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PETITIONER: THE CONTROLLER OF ESTATE DUTY, MYSORE,BANGALORE

       Vs.

RESPONDENT: HAJI ABDUL SATTAR SAIT & ORS.

DATE OF JUDGMENT19/04/1972

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. SIKRI, S.M. (CJ) RAY, A.N. DUA, I.D. KHANNA, HANS RAJ

CITATION:  1972 AIR 2229            1973 SCR  (1) 231  1972 SCC  (2) 350

ACT: Estate  Duty Act (34 of 1953- ss. 3 and  64(1)-Cutchi  Memon family-Father   dying   leaving   properties-Whether    sons inherited  the property or the property devolved on sons  by survivorship-Applicability  of Hindu Law of son’s  right  by birth in joint family property to Cutchi Memons.

HEADNOTE: The Cutchi Memons had migrated from Cutch to Bombay,  Madras and  other  places.  They were originally  Hindus  and  were converted  to  Islam three or four hundred years  ago.   ’Me family of the respondents originally settled in Madras,  and between 1928 and 1930, went over to Mysore and settled  down in   the  Bangalore  Civil  Station.   The  father  of   the respondents  died  in 1955 at Bangalore  leaving  properties which  were  sought  to  be charged  to  estate  duty.   The respondents claimed that they were governed by Hindu Law  as their  customary law including its concepts of joint  family property,  the right of a son by birth in such property  and its devolution by survivorship and that therefore, only one- third  of the said properties, that is, the undivided  share of  their  deceased father could be property  said  to  have passed  to  them on his death and be  assessable  under  the Estate Duty Act, 1953.  The Deputy Controller of Estate Duty held  that  as there was only one solitary decision  of  the Madras High Court in favour of the respondents’  contentions as  against a large number of decisions of the  Bombay  High Court which limited the application of Hindu Law to  matters of succession and inheritance only, the Bombay view was  the correct one. On a reference to the High Court, the High Court upheld  the respondents’ contentions. Dismissing the appeal to this Court, HELD : (1) According to Mohamedan Law a person converting to Mohamedanism  changes  not only his religion  but  also  his personal law.  This rule, however, applied only to cases  of individual conversions and not to wholesale conversions such as  Khojas  and Cutchi Memons.  In such cases  of  wholesale conversion of a caste or community the converts might retain

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a  part  of  their original personal law  according  to  the hitherto  held  habits,  traditions  and  the  surroundings. [236C] (2)  The  view  finally  settled  in  Bombay  is  that   the application of Hindu Law to Cutchi Memons is now  restricted to cases of succession and inheritance as it would apply  in the case of an intestate, and separate, Hindu, possessed  of self-acquired property. [241H] Haji  Cosman v. Haroon Saleh Mahomed, (1923) I.L.R. 47  Bom. 369, referred to. (3)  But  the  Madras  view, supported  by  the  records  of several  cases  in  the Madras High Court,  is  that  Cutchi Memons, who had settled down in Madras, had regulated  their affairs, since they had settled down amidst 232 Hindus,  according  to  Hindu Law not  only  in  matters  of succession  and  inheritance, but also in matters  of  their property  including  the Hindu concepts of  coparcenary  and survivorship. [246C-D] Hajee  Aboo Bucker Sait v. Ebrahim Hajee Aboo  Bucker  Sait, A.I.R.  1921  Mad. 571; Abdul Sattar Ismail v.  Abdul  Hamid Sait,  A.I.R.  1944  Mad.  504; Abdul  Hameed  Sait  v.  The Provident  Investment Company Ltd., I.L.R. [1954]  Mad.  939 (F.B.);  Abdurahiman  v. Avoomma, A.I.R. 1956 Mad.  244  and Begum  Noorbanu  v.  Deputy  Custodian  General  of  Evacuee Property, A.I.R. 1965 S.C. 1937, referred to. (4)  The  question as to which customary law  is  applicable turns  really  on  the  consideration  as  to  which  law  a community  decides to have for regulating succession to  the properties  of its members depending upon amongst whom  they had  settled down and the surroundings and  traditions  they found  in that place.  That being the position, there is  no question  of preferring one view to another in  the  present case  as  between the Madras and Bombay views,  because  the Madras view applies to the respondents. [245H] Abdulrahim Haji Ismail Mithu v. Halimabai, (1915-1916) L.R., 43  I.A.  35 and Khatubai v. Mohamad Haji  Abu,  (1922-1923) L.R., 50 I.A. 108, applied. Ella Sait v. Dharanayya, 10 Mys, L.J., 33, disapproved. (5)  Moreover, if such preference is expressed by the  Court now, it may have the result of upsetting a number of  titles settled  on  the basis of the decisions of each of  the  two High Courts and perhaps elsewhere. (6)  The  Cutchi Memons Act (46 of 1920) does not  apply  to the respondents, because, the declaration under s. 2 of  the Act to get its benefit and be governed by Mahomedan Law  had not been made by any one concerned. [247E] (7)  The  option  of  being governed by  the  Mahomedan  Law contained  in  the 1920-Act was replaced by  a  uniform  and mandatory  provision,  in  the Cutchi  Memons  Act  (10,  of 19,38),  which  provided that all Cutchi  Memons  shall,  in matters  of succession and inheritance, be governed  by  the Mahomedan  Law.   But the 1938-Act was not extended  to  the Civil  Station area in Bangalore where the deceased and  the members  of  his  family had settled  down  and  carried  on business.  In 1948, when that area was retroceded to Mysore, the Mysore Legislature passed the Retroceded (Application of Laws)  Act,  1948 extending to that area  certain  laws  and enactments in force in the Princely State of Mysore, one  of which  was  the Mysore Cutchi Memons Act,  1943,  which  was ’identical with 1938 Central Act.  But s. 3 of the  1943-Act provided  that ’nothing in ’this Act shall affect any  right acquired  before  its  commencement  etc.’  The  respondents having been born. before 1948 (when the Act was made  appli- cable to them) had already acquired a right by birth in  the

