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).
4. The first point that arises for decision is as to whether the onus of proof is on the plaintiff or the defendant. In my judgment it is quite clear that in this Court the onus of proof is on the defendant to show that the succession to the Intestate's estate is governed by Hindu law. Halai Memons are admittedly Mahomedans. Prima facie, therefore, Mahomedan law governs the succession to their estates, and in this respect there is no difference between original believers and converts to Islam: see Bai Baiji v. Bai Santok I.L.R. (1894) Bom. 53. Further the actual practice of this Court is in accordance with that presumption, for its records in evidence in this suit (see Summaries, Exhs. A41, A45 and A46) show that for the last sixty years and upwards the estates of Halai Memons have been invariably administered in this Court according to Mahomedan law. Indeed so far as this Court is concerned, it would appear that hitherto nobody has had the courage even to argue that Halai Memons are governed by Hindu law, whether as regards succession or anything also.
That Khojas and Cutchi Momons aro governed by Hindu law in matters of inheritance is well known. This is the result of the leading case known us the Kojahs and Memon,s' case, which is reported in Perry's Oriental Cases, p. 110 and was decided by Sir Erskine Ferry in 1847 and has since been frequontly followed. But in that very case the learned Judge was careful to distinguish Halai Memons from Cutchi Memons. At page 115, he says :
A branch of the caste, the Hala Momons, who are settled in Kattivar, are said to observe every portion of the Mahomedan law, including the injunctions us to the division of an inheritance.
This, it is true, is merely a dictum, as Sir Erskine was not there deciding the case of a Halai Memon ; but it is nevertheless a dictum the authorship and age of which must demand respect. Further, the dictum was the result of evidenco actually given in the case. Fortunately we have in this Court Sir Erskine's original notes of the evidence, and they are Exh. P. in the present suit. These notes show that three of the Cutchi Memon witnesses, viz,, Haji Joosab Haji Balladina at p. 65, Haji Fazul Jaffer at p. 87, and Haji M. Saccoor at p. 91, 'all testify that Halai Memons unlike Cntchi Memons follow the Mahomedan law of inheritance and succession. This evidence would appear to be that of deceased persons against their interest, for prima facie these witnesses were interested in claiming that Hindu law was their personal law, and the admission that the other branch of the community of Memons followed a different law was a point in favour of their adversaries. Sir Erskine's dictum is of further importance, as there is no other reported case on the point either in the Privy Council or in any Indian High Court.
5. I lay stress on this sixty years' practice of the Bombay High Court in applying Mahomedan law to Halai Memons' estates and on the absence of any reported decisions, as there appears to be a lamentable misunderstanding on these points not only in the Porebunder State Court but also in other Courts in Kathiawar. On this very point I am now considering, viz., the onus of proof, the Huzur Court (which is the highest and final Court in Porebunder State) has decided that a recent Privy Council decision has abolished any distinction between Cutchi Memons and Halai Memons, and that consequently as regards Halai Memons the burden of proof is on those who contend for Mahomedan law. This decision of the Huzur Court (Appeal. No. 37 of 1915-16) is Exh. 10 D and was given by the Sar Nyayadhish (Mr. A.H. Dave) in September 1016, after the present suit had been started, and in direct conffict with a previous decision in 1900 of a former Sar Nyayadhish (Mr. N.R. Majmundar) who had held in Exh. K (Appeal No. 2 of 1898-9) that the onus of proof was on those who contended for Hindu law. I wish to speak with all courtesy of the decisions of other tribunals, and none the less so because they have been endeavouring to follow what they believe to be the law in Bombay. But it would be quite wrong of me, particularly in a case of this importance, to use language which would imply any doubt on my part as to what has hitherto been decided or not decided in the Bombay High Court or in the Privy Council. The decision which the learned Sar Nyayadhish cites in support of his proposition is Abdurahim Haji Ismail Mithu v. Halimabai (1913) L.R. 43 IndAp 35 : 18 Bom. L.R. 635 and the proposition he derives from it is as follows :-
Here it is quite clear that the distinction between Cutchi Memons and Halai Memons has been done away with and it has been held that all Memans as a general rule arc governed by Hindu law until a custom to the contrary is proved. The onus therefore would lie on the other side asserting that. Mahomedan law applies.
This is on page 2 and then on page 3 the learned Judge again says:-
The recent Bombay High Court decision in Abdurahim Haji Ismail Mithu v. Halimabai 18 Bom. L.R. 635 clearly shows that the distinction between Cutchi and Halai Memons is done away with and that all the Memons as a general rule are governed by Hindu Law save where a local custom to the contrary is proved.
I may observe that the learned Judge was in error in thinking that the decision was that of the Bombay High Court. It was a decision of the Privy Council on appeal from the Court of appeal for Eastern Africa, but was reported in the Indian Law Reports because of its interest to Bombay lawyers. As regards the case itself it is sufficient for me to say that it dealt with Cutchi Memons, and is no authority whatever on the devolution of the estates of Halai Memons. It ia true that the head-note in Abdurahim Haji Ismail Mithu v. Halimabai (1915) L.R. 43 I. A 35 : 18 Bom. L.R. 635 speaks of Memons, but a head-note is not an authority, and it is quito clear not only from the facts of the case but also from Lord Haldane's speech and his frequent references to Cutchi Memons that their Lordships were dealing with Cutchi Memons and Cutchi Memons alone, despite some insolated passages where for brevity the expression used was 'Memons'.
