ADAMBHAI SALEMAHOMED Vs. HAJI ALLARAKHIA HAJI ISMAIL

JUDGEMENT

(1.) This is a second appeal against a decision of the First Glass Subordinate Judge at Nadiad with appellate powers dismissing the appeal against the decree of the Joint Second Class Subordinate Judge at Nadiad. The plaintiff sued to obtain a declaration that the will executed by one Valibhai Salemahomed on April 11, 1923, was void and illegal, and for possession of the plaintiff's share according to Muhammadan law as an heir of Valibhai - whose brother he was Valibhai Salemahomed died on May 5, 1923, and his will provided for the distribution of his estate among his relatives through the medium of trustees appointed under the document. The principal point we have to decide is whether the deceased Valibhai Salemahomed was governed by the Hindu or the Muhammadan law, the answer depending on whether he was a Halai or a Cutchi Memon, or, in the alternative, a Memon governed by the ordinary Muhammadan law of inheritance. Both the Courts below have found that he was a Memon ; but there is a difference as to the class or category to which he belonged, the original Court holding on the evidence that he was a Cutchi Memon, while the appellate Court held that he was a Halai Memon.

(2.) It is common ground that Memons (i.e., Muamins or believers) were converts from Hinduism in Sind, and that from Sind they migrated to Cutch and thence to other places, some to Porebunder, others, as in the case we are now dealing with, to Morvi, and yet another branch whose migration seems to have been from Verawal to Bombay. In Bombay City the Memons are divided into two sects, the Cutchi Memons who admittedly are governed by Hindu law, and the Halai Memons who, being very early immigrants to Bombay and having been influenced by their co-religionists other sects in the city, are governed by Muhammadan law. In the case of the mofussil it is somewhat different. The decision which was upheld by the Court below is that the Memons in the mofussil, i.e., from Kathiawar, Cutch and neighbouring Gujarat Districts, are either Halai or Cutchi Memons, and that in either case, they are governed by Hindu law in matters of succession and inheritance,

(3.) The first point decided by the original Court was that Valibhai Salemahomed executed the will in question while in a sound and disposing state of mind. Mr. K. N. Koyajee for the appellant has urged that the signatures on the will in question and on one dated about a year earlier are so different, that the Courts below should have held that the will relied on had not been executed at all by Valibhai Salemahomed. But this is a point which was never taken in the Courts below, the allegation in the plaint being not that Valibhai has executed no will, or that the one propounded by the defendants was a forgery, but that it was void and illegal and had not been executed by him while in a Sound and disposing state of mind. As to this point, the attesting witnesses have been examined and the original Court has accepted their evidence to the effect that at the time Valibhai was quite competent to make a will and that he duly executed the one in question which he dictated to his scribe. This finding has also been accepted by the appellate Court, and these being largely questions of fact, we have to take the findings as they are. We, therefore, hold against Mr. Koyajee on this point.