JUDGMENT 1. :- The substantial questions of law springing for consideration in this appeal are as to whether Mohammedan Law permits adoption? If the answer to the question is in the negative, whether any custom recognising the adoption is valid? 2. These questions arise in the circumstances set out below:- (i) The appellants herein are the legal representatives of Mst. Bivi wife of Shri Gulab Khan and daughter of Shri Mohd. Ali (hereinafter referred to as the defendants) filed an appeal against Shri Sayed Ali, as represented by his legal representatives, joined in the array of the cause title for he too had died during the pendency of the proceedings before the courts below (hereinafter referred to as the plaintiffs), this appeal impugnes the judgment and decree dated June 1, 1990 of the learned Additional District Judge No. 6 Jaipur City whereby the judgment and decree dated December 17, 1972 of the Munsif Jaipur City (East) were dismissed. (ii) The defendant No. 2, 3 and 4 are proforma had been impleaded in the suit by the plaintiff on the ground that at the instance of Mst. Bivi (defendant) they were intending to make pakka constructions on a portion of vacant land, a part of the suit property. (iii) The plaintiff Sayed Ali dawned to be son of first cousin of Mohd. Ali. In order to appreciate the facts it is necessary to refer the pedigree table of the family, which is as under (iv) The case of plaintiff Sayed Ali was that Mohd. Ali adopted him as per custom prevailing in Mahawatan Muslims of Jaipur. Plaintiff Sayed All initiated proceedings for succession certificate after the death of Mohd. Ali in respect of arrears of his pension amount on December 21, 1949. Mst. Bibi and her sons raised objection against grant of succession certificate on January 5, 1950 and the matter was referred to arbitration. Arbitrator gave award on Feb. 24, 1951 under which share in properties had been given to both the parties. Thereafter the Civil Judge Jaipur City granted succession certificate to Sayed Ali on March 3, 1951. (v) On Feb. 10, 1965 Mst. Bibi applied for construction of four shops on the land in dispute. Sayed Ali and other plaintiffs also applied for permission on March 3, 1965 but the concerried authority granted permission to Mst. Bibi on March 26, 1965. Thereafter the Civil Judge Jaipur City granted succession certificate to Sayed Ali on March 3, 1951. (v) On Feb. 10, 1965 Mst. Bibi applied for construction of four shops on the land in dispute. Sayed Ali and other plaintiffs also applied for permission on March 3, 1965 but the concerried authority granted permission to Mst. Bibi on March 26, 1965. Sayed Ali preferred appeal against the said permission but it was dismissed on April 8, 1965. Sayed Ali instituted a suit for declaration and possession against Mst. Bibi, Ibrahim Kalan and Ajeem on April 12, 1965. Suit was decreed by Munsif (East) Jaipur City on Feb. 12, 1972 and it was held that plaintiff Sayed Ali was the owner of the property and the construction made during the pendency of suit be demolished. Appeal was preferred against the said decree. The Additional District Judge Jaipur City vide judgment and decree dated December 18, 1972 reversed the decree of the trial court and the plaintiff suit was ordered to be dismissed. Thereafter Sayed Ali filed second appeal No. 18/1973. This court vide judgment dated August 29, 1985 allowed the said appeal and remanded the case to Additional District Judge Jaipur City. This Court in the said judgment observed thus:- " .. The finding of the first appellate court on the question of factum of adoption being based on misreading of pleadings and absence of consideration of material documentary evidence, cannot be sustained In the result, the appeal is allowed, the judgment and decree dated 18.12.1972, passed by the Additional District Judge Jaipur City in civil appeal No. 58 of 1972 is set aside and the first appellate court is directed to re-hear the appeal in the light of the above observations of this court and decide it afresh." (vi) The additional District Judge No. 6 Jaipur City vide judgment and decree dated June 1, 1990 after hearing the parties afresh, allowed the appeal and upheld the judgment and decree dated Dec. 17, 1972 passed by the Munsit Jaipur City (East) (vii) Therefore instant second appeal was preferred by Mst. Bivi. 3. Mr. 17, 1972 passed by the Munsit Jaipur City (East) (vii) Therefore instant second appeal was preferred by Mst. Bivi. 3. Mr. Narendra Jain, learned counsel appearing for the defendants urged that in the judgment dated August 29, 1986 this court observed that whatever had been said in the said judgment by way of discussions on the question of permissibility of adoption under the Muslim Law should not be taken as a decision on the said question and the said question has been kept open for debate and decision, therefore the said observations were not of binding nature. The adoption was never permitted in Muslim Law. This court in the judgment dated August 29, 1985 did not decide the question as to whether custom of adoption is permissible and valid in view of Shariat Law. The adoption if at all is taken to be permitted then also the plaintiff had failed to plead and prove the same. Details of adoption have not been given by the plaintiff. Mr. Jain learned counsel placed reliance on the following authorities- (i) Nenoo Khan vs. Mst. Sugani 1974 WLN (UC) Page 5 . (ii) Gulam Mohinuddin vs. Jali1 1987 (1) RLR 980 . (iii) Moulvi Mohd. vs. S. Mohaboob Begum AIR 1984 Madras 7 . (iv) Jamaluddin vs. Mst. Lalli 1988 R.C.C. 441 . (v) Puthia P. Abdurahiman vs. T.K. Avoomma AIR 1956 Madras 244 . (vi) The Muslim Personal Law (Shariat) Application Act 1937. 