1. The parties in this case are Muhammadans, that is, Labbais of Trichinopoly District, and in defence of a suit for partition, defendants set up the plea that they were governed by Hindu Law 'in the matter of inheritance to the estate of a deceased person', and issue I was framed on that plea. Both the lower Courts have found that the plea is false and that the parties are governed by Muhammadan Law. In second appeal the learned Vakil for appellants seeks to re-open the question as being a question of law and not merely a question of fact. It is argued that the question at issue is whether the decision of the lower Courts is not against some usage having the force of law within the meaning of Section 100 of the Code of Civil Procedure. Reliance is placed on the decision in Kakarla Abbayya v. Ra a Venkata Papayya Rao 29 M.s 24, where it was held that an issue as to the existence or non-existence of a usage having the force of law could be decided in second appeal upon the evidence. In that case, however, the usage set up was one in derogation of the ordinary law and the question in issue was not only whether such a usage existed, but also whether it was a usage having the force of law. In the present case there is no question of a usage having the force of law, but the question at issue is whether the parties are governed by Hindu or Muhammadan Law, and no question can arise as to whether these systems of law have the force of law. In Kunhambi v. Kalanathar 24 Ind. Cas. 528. it was held that the question whether Mappillas of North Malabar were governed by Muhammadan or Marumakkatayam Law was a question of fact, and this Court refused in second appeal to consider the question on the evidence. Similarly in Ibrahim Rowther v. Muhomad Ibrahim Rowther (1915) M. W. N. 866. the Chief Justice evidently held the same view as regards the question whether a Labbai family followed the Hindu Law of inheritance, for he remarks: 'Of the later cases, this is the first to come before this Court on first appeal so as to enable the Court to appreciate the evidence for itself,' and admittedly one at least of the previous cases had come up in second appeal. The question in Shaik Ibrahim Rowther v. Muhomad Ibrahim Rowther 30 Ind. Cas. 806. was substantially the same as in the present case, and we accordingly think that it is a question of fact, which has been decided by the lower Courts and cannot be re opened in second appeal. We are confirmed in this opinion by the observation of their Lordships of the Privy Council in Mohesh Chunder Dhal v. Satrughan Dual 29 L. A. 02 that the question as to the existence of a custom of lineal primogeniture as the Rule of succession in a particular family was a question of fact. We have accordingly disallowed any argument for appellants on the question of whether the parties are governed by Hindu Law, as the validity of the finding of the lower Courts is not impeached on any point of law.
2. The next point taken is that Exhibit III is not a Will, but a settlement of property which is to take effect in prsenti, and is, therefore, not invalid under Muhammadan Law. We agree, however, with the lower Courts that on a proper construction of the document which purports to be a Will, it is a Will and there is no evidence as to the vesting of the gifts in prsenti to show that that construction is wrong.
3. The property mentioned in the Will is in the possession of the first defendant and the recital in the Will is that the properties are bequeathed in order that the first defendant may discharge certain debts, one due on a hypothecation deed executed in favour of the eleventh defendant, one due to the first defendant on account of unpaid mahar, and one on account. of dowry which the first defendant had brought with her on marriage. The lower Appellate Court has given the first defendant a charge on the plaint property as regards the mahar debt, and it is now contended that she is also entitled to a charge on the property mentioned in the Will for the debt in respect of dowry. It must be observed that the 11th defendant does not raise the same plea in respect of the debt due to him. Defendants Nos. 2 to 6 in their written statement denied the existence of the debt for dowry, but no issue was framed and no evidence has been let in as to the genuineness of the debt, nor did the first defendant in her written statement take the plea that she was at least entitled to a charge in respect of it. We do not, therefore, think that any charge can now be given. We may, however, observe that no final decree for partition has yet been passed, and under Muhammadan Law the estate of a deceased person must, he applied to the payment of his debis and funeral expenses before the heirs can make partition of it [Pathummabai v. Vittil 0Ummachabi 26 M.s 74.] and although it has been held by a Full Bench of the Allahabad High Court [afri Begum v. Amir Muhammad Khan (1883) A. W. N. 248 that on the death of an intestate the ownership of his estate devolves immediately on his heirs, and such devolution is not contingent upon, and suspended till, payment of his debts, we think it will be open to the original Court at the time of passing the final decree to ascertain the debts due by the deceased and to provide for their payment out of the estate before partition is actually effected.
4. In the result this second appeal is dismissed with costs.