MADRAS HIGH COURT

SULAIKA BIVI AND SIX OTHERS VS RAMEEZA BIVI AND 10 OTHERS ON 20 OCTOBER, 2000

Summarised Judgement (Scroll for Complete Judgement)

Introduction:

The defendants 1 to 7 are the appellants. The first appellant is the mother and appellants 2 to 7 are the children of the first appellant through one Late Mohammed Sultan Maracayar. The first respondent is the plaintiff. Respondents 2 to 5 are the sisters and brothers of the first respondent. Respondents 7 to 11 are the legal heirs of the 9th defendant who was the 4th respondent in the first appeal.

Facts of the Case:

The short facts of the case are that the late Mohammad Sulthan Maracayar who had his permanent residence at Pattukottai was having the flourishing business in cycle under the name and style of Deen Cycle Company at Pattukottai. It is stated that the 9th. defendant In the suit one K.Jamal Mohammad, one of the sons was assisting Mohammad Sulthan Maracayar in his last days in the business and that the said Mohammad Sulthan Maracayar executed a will dated 20.1.1956.

Under the Will, he bequeathed properties described in 'A' schedule to the will to the 9th and 11th defendant, and the properties described in 'B' schedule to the will to the first appellant and her children i.e. appellants 2 to 6. It is also stated in the Will that whatever properties that were left out in the Will if and when traced out, should go to 9th and 11th appellants.

Therefore, as per the will, no property was allotted to the plaintiff and defendants 7, 8, 10 and 12. 7th defendant is one of the daughters of the first defendant. 8th and 12th defendants are the daughters of late Mohammad Sulthan Maracayar through his second wife Hazarammal. 10th defendant one K.M.Deen Mohammad is also one of the sons of late Mohammad Sulthan Maracayar through his second wife Hazarammal.

After the demise of late Mohammad Sulthan Maracayar, the plaintiff filed the suit in the year 1972 for partition alleging that the 9th defendant along with the first defendant, taking advantage of the ill-health of late Mohammad Sulthan Maracayar managed to obtain the wilt dated 20.1.1966, that after the death of late Mohammad Sulthan Maracayar, the 9th defendant obtained the signatures of the plaintiffs in some blank papers by stating that they were required for mutation purposes, that later on the plaintiffs came to know about the execution of the alleged will dated 20.1.1966 that the Will was not a true will and that the same was also invalid inasmuch as the consent of the heirs was not assigned to it after the death of the testator, the late Mohammad Sulthan Maracayar.

Observation of Court:

We therefore conclude that the will dated 20.1.1966 executed by late Mohammad Sulthan Maracayar came to be executed as claimed by the parties concerned. Therefore, the claims of the appellants 2 to 6 will have to be worked out on the basis of the application of Muslim Personal Law and we are therefore obliged to set aside the judgment of the learned Single Judge to that extent. So far as that part of the order of the learned Judge in respect of the cross objection is concerned, inasmuch as the learned Judge has proceeded on the misconception that the same was preferred by the 9th and 11th defendant, the said part of the order is liable to be set aside and the same is also set aside. Moreover as against that part of the order, no further appeal was brought before us expressing any grievance at the instance of the first respondent at whose instance only the cross objection was preferred. Consequently the cross objection also fails and the same is dismissed.

Judgement:

Therefore the appeal is thus allowed to the extent mentioned above. There will be no order as to costs.

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Complete Judgement

MADRAS HIGH COURT

SULAIKA BIVI AND SIX OTHERS VS RAMEEZA BIVI AND 10 OTHERS ON 20 OCTOBER, 2000

Equivalent citations: 2000 (4) CTC 454

Bench: R J Babu, F I Kalifulla

ORDER Judgement pronounced by F.M. Ibrahim Kalifulla, J.

1. The defendants 1 to 7 are the appellants. The first appellant is the mother and appellants 2 to 7 are the children of the first appellant through one Late Mohammed Sultan Maracayar. The first respondent is the plaintiff. Respondents 2 to 5 are the sisters and brothers of the first respondent. Respondents 7 to 11 are the legal heirs of the 9th defendant who was the 4th respondent in the first appeal.

2. The first respondent herein filed O.S.No.52 of 1973 for partition of her 7/136th share in the suit schedule properties and for accounting and profits. One Mohammed Sulthan Maracayar who died on 13.6.1967 had four wives. His first wife and third wife had no children. Through his second wife Hazarammal, the late Mohammad Sulthan Maracayar had three daughters and three sons. Of whom, first daughter Rameeza Bivi filed the suit. His fourth wife Zulaika Bivi had six children through him, and the said Zulaika Bivi and her children are the appellants herein. At the time when the first respondent filed the suit, appellants 4 to 6 were minors and they were represented by the first appellant.

