ALIYARKHAN AMIYATKHAN Vs. RAMBHAU MOTIRAM

JUDGEMENT

(1.) THE facts leading up to this Letters Patent Appeal are that one Devchand, a Khoja Mahomedan, died on January 26, 1927, leaving a widow Lakshmibai and leaving a daughter by name Hirabai. By his will Devchand gave the whole of his property to Hirabai. Hirabai died on July 27, 1931, having prior thereto made a will on July 1, 1931, and she bequeathed her property to her husband. THE husband sold the property in suit to the plaintiff. Lakshmibai, the widow of Devchand, after the death of Hirabai, executed a deed of gift and by that deed of gift she gave the property in suit to the trustees of a mosque at Rasalpur. THE trustees went in possession of the property and the plaintiff filed this suit for possession.

(2.) THE defendant's contention was that Devchand being a Mahomedan, his testamentary capacity was restricted and he could not dispose of the whole of his property by will. THE plaintiff's contention was that he being a Khoja, in matters of testate succession he was governed by Hindu law and not by Mahomedan law, and that is the narrow point we have to consider in this Letters Patent appeal Both the lower Courts accepted the contention of the plaintiff.

(3.) AGAIN in Hirbai v. Gorbai (1875) 12 B. H. C. R. 294 Mr. Justice Sargent held that the custom applied not to Khojas of any particular locality but to Khojas of the whole Presidency of Bombay, and if a custom opposed to Hindu law be alleged to exist among Khojas, the burden of proof rested upon the person setting up that custom; and ever since 1875 that proposition has never been challenged. It has been assumed both at the bar and on the bench that that is the correct position in law: and in Mulla's Mahomedan Law also in the 12th edition, p. 19, the statement of the law on this question is put thus: In the absence of proof of special usage to the contrary, Khojas and Cutchi Memons in the Bombay Presidency are governed in matters of succession and inheritance, not by the Mahomedan, bat by the Hindu law.