Ingredients of custom explained.

ORDER :- This revision was earlier disposed of by me on 21-12-1982. At that time. the respondent was not represented. Subsequently, pursuant to order in C. M. P. No. 2461 of 1983, the order dated 21-12-1982 was set aside because, the respondent offered convincing explanation for non-appearance at the time when the revision was heard earlier, and I felt that it is better that the matter is disposed of after hearing all the parties. The petitioners herein and one Zaina Bi (since deceased) were granted ryotwari patta under Tamil Nadu Act 30 of 1963 by the Assistant Settlement Officer, Chingleput, by order dated 28-4-1979, Zaina Bi preferred an appeal C. M. A. 57 of 1979 before the Minor Inams Tribunal (Additional Subordinate Judge II) Chingleput and while the said appeal was pending, she died on 21-7-1980. The petitioners herein are the respondents in the said appeal. The respondent herein is the daughter of one Chotima Bi, a sister of Zaina Bi and Chotima Bi predeceased Zaina Bi. As such, it is admitted that the respondent herein cannot, on the aforesaid basis, claim herself to be an heir of Zaina Bi to come on record to prosecute the appeal before the Tribunal. However, putting forth a plea that she was taken in adoption by late Zaina Bi, she filed I. A. 462 of 1980 to bring herself on record as the legal representative of the deceased appellant, Zaina Bi, and to prosecute the appeal. In spite of contest by the petitioners herein, who are respondents in the appeal, before the Tribunal, that application has been allowed, and the present, revision is directed against the orders of the Tribunal.

2. Mr. S.N. Amjad Nainar, learned counsel for the petitioners, contends that Muslim Personal Law does not recognise adoption as a mode of fitiation and the Court below erred in law in reconginsing custom as enabling the respondent herein to plead and prove such a custom to substantiate her claim as the adopted daughter of the deceased appellant, Zaina Bi. As against this, Mr. M.S. Subramaniam, learned counsel for the respondent, submits that though the Muslim Personal Law does not recognise adoption as a mode of filiation, there is a oustom in the locale to which the parties belong and amongst the parties concerned, recognising adoption as a mode of filiation and that custom stands preserved in spite of the Muslim Personal Law (Shariat) Application Act 26 of 1937, hereinafter referred to as the Shariat Act. Learned counsel for the respondent drew my attention to Section 2, as amended by the Madras Shariat (Amendment) Act 18 of 1949 and Section 3 (1) of the Shariat Act, and they run as follows-

"2. Notwithstanding any custom or usage to the contrary in all questions regarding intestate succession, special property of females including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, including tatak, ila. zihar,. lian, khula and mubara 'at, maintenance, dower, guardianship, gifts trust and trust properties and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

3 (1). Any person who satisfies the pre scribed authority-

(a) that he is a Muslim, and

(b) that he is competent to contract within the meaning of Section 11 of the Contract Act 1872; and

(c) that he is a resident of India, may by declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of the provisions of this section and thereafter the provisions of Section 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies were also specified." ,

3. Learned counsel also drew my attention to a judgment of a Bench of this Court, consisting of Rajamannar C. J. and Panchapakesa Ayyar J. in Pu