(1.) In the year 1897 the Government of India being minded to amend the personal law of Cutchi Memons as regards in particular inheritance and succession, caused a Public Notice to be inserted in (inter alia) the Bombay Government Gazette (Exh, L.) and the Porebunder State Gazette (Exh. M) with a view to ascertain the wishes of the community on the subject. The Notice is issued from the Judicial Department of the Government of Bombay and is described as a "Public Notice to the Momon Community by the Government of Bombay at the desire of the Govornment of India. " In that Notice the following passage occurs, viz. :- The Memon Community in India is divided into two sects, the Halai Memons and the Cutchi Momcns. The former without exception follow the Mahomedan law in all respects and are not therefore affected by the proposed legislation. The question I have to decide in the present suit is in effect whether that passage is correct. In other words, are Halai Memons without exception governed as regards inheritance and succession by Mahomedan law as stated in tha Notice, or by Hindu law as is the case with Cutchi Memons ? In particular, it will be material to consider whether, as regards this personal law, there is any difference between Halai Memons settled in Bombay and Halai Memons settled in Porobunder and other parts of Kathiawar, which territory is, I assume, included in the expression "India" as used in the passage I have quoted.
(2.) The dispute in question arises over the succession to the estate of a Halai Memon named Haji Abu Haji Habib (hereinafter called "the Intestate") who died intestate at Bombay on the 30th November 1914. The Intestate left him surviving two married daughters, the plaintiff and one Ayshabai (since deceased), one son, the first defendant Mahomed Haji Abu, and a widow, the second defendant Bibabai. The third and fourth defendants are respectively the husband and the minor child of the deceased daughter Ayshabai. The plaintiff contends that the estate of the Intestate devolves according to Mahomedan law in which case she as a daughter of the Intestate would take 7/32 of the estate. In this she is supported by the third and fourth defendants who as representing the deceased daughter Ayshabai would take anothor 7/32, thus leaving 14/32 for the first defendant and 4/32 for the second defendant. On the other hand the first defendant contends that the estate of the Intestate devolves according to Hindu law in which case he as the only son of the Intestate would take the whole estate subject to the right of the second defendant to maintenance as the widow of the Intestate. Virtually, however, the contest is between the plaintiff and the first defendant, as the other defendants have only taken a formal part in the trial before mo. So too as regards counsel, the fight has been almost wholly conducted by Mr. Davar for the plaintiff and by Mr. Setalvad for the first defendant. It will accordingly be convenient to refer to defendant 1 as the defendant.
(3.) The Intestate s estate is valued at over two and a quarter lacs and consists mainly of property in Bombay, via., five immoveable properties there valued at Rs. 1,40,000 and a share in a cutlery business there valued at at least Rs. 60,000. The remaining important asset is an immoveable property at Porebunder said to be worth Rs. 25,000. As regards the Intestate himself, it is common ground that he was born at Porebunder in the Native State of that name in Kathiawar ; that he came to Bombay for business purposes some thirty-three or forty years before his death; that in Bombay he started and developed a lucrative cutlery business in which at the date of his death he still held a tenanna share; and that he was about sixty-two when he died. As regards the community from which the Intestate came, the following information will be found in Vol. VIII, p. 162 of the Gazetteer of the Bombay Presidency (1884 Edition) under the heading of " The Musalman population of Kathiawar," viz. : Mercians are a large class in Kathiawar, numbering no less than 58,400. They are of two divisions, Cutchi Mercians who are supposed to be the descendants of converted Lohanas find to have come originally from Sind, and Halai Mercians the descendants of converted Kachhias. The Halais have an hereditary chief or Mukhi who lives at Dhoraji. Mercians are husbandmen and in towns are dealers in groceries and cloth. As a class they are hardworking and quiet but rather stolid and apathetic. The two classes do not intermarry ; the men of both shave the head and wear beards. From this statement, it would appear to be erroneous to assume that all Memons in Kathiawar are Halai Memons as the defendant invites me to do. Further, the Public Notice in the Porebunder State Gazette (Exh. M) would hardly have been published unless there was a community of Cutchi Memons in that State. I mention this as possibly forming an explanation of some of the decisions in the Kathiawar Courts, where the parties are merely described as Memons and it is not stated whether they are Cutchi Memons or Halai Memons. It would further appear from the above statement, that Halai Memons did not originally emigrate from Sind as Cutchi Memons did, but were local inhabitants of Kathiawar who became converts to Islam. Lohanas, I may explain, are traders (see Gazetteer, p. 149) and Kachhias are husbandmen (see Gazetteer, p. 143).