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Anisur Rahaman and anr. Vs. Jalilar Rahaman - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. 3029 of 1978
Judge
Reported inAIR1981Cal48
ActsMahommedan Law; ;Hindu Law; ;Mohammedan Inheritance Act, 1897; ;Cooch-Behar (Assimilation of Laws) Act, 1950 - Section 3(1) and 3(2); ;Muslim Personal Law (Shariat) Application Act, 1937
AppellantAnisur Rahaman and anr.
RespondentJalilar Rahaman
Appellant AdvocateJoy Gopal Ghosh and ;Ajit B. Majumdar, Advs.
Respondent AdvocateC.F. Ali and ;Hafizur Rahaman, Advs.
Excerpt:
- .....on being requested by this court the learned advocate general rendered all possible assistance.cooch-behar which was previously a princely state of india came to be merged into and constituted a district of west bengal under the states' merger (west bengal) order, 1949 with effect from january 1, 1950. the merger aforesaid however did not by itself bring about any change in the laws to which cooch-behar was subject before the aforesaid merger. accordingly, even after merger was brought about by the said order of 1949, the laws which applied in cooch-behar before the aforesaid merger continued in their application even thereafter. this being the legal position, it was found necessary to assimilate the laws which were in force in cooch-behar previously to the laws in force in west.....
Judgment:
ORDER

D.C. Chakravorti, J.

1. This Rule is directed against Order No. 20 dated 28-6-1978 made in Title Suit No. 21 of 1977 by the Munsif, Mathabhanga, in the district of Cooch-Behar. By the said order the learned Munsif disposed of applications made by three sets of persons claiming to be substituted in place of one Amina Khatoon, widow of Late Ishakuddin, who as the plaintiff brought the said suit. Admittedly said Amina Khatoon died issueless on February 26, 1978. There is no dispute between the parties regarding the legal position that if said Amina Khatoon at the time of her death were governed by Mohammedan Law of inheritance the present petitioners would have a claim to be substituted in her place as preferential heirs of said Amina Khatoon according to the provisions of Mahommedan Law of inheritance. It is the further admitted legal position that if said Amina Khatoon at the time of her death were governed by Dayabhaga School of Hindu Law in the matter of succession the Opposite Party No. 3Yusufuddin would have the right to be substituted in place of Amina Khatoon. Another set of persons, namely, Matijanessa and Amina claimed to be substituted as the heirs of said Amina Khatoon. But in view of the fact that under the Mahommedan Law of inheritance the present petitioners are the preferential heirs of said Amina Khatoon and under the Dayabhaga School of Hindu Law the Opposite party No. 3 is the preferential heir, there is no substance in the claim preferred by Matijanessa and Amina.

2. In view of what is stated above the short point that arises for determination in the present Rule is whether the plaintiff, Amina Khatoon, was governed on February 26, 1978 which was the date of her death by the Mahommedan Law of inheritance or by the Dayabhaga School of Hindu Law.

3. When the question came up for hearing the learned lawyer appearing for the petitioners pointed out that even though the fate of this Rule depended on the answer to the aforesaid question the decision that this Court would take in the matter would have a far-reaching effect inasmuch as the said question would fall for determination in quite a good number of cases. Accordingly, on being requested by this Court the learned Advocate General rendered all possible assistance.

Cooch-Behar which was previously a princely State of India came to be merged into and constituted a district of West Bengal under the States' Merger (West Bengal) Order, 1949 with effect from January 1, 1950. The merger aforesaid however did not by itself bring about any change in the laws to which Cooch-Behar was subject before the aforesaid merger. Accordingly, even after merger was brought about by the said Order of 1949, the laws which applied in Cooch-Behar before the aforesaid merger continued in their application even thereafter. This being the legal position, it was found necessary to assimilate the laws which were in force in Cooch-Behar previously to the laws in force in West Bengal. This necessitated the passing of the Cooch-Behar (Assimilation of Laws) Act, 1950 (Act LXVII of 1950) which was an Act of Parliament. As the subject of this legislation covers matters contained in both Union and Concurrent Lists effectual assimilation of, laws could be brought aboutby simultaneous legislation made both by the Central and the State of West Bengal. That being so, the West Bengal legislature also passed the Cooch-Behar (Assimilation of State Laws) Act 1950 (West Bengal Act LXIII of 1950). Both the aforesaid Acts, one passed by the Central legislature and the other by the State legislature, simultaneously came into force on January 1, 1951.