6. The onus of proof being then on the defendant, what must he prove to discharge such onus ! The tent laid down by the Privy Council in Ramalakshmi Ammal v. Sivanananthn Peramal Sethuraycr (1872) L.R.IndAp 1 is as follows :-
Their Lordships are fully sensible of the importance and justice of giving effect to long-established usages existing in particular districts and families in India, but it is of the essence of special usages, modifying the ordinary law of succession, that they should be ancient and invariable : and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends.
The decision of the Madras High Court which the Privy Council thus affirmed is reported in Sivanananja Perumal Sethurayar v. Muttu Ramalinga Sethurayar (1866) 3 M.H.C.R. 75 and the learned Judges said at p. 77 :
What the law requires before an alleged custom can receive the recognition of the Court and so acquire legal force is, satisfactory proof of usage so long and invariably acted upon in practice as to show that it has, by commen consent, been submitted to as the established governing rule of the particular family, class, or district or country ; and the course of practice, upon which the custom rests, must not be left in doubt but be proved with certainty.
In this connection I should state that defendant's counsel at the outset of the case said that he did not rely on any custom peculiar to this particular family as compared with that of other Halai Memon families in Porebunder.
7. That being so, I think the defendant must prove first that the Intestate at the date of his death was governed by Porebunder or Kathiawar custom with respect to inheritance and succession among Halai Memons and secondly that such Porebunder or Kathiawar custom unlike that of Bombay is to administer Hindu law in such a case.
My reason for confining the custom to Porebunder or Kathiawar is this : If Bombay is to be included or if to use a colloquial expression the Intestate was a Bombay man, it would be quite hopeless to contend that any such custom prevails in Bombay. On the contrary, as I have already stated, Bombay administers Mahomcdan law to Halai Memons. The Summary, Exh. A41, I have already referred to relates to some thirty-nine probate or administration grants of Halai Memons dying from 1852 onwards. The Summaries, Exhs. A45 and A46, relate to some thirty-two suits for administration or partition of Halai Memon estates from 1874 onwards. In all these cases it is Mahomedan law which is applied, and though in many of them the decrees are by consent, yet one frequently finds that those consent decrees are approved by the Court on behalf of infants, which of course it could not do if Hindu law applied. Two of the petitions in Exh. A41, viz., Nos. 27 and 34, are by the Administrator General of Bombay and in view of Mr. Slater's long experience I attach importance to that. In not one of the seventy-one proceedings contained in the above three exhibits is there any suggestion that any of the Halai Memons therein mentioned or their ancestors were ever governed by Hindu law, whether in Kathiawar or elsewhere, or that at any time during their lives there was any change in their personal law of succession from Hindu to Mahomedan consequent upon a migration to Bombay.
It is also in evidence (Exh. A18) that the defendant has (at a cost of about Rs. 1,450 in merely Court fees and stamps) searched some 412 probate or administration grants in this Court between 1799 and 1900. One may, I think, infer that the object of this expensive search was to discover grants by this Court of Halai Memon estates according to Hindu law, and that as no such grant was put in evidence, it does not exist. So much for the records of the Bombay High Court.
As regards the oral evidence it is also to the same effect. Even the defendant and some of his witnesses admit that Bombay Halai Memons are governed by Mahomedau law, and the rest of his witnesses state that they do not know what law is applied in Bombay. Indeed defendant's counsel in opening stated that it was not necessary for him to contend that Halai Memons in Bombay were governed by Hindu law. At a later stage it appeared that some time might be saved by a frank admission that Bombay Halai Memons were governed by Mahomedan law. The admission eventually made was, however, half-hearted and useless, but it had this result, viz., that plaintiff's counsel was forced to supplement his oral evidence by his documentary evidence and thus to establish his case on a firmer basis than any mere admissions of counsel.
8. Before returning to the question whether the Intestate was a Porebunder man and bound by Porebunder custom, there is, I think, an important consequence which follows from my holding that in Bombay Mahomedan law is applied to Halai Memons, and that is this, vix., that prima facie Mahomedan law is the personal law which those Halai Memons or their ancestors brought with them when they came from Kathiawar to Bombay. That presumption seems to me to follow from the converse presumption, viz., that a Hindu or Mahomedan family migrating from one part of India to another is presumed to retain the personal law by which it was governed in the country from which it started : see Srimati Rani Parbati Kumari Debi v. Jagadis Chunder Dhabal ; Abdurahim Haji Ismail Mithu v. Halimabai (1915) L.R. 43 IndAp 35 18 Bom. L.R. 635; Mayne, 8th Edn., p. 55.
In this respect Indian law differs considerably from English law, for under English law the immoveable property would devolve according to the lex loci and the moveable property according to the lex domicilii, and in a normal case there would be no difficulty. Here, in Bombay, amongst Hindus and Mahomedans it is the personal law which regulates the succession to immoveables and moveables alike. If then the personal law has to be ascertained, the presumption to be raised will depend on whether the one known quantity is the personal law of the original domicile or that of the new domicile. If it is the former, the person in question will presumably carry his old law with him to the new domicilo. If it is the latter and it is quite clear that he is in fact being governed by the personal law prevalent in the new domicile, then prima facie that is the law he brought with him from his old domicile.
