ADVOCATE GENERAL Vs. JIMBABAI

JUDGEMENT

(1.) The substantial questions to be answered here are : (1) whether a Cutchi Memon is entitled to dispose of more than one-third of his property by will; (2) whether certain bequests to charity in this will are void or are good and valid bequests. Implied in these questions is a consideration of the long-standing controversy as to the precise extent to which the sect of Cutchi Memons is governed not by the Mahomedan but by the Hindu law.

(2.) When the case came on for trial it was hoped that it might be made a test case for the settlement of several points upon which a difference of opinion still exists in the mixed law administered by this High Court to the two sects of Khojas and Cutchi Memons; and it was with that object in view that all the learned counsel concerned spared no efforts to collect and bring before the Court all available material and directed their arguments to an extensive and searching survey of this entire field of law.

(3.) Ever since Sir Erskine Perry s famous judgment delivered in the year 1847 in what is commonly known as the Kojahs and Memons case (1847) Perry O.C. 110 it had become almost customary in this Court to treat these two sects as though they were on precisely the same footing and must necessarily be governed to the same extent by the mixed law declared by one decision after another to be applicable to them. In the course of the trial it became clear that however the questions directly in issue be approached, evidence confined to practices and customs of the Khojas could not really be relevant. Assuming that the Court had to enquire here into an alleged custom of the Cutchi Memon sect, its decision will have to be given upon evidence that such a custom had universally prevailed and been long established not amongst the Khojas but amongst the Cutchi Memons. Nor could the mere fact that evidence was forthcoming to show that a similar custom has been adopted by the Khoja Community make that evidence relevant in this case. It is perhaps unfortunate that the expectations, with which the trial was entered upon, have so far been frustrated that the judgment can declare no more than what is shown to be the law governing the powers of Cutchi Memons to dispose of their property by will. It is further to be noted that notwithstanding the habit of regarding the Khojas and Cutchi Memons as in all respects identical for the purposes of such a discussion, they are really distinguishable upon broad theoretical grounds which might have, if they have not had, practical consequences. While there are many peculiar features in the sectarianism of the Khojas, strongly marking them off from orthodox Mahomedanism, the Cutchi Memons except for the alleged 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. In a recent case of Jan Mahomed v. Datu Jaffar I examined the whole case law touching both the Khojas and the Cutchi Memons critically and, I think, exhaustively. It was a great satisfaction to me to find that Macleod J. is in entire agreement with the conclusions then reached. In a very recent case of Mangaldas v. Abdul Razak (1914) 15 Bom. L.R. 224 that learned Judge had to deal with a cognate point indirectly arising out of the general proposition which must be said to have been established by the decisions of this Court that the Khojas and Cutchi Memons are governed by the Hindu law in all matters of simple succession and inheritance. I think that Macleod J. s judgment in that case is theoretically correct and draws more than one very necessary distinction. The very same questions indirectly arise here, as, I think, they always must, until this Court has decided much more clearly than it ever yet has done within what limits the practical application of the proposition I have just cited must be confined; for it is obvious that in considering the testamentary capacity of a Cutchi Memon the Court will almost necessarily be brought at once into contact with the legal notions peculiar to the law of the joint Hindu family. I think it will be convenient to incorporate the whole of my judgment in the case of Jan Mahomed v. Datu Jaffar by reference here. It would be mere idle waste of time and vain repetition to cover the ground again; and such criticism as has been directed against parts of that judgment in the present argument has only confirmed me in the conviction that it is substantially accurately reasoned and lays down correct conclusions. In minor points it might require modification here and there in the light of the fuller information given me during this trial regarding the procedure and details of the cases tried before Sir Erskine Perry in 1847 and Scott J. in 1885. But as a critique raisonne of the manner in which the legal doctrine grew in this High Court and came to be accepted by succeeding Judges and the profession generally, I still entirely adhere to it, It has been a source of great satisfaction to me that in the course of his able and interesting argument, the oldest, greatest and by far the most experienced Advocate of this High Court at the present time more than once admitted the general correctness of my reasoning throughout my judgment in the case of Jan Mahomed v. Datu Jaffar (1918) 15 Bom. L.R. 1044. He said that it had been his own view as far back as 1885 when he advanced it tentatively before Scott J. in the case of Mahomed Sidick v. Haji Ahmed (1885) I.L.R. 10 Bom. 1. But he thought it was now much too late to undo what had already been done and had enured through these years into a settled doctrine of the Court and the accepted rule of practice with the profession. To that extent I am prepared to agree with Mr. Inverarity.