JAHANDARUNNISSA BEGUM Vs. MOHD. MOINUDDIN

JUDGEMENT

(1.) THIS revision has come before us in the following circumstances:

(2.) WE have heard the arguments of the respective advocates. Although this is only a revision which is before us, still the question that requires consideration in our opinion, is one of considerable importance. The question that has to be decided is as to whether it is open to a party to lead evidence of a special family custom which is in variation of or against the principles of Mohammedan Law.

(3.) IT would be convenient to refer to cases which have arisen in various provinces in regard to this matter. We might refer herein to the case which came up before the Allahabad High Court. In this case, the question was whether a custom by which daughters were excluded from inheritance which principle was in conflict with the principles of Mahomedan Law relating to succession by daughters could be regarded as good and valid custom and could evidence be led in this regard. The learned Judges held that Section 37 of the Act 12 of, 1887 forbade evidence of such custom being led, for they held that the words of Section 37, Bengal Civil Courts Act were different from the words used in Section 5 of the Act 4 of 1872 in that the latter enactment provided for evidence of custom being allowed which was not contrary to justice, equity and good conscience. Therefore they disallowed the leading of evidence with regard to the special custom which was at variance with mohammedan Law - Mammya v. Diwan, 23 All 20. This case was followed in a subsequent case of Allahabad High Court in the case of - Ismail Khan v. Imhaz Unnissa, 4 All L J 792. In toe -above case, the Judges were reluctant to differ from the trend of the decisions of the Allahabad High Court and preferred to follow the Full Bench Ruling of the Allahabad High Court in - Michel Patrick Dunne v. William Francis Legge 1 Agra 38 and also the case reported in, 23 All 20. This case of - 'Ismail. Khan v. lmliaz Unnissa went to the Privy Council and the Privy Council set aside the judgment of the Allahabad High Court. This case is reported in - Mohd. Ismail Khan v. Shivmukh Rai, 18 Ind Cas 571 and 'Ismail Khan v. Imtiaz Unnissa'. This was a case which arose under the Bengal, North West "Frontier Provinces and Assam Civil Courts Act. Then -Lordships of the Privy Council considered that the suits should be remanded to the High Court to enable the parties to produce evidence with regard to the issue as to whether the Defendants could plead that the family in the matter of inheritance was subject to a custom which was supersession of the mohammedan Law. They set aside the judgment of the Allahabad High Court in, 4 All L J 792.