DOI Page / Citation link:
https://doi.org/10.11588/diglit.68024#0329
321
4. It would seem that the memorialists are under misapprehension as to the extent to
which the law of British India requires the Muhammadan law to be administered. In the
Central Provinces it is provided by the Central Provinces Laws Act, 1875, section 5, that in
questions regarding inheritance, special property of females, betrothel, marriage, dower, adop-
tion, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or
any religious usage or institution, the rule of decision shall be the Muhammadan law in cases
where the parties are Muhammadans, except in so far as such law has been by legislative enact-
ment altered or abolished, or is opposed to the provisions of this Act. The description in this
section of the cases in which Muhammadan law is to be applied is wider than that found in
some of our other local laws. For instance, Regulation IV of 1793, section 15, mentions only
suits regarding succession, inheritance, marriage and caste, and all religious usages and insti-
tutions as the class of suits in which Muhammadan law is to be applied with respect to
Muhammadans. But the Central Provinces Laws Act does impose a substantial limitation on the
applicability of Muhammadan law in cases between Muhammadans. Moreover, our Courts
have not to administer Muhammadan law as it was administered by Muhammadan Govern-
ments, but they have to administer it subject to any amendment made therein by the laws
of British India in force in such Courts, and to the construction put upon it by the rulings of
the Judicial Committee of the Privy Council. It is true that in some matters the Muham-
madan law is not administered by our Courts in its entirety, for there are some rules of that
law which our Courts will not recognise. As ani nstance, the rule in the law of pre-emption
may be mentioned, that when a purchase is intended for a hundred dirhems, it may be made
openly for a thousand or more, and that then the purchaser may give the seller a piece of cloth,
of the value of a hundred, in lieu of the price; whereupon if the pre-emptor makes a claim, he
must take the purchase as the ostensible price. Thus Sir Barnes Peacock remarked (Shakh
Kudrat-ulla versus Mahini Mohan Shah, IV, B. L. R., paragraph 174) “ all that a vendor and
purchaser have to do to evade the law of pre-emption as regards a piece of land worth 100
rupees, is to sell it for a lakh of rupees and pay only R 100, and a Court administering
Muhammadan law would not allow pre-emption except at the price of a lakh, and this Court
(z. <?., Calcutta), if it is bound to administer the Muhammadan law, must also allow itself to
be deceived by such a device and hold it to be valid.” The learned Chief Justice goes on to
say : “ I should regret very much if I were bound to administer such law in this Court ” It
would be impossible for our Courts to administer the Muhammadan law as it used to be admini-
stered by Muhammadan Governments, and it is expedient to allow our High Courts to modify
that law, so as to meet the requirements of equity and good conscience and the progressive
state of Muhammadan society.
The section above quoted of the Central Provinces Laws Act provides for the modification
of Muhammadan law by the custom of the people. It enacts that “ when among any class or
body of persons or among the members of any family, any custom prevails which is incon-
sistent with the law applicable between such persons under this section, and which, if not in-
consistent with such law, would have been given effect to as legally binding, such custom shall,
notwithstanding anything herein contained, be given effect to. Thus, the Legislature has
wisely afforded an opportunity for the development of the Muhammadan law to meet the
requirements of the people. To prevent such development and to enforce precisely the Muham-
madan law as contained in the Koran and the treatises of Muhammadan lawyers, would, it is
submitted, be inexpedient and injurious to the interests of Muhammadans. It is the wish to
adhere strictly to the laws and customs of ancient times, and the disinclination to admit any
change from the practice of their ancestors which has been one of the main obstacles to
the progress of the Muhammadans and a cause of that loss in prosperity and position of which
the memorialists complain. The memorialists give no instances in which a miscarriage of jus-
tice has been occasioned by the insufficient acquaintance possessed by English and Hindu
Judges with the principles of Muhammadan law. That instances of such miscarriage might be
found in eases tried by the subordinate Courts may be admitted. But so would cases be found
of miscarriage of justice occasioned by a like want of knowledge in cases governed by a Hindu
or English law. If the High Courts can administer Muhammadan law correctly,—-and there
are no grounds for supposing that they cannot,—there can be no reason for appointing an
Assessor Judge learned in Muhammadan law.
