TMI Blog1955 (9) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... of the third tavazhi. He died on 10th January, 1952. The main question in the case is whether on his death, the properties of the third tavazhi, which Abdulla Kalpha died possessed of, lapsed to the second tavazhi, the first tavazhi having become extinct, as per the terms of the karar, or whether the widow and other heirs of Abdulla Kalpha, according to the Muslim Shariat, i.e., personal law, became entitled to the said properties. The plaintiff claimed that she and the other personal heirs, defendants 1 to 8, became entitled to the properties, because of the provisions of the Madras Shariat (Amendment) Act of 1949. 2. Defendants 9 and 10, who are the karnavan and the senior most anandiravan of the second tavazhi, contended that the said Act was void because it was repugnant to the provisions of Article 19, Clause (1)(f) of the Constitution. 3. Madras Act XVIII of 1949, the impugned Act, amended the Muslim Personal Law (Shariat) Application Act (XXVI of 1937) passed by the Central Legislature. The only material section of the Act for the purpose of this reference is Section 2. That section originally stood as follows: Notwithstanding any custom or usage to the contrary, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XXVI of 1937, read with the Madras Amendment Act XVIII of 1949, has the effect of completely abrogating the customary Marumakkathayam Law in all matters without reservation. It has, therefore, become necessary to consider that decision and the observations occurring therein. 6. Before doing so, it is useful to briefly refer to the several enactments relating to Malabar Moplahs. The first of these is the Mappilla Succession Act (I of 1918). It was an Act intended to amend and define the law of intestate succession among Mappillas governed by the Marumakkathayam or the Aliyasanthana Law of Inheritance. Sections 2 and 3 are the only substantive sections and they run thus: 2. A person is considered to die intestate in respect of all property of which he has not made a testamentary disposition capable of taking effect. Explanation: 'Property' in this section does not include tarwad property unless the person dying intestate was exclusively entitled to it. 3. 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 next is the Mappilla Wills Act (VII of 1928) which provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1), the persons desiring to make the same may appeal to such officer as the Provincial Government may, by general or special order, appoint in this behalf, and such officer may, if he is satisfied that the appellant is entitled to make the declaration, order the prescribed authority to accept the same. In 1943, for the words the provisions of Section 2 the following words were substituted, viz., the provisions of this section. Section 6 repealed several provincial enactments in so far as they were inconsistent with the provisions of the Act, One of them was Section 16 of the Madras Civil Courts Act, 1873. To understand the implication of that repeal, it is necessary to extract Section 16 of the Madras Civil Courts Act. It runs thus: 16. Where, in any suit or proceeding, 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, sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Shariat. That is the effect of the Shariat Acts. If, therefore, a Muslim did not have at the time of his death any proprietary interest in property which would descend to his heirs as on intestate succession, but would survive to other members of the family unit to which he belonged, as for example a tarwad, then in our opinion, there is no scope for the application of Section 2 of the Shariat Act. 9. In our opinion, the Shariat Act (including the Madras amendment) did not purport to nor did it abolish the rights and incidents of a Mappilla Marumakkathayam tarwad. 10. The Shariat Act of 1937 by itself did not confer the right of partition on the individual members of the tarwad when the tarwad consisted of Muslims. The following observations of Basheer Ahmed Sayeed, J., are, with great respect to the learned Judge, not warranted upon the language of the Act of 1937: ... Even if the Mappilla Marumakkathayam Act (Madras Act XXVII 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 propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 2 of that Act abrogates all customs and usage which is contrary to Muhammadan Law in those matters which are enumerated in that section and applies to Muslims their strict Muslim Personal Law. The only subjects that I need refer to are intestate succession, gifts, trusts and trust properties, and wakfs. It is to be noted that testate succession is not referred to in that section. Therefore it is clear that any established custom with regard to testate succession which departs from Muhammadan Law can still be enforced by Courts of Law, and as I have already held that khojas were governed by Hindu Law both in matters of testate and intestate succession, although in the case of the latter, they would now be governed by Muhammadan Law, as far as the former is concerned, their customary law would still prevail. (Vide also Ata Mohammad v. Mohd. Shafi A.I.R. 1944 Lah. 121, per Mahajan, J.). 13. Taking the Act of 1937 by itself, the limited scope of the Act becomes amply evident. There is first the enumeration of certain subjects in Section 2 under which the Muslim Personal Law is made applicable to questions regarding these subjects irrespective of volition of parties. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s view that Sub-clause (b) of Section 16 of the Madras Civil Courts Act has been wholly repealed cannot be supported. Again, with respect to the learned Judge, we must hold that no member of a Mappilla tarwad has till partition a share in the property of the tarwad which devolves on any one on his death as on intestate succession. In our opinion, it is not correct to say that when a junior member of a tarwad dies his share survives to the other members of the tarwad. The correct legal position is that the property is owned by the tarwad as a composite entity, the members of which fluctuate, i.e., the members increase or decrease. In a Hindu Mitakshara joint family at least a junior coparcener in Madras can alienate his undivided share, though he cannot make it the subject of a testamentary disposition. Such a share can be attached by a creditor and brought to sale to satisfy the individual debt of the coparcener. In a Marumakkathayam tarwad, there is no such thing. We are unable to appreciate how Basheer Ahmed Sayeed, J., could disregard the rulings of this Court beginning from P.P. Kunhamod Hajee v. P.P. Kuttiath Hajee I.L.R. (1881) Mad. 169 Taking for instance P.P. Kunhamod H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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