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property  held  by their father which  right  was  expressly saved  by  s. 3 of the 1943-Act.  There was,  therefore,  no question of the passing of the properties to the respondents on  the  death of their father as envisaged by s. 3  of  the Estate Duty Act. [247H-248F]

JUDGMENT: CIVIL APPELLATE JURISDICTION: C.A. No. 1354 of 1968, Appeal from the judgment and order dated February 3, 1967 of the Mysore High Court in T.R.C. No. 1 of 1965. S.   T. Desai, S. K. Aiyar, R. N. Sachthey and B. D. Sharma, for ,the appellant.  233 C.   K.  Daphtary,  V.  Krishnamurthy,  V.  Srinivasan,   S. Swarup, B.     Datta,  P. C. Bhartari, J. B. Dajachanji,  O. C. Mathur and Ravinder Narain, for the respondents. The Judgment of the Court was deliverd by Shelat, J. This appeal, by certificate, is directed  against the  judgment of the High Court of Mysore dated February  3, 1967  whereby  it  answered in  the  negative  the  question referred to it under s. 64(1) of the Estate Duty Act,  XXXIV of 1953. The question was :               "Whether on the facts and in the circumstances               of  the case, the entire property held by  the               deceased   valued  at  Rs.   12,23,794/-   was               chargeable lo estate. duty ?" The  said  property comprised shares and securities  of  the value of Rs. 25,778/-, and immovable properties at Bangalore and  Madras  respectively valued at Rs. 5,42,500/-  and  Rs. 6,10,100/-. The assessment in question pertained to the estate of  Hajee Mahomed  Hussain Sailt, the father of the  two  respondents, who  died  at Bangalore on March 22, 1955 leaving  the  said properties.    The  said  Hajee  Mahomed  Hussain  and   the respondents  belonged  to  Cutchi  Memon  sect  amongst  the Muslims.  The respondents claimed that Cutchi Memons at  one time  were Hindus residing in Sind, that some four  or  five hundred  years  ago they were converted to  Islam  like  the members of another such sect, the Khojas that they  migrated thence to Cutch and from there spread themselves to  Bombay, Madras and other places.  Their case was that despite  their conversion, the Cutchi Memons retained a large part of Hindu law as their customary law, including its concept& of  joint family  property, the right of a son by birth in  such  pro- perty  and its devolution by survivorship.  Further  neither the Cutchi Memons Act, XLVI of 1920, nor the Muslim Personal Law (Shariat) Application Act, XXVI of 1937, nor the  Cutchr Memons Act, X of 1938 applied to them.  That being the posi- tion,  there  was  no question of the passing  of  the  said properties to them on the death of their father as envisaged by  s. 3 of the, Act or its being applicable to them or  the said  properties, the, said properties having come  to  them under the Hindu Law rule devolution of joint family property by survivorship.  Their case was that only one-third of  the said  properties,  that  is, the undivided  share  of  their deceased  father, could be properly said to have  passed  to them on his death and to be assessable under the Act. The Deputy Controller rejected these contentions as also the evidence  led  by  the respondents in  support  thereof  and assessed 10-L120 SupCI/72 234

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duty  at  Rs. 2,05,996.41 P. on the basis  that  the  entire estate valued by him at Rs. 12,23,794/- was assessable.  The respondents  filed two separate appeals, both of which  were rejected by the Central Board of Revenue by its order  dated December 30, 1961, and as aforesaid, at the instance of  the respondents  referred  to  the  High  Court  the   aforesaid question. In  support  of  their  contentions,  the  respondents   had produced   before  the  Deputy  Controller   the   following documents as evidence of the Hindu law being their customary law :               (i)   O.P.  No. 47 of 1909-A  petition  before               the High Court of Madras and the High  Court’s               order thereon.               (ii)  O.P.  188 of 1927-A petition before  the               High  Court  of Madras and  the  High  Court’s               order thereon.               (iii) O.P.  79 of 1928-A petition  before  the               High  Court  of Madras and  the  High  Court’s               order thereon.               (iv)  O.P.  1  of 1930-A petition  before  the               High  Court  of Madras and  the  High  Court’s               order thereon.               (v)   The judgment of the High Court of Madras               in Civil ’Revision Petition No. 1727 of 1930.               (vi)  The Judgments of the same High Court  in               Siddick  Hajee  Aboo Bucker  Sait  v.  Ebrahim               Hajee  Abuo Bucker Sait(1), and  Abdul  Sattar               Ismail v. Abdul Hamid Sait. (2) These were produced to show that the rules of Hindu law were consistently  acquiesced in and applied to their family  and the other Cutchi Memons settled in Madras.  They also relied on  the  fact  that the High Court  had  issued  letters  of administration  to  them although they had  paid  succession duty  only  on  one-third of the said  estate.   The  Deputy Controller held that neither the said evidence, nor the fact of  their  having paid succession duty on one third  of  the said estate only concluded the issue before him, viz.,  that the  rules  of Hindu law, including the rules  as  to  joint family   property   and  its  devolution   by   survivorship constituted the customary law of Cutchi Memons in Madras and Bangalore.   He rejected their contention That as  they  had settled down first in Madras and then in Bangalore  sometime between  1928 and 1930, and as a large part of  the ,state was  situate  in  Madras, he should prefer  the  Madras,  as against the Bombay view. namely, that he rules of Hindu  law applicable  to Cutchi Memons governed matters of  succession and  inheritance only.  His view was that as there was  only one solitary decision of the High Court of (1) A.I.R. 1921 Mad. 571. (2) A.I.R. 1944 Mad. 504.  235 Madras in favour of the respondents’ contention as against a large  number  of decision of the Bombay  High  Court  which limited   the  application  of  Hindu  law  to  matters   of succession and inheritance, the Bombay view was the  correct one.   As regards the orders and decisions produced  by  the respondents,  he  held  that  they  would  not  assist   the respondents  as in none of them the question raised by  them was specifically dealt with by the High Court. In support of their appeals the respondents, in addition  to the  aforesaid evidence, also produced a partition  deed  of 1906  between  one Hussain Hajece Ouseph Sait  and  his  two sons,  which inter alia recited that the said Hajee  Hussain Sait and his six brothers had formed a joint family governed

