ANISUR RAHAMAN Vs. JALILAR RAHAMAN

JUDGEMENT

(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. 3 Yusufuddin 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 about by 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.