KUNHAMBI AND 6 ORS Vs. KALANTHAR

JUDGEMENT

(1.) The question on which the parties to this appeal are at issue is whether they are governed by Muhammadan Law or Marurnakkathayam Law. They are Mappillas of North Malabar. Both the lower Courts have decided that the Mahomedan Law is applicable. The learned District Munsif proceeded on the basis that "a custom varying Mahomedan Law, to be recognised as valid, must satisfy the essentials of peaceableness and consistency, "These elements" he added "appear to be wanting in this case." In appeal the Subordinate Judge came the same conclusion--on the ground apparently that the general presumption that the parties follow the law of their religion. He stated, however, that no authority was quoted for the proposition that Mappillas in North Malabar follow the Marumakkathayam Law. In conclusion he said:--"I do not think, for the reasons pointed out by the District Munsif, that the form of evidence, which the law demands to prove a custom, is present in this case.

(2.) It is argued before us that the findings of the Lower Courts proceed on such an erroneous view as to the nature of the question to be decided and such a disregard of the presumptions applicable that we ought to interfere in second appeal.

(3.) Neither of the lower Courts has alluded to the Madras Civil Courts Act, Section 16 of which lays down :--"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 Mahomedan Law in cases where the parties are Mahomedans and the Hindu Law in cases where the parties are Hindus, or (b) any custom (if such there be) having force of law and governing the parties or property concerned, shall form the rule of decision." The Act expressly mentions customs and usages as capable of being enforced by Civil Courts, and in this respect it differs from such Acts as the Civil Courts Act to Bengal, the United Provinces and Assam, Act XII of 1887, Section 37 of which does not refer to customs and usages. The Courts bound by the latter Act had through a series of decisions been holding that inasmuch as the Mahomedan Law was by the legislature required to be enforced by the courts and inasmuch as that Act did not refer to custom, it was not permissible for the parties to adduce any evidence of custom varying the strict Mahomedan Law. The rule as I have just stated was followed by the Allahabad High Court in the case of Jammya v. Diwan (1900) I.L.R. 23 A. 20 and in a later case which was taken in Appeal to the Privy Council. In the latter case the position taken up by the Allahabad High Court is very distinctly laid down. It appears from the decision of the Privy Council reported as Mohammad Ismail Khan v. Lala Sheomukh Rai (1912) 7. C.W.N. 97 the at the following two issues among others were raised. (1) "Can the answering defendants plead that the family in the matter of inheritance is subject to any custom in suppression of the Mahomedan Law? And (2) "If so does any custom prevail in the family depriving female issue of right of inheritance in presence of their male issue" ?