4. Before the aforesaid merger of Cooch-Behar and before it became as a result of such merger one of the districts of West Bengal the Mahommedan subjects of Cooch-Behar State were being governed by the Hindu Law in matters of inheritance. As many Mohammedans desired that they should be governed by the Mohammedan Law an Act called the Mohammedan Inheritance Act (Act No. II of 1897) was enacted. That Act came into force on April 1, 1897. According to the provisions of said Act No. II of 1897) any Mohammedan subject of Cooch-Behar State desiring to be governed by the Mohammedan Law would be required to make a declaration in the manner provided in that Act, that he desired to be governed by the Mohammedan Law in matters of inheritance. On such a declaration being made in the manner prescribed the declarant would thenceforth continue to be governed by the Mohammedan Law of inheritance and would cease to be governed by the Hindu Law of inheritance, notwithstanding any custom to the contrary.

5. In the present case there was no such declaration made under the provisions of the said Mohammedan Inheritance Act and Amina Khatoon who was a subject of the State of Cooch-Behar or the estate left by her did not come to be governed by the Mohammedan Law of inheritance.

6. The learned lawyer appearing in support of the Rule contended on the strength of the provisions of Section 3(2) of the Cooch-Behar (Assimilation of State Laws) Act, 1950 (Act LXVII of 1950) that all laws which immediately before January 1, 1951, which was the date on which that Act came into force, did not extend to, or were not in force in Cooch-Behar should as from that day, extend to, or, as the case may be, come into force in Cooch-Behar; and all laws which immediately before that day were in force in Cooch-Behar but not in the rest of West Bengal, should on that day ceaseto be in force, except as respects thing done or omitted to be done on that date. If the statute stopped there the obvious result would have been that the said Mohammedan Inheritance Act (Act II of 1897) would stop applying to Mohammedan subjects of Cooch-Behar from after January 1, 1951 and instead the the Muslim Personal Law (Shariat) Application Act, 1937 would have applied to the Mohammedan subjects of Cooch-Behar. But, Sub-section (2) of Section 3 of the Cooch-Behar (Assimilation of State Laws) Act, 1950 (Act LXVII of 1950) provides as follows:

'Notwithstanding anything contained in Sub-section (1), the Muslim Personal Law (Shariat) Application Act, 1937 shall come into force in Cooch-Behar only on such date as the State Government may, by Notification in the Official Gazette, appoint; and Cooch-Behar Act 2 of 1897, known as the Mohammedan Inheritance Act, 1897, shall continue in force in Cooch-Behar until that day, and shall on that date cease to be in force except as respects things done or omitted to be done before that date'.

7. The result is that Despite the provisions of Sub-section (1) of Section 3 of the Cooch-Behar (Assimilation of Laws) Act, 1950 (Act LXVII of 1950) the Muslim Personal Law (Shariat) Application Act, 1937, would not apply to the Mohammedan subjects of Cooch-Behar district till the State Government by a Notification in the Official Gazette appoints a date on and from which the Muslim Personal Law (Shariat) Application Act, 1937, shall come into force in Cooch-Behar. The learned Advocate-General brought to the notice of this Court that such a Notification as the one contemplated by Sub-section (2) of Section 3 of the Cooch-Behar (Assimilation of State Laws) Act, 1950 (Act LXVII of 1950), was published only recently. That was the Notification No, 9928-.J Dated June 27, 1980 whereby the State Government appointed first day of July, 1980 as the date on which Muslim Personal Law (Shariat) Application Act. 1937 should come into force in Cooch-Behar. In the case before us the succession opened on February 26, 1978 and the question of substitution in place of said Amina Khotoon should be determined in accordance with law which was then in force. There can be no doubt that on February 26, 1978 the Muslim Personal Law (Shariat) Application Act, 1937, had no application to Mohammedan subjects of the district of Cooch-Behar. Under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, notwithstanding any custom or usage to the contrary, in all questions regarding intestate succession and certain other matters stated therein rule of decisions in cases where the parties were Muslims should be the Muslim Personal Law (Shariat) Application Act, 1937.

