Controller of Estate Duty, Mysore, Bangalore v. Haj Abdul Saitar Sait & Ors.

231 **A** **THE** **CONTROLLER** **OF** **ESTATE DUTY,** MYSORE~ **BANGALORE** _v._ **HAJI ABDUL SAITAR SAIT** **&** **ORS.** _April_ 19, 1972 **B** (S. M. SIKRI, C.J., **J.** M. SHELAT, A. N. RAY, I. **D.** DuA AND **H.** **R.** KHANNA, **JJ.]** c **D** **E** _Estate Duty Act_ (34 _of_ 1953- _ss._ 3 _and 64(i)---Cutchi Memon_ _family_ _-Father dying leaving_ _properties-Whether sons Inherited the property or_ _the property devolved on snns_ _by_ _survivorship-Applicability_ _of_ _Hindu_ _Law_ _of_ _son's right by birth in joint family property to Cute/ii Memons._ The Cutchi Memons bad migrated from Cutcb to Bombay, Madras and_ other places. They were originally Hindus and were converted to Islam three or four hundred years ago. The family of the responde\}ts 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 lea\-ing 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 o( 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 properly said to have passed to them on his death and be assessable under the Estate Duty Act, 1953. The Deputy Controller of Estate Duty helcl that as there was only one solitary decision of the Madras High **Court** **in** **favour** **of** **the** **respOndents'** **contentions** **as** **againsl** **a** **Ia:rge** **ntitttl)er** of decisions of the Bombay ltigb 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 t]je appeal to this Court, **F** HELD : ( 1) According to Mohamedan Law a person converting toMohamedanism changes not anly Iris religion but also his personal law. This rule, however, applied only to cases of individual conversions ano 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. [23 6Cl **G** (2) The view finally settled in Bombay is that the application of Hindu **Law** **to** **Cutcbi** **Memons** **is** **now** **restricted** **to** **cases** **of succession** **and** **inheri-** tance as it would apply in the case of an intestate, and separate, Hindu, possessed of self-acquired property. [241Hl _Haji Cosman_ v. _Haroon Saleh Mahomed,_ (1923) I.L .. R. 47 Born. 369, referred to. **H** (3) But the Madras view, supported by tbe records of several cases in the Madras High Court, is that Cutchi Memons, who had settled down in Madras, had regulated their affair.., since they !\ad settled down amidst 232 SUPREME COURT REPORTS [1973] 1 S.C.R. / **Hindus,** **accordip..g** **to Hindu** La1. not **only** **in** **matters** **of** **succession** **and** **inheritance, but also in matters** **ol** **u1·-.:ir** **propefty** _**including the Hindu con·**_ _cepts_ of coparcenary and survivorship. [246C-DJ _Ha;ee_ _Aboo Bucker Sait_ v. _Ebrahim_ _Hajee_ _Aboo Bucker Sait,_ A.LR. 1921 Mad. 571; _Abdul Sattar Ismail_ .. _Abdul llaniid Sait,_ A.LR. 1944 Mad. 504; _Abdul Hameed Sait_ v. _The Provident Investment Company_ _Ltd.,_ l.L.R. Jl9541 Mad. 939 (F.B.); _Abdurahiman_ v. _Avoomma,_ A.l.R. 1956 Mad. 244 'md _Begum_ _NoorbGnu_ v. _Deputy Custod;an General_ _of_ _.Evacuee Property,_ A.LR. 1965 S.C. 1937, referrecl 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 1the 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, becaU'e the Madras view applies to the respondents. [24SHJ _Abdulruhim Haji Ismail Mithu_ v. _Halimabai,_ (1915-1916) L.R., 43 'I.A. 35 and _Khatubai_ v. _Mohamad Haii Abu,_ (1_'122-19231 L.R., 50 .I.A. 108, applied. A B c _Elia Sait_ "· _D,haranayya,_ 10 Mys. L.J., 33, disapproved. **D** '(si 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 uf each of the two High Courts and perhaps elsewhere. (6) The. C\\tchi Memons Ac'. (46 of 1920) does not apply to the ·respondents, because, the declaration under s. 2 of the Act to get its bene·fit and be governed by Mahomedan Law bad not been made by any one .concerned. [247El E (7) The option of being governed by the Mabomedan Law contained in the 192o-Act was replaced by a uniform and mandutory provision, in· the Cutcbi M~ons Act (10 of 1938), which· pro·.ided that all Cutchi Memons shall, in matters of succession and inheritance, be governed by the- Mahomeda11 Law. But the 1938-Act was· not extended to the Civil Station area in Bani:alore where the deceased and the members of his family bad settled down and carried on business. In 1948, when that F 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 F was the Mysore. Cutcbi Memohs 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 propertv held by their fatber 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-248FJ . 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.RC. No. 1 of 1965. G ###### • **H** ## _S. T. Desai,_ _S._ _K._ _Aiyar,_ _R._ _N._ _Sachthey_ a~d _B._ _D._ _Sharma,_ for the appellant. CONTROLLER, ESTATE DUTY v. A. s. SAlT _(She/at,_ !.) 