The evidence in the present suit shows that there are some 3000 or 4000 Halai Memons in Bombay, the majority of whom live in two particular streets. Not one of them has been called to testify that on migration this personal law as regards succession was changed from Hindu to Mahomedan law. I put the specific question to several of the plaintiff's witnesses and to one of the defendants and not one of them had ever heard of such a change in any member of their community. Mr. Setalvad in his reply did indeed claim that one such case arose in connection with the father of Instance No. G but I will deal with that one alleged case later. If then in the view I take, it must be presumed that the original personal law of those 3,000 or 4,000 Bombay Halai Memons or their ancestors was Mahomedan when they were in Kathiawar, the result is I think to increase the already heavy burden of proof on the defendant. The presumption may of course be rebutted by proper evidence like any other presumption, but the evidence to be adduced in support of that rebuttal will require particularly close scrutiny. As far as Kathiawar and Bombay are concerned the only authority cited to me as an instance of variation of custom is Ahmedbhoy Hubibbhoy v. Cassumbhoy Ahmedbhoy I.L.R. (1889) Bom 534, a case of Khojahs, where it was held that in Bombay a son could not claim partition in his father's life-time, though he might do so in Kathiawar.
9. Turning now to the first point which the defendant must prove, viz., that the Intestate at the date of his death was governed by Porebunder or Kathiawar custom with respect to inheritance and succession amongst Halai Memons, I think the defendant has discharged the onus of proof and that he is right on this point. I put aside the defendant's story about his father's retirement for I am satisfied by the evidence of other witnesses and to some degree by the books, Exhs. A42 and A47, that his father continued in business in Bombay up to practically the date of his death. So too I reject a good deal of the defendant's evidence on commission as being exaggerated or unreliable. Witness after witness on commission deposed in chief that the Intestate spent most of his time at Porebunder, but on cross-examination could not say how many months each year the Intestate spent in Porebunder and Bombay respectively, and was further obliged to admit that he (the witness) was in Africa for years at a time, and presumably therefore knew little or nothing about the Intestate's movements. But putting all that unreliable evidence aside, there remains, I think, a substratum of fact which is sufficient to show that the Intestate did not lose his Porebunder domicile of origin. On this point I think that as soon as the defendant proves that the domicile of origin was Porebunder the onus of proof shifts and it is then for the plaintiff to show that the Intestate acquired a domicile of choice in Bombay. The Intestate went originally to Bombay for business, and I am far from being satisfied that he intended to make Bombay his permanent home. It is true that he had a house and other lauded property at Bombay, and that business ties detained him there most of each year, but on the other hand he built a house at Porebunder where he went every year, and it was at Porebunder that all family events took place, such as, births, marriages and so on. Porebunder seems to me to have been his real family home. He was a Shethia there as well as at Bombay and while it is quite clear that he was known in Bombay as Porebundervalla (see for instance the conveyance of 9th March]905 to the Intestate), I doubt the accuracy of those few witnesses who say he was known in Porebunder as Bombayvallah. I need not discuss the law of domicile. Its main features are well known and are exemplified in such cases as Winans v. Attorney-General (1904) A.C. 287 and Huntly (Marchioness) v. Gaskell  A.C. 56. Nor do I overlook the fact that in India for a change of personal law it is necessary to prove not only a change of domicile but also an adoption of the law of the new domicile. In the view, however, which I take it is unnecessary to go into this. In my judgment the Intestate lived and died a Porebunder man and was consequently governed by the law of Porebunder at the date of his death.
10. I must next consider what is the law of Porebunder governing the rights of inheritance and succession to the estate of deceased Halai Memons domiciled in that State. This is a question of foreign law and like all questions of foreign law must be proved as a fact. To avoid misunderstanding I may explain that I use the word ' foreign ' in the sense in which it is frequently used in private international law, viz., as outside the jurisdiction of the Court dealing with the matter. In that sense 'foreign' does not necessarily denote even a difference in allegiance. In an English Court for instance, Scottish law and Scottish judgments may be said to be foreign law and foreign judgments, and vice versa. (Cf. the argument of Mr. Sergeant as he then was in In Re Mirr-les' Charity  1 Ch. 163. As is pointed out, however, in the cases cited in In Re Trufort (1887) 36 Ch. D. 600 evidence as to foreign law is often unsatisfactory and one is left to ascertain that law as best one can. To some degree that remark applies here, for the defendant's evidence although voluminous is of a character to invite close criticism whether one looks at his expert or other oral evidence or at the Court decisions which he relies on.
11. Before turning to that evidence, however, I think it useful to say something of the earlier conditions of Kathiawar, for as I have already pointed out, the custom which the defendant sets up must be proved to be ancient and invariable.
Turning then again to Vol. VIII of the Bombay Gazetteer I find this written at p. 324 under the heading 'Justice' with reference to the condition of affairs in 1842 :
'Of civil or criminal law', wrote Captain, afterwards Sir George, Jacob in 1842, ' the people of Kathiawar have do idea, nor do they seem sensible of the want; but such is ever the case in barbarous communities. Each caste manages its affairs by panchayats or councils, where the leading men resemble some of our own select vestries in meeting to talk and eat at their neighbour's expense. The result is generally a fine on the offending party, also to be laid out in eating, besides any mode of adjustment that may be decided on....