3. The short facts of the case are that the late Mohammad Sulthan Maracayar who had his permanent residence at Pattukottai was having the flourishing business in cycle under the name and style of Deen Cycle Company at Pattukottai. It is stated that the 9th. defendant In the suit one K.Jamal Mohammad, one of the sons was assisting Mohammad Sulthan Maracayar in his last days in the business and that the said Mohammad Sulthan Maracayar executed a will dated 20.1.1956. Under the Will, he bequeathed properties described in 'A' schedule to the will to the 9th and 11th defendant, and the properties described in 'B' schedule to the will to the first appellant and her children i.e. appellants 2 to 6. It is also stated in the Will that whatever properties that were left out in the Will if and when traced out, should go to 9th and 11th appellants. Therefore, as per the will, no property was allotted to the plaintiff and defendants 7, 8, 10 and 12. 7th defendant is one of the daughters of the first defendant. 8th and 12th defendants are the daughters of late Mohammad Sulthan Maracayar through his second wife Hazarammal. 10th defendant one K.M.Deen Mohammad is also one of the sons of late Mohammad Sulthan Maracayar through his second wife Hazarammal. After the demise of late Mohammad Sulthan Maracayar, the plaintiff filed the suit in the year 1972 for partition alleging that the 9th defendant along with the first defendant, taking advantage of the ill-health of late Mohammad Sulthan Maracayar managed to obtain the wilt dated 20.1.1966, that after the death of late Mohammad Sulthan Maracayar, the 9th defendant obtained the signatures of the plaintiffs in some blank papers by stating that they were required for mutation purposes, that later on the plaintiffs came to know about the execution of the alleged will dated 20.1.1966 that the Will was not a true will and that the same was also invalid inasmuch as the consent of the heirs was not assigned to it after the death of the testator, the late Mohammad Sulthan Maracayar.

4. The first defendant along with her heirs, though initially supported the stand of the 9th defendant in resisting the suit, subsequently disowned their earlier written statement and filed an additional written statement taking diametrical opposite stand and contended that the will was not a valid one.

5. As far as 9th defendant was concerned, his case was that late Mohammad Sulthan Maracayar was never under the domination of the 9th defendant, that the will dated 20.6.1966 was voluntarily executed by him, that the same was registered, that the plaintiff, 8th and 12th defendants were well provided by late Mohammad Sulthan Maracayar at the time of their marriages and therefore the late Mohammad Sulthan Maracayar thought it fit not to allot any property to them that the first defendant was provided with a house apart from certain monetary benefits by way of insurance premium and mortgaged amounts, that the 10th defendant was a vagabond and was not traceable during the life time of late Mohammad Sulthan Maracayar for nearly about 10 years and therefore nothing was provided for him in the will. The 9th defendant further contended that all the parties consented to the terms of the will, after the life time of the testator, by expressing their consent in enabling the 9th and 11th defendants to encash the bank deposits and therefore the will executed by late Mohammad Sulthan Maracayar was duly accepted by all and thereby it became valid and true will.

6. The trial Court on a conspectus of the entire pleadings, framed as many as 11 issues. Of the 11 issues, the vital issues were about the validity of the will dated 20.1.1966, and by virtue of the conduct of the plaintiffs whether she was estopped from challenging the will. The trial Court came to the conclusion that Ex.B1 will was proved to be a true will in accordance with Sections 67 and 68 of the Evidence Act, that the first defendant consented to the will with full knowledge of the consequence, that the plaintiff also gave her consent and accepted the will as she had received adequate properties from her father and brothers and therefore she cannot validly challenge the will, so also the consent given by 8th and 12th defendants along with the first defendant made the will legally valid in so far as their claims and interests were concerned. The trial Court, however, held that the defendants 2 to 6 were not bound by the consent given by the mother the first defendant and therefore the will under Ex.B1 was partly invalid and non-existence as against them. In the course of its discussion, the trial Court also found that the value of 'A' schedule properties intended to be given to 9th and 11th defendants though stated to be equal to B schedule was not so. With regard to the 10th defendant, the trial Court was of the view that the total ousting of the 10th defendant from the grant of any properties by late Mohammad Sulthan Maracayar on the ground that the 10th defendant was not seen or known to be living for certain years, was quite strange. The trial Court also found as a matter of fact that apart from the bequest made in the will under Ex.B1, the late Mohammad Sulthan Maracayar assigned two other mortgages under Ex.B36 and B37 in favour of the first defendant, even though Ex.B1 'will' specifically stated that whatever properties left out should go to 9th and 11th defendants. The trial Court was of the view that the execution of Exs.B.36 and B.37 was done by late Mohammad Sulthan Maracayar by way of codicil to the will already executed by him on 20.1.1966. The allegation of dominant influence over the late Mohammad Sulthan Maracayar in the execution of the will dated 20.1.1966 was found to be not established before the trial Court. In the result, the trial Court dismissed the suit filed by the plaintiffs and passed a decree declaring that the will dated 20.1.1966 was a true and genuine will of late Mohammad Sulthan Maracayar, that the same was binding upon the plaintiffs, 1st, 7th, 8th, 10th and 12th defendants, and that the will was not binding in so far as the right of inheritance of defendants 2 to 6 and preliminary decree for partition of the shares of defendants 2 to 6 was passed. Consequently, the trial Court left open the issue Nos.3,6 and 8 to be decided in further proceedings in the suit. Issue Nos.3, 6 and 8 are related to the question whether the property in 'B' schedule belonged to 11th defendant, about the total outstanding due to the estate of Mohammad Sulthan Maracayar and what was the share due to the plaintiffs and whether the 9th defendant was not liable to render any accounts.