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by  Hindu  law.   The different  petitions  and  the  orders thereon  set  out  earlier, and ranging from  1909  to  1930 showed, (1) that the respondents’ family was in Madras  till about 1930 when its members partly shifted their  activities to Bangalore, and (2) that in all these petitions the  stand taken by the members of the respondents’ family was that the family  properties were treated as joint family  properties. The  Board, however, rejected this evidence stating that  no weight could be given to it, since a custom followed by one, particular  family  would not "convert that  family  into  a coparcenary governed by the Hindu law of survivorship",  and dismissed the appeals.  As aforesaid, the High Court  upheld the  respondents’  contentions  and  answered  the  question referred to it against the Revenue. On  behalf of the Controller of Estate Duty,  the  following points were raised :               (i)   that the concept of joint family did not               apply  to  Cutchi Memons, and  that  a  Cutchi               Memon’s  son did not acquire any  interest  by               birth in the property inherited by his  father               from his ancestors,               (ii)  that in any case there was no scope  for               raising   any   such  contention   after   the               enactment  of  ’he Shariat Act  of  1937,  and               thereafter of the Cutchi Memons Act, 1938.               (iii) that  the  High Court of  Mysore  should               have  preferred the view taken by  the  Bombay               High Court and followed by the old Mysore High               Court in Elia Sait v. Dharavva,(1) and               (iv)  that the findings recorded by the  Board               were binding on the High Court. (1) 10 Mys.  L.J. 33. 236 After some argument, Mr. Desai conceded that his contention as to the Shariat Act could not be pressed and gave up  that part  of  his  second  proposition.   As  regards  his   4th proposition, the issues before the High Court were questions of law and therefore here was no question of the High  Court being   bound   by  the  Boaid’s  findings.    That   leaves proposition  1, part of proposition 2 and proposition  3  of Mr. Desai for our determination. It  is a rule of Mahomedan law, the correctness of which  is not  capable  of  any doubt, that it  applies  not  only  to persons  who  are Mahomedan by birth but by  religion  also. Accordingly, a person converting to Mahomedanism changes not only  his  religion but also his personal  law.   Mitar  Sen Singh v. Maqbul Hasan Khan(1).  Such a rigid rule,  however, applies to cases of individual conversions, for, in cases of wholesale  conversion  of  a  case or  a  community,  it  is recognised  that the converts might remain a part  of  their original  personal  law  according to  Their  hitherto  held habits, traditions and the surroundings.  This principle was laid down in Fidahusein v. Mongbibai(2), where the  question arose  whether a Khoja of the Shia Ishna Ashari  sect  could dispose  of  the  whole  of  his  property  by  testamentary disposition.   Tracing  the history and  the  conversion  of Khojas from its previous decisions, the High Court held that the conversion of Khojas to the Shia Imami Ismaili sect  was not  a  case  of individual conversions but  of  a  mass  or community  conversion, and that in such a case it  could  be properly presumed that such converts might retain a  portion of  their  original personal law according to  their  social habits  and  surroundings.  They,  therefore,  retain  their personal law unless they consciously adopt another. The High Court deduced the following principle (p. 402):

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             "A Hindu convert residing in India is governed               by  his personal law unless he  renounces  the               old law and accepts the new one, except  where               a statutory provision is made.  His  intention               to renounce the old law is to be inferred :               (a)   if he attaches himself to a class  which               follows a particular law, or               (b)   if  he  observes some  family  usage  or               custom derogatory to the old law." The  question  as  to which personal law,  sects  among  the Muslims, such as the Khojas and the Memons, would be subject to in matters of property, succession and inheritance  arose in  Bombay  as early as 1847.  In Hirbae v. Sonabae  (  3  ) commonly called the Khoja and Memon cases, the Supreme Court of Bom- (1)  [1930] 57 I.A. 313. (2) [1936] 38 Bom.  L.R. 397. (3) Perry’s Oriental Cases, 110 (1853). 237 bay was called upon to determine the claim of two sisters in the  estate  left by their father, who  had  died  intestate without  leaving any male issue, The claim was  resisted  on the  ground that in the Khoja community the custom was  that females  were excluded from any share in their  father’s  es ate,  and  were entitled only to  maintenance  and  marriage expenses.   A suit raising precisely the same  question  was also before the Court between members of Cutchi Memons sect. Both  the suits were tried together and disposed of  by  Sir Erskine  Perry, C.J., by a common judgment in which he  held the  custom  put  forward before him  as  proved.   On  that finding he held :               "I am, therefore, clearly of the opinion  that               the effect of the clause in the Charter is not               to  adopt  the text of the Koran  as  law  any               further  than it has been adopted in the  laws               and  usages of the Muhammadans who came  under               our  sway,  and if any class  of  Muhammadans,               Muhammadan dissenters, as they may be  called,               are  found to be in possession of  any  usage,               which is otherwise valid as a legal custom and               which  does not conflict with any express  law               of  the English government, they are  just  as               much entitled to the protection of this clause               as  the most orthodox society can come  before               the Court." The  learned  Chief  Justice held that the  Khojas  who  had settled  down in Cutch, Kathiawar and Bombay were  converted as  a caste to Islam some three or four hundred  years  ago, but  had  retained on their conversion the Hindu law  as  to inheritance  and succession.  As to Cutchi Memons  also,  he held  that  they had originally settled down in  Cutch  from where they spread in western India; that originally Lohanas, they too were converted to Islam some three or four  hundred years  ago.  Though a little more orthodox Muslims than  the Khojas and more prosperous, they had yet retained the  Hindu law  of succession, excluding females from inheritance,  who were  entitled  only to maintenance and  marriage  expenses. (pp. 114-115). A  few  years hence, Sausse, C.J., following  this  decision held  in  Gangbai v. Thavar Mulla(1) that the  Khoja  caste, "although  Muhammadan  in religion, has been  held  to  have adopted,  and  to be governed by Hindu customs and  laws  of inheritance,".   Three  years  later, in  In  the  Goods  of Mulbai,(2)  Couch, C J. observed that the law by  which  the Khojas were governed was not, properly speaking, "Hindu law, but  probably that law modified by their own  customs".   In