Then at the bottom of the page.
The above was written twenty-two years after the Gaikwar had handed over the general control of the tributaries in Kathiawar to (he British Government. What the state of the judicial administration of the province was at the beginning of the century (i. e., 1800) may be gathered from the reports of Colonel Walker. ' The administration of justice amongst the Marathas,' he write, 'was entirely neglected. Nothing can exceed the confused and indistinct notions which they entertained on this head...Almost every crime was cormnutable for money, and fines were considered a regular branch of the revenue. The only object the Maratha Government had in view in Kathiawar was the collection of tribute. It consistently disregarded all other branches of administration, and left the chiefs, both large and small, to deal with their subjects as they chose '....
Turning to page 326 the Gazetteer proceeds :-
These rough methods of obtaining justice were resorted to because there were no tribunals to which the injured could apply for redress, or any chance of cases being decided by the chief to which they applied. There were no Courts, no definite procedure, and no desire to see justice done between man and man. Cases wore occasionally referred for arbitration, and when the chief interfered, he administered justice principally through a system of ordeals and oaths....
Then again at page 332 :-
Since 1803 the chiefs' civil and criminal Courts have gradually improved in efficiency. Previous to 1863 Courts of justice hardly existed. There was no regular procedure and no constituted Courts. Any crime could be commuted for fine, and sentences of imprisonment depended entirely on the caprice of the chief. By degrees regular Courts were instituted; the farmer of revenue no longer assumed judicial power. Courts of first instance were subject to Courts of appeal; codes based on the model of the British Penal and Criminal Procedure Codes were drawn up in the larger and more advanced states... Private property became more respected; complaints of loss by individuals began to be listened to; travellers could journey without an armed escort, and with much less fear than formerly of being molested and robbed.
At page 333, after citing statistics of civil and criminal suits down to 1882, the Gazetteer proceeds :-
These tables show that there is n considerable amount of work done in the state courts and that they are freely resorted to. A comparison with the remarks quoted at the beginning of this chapter shows what a vast improvement has taken place in the judicial administration of the country, and consequently in the social condition of the people, during the last forty or more correctly during the last twenty years.
(viz., from 1864 to 1884).
12. Now these extracts show that there is a considerable practical difficulty in the defendant's way, for down to a comparatively recent date there are no Courts to whose records he can resort as showing what the devolution of property has been amongst the Halai Memons in Porebundor or elsewhere in Kathiawar. Further, if the country was in such a lawless state as that depicted in the Gazetteer, and I think I must presume that that statement is substantially accurate, it seems to me to increase the difficulty in proving an ancient and invariable special custom of inheritance distinguishing Halai Memons from other Mahomedans. I recognise on the other hand that the absence of early records assists the defendant to some degree, because it affords some explanation why his evidence is substantially confined to quite recent instances of devolution. On the whole, however, I think that these extracts as to the early history of Kathiawar tell against the defendant rather than in his favour.
13. As regards the status of Porebunder State and its Courts, I think it is sufficient to say that Porebunder State is now a First Class State in Kathiawar and is outside the King's dominions, and that the decisions of its Courts are final and there is no appeal to the Privy Council. This appears from Hemchand Devchand v. Azam Sakarlal Chhotamlal (1905) L.R. 33 I. A 1 : 8 Bom. L.R. 120 a most interesting and instructive case as to the history of the Kathiawar Courts where the Privy Council held in effect that the jurisdiction exercised in the Courts of the Political Agent and Assistant Political. Agents in Kathiawar was political rather than judicial (see pp. 26-29): that consequently the decisions of those Courts were nob strictly speaking judicial decisions and accordingly appeals lay not to the Privy Council but to the Governor of Bombay in Council and from him to the Secretary of State in Council. On p. 24 it is stated that in the cases which fall within the power of the Chiefs (as, e. g., Pore-bunder) their decision is final and no judicial appeal lies to any British authority. The use of the word 'judicial ' may leave open the possibility of an appeal to the Governor in Council, and in the present case it was suggested that the defeated party in Exh. 10D had presented or proposed to present such an appeal. I need not, however, deal with that question.
As regards the Porebundor Courts themselves, the Court of first instance appears to be the Munsiff's Court : the Appeal Court to be that of the Nyayadhish : and the final Court is styled the Huzur Court. The President or Chief Judge of the Iluzur Court is, I understand, called the Sar Nyayadhish. According to the evidence of Mr. Varajlul Ranchodji, a Pore-bunder pleader called on behalf of the plaintiff, the Porebunder Courts decide cases on the authority of Bombay, Madras and other Indian High Courts, and they also follow their own judgments. (See Questions 30 and 31). They have, however, no Law Reports of their own, and consequently one has to ascertain the facts and decisions as best one can from such judgments on the Court records as are exhibited in evidence in the present case.
