MOULVI MOHAMMED Vs. S MOHABOOB BEGUM

JUDGEMENT

(1.) This revision was earlier disposed of by me on 21-12-1982. At that time, the respondent was not represented. Subsequently, pursuant to order in C. M. P, No. 2461 of 1983, the order dated 21-12-1982 was, set aside because, the respondent offered convincing explanation for non-appearance at the time when the revision was heard earlier and I felt that it is better that the matter is disposed of after hearing all the parties. The petitioners herein and one Zaina Bi (since deceased) were granted ryotwari patta under Tamil Nadu Act 30 of 1963 by the Assitant Settlement Officer, Chingleput, by order-dated 28-4-1979. Zaina Bi preferred, an appeal C. M. A. 57 of 1979 before the Minor Inams tribunal (Additional Subordinate Judge 11) Chingleput and while the said appeal wits pending, she died on 21-7-1980. The petitioners herein are the respondents in the said appeal. The respondent herein is the daughter of one Chotima Bi, a sister of Zaina Bi and Chotima Bi predeceased Zaina Bi. As such,. it is admitted that the respondent herein cannot, on the aforesaid basis, claim herself to be an heir of Zaina Bi to come on record to prosecute the appeal before the Tribunal, However, putting forth a plea that she wits taken in adoption by late Zaina Bi, she filed I. A. 462 of 1980 to bring herself on record as the legal representative of the deceased appellant, Zaina Bi, and to prosecute the appeal. In spite of contest by the petitioners herein, who are respondents in, the appeal before the Tribunal that application has been allowed, and the present revision is directed against the orders of the Tribunal.

(2.) Mr. S. N. Amjad Nainar learned counsel for the petitioners; contends that Muslim Personal Law recognize does not adoption as a mode of filiations and the Court below in law in recognising, custom as enabling the respondent, herein, to plead and prove such a custom to substantiate her claim as the adopted daughter of the deceased appellant, Zaina:16,1AR, against this, Mr. M. S Subramanium, learned counsel for the respondent, submits that though the Muslim Personal Law does not recognise adoption as a mode of filiation, there is a custom the locate to which the parties belong and amongst the parties concerned, recognising adoption a mode of filiation and that custom stands preserved in spite of the Muslim Personal Law (Shariat) Application Act 26 of 1937, hereinafter referred to as the ShariatAct. Learned counsel for- the respondent drew my attention to Section 2, as amended by the Madras Shariat (Amendment) Act 18 of 1949 and Section 3 (1) of the Shariat Act, and they run as follows-.

(3.) Learned counsel also drew my attention to a judgment of, a Bench of this Court, 'consisting of Rajamannar C.J and Panchapakesa Ayyar J. in Puthiya Purayil Abdurahiman v.T. K. Avoomma, AIR 1956 Mad244, in support of his statement, that the provisions of the Shariat Act did not in terms totally abrogate custom and usage in respect of matters other than these enumerated in Sections, 2 and 3 (1) thereof. I must at this juncture, point out that my attention was not drawn to the judgment of the Bench of 'this Court referred to above as well as Section 3 (1) of the Shariat Act ,when the revision ,was disposed of by me earlier These aspects if considered, definitely bring about new approach to the question and lead to different result altogether, A reading of Sections,2 and 3 (1) of the Shariat Act clearly brings- out the following propositions: (i) Notwithstanding any custom or usage to the contrary, in all questions regarding matters enumerated in Section 2 of the Shariat Act, the rule of decision in cases where the parties -are Muslims shall be the Muslim Personal- Law (Shariat), Hence, in respect of these enumerated m alters, custom or usage to the contrary shall stand abrogated-, (ii) Section 3 (1) of the Shariat Act states that a person who satisfies the prescribed authority -about, the three ingredients set out in Cls (a) .(b) and (c) thereof may make a declaration as enjoined by the said provision and thereafter the provisions of Section 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies, were also specified. This conveys the meaning that only when the declaration is made, custom or usage relating to the three matters namely, adoption, wills and legacies will stand excluded. The Shariat Act has ruled out custom or usage with reference to the enumerated subjects in Section 2 thereof und enables, the Muslim to rule out custom or usage with regard to three more subjects referred to in Section 3 (1). Adoption as is not one of the enumerated subjects in Section 2. Adoption is not necessarily inheritance or succession, although it may lead to inheritance or succession it is not the case of the petitioners that any declaration under Section 3 (1) was made by any one concerned in the instant case so as to rule out custom or usage on the question of adoption. Hence it cannot be stated that there could not be plea and proof of a custom relating to adoption at all in the instant case, if in fact there was and is such a custom prevailing as claimed by the respondent .In the said circumstances it is possible to proceed on the basis that there can be a custom or usage having the force of law with regard to adoption .