233 A C. _K._ _Daphtary, V. Krishnamur!hy, V. Srinivasan,_ _S._ _Swarup,_ _B. Datta,_ _P._ C. _Bhartari,_ _!._ _B. Da:iachanji,_ _0._ C. _Mathur_ and _Ravmder Narain,_ for the resp,ndents. The Judgment of the Court was deliver>~d. by **Shelat,** **J.** This appeal, by certificate, is directed against the **B** judgment of. the High Court of 1;1ysore dated .Februa1y 3, 196! whereby it answered in the negative the question referred to 1t under s. 64(1) of :he Estate Duty Aot, XXXIV of 1953. The question was : c **D** E **F** G **H** "Whether on the facts and in the circums·ances of the case, the en.ire property held by the decea;ed valued at Rs. 12,23,794/- was chargeable to estate duty?" \ The said properfy 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 Ma!Iomed 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 amongs, 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 Cutr.h and from there spread the·mselves 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 devolutjon by survivorship. Further neither the Cutchi Memons Act, XLVI of 1920, nor the Muslim Personal Law (Sha1iat) Application Act, XXVI of 1937, nor the Cutchi 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 un divided share of 'their deceased father, could be properly said to have passed to them on his death and to be assessatle under the Act. The Deputy Controller rejected these contentions as also the evidence led by the respondents in support thereof and assessed lll-Lt208Su;iCl/72 SUPRBMB COURT llli.PORTS (1973} 1 S.C.R. A 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 ~n­ dents filed two separa e 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 qu~tion. In support of their con'. entions, the respondents had- produced before the Deputy Controller the following documents a:; 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-Apetition before the High Court of Madras and the High Court's order thereon. (iii) O.P. 79 of 1928-A petition before the Hi!!b 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 Judj!ments of the same Hi"h Comt in _Siddick_ _Hajee_ _Aboo Bucker Sait_ v. _Ebrahim flajee_ _Ab"o_ _Bucker Sait('),_ and _Abdul Sattar Ismail_ v. _Abdul_ _Hamid Sait.(_ _[2 ]_ _)_ ##### • c G H These were produced to show tihat the rules of Hindu law were consistently acqui·~sced in and applied . to their family and 1he ·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 tr.at neither the said evidence, nor the fact of their having paid succession duty on onethird of the said estate only conclu&>.d the issue before him, _viz.,_ that the rules of Hindu law, including 1he rules as to joint family property and its devolution by survivorship constituted the cu~to­ mary law of Cutchi Memons in Madras and Bangalore. He rejected their contention that. as 1hey had settled down first in Madras and then in Bangalore sometime between 1928 and 1930, and as a laree part of the estate was situate in Madras. he should prefer the Madras, as against the Bombav view .. namely, 1hat 'he rules of Hindu law ai:mlicable to Cutchi Memons j!Overned matters of succession an<! inheritance onlv. His view was th~t as there was only one solitary decision of the High Court of (I) A.LR. 1921. Mad. _571._ (2) A.1.R. 1944 Mad. SO<!. B D E G H roJllTllOLLER, ESTATE DUTY v. A. s. SMT _(She/at,_ 1.) 235 Madras in favour of the respomlents' con: ention as against a. large number of decision ef the Bombay High Court which limited the application of Hindu Jaw to matters of succession and inheritam:e, the Bombay view was the c01rect one. As rr11ards 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 itbem was specifically dealt with by the High Col!rt. In support of theii' appeals the respondents, in addition to the aforesaid evidence, also produced a partition deed of 1906 between one Hussain Haiee 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 19~0 showed, (1) that the respondents' family was in Madras itill about 1930 when its members partly shifted their activities to Bangalore, and (2) 1hat in all these petitions the stand taken by the members of the respondents' family was thi>t the family properties were trea·ed 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 •urvivorshio'', and dismissed the appeals. As aforesaid, the High Court uoheld 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 acauire anv interest by bir'h in the property inherited by his father from his ancestors, (ii) that in any case there was no scooe·for raising any such contention after the enactment of the Sharht Act of 1937, ~nrl thereafter of the Cutchi Memons Act, 1938. (iv) that the findin11s recorded by the Board were· binding on 'lhe High Court. (iii) that the Hi!!h Court of Mysore should have nre ferred the view taken by tre Bnmbay Hfoh Court and followed bv the old M vsore High Court in _Elia_ _Saft_ v. _Dharavva,_ (1) and {I) 10 Mys. L.J. 33. 