7. Aggrieved by the judgment of the trial Court, the defendants 1 to 6 came forward with A.S.No.l113 of 1978 challenging the findings of the trial Court about the genuineness of the will, that no proper consent was proved with reference to Ex.B1 will and that the finding of the trial Court with regard to the conduct of the 9th defendant was not proper.

8. The plaintiff came forward with a memorandum of cross objection in A.S.No.1113 of 1978 challenging the whole judgment of the trial Court.

9. The first appeal in A.S.No.1113 of 1978 was disposed of by a learned Single Judge of this Court by judgment and decree dated 27.1.1976. The learned Judge held that the execution of the will has been duly established, that the first defendant expressed her consent to the terms of the will under Ex.B23, 24, 54 and 58, that the 7th defendant having filed a written statement in the suit praying for the dismissal of the suit and having not claimed anything for herself nor disputed the execution of the will she was not entitled to any share. In the cross objection filed by the plaintiff, the learned Judge apparently mistaking it as one filed on behalf of the 9th and 11th defendants, held that the consent given by the first defendant on behalf of the minor defendants 2 to 6 was acceptable inasmuch as the consent was given even during the life time of late Mohammad Sulthan Maracayar. So holding, the learned Judge came to the conclusion that the defendants 2 to 6 were also not entitled for partition of the suit schedule properties. The learned Judge also held that 9th defendant was not liable to render any accounts since the business of the cycle shop was bequeathed exclusively to the 9th defendant. The appeal was dismissed and the memorandum of cross objection was allowed.

10. The defendants 1 to 7 have come forward with this LPA challenging the judgment and decree dated 27.2.1986 of the learned Single Judge in dismissing A.S.No.1113 of 1978 and allowing the cross objection preferred against the judgment and decree in O.S.No. 52 of 1973 dated 31.7.1977.

11. The learned counsel for the appellant raised the following contentions, viz.,

(i) that the will is a concocted and fabricated document by virtue of the suspicious and artificial circumstances exhibited before the Courts be-low:

(ii) that assuming the will to be genuine one, inasmuch as under the will some of the heirs have been excluded, could it be accepted as one established in accordance with principles of Mohamedan Law in the matter of execution of a will:

(iii) that whether the consent alleged to have been obtained during the life time of the testator was binding upon the excluded heirs again based on the principles of Mohamedan Law:

(iv) that whether the consent accorded by the first defendant who was paradanisan lady could have stated to have expressed her consent out of free will with the full understanding of the consequence as put forth by the 9th defendant: and

(v) that whether the first defendant as the mother of the defendants 1 to 7 was stated to be competent to give her consent;

12. The learned counsel contended that the will dated 20.1.1966 was set up by 9th and 11th defendants, and the basis of the consent, according to them was Exs.B23 and 24 letters given by the first defendant to Lakshmi Vilas Bank. He would further contend that all the appellants 2 to 7 were minors, when consent letter was given by the mother.

13. The learned counsel relied upon the extract of the judgment reported in Cherachom Vittil v. Valia Pudiakel, 1865 (2) Mad. 350 which is found at page 617 of the Book of Mc Naghten on Digest of Mohamedan Law. The extract of the said judgment reads as under:

" The consent of the heirs can validate a testamentary disposition of the property in excess of one-third of the property of the testator, if the consent be given after the death of the testator. But if the consent be given during the life time of the testator, it will not render valid alienation, for it is an assent given before the establishment of their own rights".

