KHATUBAI Vs. MAHOMED HAJI ABU

JUDGEMENT

(1.) The present appeal relates to the succession of one, Haji Abu Haji Habib, who died intestate at Bombay on November 30, 1914. The contest is between a daughter, the plaintiff and appellant, on the one hand, and a son and other members of the family, the defendant and respondents, on the other, and depends entirely upon what is the law of succession to be applied to the property of the deceased.

(2.) Now, the deceased was a Mahomedan. Accordingly the Indian Succession Act does not apply, and if nothing more were known it would be obvious that the ordinary Mahomedan law of succession would fall to be applied, which would mean that the appellant would succeed. But the deceased was not what may be termed an ordinary Mahomedan. There are among the Mahomedans certain groups whose ancestors were Hindus and professed the Hindu religion, and were then converted to Islam. Among these groups may be reckoned, as is shown by decided cases, Khojas, Suni Borahs, Molesalam Girasias, Cutchi Memons, Nassapooria Memons; and, lastly, Halai Memons, to which group the deceased belonged. Now, with regard to the groups other than Halai Memons, it has been held by a succession of cases beginning with a case decided by Sir Erskine Perry in 1847, that the converts had retained their Hindu law relating to the exclusion of females from succession, and that that law had been engrafted as a custom on the Mahomedan law, although not in accordance with the rules of the Koran. In the present case, as is said by the learned Chief Justice, an entirely novel question is raised, viz.. What is the customary law governing succession to a non-Cutchi Memon of Porebunder? Both the learned Judge of first instance and the learned Judges of the Appeal Court held that the deceased was, so to speak, a Porebunder and not a Bombay Memon. These being concurrent findings of fact, their Lordships, while entirely agreeing with them, need not examine the evidence on which they are founded. It follows that the personal law of the deceased, so far as the question for decision in the present appeal is concerned, was the law of a Halai Memon of Porebunder.

(3.) It may be here well to say a word as to what is meant by a Halai Memon. A Memon, as the word denotes, is a convert. The name Memon, however, has not been applied to all branches of Hindu converts, e.g., as in the case of the Khojas. There was a body which came from Sind and settled in Cutch, and these have been denominated as Cutchi Memons. Another body from the same place settled in the Halai Prant of Kathiawar, and these have been designated Halai Memons. Some of the Halai Memons pushed on to Bombay, where they have formed a community known as the Bombay Halai Memons. There was also an immigration to Bombay from Cutch, and the Cutchi Memons formed by themselves a separate community in Bombay from the Halai Memons. Now, it is admitted that so far as the Bombay Halai Memons are concerned they have been content for many years to have their property distributed on succession according to the tenets of the Mahomedan law, so that if the deceased had been, in the proper sense of the word, a Bombay Halai Memon, the question of the succession would have been solved. But, as already stated, both Courts have found that he was not a Bombay Halai Memon, but a Porebunder Halai Memon. The question, therefore, is, does a Halai Memon domiciled in Porebunder follow the Hindu or Mahomedan law with regard to the succession of females?