236 SUPREME COURT REPORTS (19'73] 1 S.C.R. 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 ques1ions of law and there. ore here was no question of the High Court b~ing bound by the Board's findings. That leaves proposition 1, part of proposition 2 and proposition 3 of Mr. Desai for our deitermination. 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 pe1son converting to Mahomedanism changes not only his reli· gion 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 cas· e or a community, it is recognised that the converts might re. fain a part of their original personal law according to 1heir hither to held habits, traditions and the surroundings. This principle was laid down in _Fidahusein_ v. _Mongbib11i(_ _[2]_ _),_ where the question arose whether a Khoia of the Shia Ishna Ashari sect could dispose of the whole of his property by testamentarv disposition. Tracing the history and the conversion of Khojas from jg pre· vious decisions, the High Court held that the conversion of c E '.(hojas to the Shia Trnarni 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 com~rts might retain a Portion of their original personal law according to their social habits and surroundings. They, therefore, retain their Personal Jaw unless thev consciouslv adopt another. The High Court deduced the following principle ( p. 402) : "A Hindu convert residing in India is governed by his personal law unless he renounces the old law and acceots the new one. except where a statutorv 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 qi;estion as to which personal law, sects among the M uslirns, such as the Khojas and the Memons, would be subject to in matters of proper•v, succes•ion and inheritance arose in Bombav as early as 1847. In _Hirbae_ v. _Sonabae(_ _[3 ]_ _)_ commonly called the _Khoja_ _and Memon_ cases, the Supreme Court of Born• - (I) ll930J -- 57 I.A. 313. ~~·~~ _(2\_ ' [1936] 38 Born. L.R. 397. (3) Perry's _Oriental Cases,_ 110 (1853). _B_ D E II CONTROLLER, ESTATE DUTY _V._ A. S. SAIT _(She/at,_ /.) 237 bay was called upon to determine the claim of two sisters in the estate left by their father, who had died iiitestate withou1 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 emi:led only to maintenance and marriage expen~. A suit raising precisely the same ques ion was also before'the Court beitween members of Cutchi Memons sect. Bo h •the suits were tried together and disposed of by Sir Erskine Perry, C.J., by a common judgment in which he b>J!d the custom puit 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 adop ed in the laws and usages of the Muhammadans who came under our sway, and if any class of Muhammadans, Muhammadan dissen1ers, as they may be called, are found to be in possession of any usage, which is otherwise valid as a legal custom and which do•Js not conflict with any express law of the English government, they are iust as much entitled to the protection of 1his clause as the most orthodox society can come before the Court." The learned Chief J gstice 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 a"o, but had re· tained on their conversion •the Hindu law as to inheritance and succession. As to Cu1chi Memons also, he held that they had originally settled down in Cutch from where thev soread in we~tern India; that originally Lohanas, they too wJre converted to Islam some three or four hundred vears ago. Though a little more orthodox Muslims than the Khojas and more prosperous, they had vet 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 henoJ, Sausse, C.J., following this decision held in _Gangbai_ v. _Thavar_ _Mui/a(')_ that the Khoja caste, "although M~hammadan in religion, has been held to have adop1~d, and to be governed bv Hindu customs and laws of inheritance". Three years later, in _In_ _thq_ _G'>ods_ _of Mulbai,(_ _[2 ]_ _)_ Couch, CJ. observed that the law by which the Khoia~ were governed was not, properly speaking, "Hindu law, but probablv that law modified by their own customs". In vet another similar case during that year,. _In_ _the_ _Advocate_ _General_ _of_ _Bombay_ _ex_ _relatione_ _Daya_ (!) ~~(1353) l Bo.n. H.C.R. 7~~ 1. (2) (1866) Bon. H.C.R. 276. 