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.
4. The next point is the main question, of the school of law which governs the parties to this suit. The Original Court dealt with this point both from the. point of view of the decided cases, as well as from the oral evidence adduced before it.
5. Turning to the oral evidence first, it was admitted in the original Court that. Valibhai and his family belonged to Morvi in the Western India States, and. that they came to Nadiad about forty years before his death; also, that the: Memons of that place and those of Ahmedabad, Petlad, Surat, Bardoli and Navsari had similarly come from Morvi. The witnesses for both sides also -agreed that the custom that prevailed in Morvi before the migration had been brought by these immigrants to Gujarat. But according to the plaintiff's witnesses the Halai Memons followed the Muhammadan law, while according to-the defence witnesses, they were governed by the customary Hindu law in. matters of succession and inheritance. Mr. Koyajee has complained that the burden of proof was wrongly thrown on the plaintiff, and that the issue is in, the alternative that is whether he was governed by Muhammadan law or Hindu law in matters of succession and disposal of properties by will. Mr. Koyajee's:. argument was that where a person is a Muhammadan the presumption is that he is governed by the rules of that religion, and that it is on him who asserts the contrary to show, as in this case, that the Hindu law of inheritance applied. The learned trial Judge's view seems to have been that in the case of Memons the general presumption in this Presidency is that they are governed by Hindu law and that it is for him who asserts that they are not, to prove the contrary. We think that as framed the issue did not put the burden of proof on any one side, and in fact both sides have led evidence, and that the appellant has not been prejudiced in this matter. The learned Judge's view of the plaintiff's evidence was that most of his witnesses such as Ali Abdulla, Dawood Ali and another witness Haji Suleman Haji Ismail proved nothing at all, while nearly all admitted in their cross-examination that the women in their families had not, as a rule, been allowed to inherit any property as would have been the case had they been governed by Muhammadan law. As against this evidence which was not believed by the learned trial Judge, the witnesses for the defendants set: up a plea that they were not Halai Memons, but Cutchi Memons and' the learned Subordinate Judge accepted this conclusion in his judgment although it was fairly obvious that as to this point they seemed to have been either ignorant or knowingly made false statements about the name of the class-to which they belonged. Be that as it may, they also proved that, speaking generally, their women-kind had not been allowed to benefit by the more favourable provisions of the Muhammadan law in the matter of inheritance by females. The conclusion on the evidence come to by the original Court has been accepted by the learned appellate Judge though he has corrected the finding that the deceased was a Cutchi Memon into one that he was a Halai. Memon.
6. The decided cases relied on by both the Courts are practically the same, and' we have been referred to very few others in this Court. The leading case on the point is Khatubai v. Mahomed Haji Abu (1922) L.R. 50 IndAp 108 : 25 Bom. L.R. 127. That case was decided by the' Privy Council, and it seems to us that it really concludes all the arguments in. the present one. Their Lordships say (p. 112) :-
It may be here well to say a word as to what is meant by a Halai Memon, A Memon, as the word denotes, is a convert. The name Meroon, however, has not been applied to all branches of Hindu converts, e.g., as in the case of the Khojas. There was a body which came from Sind and settled in Cutch, and these have been denominated as Cutchi Memons. Another body from the same place settled in the Halai Prant of Kathiawar, and these have been designated Halai Memons. Some of the Halai Memons pushed on to Bombay, where they have formed a community known as the Bombay Halai Memons. There was also an immigration to Bombay from Cutch, and the Cutchi Memons formed by themselves a separate community in Bombay from the Halai Memons. Now, it is admitted that so far as the Bombay Halai Memons are concerned they have been content for many years to have their property distributed on succession according to the tenets of the Mahomedan law, so that if the deceased had been, in the proper sense of the word, a Bombay Halai Memon, the question of the succession would have been solved. But, as already stated, both Courts have found that he was not a Bombay Halai Memon, but a Porbandar Halai Memon. The question, therefore, is, Does a Halai Memon domiciled in Porbandar follow the Hindu or Mahomedan law with regard to the succession of females
7. Their Lordships appear to us to have in fact held that where the person in question is a Halai Memon from Kathiawar, and in the present case he originally hailed from Morvi in Kathiawar, he is governed by the Hindu law of succession. This was an appeal from the decision of the High Court of Bombay which was reported in Mahomed Haji Abu v. Khatubai I.L.R(1918) . 43 Bom. 647 : 20 Bom. L.R. 289, and the conclusion of the appellate Court in that case, which reversed the decision of the original Judge, is also to the same effect, i.e., that the Halai Memons coming from the Halai Prant of Kathiawar are governed by Hindu law in matters of inheritance and succession. Mr. Koyajee for the appellant has also made a distinction between matters of wills and matters of succession and inheritance. We find it very difficult to follow this distinction for a person may inherit under a will or on an intestacy. But the argument was that where succession, even from a Cutchi or Halai Memon, is by will, the will must conform to the rules as to gifts laid down by the Muhammadan law, and that if it offends against them, it is void to that extent. Mr. Koyajee relied on the decision in Advocate-General of Bombay v. Jimbabai I.L.R(1915) 41 Bom. 181, S.C. 17 Bom. L.R. 799, which is that of a single Judge, the late Sir Frank Beaman. Mr. Justice Beaman said, in the course of a very long judgment, that the rules of Muhammadan law would apply to a will made by a Cutchi Memon ; but he found on the facts in that case, that the will he was discussing did comply with the requirements of the Muhammadan law on the point so that his remark was obiter. On the other hand, in a later decision, the late Mr. Justice Mirza in Abdulsakur v. Abubakkar I.L.R(1929) 54 Bom. 358 : S.C. 32 Bom. L.R. 215 held, respectfully differing from the previous decision of Beaman J., that since the Hindu law of succession applied to such cases, it was the Hindu law as to wills which would also apply. This also is the decision of a single Judge. We think, on the whole, that the proper view is that taken by Mirza J. for it seems illogical to hold that a person who is a Cutchi Memon may make a will and dispose' of his property quite independently of the Muhammadan law, and in the same breath that when making that will, he is nevertheless bound by the provisions: of the Muhammadan law on the point. We, therefore, hold that Valibhai and the persons to whom it could go.
8. Our conclusion is that the lower Court's decisions are correct; that Valibhai Salemahomed was a Halai Memon ; that in matters of inheritance and succession and in the making of a will he was governed by the Hindu law ; that the will has been proved to have been duly executed by him ; that it is legal and effective ; and that the allegations made against its validity are groundless.
9. We, therefore, confirm the lower appellate Court's decree and dismiss this appeal with costs.
N.J. Wadia, J.
10 I agree.