14. Turning next to the evidence, I may explain that the defendant's witnesses on commission are described as Exh. Com. 1, Exh. Com. 2, and so on, following the order of the depositions, and that any exhibit of each such witness is Exh. Com. 1A, Exh. Com. 1B, or Exh. Com. 2A, Exh. Com. 2B and so on as the case may bo. Unfortunately this order is one numeral different from that on commission and therefore the commission numbers and exhibit, marks must be disregarded. The rest of the defendant's exhibits are described in the usual way for defendants, viz., Exh. 1, Exh. 2 and be on, but in cases where several exhibits relate to the same subject matter they have the same numbers but a different lettering. Thus the Porebunder litigation over the estate of Haji Kasam Haji Khan Mahomed and to which I frequently refer in this judgment is Exh. 10 A, Exh. 10 B and so on As regards the five most important pedigrees, (viz., Exh. 13 A, 13, etc.) individuals on each pedigree bear separate numbers. Thus the Intestate is No. 16 on Pedigree Exh. 13B; and the above Haji Kasam is No. 4 on Pedigree Exh. 13 A and is also No. 13 in the Table of Instances hereinafter mentioned.
As regards the plaintiff's exhibits they first exhaust the alphabet, and then go back to A with the addition of consecutive numbers, e.g., Exh. A37, Exh. A38 and so on. Possibly if preparation had been made for this deluge of Exhibits a simpler classification might have been devised, but once started it was impracticable to alter.
15. Dealing with the evidence itself, one usually expects foreign law to be proved by expert evidence unless it is practicable (which is not the case here) to proceed by letters of request addressed to the foreign tribunal. The only expert called by the defendant is Mr. N.J. Maru, (Exh. Com. 12) who is a retired Judge. His evidence does not, however, satisfy me on the point. It is practically confined to two decisions. One is Exh. 8, a decision of his own in 1896 when Munsiff, and the other is Exh. 10 D which I have already mentioned. The reader of those Exhibits can see for himself how those two decisions were arrived at, and Mr. Maru's evidence does not, I think, profess to assist one in that respect. Further Mr. Maru is inaccurate in stating (Question 6) that after his decision in 1896 it was taken for granted by all the Porebunder Courts that Porebunder Memons were governed by Hindu law, for Exh. K (which I have already mentioned) shows that in 1900 the Bar Nyayadhish decided that Mahomedan law applied, and he accordingly reversed the decision of the then Musiff to the contrary effect and commented very severely on the unsatisfactory way in which the case had been dealt with in the Court below.
As regards the plaintiff's witness, Mr. Varajlal Ranchodji, he was only asked in cross-examination as to the general effect of the decisions in the Porebunder Courts and in the Courts of the Political Agent at Rajkot which are reportod in the Kathiawar Law Reports. Here again the decisions in question are exhibited : and I think he is accurate in saying that in Porebunder there is a conflict of decisions but the latest (viz., Exh. 10 D) is that Hindu law governs Halai Memons.
16. Mr. Setalvad has however urged strenuously that the solution of the question as to what is the law of Porebunder is quite easy. One has merely to look at the latest decision in the Huzur Court, viz., Exh. 10 D and see and apply the result arrived at irrespective of the reasoning or the mode by which that result has been reached. In my opinion this proposition is utterly unsound. It ia a misuse of authority-foreign or home-to apply a decision blindfold without knowing the fact or the steps by which it has been arrived at. In the present case Exh. 10D which is the latest decision in the Huzur Court is the appeal No. 37 of 1915-16 decided in September 1916 which I have already commented on. Now that decision is based in part on a finding as to what was the law as laid down by the Privy Council or in Bombay. That finding was, therefore, so far as the Porebunder Court was concerned, a finding as to foreign law and therefore a finding of fact. But as I have already pointed out, that finding of fact was erroneous for the foreign law in question (viz., Bombay law) is the exact opposite of what the Huzur Court thought it to be. Moreover, that erroneous finding of fact had the serious result that the onus of proof was thereby thrown on the wrong party, and it was in that way that the actual decision was arrived at, viz., that Hindu law applied. Under these circumstances it seems to me that I ought not to accept Exh. 10 D as conclusive of the law of Porebunder. A judgment based on facts A and B is not necessarily an authority on facts A and C. If, therefore, the foreign law is in fact not B but C, how can one say what the decision of the tribunal would have been if the foreign law had been proved to them to be C and not B. At any rate in Exh. 10 D it would have had this result that the onus of proof would have been thrown on the other party and this might easily have led to a different decision being arrived at.
17. In this connection I may observe that the Huzur Court in Exh. 10 D reversed the decision of the Court of appeal which after a first or second rehearing on review had eventually held that Mahomedan law applied. A copy of this decision of the Court of appeal was unfortunately not produced before me, but it is quite clear from Exh. 10 D that such a decision was given and that it was to the effect I have already mentioned,
This litigation which culminated in Exh. 10 D began indeed in 1904 with a suit by a widow named Zulikhabai to establish her alleged rights under her husband's will (Exh. 23). On the 3rd of. August 1909, the Huzur Court in Civil Appeal No. 8 of 1908-9 held the will valid by reason of the acquiescence of the heirs and passed a decree in favour of the widow modifying in that respect the order of the lowor Court. That is Exh. 10 A. Subsequently Zulikhabai died and her son by another husband claimed to be entitled to enforce that decree, One attempt seems to have failed in March 1912. (See Exh. 10 H). On the 3rd of March 1915, the Court of the Nyayadhish dismissed a similar application with costs. That is Exh. 10 B and is in suit 521 of 1912-13. An appeal No. 16 of 1915-16 from that decision was, on the 31st of June 1915, dismissed by the Sar Nyayadhish (See Exh. 10 C). Subsequently in Civil Review No. 1 of 1915-16 the appellate Court reversed its previous decision and held that the applicant was entitled to succceed as heir to the property in question. (See Exh. A 15). Up to that point i.t does not appear to have been considered, or at any rate closely considered, whether Hindu law or Mahomedan law applied, but the fair inference from Exh. 10D is, I think, that after Exh. A15 the appeal Court must have been directed by the Huzur Court to make a specific finding on that point, for it was that finding, viz., that the governing law was Mahomedan law, which was eventually reversed in Exh. 10D.