4. Mr. A.K. Bhandari, learned counsel for the plaintiff canvassed that both the courts below arrived at the concurrent finding that the plaintiff Sayed Ali was adopted according to the custom prevailed in Mahavatana Muslims. The fact regarding custom of adoption was pleaded and proved and no substantial question of law arises in this second appeal. Reliance was placed on Abdul Hakim & Others vs. Gappu Khan and others S.B. Civil Second Appeal No. 112 of 1950 decided by Hon'ble K.L. Bapna J. as his Lordship then was, on December 22, 1954) . 5. I have bestowed my thoughtful consideration to the rival contentions and carefully perused the record as well as the case law cited at Bar. 6. Before adverting to the rival contentions it is necessary to examine whether 'Adoption' is known to Muslim Law ? 5. I have bestowed my thoughtful consideration to the rival contentions and carefully perused the record as well as the case law cited at Bar. 6. Before adverting to the rival contentions it is necessary to examine whether 'Adoption' is known to Muslim Law ? FAIZ BADRUDDIN TYABJI, renowned authority on Muslim Law in his book "MUSLIM LAW (The Personal Law and Muslims in India and Pakistan) quoting extracts from Holi Quran, says:- "A form of adoption seems to have been in vogue in Arabia, previous to Islam, based either on a sense of comradeship in arms, or on blood wite and blood feud. This continued in the early days of Islam as a substitute for, or rival to, blood kinship. So it was at first laid down : 'Verily those who have believes and emigrated and striven with their substance and their soul in the way of God, and those who took them in and helped them; these shall be near of kin the one of them to the other.' (Quran viii 72) Such persons were at the start deemed to constitute a group of family of their own, inheriting to each other. This was abrogated by the verses preferring consanguinity to any artificial modes of creating ties not based on actual parentage: 'God hath not assigned unto any man two hearts within his body, nor hath he made your wives whom ye declare (to be your mothers) your mothers, nor hath He math those whom ye claim (to be your sons) your sons. This is a saying of your mouths. But God speaks the truth and the sheweth the way call them after their fathers. This will be more right before God. But if ye know not who their fathers are, then (they are) your brethren in the faith, and your comrades. And they who are related by blood are nearer of kin one to the other in the Book of God than (other) believes and the fugitives (who fled from Mecca), except that ye should do kindness to your friend." (Quran xxxiii, 4-6) These Verses show the connection between acknowledgment of parantage, adoption and comradeship in arms, and the reason for the rule requiring the acknowledged child, when he is old enough, to consent to the acknowledgment of his parentage. The rule seems to be derived from the same theory as that which gave birth to the rule relating to the 'acknowledged heir' or the 'hear by contract'...... 7. Chapter VI of TYABJI'S MUSLIM LAW deals with the subject 'Adoption amongst Muslims'. Section 228 of the said Chapter reads thus:- "Paternity or maternity is not established in a Muslim who purports to adopt another, nor is the latter considered in law to be the child of the former. Adoption is not known to Muslim Law." However, section 230 of the said chapter says that:- "A Muslim who alleges that he is by custom subject to the Hindu Law of adoption must prove it, and proof of the retention of the law of inhereitance and succession does not imply that the law of adoption has also been retained." 8. This takes me to case law cited at Bar. 9. Gulam Mohinuddin vs. Jalil (supra) was the case where this court (Hon'ble G.L. Lodha J. as his Lordship then was) observed in the facts and circumstances of that case as under:- "Now coming to the conclusion whether Nazir is adopted son of Maula Bux or there was no adoption as such. It has been said that Nazir was brought up by Maula Bux and had got him married in this very Haveli. If this all is treated to be correct, I am of the opinion that under law this would not give him the status of son and can not claim any right to property." 