The Controller of Estate Duty,
Mysore,Bangalore Vs. Haji Abdul Sattar Sait & Ors  INSC 117 (19 April
SIKRI, S.M. (CJ) RAY, A.N.
KHANNA, HANS RAJ
CITATION: 1972 AIR 2229 1973 SCR (1) 231 1972
SCC (2) 350
Estate Duty Act (34 of 1953ss. 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.
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 onethird 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
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 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.  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,
(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
(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 anyone
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 applicable to them) had
already acquired a right by birth in the 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]
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
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 property
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 position,
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 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 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
(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.
"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)  57 I.A. 313. (2)  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
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 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 applying 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
"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 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. Cassumbhoy(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 determined
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 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
The above analysis shows that barring one or
two stray decisions, 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)  I.L.R. 14 Bom. 189 (3) I.L.R. 30 Bom. 197 (4)  I.L.R. 9 Bom.
(5)  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
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 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)  I. L. R. 41 Bom. 18 1.
(2)  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 restricted 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
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)  1613om. L.R. 224.(2) 
I.L.R. 47 Bom. 369.
(3)  I.L.R. 9 Bom. 115. (4) 
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.
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
(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
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 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
As to how surroundings in which a convert
settles down 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
"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 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 among, their coreligionists. 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 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.
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 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)  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 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, continued or enforced as if this Act had not
been passed." If the parties as aforesaid were governed in matters of property,
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 judgment of the High Court under
challenge has to upheld. The appeal, therefore, fails and is dismissed with
V.P.S. Appeal dismissed.