At Page 616 of the very same Book, paragraph 15 extracted therein reads to the following effect:-

"A will made by a Mussulman in favour of one son, or of one heir, cannot take effect to the prejudice and without the consent of the other sons, or the other heirs".

In Chapter VI of the said Book, paras 2 and 3 are to the following effect:

Para 2: "Legacies cannot be made to a larger amount than one-third of the testator's estate, without the consent of the heirs"

Para 3: "Legacy cannot be left to one of the heirs without the consent of the rest."

Paragraph 12 in the said chapter reads as under :

"Where a testator bequeaths more than he legally can to several legatees, and the heirs refuse to confirm his disposition, a proportionate abatement must be made in all legacies."

The learned counsel also referred to two other passages at page 615 of the very same book, which reads as under:

"Mohamedan cannot by his will vary the legal propositions of his estate to be shared by his heirs and relations, although as between heirs and relations, he may in his life time give the whole or any part to any whom he may prefer."

"Legacies by the Mohamedan Law, are limited to one-third of the testator's property, exclusive of funeral charges and debts, the remaining two-thirds not being alienable by wilt from the heirs at law".

14. The learned counsel also relied upon in Damodar Kasinath Rasane v. Smt. Shahajadibi and others, . In para 11 of the said judgment, the Division Bench concluded that.

"A Muslim cannot bequeath more than one-third of this property whether in favour of a stranger or his heir when there are heirs or other heirs left by him as the case may be. However, when, there are no heirs or other heirs left by him, he can dispose of his entire property in favour of the stranger or the sole heir as against the right of the State to take by escheat. If the property bequeathed is in excess of One-third of the estate, the excessive bequest is not valid unless the heirs, or other heirs (if the bequest is in favour of one or some of the heirs) give their consent."

Their Lordships also held that "under the Hanafi law, the consent has to be given after the death of the testator, whereas under the other schools of law, it can be given either before or after the death of the testator."

It is also held therein that "The estate bequeathed in excess of the bequeathable third will be valid to the extent of the share of the heir or heirs consenting to such excess"

It is further stated that where there are more bequests than one, which together exceed one-third of the estate, the bequests get reduced rateably. The Division Bench was also pleased to hold that where only some of the heirs consent, it is valid only to the extent of the share of the consenting heir or heirs.

15. The other judgment referred to by the learned counsel is the one reported in Narunnisa v. Shaik Abdul Hameed, . In paragraph 12 of the said judgment, their Lordships set out the legal position as under:

"12. The well established position in our opinion is that a bequest to an heir, either in whole or in part, is invalid, unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. That it is so is clear from the following enunciation in Mahaboobi v. Kempaiah, (Second Appeal No.99/150-51) : AIR 1955 Mys NUC 705:

"A Muhammadan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. But a bequest of more than the legal third can be validated by the consent of the heirs; and similarly a bequest to an heir may be rendered valid by the consent of the other heirs. The limits of testamentary power exist solely for the benefit of the heirs and they may if they like forego the benefit by giving their consent." (Headnote C) (Italics is ours)"

16. Yet another judgment relied upon by the learned counsel for the appellants is the one reported in rendered by a learned Single Judge, in the case of Yasin Iroam Bi Shaik (deceased by L.R's) v. Hajarabi and others, . In paragraph 6 of the said judgment, it was held that-

"a bequest by a Mohamedan in excess of one-third cannot fake effect, unless the heirs consent thereto after the death of testator"

17. As against the contentions of the learned counsel for the appellants, the learned counsel appearing for 9th and 11th defendants after referring to the "Muslim Personal Law (Sheriath) Application Act 1937. (Act 26 of 1937) contended that wherever there is a different custom or usage prevailing than what is prescribed under the Muslim Personal Law (Shariat), an appropriate declaration should have been obtained as prescribed under the Act in order to seek the application of Muslim Personal Law. The learned counsel by referring to an observation made by the trial Court in paragraph 16 of the judgment to the effect that:-

"The facts that females are given lesser share even in Muslim families is nothing but a natural consequence of their adoption of the practices in Hindu families which until recent times did not treat the daughters as being equal to sons in the matter of sharing properties. The custom of giving Stridhanas and making gift of jewels, lands and houses in contemplation of marriage by Muslim fathers to their daughters is almost a practice, having its roots in the similar customs prevailing among Hindus. Therefore the proved fact that Sultan has given sufficient presents to plaintiff, 8th defendant and 12th defendant when they were married, justifies his exclusion of these three daughters from the^grants he has made under Ex.B.1 will" contended that in the case on hand, having regard to the said finding of the trial Court, in the absence of any declaration as contemplated under Section 3 of the abovesaid Act, there is no scope for applying the principles of Muslim Personal Law and in the circumstances, the execution of the Will in the manner set forth cannot be found fault with.

