TMI Blog1972 (4) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... LAT., A. N. ROY JUDGMENT The judgment of the court was delivered 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 section 64(1) of the Estate Duty Act, 1953 (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 to 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 Sait, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 at 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 estate was situate in Madras, he should prefer the Madras, as against the Bombay view, namely, that the 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 Madras 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, the Bombay view was the corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposition 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 Mahomedans 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). Such a rigid rule, however, applies to cases of individual conversions, for, in cases of wholesale conversion of a caste or a community, it is recognised that the converts might retain 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. Monghibai, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession. 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. A few years hence, Sausse C. J., following this decision, held in Gangbai v. Thavar Mulla 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 Malbai, 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 yet another similar case during that year, in Advocate-General of Bombay ex relatione Daya Muhammad, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Khojas' Westropp C.J. in In the matter of Haji Ismail Haji Abdulla, held them not to be regarded as Hindus for the purposes of the Hindu Wills Act, 1870 (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 in accordance with Muhammadan law." But, in Ashabai v. Haji Tyeb Haji Rahimtulla, 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 stridhan property would apply. The same judicial trend also appears in Abdul Cadur Haji Mahomed v. Turner, where Cutchi Memons were held to be subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MacLeod the rule of devolution of property by survivorship was applied to parties who were Cutchi Memons 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 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. In Jan Mahomed Abdulla Datu v. Datu Jaffer Beaman J., after an elaborate analysis of the previous decisions dealing with both Khojas and Cutchi Memons, struck for the first time a note of dissent and laid down two propositions: (1) that the invariable and general presumption was that Mahomedans were governed by the Mahomedan law and usage and that it lay upon a party setting up a custom in derogation of that law to prove it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 and finally from the Appellate Bench of the High Court in Haji Oosman v. Haroon Saleh Mahomed, and, therefore, the law as laid down by Beaman 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 and Mahomed Sidick v. Haji Ahmed. But these decisions are now obsolete and the a application of Hindu law is now restricted to cases of succession and inheritance as it would apply in the case of an intestate separated 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 Memons 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 Siddick Hajee Aboo Bucker Sait v. Ebrahim Hajee Aboo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Ltd., where a suit was filed by a Cutchi Memon son challenging a court sale in pursuance of a mortgage decree against his father, the parties, presumably on the basis of S. Hajee Aboo Bucker Sait proceeded on the assumption that the rules of Hindu law governed them. That this position continued in Madras even after the Shariat Act, 1937, came into force, except in regard to matters dealt with by section 2 thereof, is clear from Abdurahiman v. Avoomma, where a Division Bench of that High Court differed from the sweeping conclusion of Basheer Ahmed Sayeed J. in Ayisumma v. Mayomoothy Umma and held that that Act applied, as its section 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 section 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 Mariyumma v. Kunhasiumma and Lakshmanan v. Kamal). Indeed, no decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions, 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, prima facie they carry with them 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 themselves Mahomedans settled among Mahomedans, 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 within India." The second case is that of Khatubai v. Mahomed Haji Abu, where the dispute was regarding the estate of a Halai Memon w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 amongst their co-religionists. In the light of this reasoning it would appear from the view taken in S. Hajee 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, that 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. Hajee Aboo Bucker Sait's case, or of having to prefer one against the other. We do not do so not only because it is not ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter, 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, 1938 (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. Section 2 provided that all Cutchi Memons, subject, however, to the provisions of section 3, shall in matters of succession and inheritance be governed by the Mahomedan law. Section 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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