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.
4. Mr. Pendse for the appellant has raised a rather novel and ingenious point. His contention is that all the cases decided which lay down this proposition were cases decided on the Original Side of the High Court and therefore this custom should be held to be proved only with regard to the Khojas of the town and Island of Bombay, and it should not be held that this custom is applicable to the Khojas of the whole of the Bombay Presidency. This contention is not quite accurate because in the case of Shivji Hasam v. Datu Mavji Khoja (1874) 12 B.H.C.R. 281 Westropp C.J. and West J., sitting on the Appellate Side, held that Hindu law applied to Khojas of Thana in matters relating to property, inheritance and succession, as no evidence had been given to show its inapplicability to the Khojas of that place.
5. Again in Hirbai v. Gorbai (1875) 12 B.H.C.R. 294 Mr. Justice Sargent held that the custom applied not to Khojas of any particular locality but to Khojas of the whole Presidency of Bombay, and if a custom opposed to Hindu law be alleged to exist among Khojas, the burden of proof rested upon the person setting up that custom; and ever since 1875 that proposition has never been challenged. It has been assumed both at the bar and on the bench that that is the correct position in law: and in Mulla's Mahomedan Law also in the 12th edition, p. 19, the statement of the law on this question is put thus:
In the absence of proof of special usage to the contrary, Khojas and Cutchi Memons in the Bombay Presidency are governed in matters of succession and inheritance, not by the Mahomedan, bat by the Hindu law.
6. Therefore, the position today is that if a Khoja living in the Bombay Presidency wants to put forward the contention that in testate succession he is governed by Mahomedan law and not Hindu law, the burden is on him to establish affirmatively that he is so governed according to a special usage. The custom that a Khoja is governed by Hindu law in matters of testate succession is so well established and so frequently judicially noticed that it is no longer necessary to prove that custom again. Rather, as I was pointing out, the burden is now thrown on the person who alleges usage contrary to this well established custom. In this case no allegation was made by the defendants that Devchand was governed by Mahomedan law as a result of some special usage, and no issue to that effect was raised. Therefore, it must be held that Devchand was governed by Hindu law in matters of testate succession, and it therefore follows that he had the right to will away the whole of his property according to Hindu law.
7. In our opinion therefore the case was rightly decided by both the lower Courts. This appeal fails and must be dismissed with costs.