2~8 SUPREME COURT REPORTS _Muhammad and other(_ _[1]_ _),_ commonly known as the Agha Khan's case, the que&tion wa8 nol as 1egards the rules of sucoossion and inheritance, but whether the Khojas were to be considered as orthodox Sunnis or Ismailia Shias. Arnould, J., once again con· sidered 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 i12 tum were dissenters from the main body of or.hodox 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 Khoias in all matters relating to proper y, succession and inheritance, the Khojas having retained that pai t of their p~rsonal law to which till their conversion they were accustomed. Similarly, _In the Goods_ _of_ _Rahimbhai A/oo-_ _bhai(3),_ Jter referring to the previous decisions, Sargeant, J., declared that lhe Khojas for the last twenty .five years at least had been regarded by the ·court in .all questions of inheritance as converted Hindus, who 01igjnally retained the Hindu law of inheritance, which had since been modified by special customs, an' that a uniform practire had prevailed during that period of applying Hindu law lo [1] them in all questions of inheritance, save and except when such a special custom had been proved. The consequence of such a proposition was thll'! the burden of proof Jay on the pers:m who s~t up •uch a special custom derogatory to the Hindu L~w. In _Rahimathai_ v. _Hirbai,(')_ Westropp, C.J., once again declared : "H is a settled rule that in the absence of proof of a si;·~cial 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 Khoia widow, he held that in the absence· of a special custom to the contrary, that miestion also must be govern. ed by Hindu law. In _Karamali_ v. _Sherbanoo(_ _[5]_ _),_ rules of Hindu law were 'IPPlied as between the widow of a deceased Khoja and his brothers, the Court holding the widow to be entitled to maintenance only and t.he property of the deceased going to the brothen who had lived jointlv with 'heir deceased brother. Thus, from 184 7 to 1905 the Bombay High Court consistently treated the Khoias as being governed bv the rules of Hindu law in matters of property, succession and inheritance. (() (1~66) 2 Born. H.c.R. 3<3. (2) (187'5) 12 Born. H.C;R 281. (3) (1875) 12 Born. H.C.R. 294. _f4)_ (1871l) I.L.R. 3 Born. 34. (S) (1905) I.L.R. 29 Born. _85._ A B c D E _G_ # I H A B c D E F G #### I H CONTROLLER, ESTATE DUTY _V._ A. S. SAlT _(She/at,_ _J,)_ 239 With regard to the Cutchi Memons, whom Sir Erskine Perry had clubbed together with the Khojas, Westropp, C.J., in _In_ _the_ _Ma:ter of Haji Ismail Haji_ _Abdulla(')_ held them •not to be re garded as Hindus for the purposes of the Hindu Wills Aot, XXl of 1870, and added : "We know of no difference between Cutchi Memons and any other Muhammadans except .hat 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 acco;dance 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 alleirng them to be the ancestral propertio~s of Haji Adam, which his father cou;d not dispose of by will, Sar~eant, CJ., ruled tha·t there was no partition between Haji Ismail and his son Haji Adam, and that the ancestral property absolutely vested in Hajj Ismail on his son's death. He fm ther held that the jewels of one of the femalo!s of the family were treated as _stridhan_ property to which the Hindu Jaw of succession to such _s ridhan_ property would apply. The same judicial trend also appears in _Abdul_ _Cadur Haji Mohamed_ v. _Turner(')_ where Cutchi Memons were held to be subject to Hindu law in matters of inheritance. In _Mahomed Sidick_ v. H4ji _Ahmed_ (') the conten ion exp•essly raised was that the _Mi•ak•hara_ doctrine of sons acquiring interes• by bir h in ancestral properties did not apply to Cutchi Memons, and that the earlier decisions limited the Hindu law to govern matter~ of inheritance and sucoession 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 woulJ not be just to interfere wi · h those rights on account of this recent chanee of opinion. I u•e the word 're.cent' advisedly, because the community hitherto by their practice have acquiesced in rthe 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 anplied only to maitters of inheritance and succes<ion. and thot th• fur•her rule of 'he sons having a ri!!ht by birth in the ance<tral property and consequentlv having a right to demand pal'!ition of it did not apply. The High Court, however, noted that such a right did (1Y (1~~1) I.L.R. 6 llom. 459. (2) (1~R<) I.LR. 9 Porr. 115. (3) (1886) l.L.R. 9 Born. 158 (4) (1886) I.L.R. to Boa. t 240 SUPREME COURT REPORTS [1973] l S.C.R. prevail in Clit~h and Kathiawar from where the Khojas had spread themselves to Bombay. (see _Ahmedbhoy_ v. _Cassum-_ _bhoy_ ('). But, contrary to what he had held in that case, the same learned Ch;~f 1,,,fr~. (Sar~eant, C.J.) in _In_ _the Matter_ _of_ _Harooti Mahomed(_ _[2]_ _),_ a case of Cutchi Memons, held that in the case· of a family trading concern the members of the family woul~ be governed by the Hindu Law and sta.ed the position of Cutcht Memons 1hus : "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 <he position of the apuellant 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 txJ succession the Hindu Law of inh·~ritance 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(')_ 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 conitrary to it, the principle of relationship between the _!!!anager and the members of the family was held not to apply. A B c D E 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 F conversion, considerable oortion of their personal law and that the rules of Hindu law were acceJ}ted by them as customary law in matters of oropertv. inheritance and succession, i"cluding rules as to ioint family property. the riefa of a son th.