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yet  another similar case during that year, In the  Advocate General of Bombay ex relations Daya (2)  (1866) Bom.  H.C. R. 276. (1) (1363) 1 Bom.  H.C.R. 71. 238 Muhammad  and  other(1), commonly known as the  Agha  Khan’s case,  the  question  was  not  as  regards  the  rules   of succession  and inheritance, but whether the Khojas were  to be   considered  as  orthodox  Sunnis  or  Ismailia   Shias. Arnould,  J.,  once again considered the  history  of  their conversion,  their religious book called  ’Dashavatar’  (the ten  incarnations)  and came to the conclusion  that  Khojas represented "the dissidence of dissent" in its most  extreme form;  the Ismailias being dissenters from the main body  of Shias,  as these in turn were dissenters from the main  body of  orthodox Islam". (Wilson’s Anglo Muhammadan  Law,  33-34 (6th ed.). From these premises, Westropp, C.J., took a  step forward  in  Shivji Hassam v. Datu Mavji Khoja(2)  and  held that Hindu law applied to the Khojas in all matters relating to  property, succession and inheritance, the Khojas  having retained that part of their personal law to which till their conversion they were accustomed.  Similarly, In the Goods of Rahimbhai  Aloobhai(3),  after  referring  to  the  previous decisions,  Sargeant, J., declared that the Khoias  for  the last  twenty  five years at least had been regarded  by  the court  in all questions of inheritance as converted  Hindus, who originally retained the Hindu law of inheritance,  which had  since  been  modified by special customs,  and  that  a uniform practice had prevailed during ’that period of apply- ing Hindu law lo them in all questions of inheritance,  save and except when such a special custom had been proved.   The consequence  of  such a proposition was that the  burden  of proof  lay  on the person who set up such a  special  custom derogatory to the Hindu Law.  In Rahimathai v. Hirbai, ( 4 ) Westropp, C.J., once again declared :               "It  is a settled rule that in the absence  of               proof  of  a special custom  to  the  contrary               Hindu  law  must regulate  the  succession  to               property among Khojas", and  dealing with a question such as that of maintenance  to be awarded to a Khoja widow, he held that in the absence  of a special custom to the contrary, that question also must be governed  by  Hindu law.  In Karamali v. Sherbanoo ( 5  )  , rules  of Hindu law were applied as between the widow  of  a deceased Khoja and his brothers, the Court holding the widow to  be entitled to maintenance only and the property of  the deceased  going to the brothers who had lived  jointly  with ’heir deceased brother.  Thus, from 1847 to 1905 the  Bombay High Court consistently treated the Khojas as being governed by the rules of Hindu law in matters of property, succession and inheritance. (1)(1866) 2 Bom.  H.C.R. 323. (2) (1875) 12 Bom.  H.C.R 281. (3) (1875) 12 Bom.  H.C,R. 294. (4) (1878) I.L.R. 3 Bom. 34. (5)  (1905) I.L.R, 29 Bom. 85. 239 With regard to the Cutchi Memons, whom Sir Erskine Perry had clubbed together with the Khojas, Westropp, C.J., in In  the Matter of Haji Ismail Haji Abdullah(1) held them  not to  be regarded as Hindus for the purposes of the Hindu Wills  Act, XXI of 1870, and added :               "  We  know of no  difference  between  Cutchi               Memons  and any other Muhammadans except  that               in one point connected with succession it  was               proved  to  Sir Erskine  Perry’s  satisfaction               that they observed a Hindu usage which is  not

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             in accordance with Muhammadan Law." But in Ashabai v. Haji Tyeb Haji Rahimtulla (2) , where  the plaintiffs, the widow and the daughter of the deceased  Haji Adam, a Cutchi Memon, sought to recover properties  alleging them to be the ancestral properties of Haji Adam, which  his father  could not dispose of by will, Sargeant, C.J.,  ruled that there was no partition between Haji Ismail and his  son Haji Adam, and that the ancestral property absolutely vested in Haji Ismail on his son’s death.  He further held that the jewels  of one of the females of the family were treated  as stridhan  property to which the Hindu law of  succession  to such sridhan property would apply.  The same judicial  trend also appears in Abdul Cadur Haji Mohamed v. Turner(3)  where Cutchi  Memons  were  held to be subject  to  Hindu  law  in matters of inheritance.  In Mahomed Siddick v. Haji Ahmed (4 )  the contention expressly raised was that  the  Mitakshara doctrine  of sons acquiring interest by birth  in  ancestral properties  did  not apply to Cutchi Memons,  and  that  the earlier  decisions limited the Hindu law to govern  matter-, of  inheritance and succession only.  Scott,  C.J.,  dealing with this contention held :               "Vested  rights, accruing at birth  have  been               acquired  by  sons  under  the  law   hitherto               governing  the community, and it would not  be               just to interfere with Those rights on account               of  this recent change of opinion.  I use  the               word   ’   recent’  advisedly,   because   the               community  hitherto  by  their  practice  have               acquiesced in the application of Hindu law-" In the next case, which came before the High Court, the High Court.changed  its  view  and  reversing  the  judgment   of Jardine.  J., held that the rule of Hindu law applicable  to the  Khoias  applied  only to  matters  of  inheritance  and succession  and that the further rule of ’he sons  having  a right  by birth in the ancestral property  and  consequently having a right to demand partition of it did not apply.  The High Court, however, noted that such a right did (1)( 1881)I.L.R. Bom.459. (2) (1885) I.L.R. 9 Bom. 115.. (3) (1886) I.L.R. 9 Bom. 158 (4) (1886) I.L.R. 10 Bon.  1 240 prevail  in  Cutch and Kathiawar from where the  Khoias  had spread  themselves  to  Bombay. (see  Ahmedbhoy  v.  Cassum- bhoy(1).   But, contrary to what he had held in  that  case, the  same learned Chief Justice (Sargeant, C.J.) in  In  the Matter  of Haroon Mahomed(2), a case of Cutchi Memons,  held that in the case of a family trading concern the members  of the family would be governed by the Hindu Law and stated the position of Cutch Memons Thus :               "The appellant is a Cutchi Memon, and  belongs               to  the same family as the other  persons  who               have  been made insolvents.  As Cutchi  Memons               the  rules  of Hindu Law and custom  apply  to               them,  and the position of the appellant  with               regard  to the family property must be  deter-               mined  by  the same  considerations  as  would               apply  in the case of a member of a joint  and               undivided Hindu family". Mossa  Haji v. Haji Abdul(3) is yet another  instance  where the High Court held that in the absence of a special  custom as to succession the Hindu Law of inheritance would apply to Cutchi Memons, and therefore, when a Cutchi Memon widow dies issueless,  her property would be governed by the Hindu  Law as  to  stridhan.   A year later, in Haji  Noor  Mahomed  v. MaCleod   (  4  the  rule  of  devolution  of  property   by survivorship  was applied to parties who were Cutchi  Memons

