Law: Muslim Personal Law (Shariat) Application Act, (IX of 1948)

Section: 5

(a) Muslim Personal Law (Shariat) Application Act (IX of 1948)--- ----S. 5--- Custom--- Succession--- Limitation--- Claimants' predecessor-in-interest having been deprived of his share from the legacy of father on the ground that he had been adopted by his maternal grandfather and had inherited from him---Effect---Plea of plaintiff was that she was entitled to inherit from the estate of her propositus whereas defendants contended that predecessor-in-interest of plaintiff was deprived of inheritance in accordance with the custom---Suit was dismissed by the Trial Court but Appellate Court decreed the same--- Validity--- Customary appointment of an heir did not involve the transplantation of a person from one family to another---Tie of kinship with the natural family would not dissolve and the fiction of blood relationship with the members of new family had no application to the appointed one---Relationship created among the appointer and appointee was personal by choice and did not extend beyond the contracting parties on their sides---Decisions with regard to succession must take place as per custom applicable to the parties concerned otherwise Muslims were to be administered by Islamic Law for succession among them---Defendants were bound to prove that custom prevailed for years and years without any interruption among their tribe as per their common will and unanimous intention---Heir ordained by Islamic law in absence of custom could not be deprived of his legal share from inheritance which would vest in him automatically upon the death of his propositus---Benefit of S. 5 of Muslim Personal Law (Shariat) Application Act, 1948 could only be extended if it was proved that parties were governed by the practice otherwise Islamic Law was to be applied---Nothing was on record that family of the parties was governed by custom that an heir could be deprived of his shari share from the legacy of his father---Impugned inheritance mutation could neither be supported nor perpetuated in circumstances---Fraud would vitiate every solemn transaction and Court should not endorse and perpetuate a fraud once it was proved to have been committed---Any transaction found to be…

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