So much for that complicated litigation. There is this item of interest about it, viz., that the present plaintiff's husband was a party to it and there contended in favour of Hindu law, and eventually succeeded on that footing in defeating the applicant's claim to the property, I had better however deal with this when considering the oral evidence taken in the present suit.
18. The previous decisions of Porebunder Courts are conflicting just as there in Exh. 10 (A to H) are. Mr. N.J. Mam's two decisions in 1896 and 1911 (Exhs. 8 and 29) are opposed to that in 1900 of the Sar Nyayadhish in Civil Appeal No. 2 of 1898-99 (Exh. K) which I have already alluded to. Mr. Setalvad lays great stress upon Exh. 8 because that decision was based on specific instances and did not rely on any case-law. Exhibit K was, however, a decision of a superior Court and in face of that I cannot accept Exh. 8 as conclusive. I draw particular attention to Exh, K, for it is a case where I entirely agree with the lines on which the Court approached the case. The learned Sar Nyayadhish first decided on whom the onus of proof lay and then having decided (and in my opinion rightly) that the onus was on those who contended for Hindu law, he examined the evidence and eventually held that the onus had not been discharged. This decision in Exh. K was dissented from in Exh. 10 D where the Huzur Court thought that in view of the decisions in the Privy Council and elsewhere the Sar Nyayadhish had taken an entirely mistaken view of the law. The only decision subsequent to Exh. 10 D is Exh. 9 which was decided by Mr. Modi in October 1916 in suit 117 of 1915-16, but as it only purported to follow Exh. 10 D, I need not deal with it.
19. In the result, therefore, I am of opinion that the Porebunder decisions cited to mo do not establish that by special custom Hindu law is the law governing succession amongst Halai Memons, for it has yet to be seen what view the Porebunder Courts will take when it is proved to them that the Bombay Courts have not swept away the distinction between Cutchi Memons and Halai Memons, but on the contrary apply Hindu law to the one and Mahomedan law to the other. I may perhaps add that In re Trufort (1887) 36 Ch. D. 600 which dealt with the question as to the binding effect of a foreign judgment notwithstanding an erroneous view as to English law, does not apply, because in the present ease the parties are not the same as in Exh. 10 D. On the other hand I cannot ignore Ex. 10D as being a decision after the death of the Intestate, as was done in Lynch v. Provisional Government of Paraguay (1871) L.R. 2 P. & D. 268 where the Court of Probate refused to recognise an act of the Paraguayan Legislature passed after a testator's death, but purporting to confiscate his property. This latter case is of some interest on the question whether a Court administering moveable assets is bound to follow the law of the foreign domicile in all respects. The subject is further dealt with in Mr. Pawley Bate's Treatise on the Doctrine of Renvoi in Private International Law at p. 105, but I pass it by as I do not think any difficulty of that sort really arises here.
20. As I am now dealing with legal decisions, it is perhaps convenient to refer to the other Indian cases outside Porebunder which were cited to me by Mr. Setalvad. A dozen, viz., Exhts. 1-8, 33, 34, 35 and 37 are all decisions in the Court of the Political Agent at Rajkot which are reported in the Kathiawar Law Reports. Many of them relate to Memona of Bantwa and it is not shown whether they were Cutchi Memons or Halai Memons. Exhibit 1, a decision in 1896 of Captain Hyde Cates, the then Acting Judicial Assistant, has been frequently cited and apparently relied on, e.g., in Exh. 10 D. But never was there a more unfortunate leading case. Exhibit A 43 shows that the actual decision arrived at in Exh. 1 was reversed by the Governor of Bombay in Council, and that the parties were Cutchi Memons. Counsel did indeed suggest that this was a mistake by the Governor in Council, and that I ought to look at the earlier proceedings, but this I declined to do as in no event could Exh. 1 be set up on its legs again. Exhibit 2 is perhaps the best case for the defendant, for there Mr. Jardine in effect gave up his contention that Mahomedan law applied. This contention was not however essential, as his client won on another point and obtained the dismissal of the suit. Consequently the value oE the admission is much diminished. In some other cases it appears to have been assumed that Hindu law applied, or else previous decisions such as Exts. 1 and 2 were followed without comment. In none of them do I find such evidence as would satisfy the test as to custom laid down by the Privy Council in Ramalaleshmi Ammal v. Sivananantha Perumal Sethurayer (1872) L.R.IndAp 1 and which I have already quoted. Further, as I have already pointed out the Privy Council in Hemchand Devchand v. Azam Sakarlal Chhotamlal (1905) L.R. 33 IndAp 1 laid stress upon the fact that the jurisdiction exercised in the Court of the Political Agent is political. Its decisions can hardly, therefore, be cited in a Court of law as judicial decisions.
