o 1354 of 1968 Appeal from the judgment and order dated February 3 1967 of the Mysore High Court in TRC No 1 of 1965
section T Desai section K Aiyar R N Sachthey and B D Sharma for the appellant
233 C K Daphtary V Krishnamurthy V Srinivasan section 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 section 641 of the  XXXIV of 1953
The question was  Whether on the facts and in the circumstances of the case the entire property held by the deceased valued at Rs 1223794 was chargeable lo estate
duty  The said property comprised shares and securities of the value of Rs 25778  and immovable properties at Bangalore and Madras respectively valued at Rs 542500 and Rs 610100 
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 pro perty 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 posi tion there was no question of the passing of the said properties to them on the death of their father as envisaged by section 3 of the Act or its being applicable to them 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 SupCI72 234 duty at Rs 20599641 P on the basis that the entire estate valued by him at Rs 1223794 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 OP No 47 of 1909 A petition before the High Court of Madras and the High Court s order thereon
ii OP 188 of 1927 A petition before the High Court of Madras and the High Court s order thereon
iii OP 79 of 1928 A petition before the High Court of Madras and the High Court s order thereon
iv OP 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 vs Ebrahim Hajee Abuo Bucker Sait1 and Abdul Sattar Ismail vs 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 AIR 1921 Mad 571
2 AIR 1944 Mad
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 
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 vs Dharavva1 and iv that the findings recorded by the Board were binding on the High Court
1 236 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 vs Maqbul Hasan Khan1
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 vs Mongbibai2 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 402 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 vs Sonabae  3  commonly called the Khoja and Memon cases the Supreme Court of Bom 1 1930 57 IA 313
2 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 CJ 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 marriage expenses
pp 114 115
A few years hence Sausse CJ following this decision held in Gangbai vs Thavar Mulla1 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 Mulbai2 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 1 238 Muhammad and other1 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 CJ took a step forward in Shivji Hassam vs Datu Mavji Khoja2 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 Aloobhai3 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 apply ing 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 vs Hirbai  4  Westropp CJ once again declared  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 vs 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
11866 2 3 4 Bom
5 Bom
85 239 With regard to the Cutchi Memons whom Sir Erskine Perry had clubbed together with the Khojas Westropp CJ in In the Matter of Haji Ismail Haji Abdullah1 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 vs 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 CJ 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 vs Turner3 where Cutchi Memons were held to be subject to Hindu law in matters of inheritance
In Mahomed Siddick vs 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 CJ 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 Courtchanged 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 1881ILR Bom459
2 Bom
115 3 Bom
158 4 Bon
1 240 prevail in Cutch and Kathiawar from where the Khoias had spread themselves to Bombay
see Ahmedbhoy vs Cassum bhoy1
But contrary to what he had held in that case the same learned Chief Justice Sargeant CJ in In the Matter of Haroon Mahomed2 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 deter mined by the same considerations as would apply in the case of a member of a joint and undivided Hindu family
Mossa Haji vs Haji Abdul3 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 vs 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 apply
The above analysis shows that barring one or two stray deci sions 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 vs Dutta Jaffar5 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 ILR I Bom
534 2 Bom
197 4 Bom
5 Bom
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 self acquired property
He added that he limited his second proposition to separate and self acquired property to take the sting out of the earlier judgments and effectively prevent its further extension in all directions upon the basis of the Hindu law of the joint family having been established to be the law of the Khojas and Memons
p 511 In an equally out spoken dissent in relation to Cutchi Memons he deprecated in the Advocate General vs jimbabai1 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 vs Haji Ahmed2 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 CJ 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 Bom
2 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 vs Abdul Razak1 and finally from the Appellate Bench of the High Court in Haji Oosman vs Haroon Salah Mahomed2 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 vs Haji Tyeb Haji Rahimtulla3 and Mahomed Sidick vs Haji Ahmed4 But these decisions are now obsolete and the application of Hindu law is now res tricted 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 section Haji Aboo Bucker Sait vs Ebrahim Hajee Aboo Bucker Sait5 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 survivorship
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 1914 1613om
LR 2242 Bom
3 Bom
4 Bom 1
5 AIR 1921 Mad
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 vs Abdul Hamid Sait1 Leach CJ 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
507 to 508
In Abdul Hameed Sait vs 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 section 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 section 2 thereof is clear from Abdurahiman vs Avoomma 4  where a Division Bench of that High Court differed from the sweeping conclusion of Basheer Ahmed Saved Sayeed J in Avisumma vs Mavomoothy Umma5 and held that that Act applied as its section 2 clearly said only to property left intestate and which was capable of devolving on the heirs of the deceased and that that Act did not make the Mahomedan Law applicable in all matters relating to Muslims nor did it abrogate the custom and usage in respect of matters other than those specified in section 2 of the Act
The Act therefore would not apply to property except that which was capable of devolution on intestacy to the heirs of the deceased holding such property
see also Mariyumnia vs Kunhaisumma6 and Lakshmanan vs Kamal  7 
Indeed no decision of the Madras High Court holding a view contrary to the one held in section 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
IR 1944 Mad
2 ILR 3 AIR 1921 Mad 5714 AIR 1956 Mad 244
5 AIR 1953 Mad 4256 1958 Ker
Law Times 627 7 AIR 1959 Kr 67 FB
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 pre vailing 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 vs Deputy Custodian General of Revenue Property1 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 Hyderabad
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 vs Halimabai2 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 that  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 AIR 1965 SC 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 p41
The second case is that of Khatubai vs Mahomed Haji Abu1 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 LR 50 IA 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 amongs their co religionists
In the light of this reasoning it would appear from the view taken in section 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 section Haji Aboo Bucker Sait s case1 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 ap pears 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 vs Dharanavva2 where the question for consideration was whether the custom of adoption recognised in the 1 AIR 2 247 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 section Haji Aboo Bucker s case1 but preferred the Bombay view as stated in Haji Oosman s case2
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  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  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 provided that all Cutchi Memons subject however to the provisions of section 3 shall in matters of succession and inheritance be governed by the Mahomedan law
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 AIR 1921
2 Bom
2 48 The  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 
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  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 section 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 con tinued or enforced as if this Act had not been passed
 If the parties as aforesaid were governed in matters of pro perty 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 section 3 of the Act
There was therefore no question of that interest Passing to them on the death of their father as envisaged by section 3 of the 
In this view the judgement of the High Court under challenge has to upheld
The appeal therefore fails and is dismissed with costs
VPS Appeal dismissed


Summary:
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 one third 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 
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 correct one
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 vs Haroon Saleh Mahomed 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 vs Ebrahim Hajee Aboo Bucker Sait AIR 1921 Mad
571 Abdul Sattar Ismail vs Abdul Hamid Sait AIR 1944 Mad 504 Abdul Hameed Sait vs The Provident Investment Company Ltd ILR  Abdurahiman vs Avoomma AIR 1956 Mad 244 and Begum Noorbanu vs Deputy Custodian General of Evacuee Property AIR 1965 SC 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 vs Halimabai 1915 1916 LR 43 IA 35 and Khatubai vs Mohamad Haji Abu 1922 1923 LR 50 IA 108 applied
Ella Sait vs Dharanayya  disapproved
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 perhaps elsewhere
6 The Cutchi Memons Act 46 of 1920 does not apply to the respondents because the declaration under section 2 of the Act to get its benefit and be governed by Mahomedan Law had not been made by any one 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 1938 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 section 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 property held by their father which right was expressly saved by section 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 section 3 of the 
247H 248F