~rein by birth and the devolution ·thereof by survivorship. In _Jan Mahomed_ v. _Dutta Jaf!ar('),_ Beaman, J., after an G elaborate analvsis of the previous decisions deali'lg with both Khojas and Cutchi Memons, struck for the first _time_ a vote of dissent and laid down two propositions : (1) that the invariable and l!eneral pre•umption was that Mahomedans were ~overned by the H (ll ['881 [1 ] T.L.R. D Boni. S34 (2) pgrop.LR. 14 Born. 189 (3) [1906] I.LR. 30 B•>m. 197 (4) [1907] I.LR. 9 Born. 274. (5) (1914] I.LR. 38 Born. 449. #### I _A_ B c D E F G H He added that he limited his second proposition to separate and self-acquired property to take 1he sting out of the earlioJr judgments and "effectively prevent . its further extension in all directions upon •the basis of the Hindi.. Jaw of the joint family having been established to be the law of the Khojas and Memons". (p. 5ll) In an equally ou.spoken dissent in relation to Cutchi Memons, he deprecated in the _Advocate-General_ v. _Jimbabai_ ('), after )'Jt another analysis of the earlier judicial trend, 1he habit of ueating the Khojas and Cutchi Memons alike, as if they were on precisely the same foo, ing and urged the necessity of deciding the cases of Cutchi Memons on the customs proved in respect of them ra1her than tbe customs prevailing among the Khojas, and observed (p. 190) : "While there are many peculiar features in the sectarianism of the Khojas, strongly marking them off fJ om 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." HJ dissented from _Mahomed Sidick_ v. _Haji_ _Ahmed(_ _[2 ]_ _)_ and held that the proposition there laid down, that not only Hindu law applied to Cutchi Memons in matters of inheritance and succession but tha!t the concept of join• family propoJrty also governed them, was open to objection, since such a rule could rest only upon proved customs, that no ctis'tom of that kind had ever been proved and that Scott, C.J., had based his conclusion only on the case law. His conclusion was thitt the only thing which could be said with certainty was 1hat the Cutchi Memon~ had acauired by custom the power of disposing of the whole of their property by will, but that it was not oroved befo'e him and never had been proved affirmatively that they had ever adooted as part of their customarv Jaw the Hindu. hw of 'he joint familv as a whole o; the distinction iri that law between ancestral orooerty as a11ainst self-acauired orooerty, and tlfat the Cutchi Memons were subject by custom to Hindu law of succession and inheritance as it would (I) ~~[1917]~~ ~~l.L.R. 41~~ ~~llom.181~~ . (2) [1886] l.L R. 10 BJrn. _1._ CONTROLLER, ESTATE DUTY _v._ A. s. SAIT _(Shelat,_ _J.)_ 241 Mahomedan law and usage and that it lay upon a party setting up a cu&'om 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 1wo matters among Khojas and Cutchi Memons were governed by Hindu Law "as applied to separate and self-acquired property". 242 SUPREME COURT REPORTS [1973] 1 S.C.R. apply to the case of an intestate separate Hindu possessed of selfacquired property and no more. The dissent of Beaman, J., received approval from another learned single Judge m _Manga_t-_ _das_ v. _Abdul Razak(_ _[1]_ _)_ and finally from the Appellate Bench of the High Court in _Haji Oosman_ v. _Haroon Salah Mahomed,(')_ and therefore, the law as laid down by Beaman, J., may be .aken 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 ~t was assumed that the Hindu law of joint property applied 'to Cu chi Memons; _Ashabai_ v. _Haji Tyeb Haji Rahimtulla(')_ and _Mahomed_ _Sidick_ v. _Haji_ _Ahmed.(')_ But these decisions are now obsolete and the application of Hindu law is now restricted 1o cases of succession and inheritance as it would apply in the case of an intlestate separate Hindu possessed of self-acquired property." The Re·;enue would be correct in the position taken by them, we1 e the view finally se1tled 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 S. _Haji_ _Aboo Bucker Sait_ v. _Ebrahim Hajee Aboo Bucker Sait,(")_ Kumaraswamy Sastri, J., after an analysis of the case law in Bomoay, came 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 wi h Hindu surroundings and traditions, there was nothing surprising that they r~tained the rules of Hindu Jaw 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 _Mithak-_ _shara_ system of joint and undivided family together witb 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 inheritano~ thwt they adopted it, but were so dissatisfied with the laws of the joint family that thev discarded the rules as to coparcenary and the son's interest in the property of his grandfather." Since there were no repol'ted 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 (ll [014] 16 Born. L.R. 224. (2) [192'] I.L.R. 47 Born. 369. (3) [~885] I.L.R. 9 Bom. 115. (4) [1886] l.L.R. IOBom I. (5) A.I.R. 1921 Mad. 571. A B c E F G ### I H CONTROLLER, ESTATE DUTY _v._ A. s. SAIT _(She/at,_ J.) 