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in the matter of a family firm, save that somewhat  contrary to it, the principle of relationship between the manager and the members of the family was held not to apply. The above analysis shows that barring one or two stray deci- sions,  the general trend of judicial opinion in Bombay  was that both the Khoias and the Cutchi Memons retained, despite their conversion, considerable portion of their personal law and  that  the rules of Hindu law were accepted by  them  as customary  law  in  matters  of  property,  inheritance  and succession, including rules as to joint family property, the right  of a son therein by birth and the devolution  thereof by survivorship. In  Jan  Mahomed v. Dutta Jaffar(5), Beaman,  J.,  after  an elaborate  analysis of the previous decisions  dealing  with both  Khoias and Cutchi Memons, struck for the first time  a vote of dissent and laid down two propositions :               (1)   that   the   invariable   and    general               presumption    was   that   Mahomedans    were               governed by the (1)  8891  I.L.R. I Bom. 534 (2) [1890] I.L.R. 14  Bom.  189 (3) I.L.R. 30 Bom. 197 (4) [1907] I.L.R. 9 Bom. 274. (5)  [1914] I.L.R. 38 Bom. 449. 241               Mahomedan law and usage and that it lay upon a               party  setting  up a custom in  derogation  of               that law to prove it strictly, and               (2)   that in matters of simple succession and               inheritance, it was to be taken as established               that these two matters among Khoias and Cutchi               Memons were governed by Hindu Law "as ,applied               to separate and self-acquired property". He added that he limited his second proposition to  separate and  self-acquired  property to take the sting  out  of  the earlier  judgments  and  "effectively  prevent  its  further extension in all directions upon the basis of the Hindu  law of the joint family having been established to be the law of the  Khojas and Memons". (p. 511) In an equally  out  spoken dissent  in relation to Cutchi Memons, he deprecated in  the Advocate-General v. jimbabai(1), after yet another  analysis of  the  earlier judicial trend, the habit of  treating  the Khoias and Cutchi Memons alike, as if they were on precisely the  same  footing and urged the necessity of  deciding  the cases  of Cutchi Memons on the customs proved in respect  of them  rather than the customs prevailing among  the  Khoias, and observed (p. 190) :               "  While there are many peculiar  features  in               the  sectarianism  of  the  Khoias,   strongly               marking  them off from orthodox  Mahomedanism,               the  Cutchi Memons, except for the  historical               fact  that they were originally  Hindoos,  and               were  converted four hundred or  five  hundred               years ago to Mahomedanism, are, at the present               day, strict and good Moslems." He  dissented from Mahomed Sidick v. Haji Ahmed(2) and  held that  the pro-position there laid down, that not only  Hindu law  applied to Cutchi Memons in matters of inheritance  and succession  but  that the concept of joint  family  property also governed them, was open to objection, since such a rule could rest only upon proved customs, that no custom of  that kind  had ever been proved and that Scott, C.J.,  had  based his  conclusion  only on the case law.  His  conclusion  was that  the only thing which could be said with certainty  was that  the Cutchi Memons had acquired by custom the power  of disposing  of the whole of their properly by will, but  that it  was  not  proved before him and never  had  been  proved

