MOHAMED SANDHUKHAN ROWTHER Vs. RATNAM AND OTHERS

JUDGEMENT

(1.) THESE two appeals arise out of O. S. No. 65 of 1949 filed in the court of the Subordinate Judge of Madurai, by Ratnam alias Kadir Bibi Ammal. She is the daughter of one Mahomed Abba Hussain Rowther who died on the 1st of May 1938. The deceased father of the plaintiff was the son of Mahomed Meera Rowther who had a brother, Nainakhan Rowther, and the contesting defendants 1 and 2 are the sons of Meerasa Rowther, the son of the aforesaid Nainakhan Rowther. The suit was filed for partition of the suit properties which are alleged to have been left by Abba Hussain Rowther, the plaintiff claiming a half share.

(2.) THE defendants, other than defendants 1 and 2, were mainly alienees of portions of the suit properties from defendants 1 and 2. The main plea with which we are concerned in this appeal raised by defendants 1 and 2 in their written statement was that by immemorial custom and ancient usage, the family of the plaintiff and defendants 1 and 2 had been following the Hindu Law of Property and succession and not the Muhammadan law of succession, that the properties had been enjoyed as Hindu joint family properties by the plaintiff's father and defendants 1 and 2 as undivided members of a joint Hindu family and on the death of the plaintiff's father the properties in suit passed in their entirety to them by right of survivorship. In paragraph 4 of the written statement it was further stated that the female members of the family neither participated in the income of the family estate nor claimed interest therein. One of the issues raised on this plea, namely, issue No. (1) ran as follows :

(3.) MR . S. Ramachandra Aiyar, the learned counsel for the appellant, relied on the later ruling, of a Bench of this court in Abdurah man v. K. Avoomma,, 1956 1 Mad LJ 119: (AIR 1956 Mad 244) (C) and contended that the view taken in ( : 66 Mad LW 19 : AIR 1953 Mad 425) (A), mat after Central Act of 1937 and the Madras Act of 1949, the Muslim Personal law applied in all cases of property rights so far as Muslims are concerned in spite of any custom to the contrary, had been held to be not correct. In the view taken in the later decision of the Bench, he further contended that it was open to defendants 1 and 2 to establish by evidence the plea raised by them in their written statement.