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 regard> the partie> 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 princip e of ~evolution of property by survivorship, he b:ld that the Hindu law of coparcenary and joint family applied to the Cutcbi Memons settled in Madras. In _Abdul Sat"ar_ _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 f?mily property which he could not so dispose of. (pp. 507 to 508). In _Abdul Hameed Sait_ v. _The Provident 1.,vestment Company_ _Ltd.,(_ _[2 ]_ _)_ where a suit was filed by a Cutchi Memon so cha'lenging a court sale in pursuance of a mortgage decree against his father, the Parties, presumably on the basis of _S._ _Haji A boo Bucker Sait(_ _[8]_ _)_ proceeded on the assumption that the rules of Hindu law governed them. _(_ p. 942) That this position con1inued in Madras even after the Shariat Act, 1937 came into force. exceot in regard to mat•ers dealt with by s. 2 thereof, 'is clear from _Abdurahim'm_ v. _Avoomma,_ (') where a Division Bench of that High Court differed from the sweeping conclusion of Basheer Ahmed Saved Sayeed, J., in _Avisumma_ v. _Mavomoothv_ _Ummal')_ and held that that Act apolied, as its s. 2 clearly s•id, onlv to oropertv left in•e•tate and which was capahle of dwolvinq on th·~ heirs of the decea•ed and that that Act did not make the Mahomedan Law applic~ble in all matters relating to Muslims 116r did it abro1rnte the custom and usage in re.spec! of matteN other than tho•e specified in s. 2 of the Act. The Act, therefore, wnuld not aonlv to property except that which was cana hie of devolution on intestatecv to the heirs of tJ-e deceased holdin~ such orooerty. (see also _Mariyum-_ _nia_ v. _Kunhaisumma(_ _[6 ]_ _)_ and _Lakshmanan_ v. _Kamal(')._ Indeed, no descision of the Madrn~ Hi!!h Court holding a view contrarv to the orie held in _S._ _Haji A boo_ _Bucker Sail's_ case(') was shown to us. On the contrary, there are, as seen above, decisions referring to that decision with approval. It may, therefore, he taken for ' A B c D E F G H ( [1] \ A.I.R. ]Q44 Mad. (?.) T.L.R. 1954 Mad. 93 (F.B.) (3) A.l.R. 1921 Mad. 571. (4\ A.l.R. 1956 Ma~. 244. (5) .A.LR. 1953 Mad. 425. _(6\_ 1958 Ker. Law Times 627 (7) A.LR. 1959 Kr. 67 (F.B.). 244 SUPREME COURT REPORTS [1973] 1 S.C.R. the time being that the view prevailing in that Court is the one of Kumaiaswamy 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 pas. proceedings filed in 1he 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 tha• rules of Hindu Jaw applied to them unless there was a pre· vailing understanding tha't that was their customary law. That it is the Jaw laid down by the High _Cou:t_ of Madras which must apply and govern the r:utchi Memons settled there is clear from _Begum Noorbanu_ v. _Deputy Custodian General_ _of_ _Revenue Pro-_ _perty('),_ where the Khojas settled in the former Hyderabad State were held to be governed by the law as laid down by the Privy Council of the then S ate of Hyderabad. A B c As to how surroundings in which a convert settles down affect the customary law to which be i5 accustomed till then can be seen from two highly illustrative decisions. The first is in _A bdulrahim_ D _Haji Ismail Mithu_ v. _Halimabai(_ _[2]_ _),_ a case of Memons who had se tied down in Mombasa. M·~mons, 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 1o the Privy Council, there were about a hundred Memon families settled in Mombasa. The question which arose in the suit was whether the E respondent, the widow of one of them, was en1itled, as against the .appellant, the eldest son of the deceased by his first wife, ro one -eighth share according to Mahomedan law or onlv to mainte·nance under Hindu law which applied to the Cutchi Memons in India. The resoondent had led evidence to show 1hat during the ten vears preceding •he suit, there were at least ekven cases in which distribution of estates was according to Mahomedan Jaw. F The respondent's con•ention was tha't 1he Cutcbi Memons who migrated 1o East Africa had set'led down among Mnhom.