ABDURAHIM HAJI ISMAIL MITHU Vs. HALIMABAI

JUDGEMENT

(1.) This is an appeal from a judgment of the Court of Appeal for Eastern Africa reversing a judgment of the High Court of East Africa at Mombasa, The question to be decided is whether the succession to the estate of one Haji Ismail Mithu, deceased, is governed, as the appellant, who is a son, claims by Hindu law, or whether the succession is governed by Mahomedan law. as the respondent, who is the widow, asserts. This question arose in an action brought by the respondent against the appellant claiming administration and a declaration that she was entitled, on the footing that Mahomedan law applied, to an eighth of her husband s estate. On the appellant s contention the respondent, as widow of the deceased, became entitled to no more than maintenance.

(2.) The deceased was a merchant who had settled at Mombasa, and was member of the Indian sect known as Memons. According to the case as stated by the appellant s counsel, some four or five hundred years ago the Loannas, a sect of Hindus located in Sind, became converted to the Mahomedan faith and took the name of Memons. A century or so later they migrated to Cutch, where they settled. There were two migrations. Those who first migrated and their descendants, became known as Cutchee Memons, while those who migrated on the second occasion, and their descendants, were called Nassapooria Memons. Both sets of migrants held to religious tenents and customs which are common to the Memon community, and, for the purposes of the present appeal, the distinction between the two sets is immaterial.

(3.) Upon their conversion to Mahomedanism the Memons did not adopt the Mahomedan law as to succession, but retained their Hindu law of succession as a customary law which remained binding upon the entire Memon community at Cutch. Over half a century ago Memons began to migrate from Cutch to East Africa, and there are now, so it is stated, at least a hundred Memon families at Mombasa.