin v. Sofia Khatun', ILR (1940) 2 Cal 464. The learned counsel for the respondents contends on the basis of this decision, that the effect of Section 2 of the Muslim Personal Law (Shariat) Application Act was only to repeal the decisions according to equity and good conscience. That was a case in which the question of wakf was considered and has no material bearing on the question now at issue. Section 7 of the Muslim Personal Law (Shariat) Application Act repeals the whole of Section 16, Civil Courts Act, in so far as that section is inconsistent with the Muslim Personal Law (Shariat) Application Act. It cannot be contended that the customary law of succession by survivorship was left intact by Section 6 of the Muslim Personal Law (Shariat) Application Act. Where the customary right of succession by survivorship was enforced by courts in India by virtue of Clause (b) or Clause (c) of Section 16 of the Civil Courts Act, in so far as such decisions were inconsistent with the provisions of the Muslim Personal Law (Shariat) Application Act, they should be deemed to have been repealed. Therefore, if there is any rule of law which has been in force by virtue of the courts having acted under Clause (c) of Section 16 of the Civil Courts Act, if that rule of law is inconsistent with the provisions of Act 26 of 1937, then certainly to that extent that rule of law would also stand repealed. I do not think, therefore, that this decision relied upon by the learned counsel for the respondents is of much assistance to him. The second decision which has been referred to by the learned Counsel for the respondents in this connection is the one in -- 'Kunhi Pathujma v. Sundara Iyer', ILR (1945) Mad 631. This decision was on the question of guardianship and it was held that the question of guardianship shall be governed by the Marumakathayam customary law. But it should be noted that the question arose in respect of agricultural lands and agricultural lands at the lime when this case came up for decision were excluded from the scope of Section 2 of the Muslim Personal law (Shariat) Application Act. Therefore, no reference in the said decision was made to the said Act (Act 26 of 1937), and the decision proceeded on the basis, of the law then existing in regard to agricultural lands which had been excluded from the operation of Section 2 of Act 26 of 1937. It was only in 1949 by the amending Act, (Madras Act 18 of 1949) that agricultural lands were brought within the scope of Section 2 of the Act 26 of 1937. This decision therefore has no relevancy to the facts of the present case. Therefore, not much reliance can be placed on the subsequent enactment of Act 17 of 1939 the Mapilla Marumakathayam Act, which only prescribes the method of securing partition of the estate which was impartible formerly, and it cannot, by any means be assumed that this later Provincial Act has the effect of nullifying or invalidating what has already been declared to be the law applicable to Muslims by virtue of Act 26 of 1937.

24. Therefore - on a consideration of the entire circumstances of the case and for the reasons that I have already given, I do not think that the learned Subordinate Judge was right in the approach he has made to the question at issue. I am of the opinion that under the law as it now stands after the Muslim Personal Law (Shariat) Application Act whether the husband of the petitioner had declared his intention to get himself separated or not, on his having died intestate, his right in the property would be available to his heirs to devolve according to the Muslim law and that the petitioner was entitled to be brought on record as a party to the suit for partition in order that she might put forth her claim to her deceased husband's right or interest in the tarwad property left by him.

25. The learned counsel for the respondents has urged that in view of the fact that this petition has raised some important questions of law the matter should be posted before a Bench for decision. I do not think that this is a sufficient reason for me to direct this matter to be posted before a Bench. The matter appears to be plain and simple. The petition is allowed with costs.


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