~dans there and had adopted their custom• and tradi'ions. inclurlinq as a special custom the ru [1] e as ~o succession according 'In Mahomedan law, thus, diverting from the rules of Hindu law, which in Cutch they had retained as their customarv law upon conversion to G Islam. The Privy Council held on thes·~ facts that : "Where a Hindu familv migrate from one part of India to another. _p·imn_ _facie_ 'hev carrv wi·'h <hem their personal bw, and. if they are alleged to have becnme subiect to a new local custom, thi~ new custom _mmt_ be affinn1tively proved to have been adopted bttt when H such a family emigrate to another country, 'and being (I) A.l.R. 1965 S.C. 19 37, (2) [!ClS-1916] LR. 431.A. 35. ' A B c D E F G H CONTROLLER, ESTATE DUTY _v._ A. s. SAIT _(Shelat,_ J.) 245 themselves Mahomedans, settled among Mahomendans, the presumption that they have accepted the law of the peop1e 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 flora their ofd environments. The analogy is that of a change _ot_ domicile on settling in a new country rather than the analogy of a change of custom on migration with in India." ( p.41 ) . The ~econd case is that of _Khatubai_ v. _Mahomed Haji_ _Abu(1)_ where the dispute was regarding the esta1Ie of a Halai Memon who hailed from Porbandar and had settled down in Bombay. If succession to his estate was governd by Mahomedan law, the appeLant, his daughter would get a share as against the respondent. Just as the Cutchi Memons came from Sind and sctt1ed 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. Therefor>~. if the deceased had been in the proper sense of the word a Bomb~y Halai Memon, the question of succession 10 property left bv him would have been governed by Mahomedan law. But· the concurrent findii!l!s 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 re~ard to succession to their properti·~s? From the evidence led by the partii::s. which consisted of iudgments of Porbandar courts and the oral evidence of some of the pleaders from ·Porbandar it appeared, '!S tr.e Appellate 'Bench of the High Court held. that t~1e Halai Memons of Porbandar, set'led as they w~re an{ongst Hindus there. followed as their customary law Hindu law as ~e­ g,1rds succes,ion and inheritance as agaLnst the Bombay Halaj. Memons who settled down amidst their co-religionists in Bombav. Lord Dunedin took the Mombasa case as an illustration fer his dictum that if it was otherwise shown that the Kathiawar Halai Memo11s practised the Hindu law. excludin11: fema'·~s from succession, it was equallv easv to irfer that the Bombav Memons finding 'themselves amonc other Mahomedans who followed th~ Mahomedan law in its ou,itv, renouncerl the customs of the Hindu law of succession in favour of the orthodox tenets of their own refi,\!ion. These two deci<ions show that the question as to which customary_ law is_ aoplicable ~urns really on the consideration as to (I) [192~·19n] L,R. 50 I.A. 108. r1, . SUPREMfl COURT • "•ORTS L '·: _I_ _.i_ J ... '"·' l'. which law a community decides to have for regulating succession to the properues of its membe1s depending upon amongst whom they settled down and the surroundings and tradi.ions tb~y found in that place. Thus, the Cutchi Memons, who s.eittled down amongst Mahomedans when they went to Mombasa, in spite of their having originaily. re ained Hindu law when they migrated to Cutch from Sind, accepted as their cuSl!om rules of Mahomedan law in Mombasa. Similarly, Halai Memons, although they had followed Hindu law when they migrated to Porbandar· ac~pt· ed Mahomedan law when they proceew..d to Bombay and there settled down amongs. 1heir co-religionists. In the light of this reasoning it would appear from the view taken in _S._ _Haji_ _Aboo_ _Bucker Sail's_ case(') against which no other Madras view was shown to us, and especially as that view 1:as supported also by the records of several otlr~r cases iu that High Court, .hat Cutchi Memons, whp had settled down in Madras, had regulated their affairs, since they had set:led down amidst Hindus, according to Hindu law not only in matters of succession and inlie1i ance, but .also in matters of their pr-perty including the Hindu concept of coparcenary and survivorship. That being the position, there is no qw~stion of our having to decide whether 1he Bombay view, as relle~ ed 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_ _Sail's case(1)_ or of having to prefer one against the ofu~r. We do not do so not only because it is no necessafY but also because were we to do so at this day, it might pe· haps have the result of llJY' settling a number of titles settled on the basis of the decisions of each of the two High Courts and perhaos elsewh•zre too. The conclusion, which wz arrive at on . consideration of the decisions refened to aoove is that :he Cu1chi Memons who proceeded either from Cutch or from Bombay to Madras and who, it appears, settled down amongst Hindus, Hindu surroundings and traditions th_ere, regulated their affairs as regards their property, ·sucression and inheri ance according to the Hindu law which they bad 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 familv memb.