18. After hearing the learned counsel on both sides, we find that the following vital questions are required to be considered in this appeal namely:

(I) whether the will dated 20.1.1966 EX.B.1 is a genuine one executed by late Mohammad Sulthan Maracayar?

(ii) Whether the so called consent of the first defendant can be said to be a valid consent given by her even on behalf of the respondents 2 to 6 who were admittedly minors on the date of death of the testator, and whether the mother could be said to be a competent-person to act as guardian of minor defendants 2 to 6 in Mohamedan Law?

(iii) Whether there is any scope for applying the provisions of Shariat Act, 1937?

19. On a scrutiny of the documentary evidence placed before the trial Court, it is beyond doubt that Ex.B.1 was executed by late Mohammad Sulthan Maracayar. The circumstances relied upon by the trial Court were that there was no evidence on record to show that the cordiality between first defendant and her husband late Mohammad Sulthan Maracayar was adversely affected, that the sixth defendant, the last child of the first defendant was born subsequent to the execution of the will EX.B.1 revealed that late Mohammad Sulthan Maracayar was keeping sound health and was in good mental condition, that the testator was never ill or hospitalized before his death, that therefore the alleged dominant part played by the 9th defendant over the testator was not true, that merely because the 10th defendant Deen Mohammad was excluded cannot by itself create any doubt about the genuineness of EX.B.1, and that the very recitals in the Will excluding the daughters and sons on the footing that at the time of their marriage, they were provided with substantial gifts in the form of jewels and other articles, and that they wore leading comfortable life along with their husbands justified the exclusion of the daughters from the grants made under the will. The trial Court also held that the scribe of the document EX.B.1 and the version of the attesting witnesses were all acceptable giving no room for doubting their trustworthiness. Therefore the said findings of the trial Court on the genuineness of the will is quite clear and unambiguous. Therefore we have no hesitation in confirming the said findings of the trial Court with regard to the genuineness of the Will executed by the testator.

20. When we come to the question about the validity or invalidity of the said Will dated 20.1.1966, on the ground that the first defendant was not competent to give her consent on her behalf as well as on behalf of the minors defendants 2 to 6 on the date of the death of the testator, is concerned, when we look into the position of law, we find that under Mohamedan Law, it is well settled that a Mohamedan can will away only to an extent of one-third of his estate and not beyond, and every Muslim who is sane and rational is entitled to make a will. When a Muslim dies, his debts and funeral expenses are to be paid first and thereafter out of the residue, only one-third can be disposed of by the Will. Whether the bequests exceeding the bequeathable third, will take effect without the consent of the heirs, depends upon the sect such as Shafi, Hanafi, etc., to which the concerned Muslim belongs. As to whether the consent should be obtained after the death of the testator or before the death of the testator depends upon the sect. As far as those persons who belong to the Hanafi sect, it is certain that such consent must be obtained after the death of the testator. Reference can be had to Tyabji's book of Mohamedan Law, paragraph 579 C. It is also well settled that where the bequests taken in the aggregate exceed the bequeathable third and the heirs do not consent, in Hanafi Law, bequest abate rateably. Refer Page 307 of Outlines of Mohamedan Law, by ASAF A.A.Fyzee", second Edition. The position with regard to the consent varies with other schools like Itna Ansari and Ismaili Laws with which we are not concerned. Therefore, it is clear that, for a will by a testator making a bequest of more than one-third of the residue of his estate, the same would become valid under Hanafi Law only after the consent of the heirs of the testator is obtained after the death of the testator.

21. Applying the above said principles to the facts of this case, and keeping in view the indisputable fact that the parties follow Hanafi School of law, the question arises whether the heirs of late Mohammad Sulthan Maracayar gave their consent to the bequest made under EX.B.1 after the death of the testator, inasmuch as the bequest made under Ex.B-1 was far in excess of the 1/3rd of his estate. The finding of the trial Court, with which we also fully concur to the effect that by virtue of Ex.B23, B24, addressed to Lakshmi Vilas Bank and B54, B56 addressed to Bank of Madura, the consent letters given by the first defendant which enabled the 9th defendant to encash the bank deposits, coupled with the oral testimony of D.W.8 Advocate K.R.Chandran and D.W.6 Ahmed Khan, the scribe of the letter, the first defendant signed the consent letters knowing the contents thereof and understanding what she was doing in the light of her husband's will. The trial Court also took into account similar such letter under Ex.B27 issued by the plaintiff to confirm the consent given by the plaintiff impliedly agreeing to the bequest made by her father under Ex.B.1. Added to the above, the jewels and the lands given to the plaintiffs, 8th and 12th defendants by late Mohammad Sulthan Maracayar also weighed with the trial Court to conclude that the plaintiff, 8th defendant and 12th defendant expressed their consent to the contents of the will under Ex.B.1.