10. Jamaluddin vs. Mst. Lalli (supra) was the case where this court (Hon'ble N. N. Kasliwal J. as his Lordship then was) propounded thus : "The Muslim Personal Law (Shariat) Application Act, 1937 was brought into force on October 7, 1937. Under Section 2 of this Act, it was provided that for the matters mentioned in section 2 where the parties are Muslim they shall be governed by the Muslim Personal Law (Shariat) after coming into force of the above Act. It was only with regard to the matters contained in Section 3 of the above Act it was necessary to make a declaration before the prescribed authority if the parties wanted to obtain the benefit of the provisions of section 2, i.e. the application of Muslim Personal Law (Shariat) in their case. It was only with regard to the matters contained in Section 3 of the above Act it was necessary to make a declaration before the prescribed authority if the parties wanted to obtain the benefit of the provisions of section 2, i.e. the application of Muslim Personal Law (Shariat) in their case. Under Section 2 of the Shariat Act matters relating to intestate succession special property of females, including personal property inherited or obtained under contract or gift of any other provision of personal law, marriage, dissolution of marriage, including talaq, ila Zihar, Tian, khula and mubarat, maintenance, dower, guardianship, gifts, trusts 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). 11. Moulvi Mohd. vs. Mohabood Begum (supra) was the case where the Madras High Court indicated thus : "Hence it cannot be stated that there could not be a plea and proof of a custom relating to adoption at all in the instant case, if in fact there was and in such a custom prevailing as claimed by the respondent. In the said circumstances it is possible to proceed on the basis that there can be a custom or usage having the force of law with regard to adoption." 12. Nenoo Khan vs. Mst. Sugni (supra) was the case where this court (Hon'ble Chand Mal Lodha J. as his Lordship then was) laid down thus : "The parties are Mohammedans and admittedly there is no institution like adoption amongst Mohammedans. It is true that by virtue of custom Mohammedens may also have the system of adoption. In absence of any plea or evidence regarding custom of adoption prevalent in the families of the parties or the community to which the parties belong, the plaintiffs adoption to Jabardikhan cannot be recognised, and his suit for declaration that he is the lawfully adopted son of Jabardikhan has been rightly dismissed. 13. Abdul Hakim vs. Goppu Khan (supra) was the case where this court (Hon'ble K.L. Bapna J. as his Lordship then was) had occasion to deal with a case in which custom of adoption among the Biradari of Muslim Mahawats was set up. 13. Abdul Hakim vs. Goppu Khan (supra) was the case where this court (Hon'ble K.L. Bapna J. as his Lordship then was) had occasion to deal with a case in which custom of adoption among the Biradari of Muslim Mahawats was set up. In that case it was argued that adoption was not recognised by Mohammedan Law and custom of adoption was not proved, therefore three adoptions set up in that case by the defendants should not be accepted. This court while recognising the adoption in Muslim Mahawats observed thus : ...There is overwhelming oral evidence in support of the custom of adoption amongst the Mahawats, which remains unrebutted and the several instances mentioned, by the defendant's witnesses were not negatived by the evidence led by the plaintiff." 14. From the above discussion following principles may be spelt out- (i) Adoption is not known to muslim Law. (ii) By virtue of custom Mohammedans may also have the system of adoption. (iii) A Muslim who alleges that by custom he is subject of adoption must prove it. (Emphasis supplied) 15. In order to examine the veracity of arguments advanced by Mr. Narendra Jain, learned counsel, I carefully scrutinised the record. Plaintiff Sayed Ali pleaded in para No. 4 of the plaint that he was adopted by Mohd. Ali according to the custom's prevailed in the Biradari Mahawatan. He further pleaded in para No. 9 of the plaint that the Civil Judge Jaipur granted him succession certificate in the capacity of adopted son of Mohd. Ali. Sayed Ali plaintiff was examined by the trial court as PW.1 and in his examination in Chief he gave the details of adoption. He stated that on November 12, 1949 actual giving and taking ceremony had taken place in the presence of the relatives and sweets were distributed. He gave references of adoptions carried in Muslim Mahawatans and also stated that Adoption in Muslim Mahawatans were recognised. PW.2 Sardar Khan, PW.3 Mahmood Khan, PW.4 Abdul Rasheed, PW.5 Ramzan Khan and PW.6 Maqbool Hussain also supported the statement of Sayed Ali and their testimony could not be shattered in the cross examination. Though as many as seven witnesses were examined by Mst. Bivi but the testimony of the plaintiff's witnesses could not have been'rebutted satisfactorily. PW.2 Sardar Khan, PW.3 Mahmood Khan, PW.4 Abdul Rasheed, PW.5 Ramzan Khan and PW.6 Maqbool Hussain also supported the statement of Sayed Ali and their testimony could not be shattered in the cross examination. Though as many as seven witnesses were examined by Mst. Bivi but the testimony of the plaintiff's witnesses could not have been'rebutted satisfactorily. Even the witness of the defendant PW.4 Maqbool admitted in his cross examination that in his caste the boys often used to be adopted. Therefore there is no illegality in the concurrent finding arrived at by the courts below in respect of adoption of the plaintiff Sayed Ali. The ocular as well as documentary evidence amply proves that in Mahawatans Muslims custom of adoption prevailed and Sayed Ali was adopted by Mohd. Ali according to the said custom. 