~rs of the dece [0] sed Haji Mahomed Hussain Sait settled down in Banealore Civil Station sometime between 1928 and 1930. On ~he ba•is of that fact, T"liance wa• olac<'d on ~he doeision of the then Hi~h Court of Mvsore in _Elia_ _Snit_ v. _Dh-iranavva('\_ whe·e th~ questinn for C"n sine••tion was whether the custom of adop1ion recognised in the (I) A.1.R. 1921 Mad. 571. (2) 10 Mys. L.J. 33. B c D E F G H **B** c **D** **E** **F** G **H** CONl'IW!.' ' :, ESTATE DUTY v. **A.** S, SAi?.' _(She/at,_ /.) 247 **Hindu** Law prevailed also among the Cutchi Memon& there. The High Court, it appears, had both the· Bombay view and the Madras view as exP.ressed in S. _Haji_ _A boo_ _Buc.ker's_ case(') bu~ preferred the Bombay view as stated in _Haji_ _Oosman's_ _case(_ _[2]_ _)._ The High Court, ho,:1ever, gave no reasoning, for that preference nor did it have before it,. as appears from the decision i~self, any evidence a& to the cus,omary law which t!ie Cutchi Memons settled in Bangalore followed. That being so, that de-;ision cannot be treated as a well considered judgment reflecting tl!e 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, I wheither the subsequent legislation on winch the Revenue relied changed in any way the position as laid down by Kumaraswamy Sastry, **J** ? The Cutchi Memons Act, XL VI of 1920 was an enabling Act as its long 'title and preamble indicaie. Its second section provided that anv Cutchi Memon, who had attained the age of majority and was at the time a resid.~nt in British India, could declare in .he prescri)>ed 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 Mahomejan law. It is nobody's case that anv such declara'i<Jn 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 und•:r a uniform establ~hed Code for all Cutchi Memons in various parts of 1he country instead of "a wide field of custom and usage" which "has to be traversed for a proper determination of 1he case". The Act came into force as from November I, 1938. Sec. 2 provided that all Cutchi Memons, subject, however, to the provisions of s. 3, shall in matters of succession and inherirano: be governed by the Mahomedan law. Sec. 3, subject to which the foregoing ~ection applj_ed, is a saving provision,and provides that nothing m the Act "shall affect any right or liabilitv acouired or incurred before its commencement or any ]ej!a] proceeding or remedv in :r:spect of any such right or liability; and any such legal 0 roceeding or remedy may be continued or enforced as if this Act h"d not been passed". In be>tween the two Acts was enacted the Muslim P~rsonal Law (Shariat) Application Act, XXVI of 1937. We do not have to con<ider the effect of 'his Act in view of Mr. D'sai having in express terms stated that he was not relying upon ;t'. (ll A.tR. 1921. Mad. _571._ (2) [1923] I.L,R. 47 llom. 369. 248 SUPREME COl'RT REPORTS (1973] l S.C.R. 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 set.led down and carried on busirI;:ss. Until 1947, that area was adm1nistefed by the Viceroy in his capadty as the Crown representative. A number of Acts passed by the Central Legislature were extended by him to this area wi.h or without modifications but not the Cutchi Memons Ac•t, 1938. In 1948, amer the said area was retroceded to Mysore,. the Mysore Legislature passed tb;: Retroceded (Application of Laws) Act, 1948 extending to the Civil Station area certain laws and enactments in force in the princely Sta'te of Mysore. One of them was the Mysore Cutchi Memons Act, I of 1943, which was _verbatim_ the same as the Central Act, X of 1938, and contained only lhre>J sections. The first section gave the •ti.le 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 Maho· medan law. Thus the option of being governed by 1he Mahomedan law contained in 1920 Act was replaced by a unifonn and mandatory provision. But the thild 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· tinned or enforced as if this Act had not been passed." If the parties as aforesaid were governed in matters of property, suco;:ssion 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 it> view that the accountable persons, hayjJW been born Joni! bPfore 1948, had already 3C· .quired a right by birth in the propei•tv held by their fa•her, a right expresslv saved bys. 3 of the Act. There wa~. thet>;:hre, no question of that interest oassing to them. on 1he death of their father as envi•a11:ed by s. 3 of ~he Estate ·Duty Act. In thi~ v;ew, the judwent of the Hiuh Court unrler challenue has to upheld. The appeal, therefore, fails and is dismisred with costs. V.P.S. _Appeal_ _dismissed._ A B c D E F G