22. The only ether question on this aspect that remains to be considered is as to the scope and authority of the first defendant in having expressed her consent on behalf of the minors viz., appellants 2 to 6. In that respect the conclusion of the learned judge to the effect that inasmuch as the said consent was given during the life time of testator himself by the first defendant, the same should be held to be valid is not acceptable. In our view, the said conclusion seemed to have been reached by the learned Judge abruptly without reference to the law on this subject. When indisputably, the parties belong to Hanafi sect, the consent for validating the will under which the testator made a bequest beyond 1/3rd of his estate, the consent must necessarily be made only after the death of the testator. In such circumstances, when the defendants 2 to 6 were admittedly minors on the date of the death of the testator, the question remains to be considered as to whether the first defendant in her capacity as the mother of defendants 2 to 6 can be said to be a competent person to accord, her consent on behalf of the defendants 2 to 6 as their legal guardian.

23. Under Mohamedan Law, while considering the scope and extent of mother's right of custody, vis-a-vis guardianship, the Privy Council in the case of Imam Bandi v. Muksadi, 1918 (5) IA 73. at page 83. has stated the law thus:

"It is perfectly clear that under Mohamedan Law, the mother is entitled only to custody of the person of her minor child up to a certain age according to the sects of the child, but she is not the natural guardian, the father alone, or if he be dead, his executor (under Sunni Law) is the legal guardian. "

24. The law on this subject is clear that the mother cannot act as a natural guardian on behalf of her minor children. It is not the case of the first defendant or the 9th defendant that after the death of the father, the natural guardian, any other executor came to be appointed so as to express consent on behalf of the minors to make the will binding on, appellants 2 to 6. It is well settled that neither the mother nor the brother nor the uncle can without the authority of the Court deal with the property of a minor. Applying the above stated principles to the facts of the case, it is beyond doubt that the consent expressed by the first defendant cannot, be held to be a valid consent, in respect of appellants 2 to 6. To that extent when the law is so clear, the conclusion of the trial Court to the effect that defendants 2 to 6 were not bound by the consent of the first defendant and that the will Ex.B.1 dated 20.1.1966 is invalid and non-executable against them is fully justified. Consequently, the conclusion of the trial Court that defendants 2 to 6 were entitled to have partition of their shares in the estate of late Mohammad Sulthan Maracayar which included the cycle shop under E schedule to the suit is perfectly justified.

25. As far as the question relating to the application of the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter called Act 26 of 1937) is concerned, the contention of the learned counsel for respondents 6 to 11 is based on the observations of the trial Court in paragraph 16 of its judgment wherein it is stated that-

"The facts that females are given lesser share even in Muslim Families is nothing but a natural consequence of their adoption of the practices in Hindu families which until recent times did not treat the daughters as being equal to sons in the matter of sharing properties. The custom of giving Stridhanas and making gift of jewels, lands and houses in contemplation of marriage by Muslim fathers to their daughters is almost a practice, having its roots in the similar customs prevailing among Hindus. Therefore the proved fact that Sultan has given sufficient presents to plaintiff, 8th defendant and 12th defendant when they were married, justifies his exclusion of these three daughters from the grants he has made under Ex.B.1 will"

26. The learned counsel for respondent contended that when such custom or usage are found to be prevalent by the trial Court, in the absence of any declaration obtained under section 3 of Act 26 of 1937, by virtue of the terms contained in section 2 of the said Act, the custom and usage would continue to govern the parties and to that extent, the Muslim Personal Law will have no application.

27. We are unable to appreciate the contention of the learned counsel for respondents 2 to 6. In the first place, the above said passage found in paragraph 16 of the trial Court, was not based on any evidence placed before it. It is to be noted that neither in the plaint, nor in the written statements filed by the parties, the prevalence of any custom or usage in the locality or in particular amongst the family members of late Mohammad Sulthan Maracayar was either pleaded nor proved. It is also significant to note that no such argument, was ever made nor the attention of the Court drawn to such an issue in the manner in which it is now put forth. The various issues drawn up for the purpose of determination in paragraph 13 of the trial Court also did not contain an issue with reference to the custom or usage practised by the parties. More over, there was absolutely no necessity nor was there any justification for the trial Court to make such an observation without considering any such practice being prevalent in locality or atleast in that particular family whose cause was brought before the Court. Therefore the sweeping statement so made by the trial Court cannot be taken advantage of by Respondents 6 to 11 so as to draw support to on ingenious argument now sought to be made based on the provisions of Act 26 of 1937. The observation of the trial Court was also not based on the law on this subject. Therefore those observations are to be ignored as having been made totally out of context and without any basis.

