VOHRA BAI KHATIJA ISABHAI Vs. VOHRA KARIMBHAI ISSABHAI

JUDGEMENT

(1.) The appellants are the three daughters of a Sunni Hanafi Bohra named Issa Hasan who died on 12th January 1954 in the town of Muli which formed part of the former State of Saurashtra at that time and where the deceased had settled. The deceased had left behind him several agricultural pieces of lands a residential house and certain other property described in Schedule A to the plaint which was instituted on April 14 1965 in the Court of the Civil Judge (Junior Division) Muli and the suit was registered as Regular Civil Suit No. 4C of 1965 The plaintiffs claim that they are the daughters of deceased Bohra Issa and are governed by the Hanafi school of Mahomedan Law and are thus entitled collectively to a share as sharers according to Mahomedan Law. The plaintiffs claim that after the demise of their father defendant No. 1 Vohra Karimbhai step brother of the plaintiffs was managing the estate of the deceased. They claimed partition of the suit properties and separate possession as sharers. They also claimed accounts to be taken of the yield of the properties. It was alleged that an agricultural field bearing S. No. 1820 which was left by deceased Vohra Isa was sold away by defendant No. 1 to defendant No. 3 by a sale deed and this was without the consent of the plaintiffs. The plaintiffs thus filed the suit for partition allotment of share and for accounts of the property left by deceased. Defendent No. 1 to the suit is the stepbrother of the plaintiffs. Defendant No. 2 is the real mother of the plaintiffs defendant No. 3 is the purchaser of field S. No. 182D. Defendant No. 2 supported the plaintiffs case Defendant No. 1 who was the real contestant resisted the suit and contended that the parties were governed by the principles of Hindu Law in matters of inheritance and succession and therefore the plaintiffs were not entitled to any share as sharers nor to any share or interest in suit property according to principles of Hindu Law. Defendant No. 3 admitted to have purchased the field from defendant No. 1. He contended that the parties were governed by the Hindu Law in matters of succession and inheritance. He pleaded that he was a bona fide purchaser for value without notice. The material question on which the parties joined the issue was whether the parties who were Sunni Hanafi Bohras were governed by the principles of Mahomedan Law or whether they were governed by the principles of Hindu Law in matters of inheritance and succession. It is an admitted position that the defendant No. 1 was not able to point out any instance showing that the Sunni Bohras of the Hanafi school who were residing in the area which formed part of the former Muli State in Kathiawar and which subsequently joined the United States of Saurashtra in its formation in 1949 which then became the State of Saurashtra had adapted principles of Hindu Law so far as inheritance and succession matters were concerned. The only contention of the defendant No. 1 was that the Sunni Bohras of Gujarat were governed by the principles of Hindu Law in matters of inheritance and succession as laid down by certain judicial decisions and therefore the parties to the suit are governed by Hindu Law in such matters. The plaintiffs evidence on the contrary was that they were Ghanchi Sunni Bohras of Hanafi school and that the Bohras who have settled down in Gujarat are different from those in the Muli area and that they had no relations or social contacts with the Bohras of Gujarat; that the plaintiffs community was spread over in 32 villages in the Muli area and they were required to marry their sons and daughters within the area of these 32 villages only. The learned trial Judge found that the Sunni Ghanchi Bohras of Hanafi school of the Muli area were in absence of any custom to the contrary proved governed by the principles of Mahomedan Law. He thus decreed the suit of the plaintiffs and declared that the plaintiffs and their sister Bai Amina (not a party to the proceedings) were collectively owners of undivided 7/24th share defendant No. 1 was the owner of 7/12th share and defendant No. 2 was the owner of 1 share in the suit properties consisting of five fields bearing survey Nos. 1818-19-21-22-24 more particularly described in Schedule attached to the plaint Ex. 1 and also in the residential house and the Vada described in the Schedule. He ordered that the properties be partitioned and divided in such a way that the plaintiffs be allotted their share in the property. He directed the Collector Surendranagar to effect partition of lands of undivided agricultural properties assessable to payment of land-revenue to the Government. He directed the defendants to submit accounts of the properties in their occupation for a period of three years prior to the date of the suit. He directed appointment of a commissioner to partition the suit house and the Vada and to ascertain the valutation of the suit house and the Vada for purposes of payment of Court fees. He thus passed a preliminary decree in these terms. Defendant No. 1 being aggrieved by this decree filed Civil Appeal No. 101 of 1966 in the Court of the District Judge at Surendranagar to which appeal the three plaintiffs defendant No. 2 and defendant No. 3 were joined as corespondents. The learned District Judge has on a consideration of several decisions reported in Bombay Kathiawar and Western India States Agency Law Reports taken the view that Sunni Bohras belonging to the erstwhile areas of Kathiawar must be held to be Sunni Bohras of Gujarat for the propose of deciding the question as to whether they are governed by Hindu Law or Mahomedan Law in matters of inheritance and succession. He has found that the contending parties to the suit are Sunni Bohras and belong to the Hanafi school of law and they like the Sunni Hanafi Bohras of Gujarat are governed by the Hindu Law in these matters. To reach this conclusion he has relied on certain passages in paragraphs 22 and 26 of the Principles of Mahomedan Law 17 Edition by Sir Dinshaw Mulla He has thus accepted the appeal of original defendant No. 1 and nonsuited the original plaintiffs. It is against this decision that the present second appeal is directed and is filed by the original plaintiffs as the appellants. To this appeal the original defendants are the parties and shown as corespondents.

(2.) Mr. V. V. Mehta learned advocate appearing on behalf of the appellants herein has contended before me that the Sunni Hanafi Bohras of the Muli area of the former State of Saurashtra are not shown to have adopted by custom the principles of Hindu Law in so far as matters of inheritance and succession are concerned. He has contended that the Sunni Hanafi Bohras to which Mahomedan sect the parties to these proceedings belong are converts to Islam and in absence of a custom to the contrary succession to the estate of the convert is governed by the Mahomedan Law. He has contended that the Sunni Bohras of the former Saurashtra State and especially of the Muli area of the State cannot be equated with the Sunni Bohras of Gujarat and the precedents on which the learned District Judge has relied upon relate either to the Sunni Bohras of Gujarat or to the Kutchi Memons and therefore the precedents have no relevance in the instant case. Mr. H. M. Thakore learned advocate appearing on behalf of the respondent No. 1 who is the original defendant has supported the judgment and decree now under appeal. He has contended that Muli area now forms part of the Gujarat State and is in the same territorial area and therefore the Sunni Bohras of that area must be equated with the Sunni Bohras of Gujarat and are governed by the principles of Hindu Law in matters of inheritance and succession. He has fairly conceded that defendant No. 1 has not been able to lead evidence of any custom showing that the Sunni Bohras of the Muli area or of the Saurashtra area had adopted the principles of Hindu law in matters of inheritance and succession. He has conceded that no such custom has been proved. He has however relied on the precedents which are discussed by the learned District Judge in paragraphs 12 and 13 of his judgment with which I will have occasion to deal with in this judgment.

(3.) Thus the short but important question which falls for my determination in this appeal is as to whether the Sunni Hanafi Bohras of the Muli area of the former Saurashtra State are governed by the principles of Hindu law in so far as matters of succession and inheritance are concerned as alleged by the respondent No. 1 herein or whether they are governed by the principles of Mahomedan Law as is the case of the appellants herein.