FIDAHUSEIN PIRMAHOMEDALLI Vs. BAI MONGHIBAI

JUDGEMENT

(1.) The simple issue I am asked to try in this case is whether a Khoja of the Shiah Ishna Ashari sect can dispose of the whole of his property by a testamentary disposition. Since 1847, when the well-known case of Kojahs and Memons Case (1847) Perry O. C. 110 was decided, the law applicable to a dead Khoja has been agitated and a series of cases have laid down beyond doubt that in matters of simple succession and inheritance the Hindu law applies. Two of them arc Appeal Court judgments, and yet, a single Judge in recent times; threw a doubt (in itself an obiter) on the ground that only such part of the Hindu law of succession and inheritance can be said to apply as is proved to have been adopted by the Khojas. His reasoning is that ordinarily the Hindu law governs the Hindus and the Mahomedan law governs the Mahomedans. Unless, therefore, any portion of the Hindu law is proved to have been adopted by the Khojas as their personal law the ordinary presumption should prevail. The learned Judge after a lengthy examination of the case law came to the conclusion that it has not been established by evidence that the Khojas have adopted by custom the right to will away the whole of the property and he expressed an opinion that he would confine the application of Hindu law to intestate succession. The learned Judge had the limitation present to his mind that a Hindu can only will away his self-acquired property. But that is confounding the Hindu law of joint family property with rights of succession and inheritance. It has been held beyond doubt that the Hindu law of joint family property does not apply to Khojas. The famous dictum of Russell J, that a Khoja is a living Mahomedan and a dead Hindu is a paradoxical truism, A Khoja can, therefore, dispose of the whole of his property during his lifetime. The elements of ancestral or joint family property do not exist. His sons take no interest by birth. They cannot demand partition and the property in the hands of a Khoja during his lifetime is his absolute property. If the sons have no vested interest in the property during the lifetime of a Khoja father he must be taken to have died with all the property as his own. To hold otherwise would be to raise absurd questions as to heirship, and joint and self- acquired property. Either the property vests in the sons or it does not. There cannot be a vacuum and the sons rights cannot spring into existence all at once on the father's death. A Khoja, as any living Mahomedan, can make a will Ceding one-third of the property with the consent of the heirs, but such must must be given after the testator's death. If you bring in the principle joint family property the question would arise, " Consent of which her Under the Mahomedan law or the Hindu law ? " The heirs under the two systems differ. Harmony can only be established if you eliminate the Hindu law of joint family property and apply the Hindu law of simple succession and inheritance. It is well-established by authorities that the law of wills is a part of the law of succession and inheritance. Succession is either testamentary or intestate. To say that on the death of a Khoja only the Hindu law of " intestate succession " applies is to make an encroachment on the established rule of law that the Hindu law of joint family property does not apply to Khojas. It is not a correct statement of law to say that only such part of the Hindu law of succession and inheritance applies as is proved to have been adopted by the Khojas by custom. The conversion of Hindus of Sind by the ancestors of H. H. the Aga Khan was a mass conversion and while accepting a new faith they retained their old system of devolution of property. You adopt what you have not got. You retain what- you already possess. The correct proposition, therefore, is that whoever wants to establish that a custom derogatory to the Hindu law of succession and inheritance is adopted must prove it. No such custom derogatory to the Hindu law of simple succession and inheritance has been ever alleged or proved. The fact that it has not been alleged or proved ever since 1847 in any case involving a will, shows that it did not admit of proof and the further fact that the point was conceded in all cases of wills, though it would be to the manifest advantage of the party interested to raise the point strengthens the view that no such exception existed and the point was treated as concluded. With this preliminary rapid survey of the legal position I shall now give a short summary of the origin of Khoja sect which will be a help to appreciate the principles of the Hindu law of succession and inheritance made applicable to them.