28. In this context, it will be useful to refer to the book titled "Muslim Law of Marriages and Succession in India" by Justice S.A.Khader. Former Judge of High Court of Madras. Therein the learned author has co-related the purport of the enactment of Act 26 of 1937, in the context of various custom and usage prevalent in certain sections of the Muslims living in different parts of this country. In Chapter 4 of the said book, the learned author has traced out the historical development as to how several common civil codes came to be enacted governing both Hindus and Muslims in India and the wisdom of British Administrators in having left largely untouched for reasons purely political the personal or family laws relating to succession intestate and testamentary, marriage, dissolution of marriage and the like. In that context, in so far as the Muslims were concerned, while referring to various customary practices followed by some sects of the Muslim, the learned Author has identified those sects and noted them as (i) Mappillas of North Malabar, (ii) Cutchi Memons, (iii) Khojas, (iv) Sunni Boharas of Gujarat, (v) Molesalam Giarasias of Breach and (vi) Halai Memon of Probandar (Gujarat).

29. The learned Author, apparently, after making a study of those sections of Muslims, found that though they were ardent Muslims, they were also governed by certain other practices, customs contrary to Muslim Personal Law, by virtue of custom and usage that was prevalent amongst them. While dealing on that subject, with regard to Mappillas of North Malabar, it appears that they were governed in the matters of inheritance by the Marumakkathayam system of matriarchal succession unknown to Muslim Law. The learned author has referred to the Mapilla Succession Act, 1918 (Act 1 of 1980) passed by the Legislature of the then Madras Presidency which prescribed that notwithstanding any custom to the contrary, the separate property of such a Mappilla shall devolve upon his heirs in the order and according to the rules of Muslim Law. The learned Judge also by referring to Malabar Wills Act, 1898 found that those Mappillas were entitled to dispose of their separate property in entirety by will, while under the Shariat, a Muslim can dispose of by will only one-third of his estate. The Mappilla Wills Act 1928 extended to the Mappilla Muslims, the Shariat Law with effect from 1.1.1929. The teamed author was also pleased to note that neither the Mappilla Succession Act, 1918 nor Mappilla Wills Act, 1928 affects the Tarward property, unless the Mappilla concerned was exclusively entitled to it, It was also quoted therein that the Muslim Personal Law (Shariat) Application Act, 1937 (Act 26 of 1937) also does not touch or affect the rights and incidents of the Mappilla Marumakkathayam tarward, where property devolved by survivorship, a concept quite foreign to the Shariat. The learned author was pleased to note further, based on rulings reported in Abdul Rahim v. Avooma, AIR 1956 Mad. 1441 in Mohammed Sandhu Khan v. Rathnam, AIR 1956 Mad. 144 apart from Full Bench judgment of Kerala High Court reported in Laxman v. Kamal, that the Mappilla Marumakkathayam Act (Madras Act 17 of 1939) only dealt with the management of the Tarward, the duties of the Karnavan and the rights of the junior members and does not abolish the system which still continues. Similarly the learned author referred to enactments concerning certain other sects such as Cutchi Memons, Khojas, Sunni Bohras of Gujarat, Molesalam Giarasias of Broach, and Halai Memon of Probandar (Gujarat)., Act 26 of 1937.

30. In this context, it is also worthwhile to refer to the statement of objects and reasons, accompanying the Bill which become Act 26 of 1937. It reads as under:

"For several years past, it has been the cherished desire of the Muslims of British India that Customary law should in no case take the place of Muslim Personal Law. The matter has boon repeatedly agitated in the press as well as on the platform. The Jamaiat-ul-Ulema-i-Hind, the greatest Moslem religious body has supported the demand and invited the attention of all concerned to the urgent necessity of introducing a measure to this of effect. Customary Law is a misnomer inasmuch as it has not any sound basis to stand upon and is very much liable to frequent changes, and cannot be expected to attain at any time in the future that certainty and definiteness which must be the characteristic of all laws. The status of Muslim women under the so-called Customary Law is simply disgraceful. All the Muslim Women Organizations have therefore condemned the Customary Law as it adversely affects their rights. They demand that the Muslim Personal Law (Shariat) should be made applicable to them. The introduction of Muslim Personal Law will automatically raise them to the position to which they are naturally entitled. In addition to this present measure, if enacted, would have very salutary effect on society because it would ensure certainty and definiteness in the mutual rights and obligations of the public, Muslim Personal Law (Shariat) exists in the form of a veritable code and is too well known to admit of any doubt or to entail any great labour in the shape of research, which is the chief feature of Customary Law"

