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TMI Blog1972 (4) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... ssain 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 concepts of joint family property, the right of a son by birth in such property and its devolution by survivorship. Further, neither the Cutchi Memons Act, 1920 (XLVI of 1920), nor the Muslim Personal Law (Shariat) Application Act, 1937 (XXVI of 1937), nor the Cutchi Memons Act, 1938 (X of 1938), applied to them. That being the position, there was no question of the passing of the said properties to them on the death of their father as envisaged by section 3 of the Act or its being applicable to them on the said properties, the said properties having come to them under the Hindu Law rule of devolution of joint family property by survivorship. Their cage was that only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 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 Hajee 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 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 those petitions the stand taken by the members of the respondents' family was that the family properties were treated as joint family properties. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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: " 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 Hirbai v. Sonabae, commonly called the Khoja and Memos cases, the Supreme Court of Bombay was called upon to determine the clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. 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 edition)). From these premises, Westropp C.J. took a step forward in Shivji Hasan v. Datu Mavji Khoja 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 In the Goods of Rahimbhai Aloobhai, after referring to the previous decisions, Sargeant J. declared that the Khojas for the last twenty-five years at least had been regarded by the court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Hindu law in matters of inheritance. In Mahomed Sidick v. Haji Ahmed, 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 matters of inheritance and succession only. Scott 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 Khojas applied only to matters of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 strictly, and (2) that in matters of simple succession and inheritance, it was to be taken as established that these two matters among Khojas 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". In an equally outspoken dissent in relation to Cutchi Memons, he deprecated in Advocate-General v. Jimbabhai, after yet another analysis of the earlier judicial trend, the habit of treating the Khojas and Cutchi Menons 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Bucker Sait, Kumaraswamy Sastri J., after an analysis of the case law in Bombay, come to the conclusion that since the Khojas and the Cutchi 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 Hindus governed by the Mitakshara 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 go enamoured of the Hindu law of inheritance that they adopted it, but were so dissatified with the laws of the joint family that they discarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 decision of the Madras High Court holding a view contrary to the one held in S. Hajee Aboo Backer Sait's case 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 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 prevailing understanding that that was their customary law. That it is the law laid down by the High Court of Madras which must apply and gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ange 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 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 properties 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 to 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 customary law did Halai Memons fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions 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 necessary but also because were we to do so at this date, 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 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 inhentance 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, Haji Mahomed Hussain Sait, settled down in Bangalore Civil Station some time between 1928 and 1930. On the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 this Act in view of Mr. Desai having in express terms stated that he was not relying upon it. 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 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 Areas (Application of Laws) Act, 1948, extending to the Civil Station area certain laws and enactments in force in the princely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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