5. The Officiating Judicial Commissioner, therefore, considers that it is unnecessary to
appoint as an Assessor Judge in these provinces a Muhammadan Judge such as the memorialists
ask for. In the first place the Muhammadan law, in cases in which it is to be applied, can be
ascertained from text books and the law reports in the same way as the Hindu law can, and,
in the second place, the number of questions on Muhammadan law coming up for decision in the
Courts of these provinces is too small to justify such an appointment. Moreover, a Judge
who would satisfy the wishes of the memorialists would probably be one who would seek to
41
4. It would seem that the memorialists are under misapprehension as to the extent to
which the law of British India requires the Muhammadan law to be administered. In the
Central Provinces it is provided by the Central Provinces Laws Act, 1875, section 5, that in
questions regarding inheritance, special property of females, betrothel, marriage, dower, adop-
tion, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or
any religious usage or institution, the rule of decision shall be the Muhammadan law in cases
where the parties are Muhammadans, except in so far as such law has been by legislative enact-
ment altered or abolished, or is opposed to the provisions of this Act. The description in this
section of the cases in which Muhammadan law is to be applied is wider than that found in
some of our other local laws. For instance, Regulation IV of 1793, section 15, mentions only
suits regarding succession, inheritance, marriage and caste, and all religious usages and insti-
tutions as the class of suits in which Muhammadan law is to be applied with respect to
Muhammadans. But the Central Provinces Laws Act does impose a substantial limitation on the
applicability of Muhammadan law in cases between Muhammadans. Moreover, our Courts
have not to administer Muhammadan law as it was administered by Muhammadan Govern-
ments, but they have to administer it subject to any amendment made therein by the laws
of British India in force in such Courts, and to the construction put upon it by the rulings of
the Judicial Committee of the Privy Council. It is true that in some matters the Muham-
madan law is not administered by our Courts in its entirety, for there are some rules of that
law which our Courts will not recognise. As ani nstance, the rule in the law of pre-emption
may be mentioned, that when a purchase is intended for a hundred dirhems, it may be made
openly for a thousand or more, and that then the purchaser may give the seller a piece of cloth,
of the value of a hundred, in lieu of the price; whereupon if the pre-emptor makes a claim, he
must take the purchase as the ostensible price. Thus Sir Barnes Peacock remarked (Shakh
Kudrat-ulla versus Mahini Mohan Shah, IV, B. L. R., paragraph 174) “ all that a vendor and
purchaser have to do to evade the law of pre-emption as regards a piece of land worth 100
rupees, is to sell it for a lakh of rupees and pay only R 100, and a Court administering
Muhammadan law would not allow pre-emption except at the price of a lakh, and this Court
(z. <?., Calcutta), if it is bound to administer the Muhammadan law, must also allow itself to
be deceived by such a device and hold it to be valid.” The learned Chief Justice goes on to
say : “ I should regret very much if I were bound to administer such law in this Court ” It
would be impossible for our Courts to administer the Muhammadan law as it used to be admini-
stered by Muhammadan Governments, and it is expedient to allow our High Courts to modify
that law, so as to meet the requirements of equity and good conscience and the progressive
state of Muhammadan society.
The section above quoted of the Central Provinces Laws Act provides for the modification
of Muhammadan law by the custom of the people. It enacts that “ when among any class or
body of persons or among the members of any family, any custom prevails which is incon-
sistent with the law applicable between such persons under this section, and which, if not in-
consistent with such law, would have been given effect to as legally binding, such custom shall,
notwithstanding anything herein contained, be given effect to. Thus, the Legislature has
wisely afforded an opportunity for the development of the Muhammadan law to meet the
requirements of the people. To prevent such development and to enforce precisely the Muham-
madan law as contained in the Koran and the treatises of Muhammadan lawyers, would, it is
submitted, be inexpedient and injurious to the interests of Muhammadans. It is the wish to
adhere strictly to the laws and customs of ancient times, and the disinclination to admit any
change from the practice of their ancestors which has been one of the main obstacles to
the progress of the Muhammadans and a cause of that loss in prosperity and position of which
the memorialists complain. The memorialists give no instances in which a miscarriage of jus-
tice has been occasioned by the insufficient acquaintance possessed by English and Hindu
Judges with the principles of Muhammadan law. That instances of such miscarriage might be
found in eases tried by the subordinate Courts may be admitted. But so would cases be found
of miscarriage of justice occasioned by a like want of knowledge in cases governed by a Hindu
or English law. If the High Courts can administer Muhammadan law correctly,—-and there
are no grounds for supposing that they cannot,—there can be no reason for appointing an
Assessor Judge learned in Muhammadan law.
5. The Officiating Judicial Commissioner, therefore, considers that it is unnecessary to
appoint as an Assessor Judge in these provinces a Muhammadan Judge such as the memorialists
ask for. In the first place the Muhammadan law, in cases in which it is to be applied, can be
ascertained from text books and the law reports in the same way as the Hindu law can, and,
in the second place, the number of questions on Muhammadan law coming up for decision in the
Courts of these provinces is too small to justify such an appointment. Moreover, a Judge
who would satisfy the wishes of the memorialists would probably be one who would seek to
41