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affirmatively  that they had ever adopted as part  of  their customary law the Hindu law of be joint family as a whole or the  distinction in that law between ancestral  property  as against  self-accquired property and that the Cutchi  Memons were  subject  by  custom to Hindu  law  of  succession  and inheritance as it would (1) [1917] I. L. R. 41 Bom. 18 1. (2) [1886] I.L R. 10 Bom. 1, 242 apply  to the case of an intestate separate Hindu  possessed of  self-acquired  property  and no more.   The  dissent  of Beaman,  J., received approval  from another learned  single Judge  in Mangaldas v. Abdul Razak(1) and finally  from  the Appellate  Bench of the High Court in Haji Oosman v.  Haroon Salah  Mahomed,(2)  and therefore, the law as laid  down  by Beam, an, J., may be taken as finally settled so far as  the Bombay High Court is concerned.  The Appellate Bench of  the High Court summed up the position thus :               "There was a time when it was assumed that the               Hindu law of joint property applied to  Cutchi               Memons;    Ashabai   v.   Haji    Tyeb    Haji               Rahimtulla(3)  and  Mahomed  Sidick  v.   Haji               Ahmed.(4) But these decisions are now obsolete               and  the application of Hindu law is now  res-               tricted to cases of succession and inheritance               as it would apply in the case of an  intestate               separate  Hindu  possessed  of   self-acquired               property."               The  Revenue would be correct in the  position               taken  by them, were the view finally  settled               in  Bombay to apply to Cutchi Memmons  settled               in Madras and elsewhere also. But  the High Court of Madras has adopted a  view  different from  the later trend of opinion in the Bombay  High  Court. In  S.  Haji Aboo Bucker Sait v. Ebrahim Hajee  Aboo  Bucker Sait,(5)  Kumaraswamy Sastri, J., after an analysis  of  the case  law in Bombay, came to the conclusion that  since  the Khojas and the Cutch Memons spread themselves from Cutch and Kathiawar, where they had originally settled down and  where they had lived in Hindu Kingdoms with Hindu surroundings and traditions, there was nothing surprising that they  retained the  rules  of Hindu law in general not only in  matters  of succession  and inheritance but also concepts, such as,  the joint  family property and its devolution  by  survivorship. According  to  him,  at the time of  their  conversion,  the Cutchi Memons were Hindu governed by the Mithakshara  system of  joint  and undivided family together with  its  rule  of survivorship.   "I find it difficult", he said,  "to  assume that the Cutchi Memons on their conversion were so enamoured of  the Hindu Law of inheritance that they adopted  it,  but were so dissatisfied with the laws of the joint family  that they  discarded  the rules as to coparcenary and  the  son’s interest  in the property of his grandfather."  Since  there were  no  reported decisions on the position of  the  Cutchi Memons who had settled down in Madras, the learned Judge had the High Court’s record searched.  As a (1) [1914] 1613om.  L.R. 224.(2) [1923] I.L.R. 47 Bom. 369. (3) [1885] I.L.R. 9 Bom. 115.  (4) [1886] I.L.R. 10 Bom 1. (5)  A.I.R. 1921 Mad. 571. 243 result  of that search, he found several suits filed by  and against  the  Cutchi Memons wherein they  were  consistently treated  as members of an undivided family governed  by  the rules applicable to the members of the Hindu joint  families and decrees had been passed in those suits on that  footing.

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Even  as regards the parties before him, he found that  till the  filing  of  the suit, which he  was  trying,  they  had regulated their affairs upon the basis that the Hindu law of the  joint family applied.  On the premise that  the  Cutchi Memons  in Madras had regulated succession  and  inheritance according   to  Hindu  law,  including  its   principle   of devolution  of  property by survivorship, he held  that  the Hindu  law  of coparcenary and joint family applied  to  the Cutchi Memons settled in Madras. In Abdul Satlar Ismail v. Abdul Hamid Sait,(1) Leach,  C.J., referred to this decision with approval and the  distinction therein  made between self-acquired property which a  Cutchi Memon could dispose of by a will without the restriction  of the one-third under the Mahommedan Law, on the one hand, and joint family property which he could not so dispose of. (pp. 507  to  508).  In  Abdul  Hameed  Sait  v.  The   Provident Investment  Company  Ltd.,(2) where a suit was  filed  by  a Cutchi  Memon so challenging a court sale in pursuance of  a mortgage decree against his father, the parties,  presumably on  the basis of S. Haji Aboo Bucker Sait (3)  proceeded  on the  assumption that the rules of Hindu law  governed  them. (P.  942) That this Position continued in Madras even  after the  Shariat Act, 1937 came into force, except in regard  to matters   dealt  with  by  s.  2  thereof,  is  clear   from Abdurahiman v. Avoomma, (4 ) where a Division Bench of  that High Court differed from the sweeping conclusion of  Basheer Ahmed  Saved Sayeed, J., in Avisumma v.  Mavomoothy  Umma(5) and  held that that Act applied, as its s. 2  clearly  said, only  to property left intestate   and which was capable  of devolving on the heirs of the deceased and that that Act did not  make  the  Mahomedan  Law  applicable  in  all  matters relating to Muslims nor did it abrogate the custom and usage in respect of matters other than those specified in s. 2  of the  Act.  The Act, therefore, would not apply  to  property except that which was capable of devolution on intestacy  to the       heirs of the deceased holding such property.  (see also  Mariyumnia v. Kunhaisumma(6) and Lakshmanan  v.  Kamal ( 7 ). Indeed, no decision of the Madras High Court  holding a  view  contrary to, the one held in S.  Haji  Aboo  Bucker Sait’s case (a) was shown to US. On the contrary, there are, as  seen  above, decisions referring to that  decision  with approval.  It may, therefore, be taken for- (1) k.I.R. 1944 Mad.     (2) I.L.R. 1954 Mad. 93 (F.B.) (3) A.I.R. 1921 Mad. 571.(4) A.I.R. 1956 Mad. 244. (5) A.I.R. 1953 Mad. 425.(6) 1958 Ker. Law Times 627 (7)  A.I.R. 1959 Kr. 67 (F.B.). 244 the time being that the view prevailing in that Court is the one  of  Kumaraswamy  Sastri, J.,  in  that  decision.   The records  of past cases and the decisions of the  High  Court therein  found  by  that  learned Judge  as  also  the  past proceedings  filed in the High Court by the members  of  the respondents’ family and orders passed thereon would seem  to reinforce the reasoning and the conclusion arrived at by the learned  Judge,  in that, the parties in  those  proceedings would  not  have in filing those  proceedings  assumed  that rules  of Hindu law applied to them unless there was a  pre- vailing  understanding  that that was their  customary  law. That  it  is the law laid down by the High Court  of  Madras which must apply and govern the Cutchi Memons settled  there is clear from Begum Noorbanu v. Deputy Custodian General  of Revenue Property(1), where the Khoias settled in the  former Hyderabad State were held to ’be governed by the law as laid down by the Privy Council of the then State, of Hyderabad. As  to  how  surroundings in which a  convert  settles  down

