Judgement

(No. 14 of 1918) from a judgment and decree (August 12, 1915) of the High Court reversing a decree of the Subordinate Judge of Coimbatore.

The parties were Lubbai Mahomedans of the Sunni sect residing in the Coimbatore district. The suit was brought by the appellants, who claimed to recover their share according to Mahomedan law of the estate of one Muhammad Hussain Rowther who died in 1904. The defence was that the parties were governed by a custom whereby females were excluded from inheriting. The facts of the case and the terms of the plea appear from the judgment of the Judicial Committee.

Law Rep. 49 Ind. App. 119 ( 1921- 1922) Muhammad Ibrahim Rowther V. Shaikh Ibrahim Rowther

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The Subordinate Judge of Coimbatore, who tried the case, held that the custom was not established.

On appeal to the High Court that decision was reversed and the suit dismissed. The views of the learned judges (Sir John Wallis C.J. and Srinivasa Ayyangar J.) appear shortly from the present judgment; the appeal to the High Court is reported at I. L. R. 39 M. 664.

1921. Dec. 1. Dube for the appellant referred to the Madras Civil Courts Act (III. of 1872), s. 16, Mirabivi v. Vellayanna (( 1885) I. L. R. 8 M. 464.) and Abdul Hussein Khan v. Sona Dero (( 1917) L.

R.45 I. A. 10.), and to the evidence on the record, and contended that the custom had not been established.

The respondents did not appear.

1922. Jan. 17. The judgment of their Lordships was delivered by

SIR LAWRENCE JENKINS. This is an appeal from a decree dated August 12, 1915, of the High Court at Madras reversing a decree of the Subordinate Judge of Coimbatore, dated January 7, 1914.

The litigants are Lubbai Mahomedans of the Sunni sect, and the contest is as to the devolution of the estate of Muhammad Hussain Rowther. He died in 1904 leaving a widow and three sons and also two daughters named Ponnuthayee and Sulaiha Bi. Ponnuthayee died in September, 1905, leaving a husband and a daughter. They are the plaintiffs in this suit. The defendants are the three sons of Muhammad Hussain Rowther, his widow and the two children of Sulaiha Bi who was dead at the institution of this suit. The plaintiffs claim shares in Muhammad Hussains estate as heirs of Ponnuthayee, and they are supported by the children of Sulaiha Bi, who make a similar claim as heirs of their mother. The contesting defendants are the three sons and their mother.

The decision of the rival claims depends upon whether the devolution of Muhammad Hussains estate is governed by Mahomedan law as the plaintiffs contend or by a rule of descent excluding females as the contesting defendants maintain.

Though it is common ground that Muhammad Hussain and the litigants are Mahomedans, the contesting defendants seek to escape from the course of devolution this would ordinarily involve by setting up what they describe as an immemorial custom and ancient usage.

In paras.15, 16, and 17 of their written statement, they plead as follows "15. It has been the immemorial custom and ancient usage in the Mahomedan families in the district of Coimbatore in general and in the families of these defendants and the relations in particular that they have followed the Hindu Law as regards the law of property and succession and partition. Only the male members are entitled to succeed to the properties of their ancestors and females are excluded from inheritance when there are males. Besides it is also the custom in the Mahomedan families to give some amount including jewels at the time of or immediately after marriage to the female members in lieu of their shares; and consistently with that usage defendants father gave jewels, cash and other moveables worth about Rs.4000 to the mother of the second plaintiff immediately after the marriage and the plaintiffs conduct in not adverting to this in the plaint is fraudulent. 16. According to that immemorial custom and usage the plaintiffs have no right to claim a share in the share of Ponnuthayee Ammal wh