Under the above circumstances I think that the alleged custom has not been judicially proved to exist in those districts of Kathiawar over which the Political Agent has civil jurisdiction ; and that in any event Porebunder State is outside these districts and that its Courts are not bound by the above decisions in the Kathiawar Law Reports : and that it does not necessarily follow that its customs are the same as elsewhere in Kathiawar. In the result, therefore, I think that the above decisions in the Kathiawar Law Reports are of no assistance to me in determining the present case.
21. Counsel for the defendant also relied on Exh. 31 (a), (b) and (c) a case in the Courts of the Junaghad State in Kathiawar. It is sufficient, however, to say that there the Appellate Court in Exh. 31 (b) based its judgment on the supposition that in the Bombay Courts Hindu law applied to all Mernons, which as I have already said is not the fact.
The remaining case relied on by the defendant came from Coorg in the Madras Presidency and is Exh. 11 (a) and (b). This is, however, open to the same objection as Exh. 10 D, for the Judge of first instance appears to have relied on Exh. 1 and other cases as establishing Hindu law and then to have thrown the onus of proof on the defendant to establish Mahomodan law. On appeal, the District Judge does not appear to have dissented from this view and accordingly I need only add that both the learned Judges appeared to have thought the evidence as to custom conflicting.
The conclusion, therefore, which I have arrived at is that the Court decisions whether inside or outside Porebunder are not such as I can rely on as showing that the special custom alleged by the defendant has ever been satisfactorily established.
22. This brings me to a particularly important part of the case, viz., the oral evidence as to custom. It is voluminous and troublesome, for it involves a detailed investigation of the devolution of a large number of estates of deceased Halai Memons. Most of the individuals have long names, but collectively there is little variety. Hence there is a considerable risk of confusion, which is increased by the necessary dullness and monotony of the bare records of their lives, families and properties, for that is all that is material in the present suit. Mr. Setalvad and Mr. Davar have, however, tackled this tedious evidence with exceptional patience and lucidity, and in particular the various summaries that have been prepared under their advice will be found of great assistance in deciding what the evidence really amounts to. This is very necessary as a mere reading of the commission and trial evidence straight through from beginning to end is more likely to hypnotize the reader than to assist him in a critical analysis of the evidence.
23. The evidence in support of the defendant's case was all taken on commission apart from that of the defendant himself and one formal witness. On this commission the defendant examined some twenty-seven witnesses who between them depose to the fifty instances of Hindu succession which are set out in the summary called ' Table of Instances ' and therein numbered consecutively, 1, 2, 3 and so on. Of these fifty instances thirteen are either duplicates or are for some other reason withdrawn by Mr. Setalvad, viz., Nos. 20, 24, 27, 29, 30, 31, 34, 35, 41, 42, 46, 47 and 48. The number of instances eventually relied on by him is thus reduced to thirty-seven. Of these thirty-seven, I reject the evidence in support of twenty-one of them, viz., Nos. 1, 2, 3, 4, 6, 9, 10, 12-15 (inclusive), 21, 22, 23, 26, 28, 33, 37, 40, 43 and 49. This leaves sixteen instances, via., Nos. 5, 7, 8, 11, 10, 17, 18, 19, 25, 32, 30, 37A, 38, 39, 44 and 45 which may be said to be established, leaving for further consideration the question what weight should be given to such sixteen instances.
24. I have the following general criticisms to pass on the thirty-seven instances relied on by Mr. Setalvad. In the first place, they are all recent or comparatively recent. Only four of them, viz., Nos. 25, 20, 30 and 39 are shown to be instances of deaths prior to 1900. Of these, I have rejected No. 26, and consequently the earliest instance established is No. 25 in the year 1884. This alone is, I think, a serious flaw, for the alleged custom must be proved to be ancient and immemorial before I can accept it. The Court will of course on satisfactory evidence make all proper presumptions from matters occurring within living memory but these recent instances contrast unfavourably in point of age with the Bombay records to the opposite effect, such as the evidence before Sir Erskine Perry in 1847 which I have already alluded to. One must also bear in mind that all the sixteen established instances except No. 25 were from 1896 onwards, and were consequently within the period covered by the above-mentioned decisions in the Porebunder and Kathiawar Courts. If then these decisions were either based on a misunderstanding of Bombay law or were conflicting, the devolution in many of these sixteen instances may be due to legal advice founded on such decisions. In this connection, I think the plaintiff's husband may be substantially accurate when he said : ' My pleader told me there are two laws, Hindu and Mahomedan law and that I could act under whichever law I thought fit' (See Questions 55 and 112, pp. 155 and 163).
25. Secondly, only five of the thirty-seven instances, viz., Nos. 1, 4, 5, 6 and 25 are supported by any documentary evidence. Of these I have rejected Nos. 1, 4 and 0, thus leaving only two, viz., 5 and 25. This alone necessitates caution, particularly when I find that the persons alleged to have been excluded from the succession are nearly all females, not one of whom has been called by the defendant. Indeed I had at the trial several reminders of the danger of accepting mere verbal statements on succession. Two of the witnesses, vis5.,Exh. Com. 13 and Ex. Com. 19, were proved by documents to be utterly wrong in their statements about Hindu succession, while one of the plaintiff's witnesses, viz., No. 10 who appeared to be an intelligent and respectable businessman had either, not grasped the distinction between a deed inter vivos and a grant of Letters of Administration or else was entirely wrong in his positive recollection of what had taken place with reference to his deceased father.
