TMI Blog1978 (9) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... extent of the shares allotted to the two sons of the assessee ? " The assessee is a Cutchi Memon settled in the former princely State of Travancore now part of the Kerala State. The statement of facts sent up by the Tribunal records as an undisputed fact that the Cutchi Memons of Travancore had migrated from Bombay many years ago. They are also rather small in number, being only 332 (according to the census report of Sri Subramanya Aiyar) In the whole State of Travancore. On February 11, 1965, the assessee executed a deed of partition with his three children, (two sons aged 55 and 42, and a daughter aged 46) in respect of certain properties. The transaction attracted the attention of the GTO, who took the view that the property belonged to the assessee individually, and the transaction was really a gift by the assessee to his children in the guise of a partition. The officer, therefore, issued notice to the assessee to furnish the gift-tax return. The assessee refused, and took up the position that he, as a Cutchi Memon settled in Travancore after migration from Bombay, was governed by the Hindu law, and as such it was his joint family property which had been partitioned accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Khojas as being governed by the rules of Hindu law in matters of property, succession and inheritance. In regard to Cutchi Memons, in an earlier case, Haji Ismail Haji Abdula's last Will and Testament, In re [1882] ILR 6 Bom 452, it was held that they were not to be regarded as Hindus for the purpose of the Hindu Wills Act. With the evolution of the law through judicial decisions, it became fairly well crystallised that the Cutchi Memons are governed by the Hindu law only in matters of inheritance and succession. The position was thus summarised at p. 62 (of 86 ITR) : " The above analysis shows that, barring one or two stray decisions, the general trend of judicial opinion in Bombay was that both the Khojas 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. " The Supreme Court then considered the question whether the view accepted by Bombay could be said to be the same in respect of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, depending, that is to say, upon the persons amongst whom they settled down, and the surroundings and traditions to be found in that place. Thus, it was pointed out that Cutchi Memons settled down among Mohamedans, in Mombasa although they originally migrated from Sind, accepted the rules of Mahomedan law as their custom. Similarly, the Memons who had followed the Hindu law when they migrated to Porbandar, accepted Mohamedan law when they proceeded to Bombay and settled down among co-religionists. After noticing these decisions and trends, the Supreme Court stated : " The conclusion which we arrive at on consideration of the decisions referred to above is that the Cutchi Memons who proceeded either from Cutch or from Bombay to Madras and who, it appears, 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. " To the principle thus stated by the Supreme Court must be added one other allied principle, viz., whether the migrating Cutchi Memons had imbibed the native traits an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State, when the Cutchi Memons from Bombay migrated and settled down in that area? This can be seen if we examine the decision in Hajee Kameesa Jacob Sait v. Haji Mohammed Kathrimbai (XXIV TLR 228). Sadasiva Aiyar C.J. in his judgment noticed at page 229 one of the contentions urged; that the Cutchi Memons who settled in Travancore had changed their personal law of inheritance and succession to accord with the Mohamedan, rather than the Hindu law. Adverting to this contention the learned Chief Justice exhaustively traced from page 231 the evolution of the law and stated his conclusion. After referring to the decision of Ranade J. of the Bombay High Court in Bai Baiji v. Bai Santok [1895] ILR 20 Bom 53, and of the Punjab High Court in 958 Punj. W. R. 1907, the learned Chief Justice observed : " ...... It being, then, clear beyond doubt that Eassa's family followed the Hindu law and customs of succession and inheritance as prevailing in Bombay when the plaintiff's ancestor (presumably 2nd defendant's father) migrated to Travancore about 100 years before this suit, the burden of proving a change (by a new custom) to the Mohamedan law of inheritance and succession lies on 2nd defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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