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affect the customary law to which he is accustomed till then can  be  seen from two highly illustrative  decisions.   The first is in Abdulrahim Haji Ismail Mithu v. Halimabai(2),  a case of Memons who had settled down in Mombasa.  Memons,  it is  stated there, began to migrate to Mombasa in the  latter half  of  the 19th century.  At the date of the  suit,  from which  the appeal went up to the Privy Council,  there  were about  a  hundred Memon families settled  in  Mombasa.   The question which arose in the suit was whether the respondent, the  widow  of  one of them, was entitled,  as  against  the appellant, the eldest son of the deceased by his first wife, lo  one eighth share according to Mahomedan law or  only  to maintenance  under  Hindu law which applied  to  the  Cutchi Memons  in India.  The respondent had led evidence  to  show that during the ten ’years Preceding ’he suit, there were at least  eleven  cases in which distribution  of  estates  was according  to Mahomedan law.  ’The  respondent’s  contention was  that the Cutchi Memons who migrated lo East Africa  had settled  down among Mahomedans there and bad  adopted  their customs  and traditions, including as a Special  custom  the rule  as  to succession according to  Mahomedan  law,  thus, diverting, from the rules of Hindu law, which in Cutch  they had  retained  as  their customary law  upon  conversion  to Islam.  The Privy Council held on these facts that :               "Where a Hindu family migrate from one part of               India  to  another.  Primsa facie  they  carry               with  theme their personal law, and,  if  they               are  alleged to have become subject to  a  new               local   custom,  this  new  custom   must   be               affirmatively proved to have been adopted, but               when   such  a  family  emigrate  to   another               country, and being (1) A.I.R. 1965 S.C. 1937. (2) [1915 1916] L R. 43 1. A. 35. 245               themselves    Mahomedans,    settled     among               Mahomendans,  the presumption that  they  have               accepted the law of the people whom they  have               joined seems to their lordships to be one that               should  be much more readily made.   All  that               has to be shown is that they have so acted  as               to  raise  the inference that  they  have  cut               themselves  off from their  old  environments.               The analogy is that of a change of domicile on               settling  in  a new country  rather  than  the               analogy  of  a change of custom  on  migration               with in India." (p.41). The  second case is that of Khatubai v. Mahomed Haji  Abu(1) where the dispute was regarding the estate of a Halai  Memon who  hailed from Porbandar and had settled down  in  Bombay. If  succession to his estate was governed by Mahomedan  law, the appellant, his daughter would get a share as against the respondent.   Just as the Cutchi Memons came from  Sind  and settled  down  in  Cutch,  retaining,  in  spite  of   their conversion,  Hindu law as their customary law, Halai  Memons also  came from Sind and settled down in Halai Prant in  the then  Kathiawar.   Some of these proceeded to  Bombay  where they formed a sub-sect known as the Bombay Halai Memons, who it  was admitted, governed succession to  their  proper-ties according  to Mahomedan law.  Therefore if the deceased  had been  in the proper sense of the word a Bombay Halai  Memon, the  question  of succession lo property left by  him  would have  been  governed by Mahomedan law.  But  the  concurrent findings  of  the courts here was that he was not  a  Bombay Halai Memon, but a Porbandar Memon.  The question was,  what

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customary   law  did  Halai  Memons  follow  in  regard   to succession  to their properties ? From the evidence  led  by the  parties,  which  consisted of  judgments  of  Porbandar courts,  and the oral evidence of some of the pleaders  from Porbandar  it appeared, as the Appellate Bench of  the  High Court  held, that the Halai Memons of Porbandar, settled  as they were amongst Hindus there. followed as their  customary law  Hindu  law  as regards succession  and  inheritance  as against  the  Bombay Halai Memons who  settled  down  amidst their  co-religionists  in Bombay.  Lord  Dunedin  took  the Mombasa  case as an illustration, for his dictum that if  it was   otherwise  shown  that  the  Kathiawar  Halai   Memons practised the Hindu law, excluding females from  succession, it was equally easy to infer that the Bombay Memons, finding themselves among other Mahomedans who followed the Mahomedan law in its Purity, renounced the customs of the Hindu law of succession  in  favour of the orthodox tenets of  their  own religion. These  two  decisions  show that the question  as  to  which customary   law   is   applicable  turns   really   on   the consideration as to (1)  [1922-1922] L.R. 50 I.A. 108. 246 which  law  a  community  decides  to  have  for  regulating succession  to the properties of its members depending  upon amongst  whom  they settled down and  the  surroundings  and traditions  they  found  in that place.   Thus,  the  Cutchi Memons,  who settled down amongst Mahomedans when they  went to  Mombasa, in spite of their having  originally  regained Hindu law when they migrated to Cutch from Sind, accepted as their custom rules of Mahomedan law in Mombasa.   Similarly, Halai Memons, although they had followed Hindu law when they migrated  to  Porbandar  accepted Mahomedan  law  when  they proceeded to Bombay and there settled down amongs, their co- religionists.   In  the  light of this  reasoning  it  would appear  from  the view taken in S. Haji Aboo  Bucker  Sait’s case(,) against which no other Madras view was shown to  us, and  especially  as  that view was  supported  also  by  the records  of  several other cases in that  High  Court,  ’hat Cutchi Memons, who had settled down in Madras, had regulated their  affairs, since they had settled down  amidst  Hindus, according to Hindu law not only in matters of succession and inheritance, but also in matters of their property including the Hindu concept of coparcenary and survivorship. That being the position, there is no question of our  having to  decide  whether  the Bombay view, as  reflected  in  the decisions since Beaman, J., threw doubts on the dicta in the earlier  decisions and the Madras view, as reflected  in  S. Haji  Aboo Bucker Sait’s case(1) or of having to prefer  one against  the other.  We do not do so not only because it  is not necessary but also because were we to do so at this day, it  might perhaps have the result of upsetting a  number  of titles settled on the basis of the decisions of each of  the two High Courts and perhaps elsewhere too.  The  conclusion, which  we  arrive  at  on  consideration  of  the  decisions referred  to above is that ’he Cutchi Memons  who  proceeded either  from Cutch or from Bombay to Madras and who, it  ap- pears,  settled down amongst Hindus, Hindu surroundings  and traditions  there, regulated their affairs as regards  their property, succession and inheritance according to the  Hindu law which they had retained while in Cutch and to which they were already accustomed. It  is true that some of the Cutchi Memons went over to  the then State of Mysore either from Cutch or from Western India or Madras.  As aforesaid, the family members of the deceased

