MT JAFFO Vs. CHITTA

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession of a share in zamindari properties. The plaintiff is one of the daughters of Rohtan who on his death left a widow Mt. Pana and a sister Mt. Umda. The plaintiff's case as put forward in the plaint was that the parties to the suit, namely, Mt. Jaffo and her sister, the daughters of Rohtan, on the one hand, and the defendant Mt. Umda, the sister, on the other, were Thakurs by caste and were originally governed by the Mitak-shara school of the Hindu law; that some time during the Mahomedan rule, the ancestors of the plaintiff and the two defendants in common with many other Thakurs embraced the Mahomedan religion and came to be known as Malkhana Thakurs, but in matters of succession and inheritance as well as in many other matters continued to be governed by the Hindu law and are so governed up to this date. The plaint then went on to allege that for over centuries since their conversion they had been governed by the Hindu law in matters of succession and inheritance as well as many other matters, and that at any rate there existed a very ancient custom among the Malkhana Thakurs in matters of succession and inheritance as well as many other matters under which a sister cannot inherit her brother's property.

(2.) The incidents of this custom of succession were enumerated in para. 5 of the plaint. It was then alleged in paras. 6 to 9 that when the plaintiff's ancestor Tunda died leaving a son Dalla and a widow Mt. Ram Kunwar, the son succeeded to the entire estate according to the abovementioned custom to the exclusion of the widow; that when Dalla died leaving a son, a widow, his mother and a daughter, the son succeeded in accordance with the custom to the entire estate to the exclusion of the other three females. It was alleged in para. 12 that when Rohtan died about 12 years ago his wife Mt. Pana alone got the property by inheritance to the exclusion of his daughters as well as other female relations. The plaintiff accordingly came into Court on the allegation that under a family custom, which was common to the Malkhana Thakurs, sisters were excluded from inheritance. The claim was resisted by the transferee from the sister Mt. Umda on the ground that the parties being Mahomedans were governed by the strict Mahomedan law of inheritance and no custom at variance with that law could be set up.

(3.) The trial Court found that it was proved that Malkhanas were originally Hindus and had embraced Mahomedanism some centuries ago and that since then some of them had adopted all the rites and forms of Islam including the system of succession and inheritance, but that others still retained their mixed Hindu-Muslim characteristics. It was further found that by custom and love of old ideas they have retained their old system of succession excluding the females from succession and inheritance, except in so far as the Hindu Shastras permitted them. But the learned Munsif noted that there were many villages occupied by Malkhana Thakurs and that even in one and the same village there lived Malkhanas some of whom were Muslims while others followed other practices. He came to the conclusion that the custom of exclusion of sisters was not established by the evidence.