The Muslim Personal Law (Shariat) Application Act, 1937, applies to all cases of property rights so far as Muslims are concerned, in spite of any custom to the contrary, except in cases where there is no question of an intestate succession.

RAJAMANNAR, C. J. :-

These two appeals arise out of O. S. No. 65 of 1949 filed in the court of the Subordinate Judge of Madurai, by Ratnam alias Kadir Bibi Ammal. She is the daughter of one Mahomed Abba Hussain Rowther who died on the 1st of May 1938. The deceased father of the plaintiff was the son of Mahomed Meera Rowther who had a brother, Nainakhan Rowther, and the contesting defendants 1 and 2 are the sons of Meerasa Rowther, the son of the aforesaid Nainakhan Rowther. The suit was filed for partition of the suit properties which are alleged to have been left by Abba Hussain Rowther, the plaintiff claiming a half share.

2. The defendants, other than defendants 1 and 2, were mainly alienees of portions of the suit properties from defendants 1 and 2. The main plea with which we are concerned in this appeal raised by defendants 1 and 2 in their written statement was that by immemorial custom and ancient usage, the family of the plaintiff and defendants 1 and 2 had been following the Hindu Law of Property and succession and not the Muhammadan law of succession, that the properties had been enjoyed as Hindu joint family properties by the plaintiffs father and defendants 1 and 2 as undivided members of a joint Hindu family and on the death of the plaintiffs father the properties in suit passed in their entirety to them by right of survivorship. In paragraph 4 of the written statement it was further stated that the female members of the family neither participated in the income of the family estate nor claimed interest therein.

3. One of the issues raised on this plea, namely, issue No, (1) ran as follows :

"Whether the custom set up by defendants 1 and 2 that they have been following the Hindu Law of Property and excluding female heirs from inheritance and succession is true, valid in law, and binding upon the plaintiff." The suit came up for trial and was decreed on 16th February 1953 with defendants 1 and 2 and some of the other defendants remaining ex parte. Subsequently, however, the ex parte decree as against them was set aside on terms and the suit again came on for trial. The learned Subordinate Judge in his judgment disposing of the suit originally on the 16th February 1953 dealt with issue No. (1) and held against defendants 1 and 2 on this issue following two decisions of this court reported in Ayisumma v. Mayomoothy Umma, 66 Mad LW 19: (AIR 1953 Mad 425) (A) and Syed Unnissa v. Rahimuth Unissa, 66 Mai LW 57: (AIR 1953 Mad 445) (B).

The learned Judge had held following them that it was not competent for defendants 1 and 2 to raise the plea in view of the Muslim Personal Law (Shariat) Application Act, XXVI of 1937 and the Madras Act XVIII of 1949, which had the effect of applying the provisions of the Central Act to agricultural lands in the estate. When the case came on for trial finally one of the learned counsel appearing for defendants 1 and 2, Mr. S. Sankaran, made am endorsement on the plaint that in view of the decision reported in 66 Mad LW 57: (AIR 1953 Mad 445) (B), he was not letting in any oral evidence on issue No. (1) with regard to the custom set up. Apart from this endorsement, the learned Judge has expressly noted in his judgment that it was conceded before him that in view of the two decisions above referred to, it was not open to the defendants to set up that plea. Accordingly, no evidence was let in on this plea as regards the custom set up and the learned Subordinate Judge recorded a finding on issue No. (1) that the custom set up is invalid in law and not binding on the plaintiff. In the result the learned Subordinate Judge passed a decree for partition and separate possession of a fourth share in the plaint schedule properties in favour of the plaintiff. It is against this decree that the first defendant has filed App. No. 1054 of 1953 and this is the main appeal.

4. Mr. S. Ramachandra Aiyar, the learned counsel for the appellant, relied on the later ruling of a Bench of this court in Abdurahm