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Haji  Mahomed Hussain Sait settled down in  Bangalore  Civil Station  sometime  between 1928 and 1930.  On the  basis  of that  fact, reliance was placed on the decision of the  then Rich  Court of Mysore in Elia Sait v.   Dharanavva(2)  where the  question  for consideration was whether the  custom  of adoption recognised in the (1) A.I.R. 191 Md. 571. (2) 10 Mys.  L.J. 33. 247 Hindu Law prevailed also among the Cutchi Memons there.  The High  Court, it appears, had both the Bombay view,  and  the Madras  view as expressed in S. Haji Aboo  Bucker’s  case(1) but  preferred  the Bombay view as stated in  Haji  Oosman’s case(2).   The  High Court, however, gave no  reasoning  for that  preference nor did it have before it, as appears  from the  decision itself, any evidence as to the  customary  law which the Cutchi Memons settled in Bangalore followed.  That being  so,  that  decision  cannot  be  treated  as  a  well considered judgment reflecting the position of the customary law applicable to Cutchi Memons who had set led down in  the then  Mysore  State nor was it consequently binding  on  the High Court. The question next is, whether the subsequent legislation  on which the Revenue relied changed in any way the position  as laid down by Kumaraswamy Sastry, J ? The  Cutchi Memons Act, XLVI of 1920 was an enabling Act  as its  long title and preamble indicate.  Its  second  section provided that any Cutchi Memon, who had attained the age  of majority  and was at the time a resident in  British  India, could  declare  in  he  prescribed  manner  and  before  the prescribed  authority that he desired to obtain the  benefit of  the  Act,  and thereafter such a  declarant,  his  minor children   and  their  descendants  would,  in  matters   of succession  and  inheritance, be governed by  the  Mahomedan law.  It is nobody’s case that any such declaration was ever made  to  get the benefit of the Act.  The  Act,  therefore, would have no operation upon the respondents.  Then came the Cutchi Memons Act, X of 1938, which was passed, inter  alia, to facilitate administration of justice by the civil  courts under  a uniform established Code for all Cutchi  Memons  in various  parts  of the country instead of "a wide  field  of custom  and usage" which "has to be traversed for  a  proper determination of the case".  The Act came into force as from November  1, 1938.  Sec. 2 provided that all Cutchi  Memons, subject,  however,  to  the provisions of  s.  3,  shall  in matters  of  succession and inheritance be governed  by  the Mahomedan  law.   Sec.  3, subject to  which  the  foregoing section  applied,  is a saving provision and  provides  that nothing  in  the Act "shall affect any  right  or  liability acquired  or incurred before its commencement or  any  legal proceeding  or  remedy  in  respect of  any  such  right  or liability;  and any such legal proceeding or remedy  may  be continued  or enforced as if this Act had not been  passed". In between the two Acts was enacted the Muslim Personal  Law (Shariat) application Act, XXVI of 1937.  We do not have  to consider the effect of Ibis Act in view of Mr. Desai  having in express terms stated that he was not relying upon it. (1) A.I.R. 1921.  Mad. 571. (2) [1923] I.L.R. 47 Bom. 369. 2 48 The  Cutchi Memons Act, X of 1938 was not extended at  first to  the Civil Station area in Bangalore where  the  deceased and  the members of his family had settled down and  carried on business.  Until 1947, that area was administered by  the Viceroy  in  his capacity as the  Crown  representative.   A

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number  of  Acts  passed by  the  Central  Legislature  were extended  by him to this area with or without  modifications but not the Cutchi Memons Act 1938.  In 1948, after the said area was retroceded to Mysore, the Mysore Legislature passed the Retroceded (Application of Laws) Act, 1948 extending  to the Civil Station area certain laws and enactments in force, in the princely State of Mysore.  One of them was the Mysore Cutchi  Memons Act, 1 of 1943, which was verbatitm the  same as  the  Central Act, X of 1938, and  contained  only  three sections.  The first section gave the tide of the Act.   The second  section  provided that subject to S. 3,  all  Cutchi Memons  shall  in matters of succession and  inheritance  be governed  by  the Mahomedan law.  Thus the option  of  being governed  by  the Mahomedan law contained in  1920  Act  was replaced  by  a uniform and mandatory  provision.   But  the third  section,  which is a saving  provision,  inter  alia, provided that "nothing in this Act shall affect any right or liability  acquired or incurred before its  commencement  or any  legal proceeding or remedy in respect of such right  or liability  and  any such proceeding or remedy may  be,  con- tinued or enforced as if this Act had not been passed." If the parties as aforesaid were governed in matters of pro- perty, succession and inheritance by the rules of Hindu  law including  the  rules  as  to  joint  family  property,  its distribution  according to the rule of survivorship and  the right of a son in it by birth, the High Court would be right in  its view that the accountable persons, having been  born lone  before 1948, had already acquired a right by birth  in the  property held by their father, a right expressly  saved by  S. 3 of the Act.  There was, therefore, no  question  of that  interest Passing to them on the death of their  father as envisaged by s. 3 of the Estate Duty Act.  In this  view, the  judgement  of  the High Court under  challenge  has  to upheld.  The appeal, therefore, fails and is dismissed  with costs. V.P.S.                       Appeal dismissed. 249