16. It has to be examined now as to whether the custom of adoption prevailed in Muslim Mahawatans is permissible and valid in view of the Muslim Personal Law (Shariat) Application Act 1937 ? 17. This Court (Hon'ble G.M. Lodha J.) while deciding the civil second appeal No. 18 of 1973, observed thus : "I have got no hestiation in holding that two judgments of this court accepting the custom of adoption amongst Mohammedans and particularly Mahawats are normally binding and all that is required to be considered is whether a reference is required for a larger bench on the point. Ofcourse the question of factum of adoption and legality of adoption both, requires adjudication, and facturn of adoption will have no meaning if it is illegal or invalid. I am, therefore, not deciding the question whether custom of adoption is permissible and valid in view of Shariat Law." 18. Muslim Personal Law (Shariat) Application Act 1937 (for short the Shariat Act) is an Act to make provision for the application of the Muslim Personal Law to Muslims. During the British period, it was the proclaimed policy of the foreign rulers not to interfere with the personal law of the Indians. The result was, as Danial Latiffi puts it, that under the British imperialist rule in India Muslim Law suffered, both from the apathy and in difference of the rulers based on their political exigencies and from the artificially buttressed orthodoxy of the Ulama. Obviously legislative modifications of Muslim Law have been very few. Some were adopted to strengthen Muslim Law. The result was, as Danial Latiffi puts it, that under the British imperialist rule in India Muslim Law suffered, both from the apathy and in difference of the rulers based on their political exigencies and from the artificially buttressed orthodoxy of the Ulama. Obviously legislative modifications of Muslim Law have been very few. Some were adopted to strengthen Muslim Law. Thus the Shariat Act 1937 was passed with a view to making Muslim Law applicable to the Muslims in those matters where they were governed by a different law. Section 2 of the Shariat Act provides thus:- "2. Application to Personal Law to Muslim-Notwithstanding any customs or usage to the country, in all questions (save questions relating to agricultural land) 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 talaq, ila, zihar, lain, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in case where the parties are Muslims shall be the Muslim Personal Law (Shariat)." 19. A Division Bench of Madras High Court in Puthiya Purayil Abdurahiman vs. T.K. Avoomma (AIR 1956 Madras 244) propounded that the provisions of the Shariat Act did not in terms, totally abrogate custom and usage in respect of matters other than those enumerated in section 2 and 3(1) thereof. (Emphasis supplied) 20. In Moulvi Mohaminaed vs. Mohaboob Begum AIR 1984 Madras 7 Single Bench of Madras High Court indicated thus : "It is needless to point out that custom must be ancient and the burden of proof lies upon the party who sets up the custom. The custom to hold good in law must be reasonable and the majority atleast of any given class of persons must look upon it as binding and it must be established by a series of well known concordant and on the whole continuous instances." 21. In view of Section 230 of the Chapter VI of the Muslim Law, I am of the view that Muslim who alleges that he is by custom subject to the adoption must prove such adoption. In view of Section 230 of the Chapter VI of the Muslim Law, I am of the view that Muslim who alleges that he is by custom subject to the adoption must prove such adoption. Subscribing the view propunded in Puthiya Purayil Abdurahiman's case (supra), I have no hesitation in holding that the provisions of the Shariat Act did not in terms totally abrogate the custom of adoption prevailed in Muslim Mahawatans. Plaintiff Sayed Ali as already stated has proved that the custom of adoption is ancient and continuous and has given various instances of said custom in his statement. Under these circumstances I see no good reason to interfere with the concurrent finding arrived at by the learned courts below. 22. Resultantly, the appeal fails and is hereby dismissed. Interim order passed by this court on July 26, 1990 shall stand vacated. The record of the case be sent back forthwith. Costs easy.Appeal dismissed. *******