(1.) The facts leading up to this Letters Patent Appeal are that one Devchand, a Khoja Mahomedan, died on January 26, 1927, leaving a widow Lakshmibai and leaving a daughter by name Hirabai. By his will Devchand gave the whole of his property to Hirabai. Hirabai died on July 27, 1931, having prior thereto made a will on July 1, 1931, and she bequeathed her property to her husband. The husband sold the property in suit to the plaintiff. Lakshmibai, the widow of Devchand, after the death of Hirabai, executed a deed of gift and by that deed of gift she gave the property in suit to the trustees of a mosque at Rasalpur. The trustees went in possession of the property and the plaintiff filed this suit for possession.
(2.) The defendant's contention was that Devchand being a Mahomedan, his testamentary capacity was restricted and he could not dispose of the whole of his property by will. The plaintiff's contention was that he being a Khoja, in matters of testate succession he was governed by Hindu law and not by Mahomedan law, and that is the narrow point we have to consider in this Letters Patent appeal Both the lower Courts accepted the contention of the plaintiff.
(3.) Now, by a series of authorities it has been well established that before the Shariat Act was passed in 1937, a Khoja Mahomedan was governed in matters of succession and inheritance by Hindu law on the ground of custom. The Shariat Act brought about this change, viz. that to the extent that the Khoja was governed by Hindu law in matters of intestate succession the custom was overridden and after the passing of the Act he was to be governed by Mahomedan law. But his customary law quae testate succession remained unaffected by the Shariat Act. Therefore, even after the passing of the Shariat Act, a Khoja still continues to be governed by his customary law, which is the Hindu law, as far as testate succession is concerned.