(2.) The report of The Aga Khan's case (The Advocate General ex relatione Daya Muhammad V/s. Muhammad Husen Huseni (1866) 12 B. H. C. R. 323 n), in which judgment was delivered by Arnould J. in 1866, is given in a note at foot of p. 323 of 12 B.H.C.R. The issues are mentioned at p. 329 and the second issue is, " Who and what are the .Shiah Imami Ismailis ", and the fourth issue is, " Who and what are Khojas." Arnould J., after careful consideration of the voluminous evidence led in the case, came to the conclusion that the Khojas were originally Hindus of trading class inhabiting the towns and villages of Upper Sind. The position and circumstances of those remote and isolated traders were manifestly such as to favour a conversion of some form or other of Mahomedanism, They were converted by Pir Sadra Din about four hundred years ago, and according to tradition of the great body of the Khoja community Pir Sadra Din came from Khorasan and was an Ismail Dai or missionary sent by Shah Islam, one of the ancestors of H. H. the Aga Khan, The form of Mahomedanism which he taught his converts was Shiah Imami Ismaili faith. Arnould J. further points out that as a rule Khojas have no mosque or masjid. As a matter of fact the only Khoja mosque in existence was that erected in 1822 in the Khoja burial ground in Bombay, where funeral rites to the dead are performed before burial. The Jamatkhana is their prayer-house, where they recite gnan (knowledge), which is a free composition in verse of some parts of Koran and Hindu mythology. Even in this composition there is no mention of the Mahomedan law of succession and inheritance. Their accepted scripture is " Dashavatar". At p. 359, Arnould J. gives a short summary of the scripture of Dashavatar. He says : It is a treatise in 10 chapters containing (as, indeed, its name imports) the account of ten avatars or incarnations, each dealt with in a separate chapter. The first 9 of these chapters treat of the nine incarnations of the Hindu god Vishnu; the 10th chapter treats of the incarnation of the Most Holy Ali , (Ninetenths of their scripture is thus based on the Hindu divinity of Vishnu) ...the idolatry of the first 9 chapters, the semi-deification of Ali implied in the 10 chapter, alike .are utterly impossible. The " avatar " is manifestation of God on earth in human form to relieve dire distress. Vishnu is the centre of Hindu conception of Trinity which consists of Brahma, Vishnu and Mahesh. The first is the Creator, second Protector, and the third Destroyer. As observed in Haji Bibi V/s. The Aga Khan (1908) 11 Bom. L.R. 409, 428 only a clever and astute brain could have compiled such a scripture for the acceptance of the Hindu traders in North Sind. It will be clear from this short account that the conversion of Khojas to the Shiah Imami Ismaili sect was not a case of individual conversions but was a mass or a community conversion; call it mass hypnotism if you choose. In a case like this no rigid rule of logic can govern a convert society like the Khojas. The rigid rule of law laid down in Jowala Buksh V/s. Dharum Singh (1866) 10 M.I.A. 511 and Mitar Sen Singh V/s. Maqbul Hasan Khan (1930) L.R. 57 I. A. 313 applies to individual conversions. In the former case it was held that Mahomedan law applies not only to persons who are Mahomedans by birth, but by religion also. In the latter case it was held that a convert changed not only his religion, but his personal law also. These rigid logical rules may apply to individual conversions, but in the case of a community conversion the converts may retain a portion of their personal law according to their social habits and surroundings. They retain their personal law unless they consciously adopt another.

(3.) In Abraham V/s. Abraham (1863) 9 M.I.A. 195, their Lordships of the Privy Council observed (pp. 238, 239):- He [a Hindu convert to Christianity] may renounce the old law [his own personal law] by which he was bound, as he has renounced his old religion, or, if he thinks fit, he may abide by the old law, (in the absence of any statutory provision) notwithstanding he has renounced his old religion.... The profession of Christianity releases the convert from the trammels of the Hindoo law, but it does not of necessity involve any change of the rights or relations of the convert in matters with which Christianity has no concern, such as his rights and interest in, and his powers over, property. The convert, though not bound as to such matters, either by the Hindu law or by any other positive law, may by his course of conduct after his conversion have shown by what law he intended to be governed as to these matters. He may have done so either by attaching himself to a class which,,, has adopted and acted upon some particular law, or by having himself observed some family usage or custom; ... This case illustrates the distinction between parcenership and heirship. Parcenership must be governed by the law to which a person has become a convert; heirship may be governed by his old personal law. A Hindu convert cannot possibly remain a member of Hindu coparcenery, but the succession to his property may be governed by Hindu law. The only exception to this rule is when the succession is governed by statute, e.g., a Hindu convert to Christianity now cannot, as laid down in Kamawati V/s. Digbijai Singh (1921) L.R. 48 I. A. 381 elect to be bound by the Hindu law as opposed to the statutory provision under the Indian Succession Act. To my mind the true principle is laid down in Abudurahim Haji Ismail Mithu V. Halimabai (1915) L.R. 43 I. A. 354 known as the Mombasa case. That was a case of a Memon, another sect of Mahomedans who were converted from Hindu religion some four centuries ago, but retained their Hindu law of succession and throughout India were governed by that law save where a local custom to the contrary was proved. In fact, Memons are more orthodox converts than Khojas. In that case a Memon, whose father, some fifty years before the suit, had migrated from India and settled with his family among Mahomedans at Mombasa, lived at that place and died there intestate. It was held upon evidence of practice among Memons at Mombasa that the succession to the estate of the deceased Memon waddds governed by Mahomedan law and not by Hindu law. Viscount Haldane in delivering judgment observed as follows (p. 41) :- Where a Hindu family migrates from one part of India to another, prima facie they carry with them their personal law, and, if they are alleged to have become subject to a new local custom, this new custom must be affirmatively proved to have been adopted, but when such a family emigrate to another country, and, being themselves Mahomedans, settle among Mahomedans, the presumption that they have accepted the law of the people whom they have joined seems to their Lordships to be one that should be much more readily made. All that has to be shown is that they have so acted as to raise the inference that they have cut themselves off from their old environments. The analogy is that of a change of domicil on settling in a new country rather than the analogy of a change of custom on migration within India. The question is simply one of the proper inference to be drawn from the circumstances.