31. In so far as the State of Tamil Nadu was concerned, by Tamil Nadu Act, Section 2 of the Parent Act was substituted and the substituted Section 2 reads as under:

"Notwithstanding any custom or usage to the contrary in all questions regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarrat, maintenance dower, guardianship, gifts, trusts and trust properties, and wakfs, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)"

32. A conjoint reading of the provisions contained in the Act, including the Tamil Nadu amendment along with circumstances that existed then, when the Act was brought into force, make it clear that the whole purpose of the enactment was to rule out any possibility of customary law taking the place of Muslim Personal Law. In fact, a reading of the statement of objects and reasons disclose that customary law was treated as a misnomer, inasmuch as it did not have any sound basis to stand upon and was very much liable to frequent changes without any certainty and definiteness. The purport of the enactment is that the application of Muslim Personal Law was the rule and anybody's attempt to go by any custom or usage was considered as an exception. Only under certain stated circumstances where the enforcement of any customary usage or practice was attempted to be tinkered with in certain sects such as in the case of Mappillas, Kozas, etc., the need for a declaration under section 3 of the Act for enforcement of the Muslim Personal Law in respect of any particular individual would arise. Therefore going by the history of the said Legislation, it will have to be held that the application of the Muslim Personal Law being the rule, that would govern the parties and there would be no need or necessity to hold that unless a declaration is made under section 3, there is no scope for application of the Muslim Personal Law. Such, a construction as propounded by the learned counsel for the respondents 9 and 12 if accepted would do violence to the very purport of the enactment, and will defeat the very purpose of the enactment. The ipsi-dixit statement made in para 16 of the trial Court judgment, does not provide a safe basis to conclude that there was any such customary usage prevalent among the Muslims so as to exclude the application of the Muslim Personal Law in the matter of inheritance or testamentary disposition. At the risk of repetition, we wish to point out that such a, contention was never put forth and therefore there was absolutely no warrant for the trial. Court to make those observations with regard to custom and usage as has been made in paragraph 16 of its judgment. In our view if at all, any one is required to make any declaration for specific application of Muslim Personal Law, it would at best arise in respect of persons belonging to certain sects such as Mappillas of North Malabar, Cutchi ' Memons, Khojas, Sunni Bohras of Gujarat, Molesalam Giarasias of Broach, Halai Memon of Probandar (Gujarat), where the existence of custom or usage following Hindu Law of Succession, intestate and testamentary were stated to be an accomplished factor and in some cases they were even recognised under certain enactments such as the Mappillas Successions Act, 1918, the Mappilla Wills Act, 1928, the Cutchi Memons Act, 1920, the Cutchi Memons Act, 1938, etc. In such circumstances, the said contention raised by the Senior counsel on behalf of the respondents 9 and 12 is totally unacceptable and the said contention is rejected.

33. We therefore conclude that the will dated 20.1.1966 executed by late Mohammad Sulthan Maracayar came to be executed as claimed by the parties concerned. However there is no scope for applying the terms of the said will in respect of the Minor appellants 2 to 6 with reference to whom there was no scope for accepting the terms of the said will after the demise of the late Mohammad Sulthan Maracayar. The claim that there was acceptance by the first appellant in her capacity as legal guardian of appellants 2 to 6, is not a valid claim in as much as she was totally incompetent to act as legal guardian of appellants 2 to 6. Consequently the said acceptance made by the first appellant on behalf of the appellants 2 to 6 cannot be held to be valid in law. Therefore, the claims of the appellants 2 to 6 will have to be worked out on the basis of the application of Muslim Personal Law and we are therefore obliged to set aside the judgment of the learned Single Judge to that extent. So far as that part of the order of the learned Judge in respect of the cross objection is concerned, inasmuch as the learned Judge has proceeded on the misconception that the same was preferred by the 9th and 11th defendant, the said part of the order is liable to be set aside and the same is also set aside. Moreover as against that part of the order, no further appeal was brought before us expressing any grievance at the instance of the first respondent at whose instance only the cross objection was preferred. Consequently the cross objection also fails and the same is dismissed. Therefore the appeal is thus allowed to the extent mentioned above. There will be no order as to costs.

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ABHISHEK 03012020