1. The facts, on which this motion depends, are set forth in the plaint, and they are not contested by the defendant. The question for decision is one purely of law. The learned Advocate-General pressed me to grant the injunction asked, and leave the question to be settled at the hearing. Of course the Court at this stage avoids, as far as possible; the determination of any right, and abstains, as much as it can, from prejudging , any question in the suit. But the action of the Court cannot be invoked, unless some prima-facie case in support of the title asserted is shown. For this purpose I must examine the facts, which may be briefly stated as follows.
2. One Usman Vydina died in 1861, leaving considerable property and a going and lucrative business. He left three sons, Mahomed, Abdul Vyed, and Ebrahim; two daughters; two brothers, Allana (who had a son Esmail) and Jaffir, and two widows. The deceased had made a will, and after certain testamentary dispositions, not necessary to mention, he left all his estate in equal fourth shares (1) to his executor, his brother Allana; (2) to his two sons, Abdul Vyed and Ebrahim; and. (3) to the lawful son, if any, of his eldest son Mahomed-Mahomed himself being disinherited. He directed his business? to be carried on by his brother and executor Allana, and further directed that his brother Allana's son Esmail should, on his marriage, be admitted to one-fifth share of the profits. The division of the property and of the business profits he directed to be postponed until Adbul Vyed and Ebrahim had attained the age of twenty years, and as to the share of the lawful son of Mahomed he also directed it to be held in trust, if he came into being, until he reached the age of twenty, and, in case Mahomed died without male issue, the share was then to be divided equally by Abdul Vyed and Ebrahim.
3. In December 1878 Abdul Vyed and Ebrahim filed a suit against Allana and his son Esmail for an account and a division. The suit was referred to arbitration, and, finally, a consent decree was taken, by which the whole property was divided into fifths, and three-fifths given to Abdul Vyed and Ebrahim and two-fifths to Allana and his son: At that time no son of Mahomed was living. One had been born and had died. But in February 1884 the present plaintiff was born. He now claims to' be entitled to one-fourth of the estate of Usman, and, as his fourth share was taken under the consent decree by Vyed and Ebrahim, he now aims from them one-third of what they received.
4. On the 18th March 1884 Vyed and Ebrahim filed their petition in insolvency, and their estate has vested in the Official Assignee, who is a party defendant in this suit. The Official Assignee is about to realize the insolvent's property in the ordinary course, and the plaintiff, therefore, asks for an injunction restraining the Official Assignee from selling, until the question of the plaintiff's title has been settled, as I have already stated. In order to entitle him to the interference of the Court 'he must make out a prima-facie case in favour of the testator power to accumulate income and tie up his estate in favour of persons unborn at the time of his (the testator's) death.
5. The parties belong to the caste known as the Cutchi Memons, who, like the Khojas, are Hindus by origin; converted to Moho-medanism some centuries ago. It is a well-known principle of law in India, that, when a Hindu is converted to Christianity or Mahomedanism, the conversion does not, of necessity, involve any change of the rights or relations of the convert in matters with which Christianity or Mahomedanism has no concern, such as his rights and interests in, and his powers over, property-Abraham v. Abraham. 9 M I.A. 125 As regards the Khojas, it has been decided by this Court that in questions of inheritance they are governed by Hindu law in the absence of any proved special custom to the contrary-Rahimatbai v. Hirbai I.L.R. 3 Bom. 34 But the point is not so clearly settled as regards Cutchi Memons. Sir E. Perry in Hirbai v. Sonabai Perry's Cr. Ca. p. 110 treated the two castes on the same footing, and decided that, by their customary law, females were not entitled to a share of their father's property at his death, as they would have been according to Mahomedan law, but only to maintenance and marriage expenses. This ruling has been followed and strengthened in the case of Khojas until now they are completely governed by Hindu law in matters of inheritance. But in the case of Memons this Court has decided In re Haji Ismail Haji Abdula I.L.R. 6 Bom. 452 that Cutchi Memory are not Hindus wihin the meaning of Section 2 of the Hindu Wills Act (XXI of x870), and the late Chief Justice then added: 'We know of no difference between Cutchi Memons and any other Mahomedans, except that in one point, connected with succession, it was proved to Sir B. Perry's satisfaction that they observed a Hindu usage which is not in accordance with Mahomedan law.' This dictum was not, however, necessary to the decision of the point before the Court; and it has not been followed in subsequent cases. In Askabai v. Haji Tyeb Supra, p. 115 the question wag raised, and the present Chief Justice distinctly ruled that Memons as much as Khojas, although converts to Mahomedanism, still retain the Hindu law of inheritance. This riding, I am informed, has been followed subsequently by Mr. Justice Bayley and Mr. Justice Birdwood, and my own opinion coincides with it.
6. But in presence of the conflict of authority it may be useful to point out in the present case, that, even if it were governed, not by Hindu but by Mahomedan law, the will would be invalid and inoperative as regards the present plaintiff, who was not in existence at the time of the death of the testator. Baillie in his Digest of Mahomedan Law says (p. 626): 'The conditions of a valid bequest are that the testator is competent to make a transfer of the property, that the legatee is competent to receive it, and that the subject of the bequest is susceptible of being transferred.' The second condition is obviously incapable of fulfilment by any one not in existence at the time of the testator's death; and the only relaxation of the rule mentioned by Baillie (p. 627) is the case of 'a child in the womb if born within, six months from the date of the bequest.' In the Code of Mahomedan law, according to the Hanefite Rite, prepared by' a council of pundits from the university mosque of El Azhar at Cairo ten years ago, and which is now in use in Egypt, this rule is thus expressed :-' Pour faire un testament il faut etre libre, majeur sain desprit, et jouissant de son libre arbitre. Il faut en outre que le ligataire soit reellement vivant ou au moins concu et la chose liguee susceptible d'etre transferee apres la mort du testatuer.' (Droit Mussulman, Section 531). Clearly, therefore, the case is excluded by Mahomedan law.
7. It remains to examine whether it is good according to Hindu. law. The law is thus stated by Mr. Justice West in his work on Hindu Law: 'As the law of wills follows the law of gifts, though with some differences, it will be understood that a grant in favour, partly, of persons not in existence at the time of execution so far fails with the estates dependent upon it.' West and Buhler, Vol. I, p. 182 (3rd ed.) The point has been directly decided by the highest Court in the Tagore Case, L.R. Ind Sup. 47 and the Privy Council lays down the rule that a person capable of taking under a will must be such a person as could take a gift inter vivos, and must, therefore, be either in fact, or in contemplation of law, in existence at the testator's death. The only persons who, though non-existent at the death, are by a legal fiction supposed to be in existence, are a son adopted after death by the testator's authority and a child in the womb. This rule, therefore, clearly excludes the plaintiff, who was not born till twenty-three years after the death of the testator.
8. Thus, no case is made out according to either Hindu or Maho-medan law. The learned Advocate-General pointed out that his claim would be good according to English law. But the Privy Council has expressly stated that the nature and extent or the testamentary power must not be governed by any analogy to the law of England (Nana Narian v. Huree Punth Bhaoo 9 M Ind. Ap. 96 and, I think, it would be a misfortune for the natives of India if testators were given the power to tie up their property for the benefit of persons unborn, to the exclusion of those who have the highest and most natural claim.
9. Rule discharged with costs; undertaking on part of Official Assignee not to sell during appeal if appeal is made.