8. The learned lawyer appearing in support of the Rule further contended that on the date of death of said Amina Khatoon i.e., on 26th February, 1978 the Mohammedan Law would have applied to the present case and the question of substitution should have been determined according to such law. This is so according to the learned lawyer, for Section 37(1) of the Bengal Agra & Assam Civil Courts Act, 1887, so provides. Said Section 37(1) runs as follows:

'Where in any suit or other proceeding it is necessary for a Civil Court to decide any question regarding succession, inheritence, marriage or caste, or any religious usage or institution, the Mohammedan Law in cases where the parties are Mohammedans and the Hindu Law in cases where the parties are Hindus, shall form the rule of decisions except in so far as such law has by legislative enactments been altered or abolished'.

But I find no substance in this contention, for, under Sub-section (2) of Section 3 of the Cooch-Behar (Assimilation of State Laws) Act, 1950 (Act LXVII of 1950) Mohammedan Inheritance Act, 1897 was to continue in force in Cooch-Behar until a date to be appointed by the State Government on which date the Mohammedan Inheritance Act, 1897 should cease to be in force in Cooch-Behar. As already pointed out a Notification dated June 27, 1980 under Sub-section (2) of Section 3 of Cooch-Behar (Assimilation of State Laws) Act, 1950 (Act LXVII of 1950), was made and by that Notification July 1, 1980 was appointed as the date on which Muslim Personal Law (Shariat) Act, 1937 should come into force in Cooch-Behar. Thus when succession opened in the present case the Muslim Personal Law (Shariat) Act, 1937 did not apply to Cooch-Behar and said Amina Khatoon continued to be governed by the Hindu Law.

9. Further it is contended on behalf of the petitioners that when by reason of the provisions of Section 3(2) of theCooch-Behar (Assimilation of State Laws) Act, 1950 (Act LXVII of 1950) all Laws which were in force in the State of W. B. did as from January 1, 1951, extend to. or, as the case may be, come into force in Cooch-Behar, the Bengal Agra and Assam Civil Courts Act, 1887, should have applied to Cooch-Behar from January 1, 1951 and under Section 37 thereof the Mohammedan Law in cases where parties are Mohammedans should form the rule of decisions. I find it difficult to accept this contention. Even if it be conceded that Section 37 of the Bengal, Agra and Assam Civil Courts Act, 1887, did apply to Cooch-Behar, as by reason of the said Mohammedan Inheritance Act (Act II of 1397) the Mohammedans of the State of Cooch-Behar, as it then was before the said merger, who used to be governed by Hindu Law in matters of inheritance could adopt Mohammedan Law of inheritance only by a declaration made under the provisions of that Act, the provisions of Section 37 of the Bengal, Agra and Assam Civil Courts Act, 1887 could have no application to Mohammedan subjects of erstwhile State of Cooch-Behar or of the district of Cooch-Behar after the merger inasmuch as the provisions of Section 87(1) of the Bengal, Agra and Assam Civil Courts Act, 1887, would apply only in cases where by any legislative enactment the law contained in that section was altered or abolished. The law that where parties are Mohammedans, the Mohammedan Law shall form the rule of decisions shall not' apply to the present case inasmuch as the Mohammedans of Cooch-Behar were being governed by Hindu Law.

10. In the circumstances aforesaid I cannot but hold that Opposite Party No. 3, Yusufuddin was rightly substituted in place of Amina Khatoon in accordance, with the Hindu Law of Inheritance.

11. The Rule is accordingly discharged. There will, however, be no order as to costs.


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