26. Thirdly, a good deal of the evidence is of a loose general character. Names and dates and particulars of property, if any, are often not given; or again witnesses say a daughter got no share, when in fact there has hitherto been no division of the property. Much of it too is hearsay and the parties really involved are not called. Again witness after witness says confidently in examination-iu-chief that daughters of various deceased persons got no share, and then in cross-examination is shown to have no personal knowledge, but to have really guessed at the truth and to have based that guess on the alleged custom,
27. Fourthly, I think there is a want of candour in the evidence in chief. For instance witness after witness deposed in chief to the length of time the Intestate was at Porebunder each year, but on cross-examination was shown to have little or no personal knowledge of the matter as he was in Africa at the time. Again 18 of the 27 witnesses deposed to instance No. 1 and stated that the widow and daughter got no share. This was literally true ; whether it was substantially true is another matter for the facts elicited or proved by the plaintiff and not mentioned in examination-in-chief tend to show that before any division was made the estate in question was lost. Alleged family history which is unsupported by any documentary evidence is apt to be difficult to check in cross-examination, at any rate when the instances given are very numerous as here. Want of candour therefore in one instance gives rise to the suspicion that other similar instances might have been proved unreliable if better materials for cross-examination had been in counsel's possession, or if some chance question had brought the true facts to light.
28. Fifthly, as regards the witnesses themselves. I reject the evidence of Exh. Com. 1, as in my opinion he is a paid witness who has denied the payment. he admits that in other litigation he was paid for his services by other parties, but denies any payment in the present case. he admits moreover borrowing Rs. 300 from the defendant, but says he repaid it before his cross-examination, and in this statement the defendant concurs. But I find that the Rs. 300 was borrowed on the 27th September 1915 just one week after the admission of the plaint, and that although the cross-examination ended about 12th September 1916 the defendant's books up to the close of the year, viz., 26th October 1916 do not show any repayment, and on the contrary show that the amount was carried forward to the then New Year. The defendant says this was because he did not return to Bombay and tell his Mehta about the repayment, till January 1917, and that in fact he spent the repaid loan in distribution to the poor at Porebunder in Ramzam, viz., July 1916, as was noted by the entries made in January 1917. The defendant however admits that no receipt or other writing was given to Exh. Com. 1 on the alleged repayment and I cannot accept their story as to this Rs. 300 being a repaid loan. It would also appear that there is enmity between Exh. Com. 1 and the plaintiff. At any rate the former obtained a decree for Rs. 6400 against plaintiff 's husband : he also took criminal proceedings which were unsuccessful against plaintiff's husband : and he has also been in litigation with the plaintiff's mother-in-law. He is hardly therefore an unbiassed witness, nor does he explain why he was excluded from the Porebunder Jamat for some three years. Exhibit Com. 1 is however the principal witness for the defendant, and the other witnesses seem to have modelled their evidence very largely on his which is not altogether satisfactory seeing that Exh, Com. 1 seems to be a semi-professional witness.
29. Another important witness is Exh. Com. 2 and he also is I think unreliable. In Question 107 he denied positively having distributed Ibrahim Nur Mahomed's estate (Instance No. 24) according to Mahomedan law, whereas in his evidence in the Porebunder litigation, Exh. 10 E he admitted the fact. So too in Question 153 his answer about Hawabai a daughter of Haji Abu Jiwa getting some money by way of charity appears to be inadmissible as hearsay, but if admissible is contradicted by the sale-deed, Exh. A 1, according to which she took a share under Mahomedan law and sold it to her brothers for Rs. 925. Exhibit Com, 21 repeats this false story about charity in Question 36, and accordingly I reject his evidence too. I may also remark that Exh. Com. 2 was the second arbitrator in Bombay Suit, 22 of 1911 (see Exhs. H and I) by whose award the estate of one Haji Abdul Rehman Khamisa was distributed according to Mahomedan law. Possibly, Khamisa although originally a Porebunder man may have acquired a Bombay domicile, in which case the award becomes of less importance. It is also noteworthy that in the Porebunder litigation in June 1916, this witness only gave two instances of custom, (see Exh. 10 E), while on commission in September 1916, he mentions fourteen instances.
30. So too, witnesses Exhs, Com. 7 and 9 give no instances of custom in the Porebunder litigation, but give four or five instances respectively on commission. Further in Exh. 10 G, witness Exh, Com. 9 says :-
If any daughter or some such comes to me for a share, I would say 'Give According to Sarch' (i.e., Mahomedan law). Three months later on commission he says (Question 40) ' If a Memon's daughter were to approach the Jamat for a share in her father's property I would drive her out. I don't remember to have deposed in the Sar Nyayadhish Court in Abu Haji Suleman's case that I would award to a female her share if she were to approach me.
This change of front seems to me to afford some ground for Mr. Davar's suggestion that it is due to Exh. Com. 1 that this witness and also some others have added to or varied their evidence in the short interval between the Porebunder litigation and the commission in the present suit. Be that as it may I cannot accept Exh. Com. 9 as a reliable witness.
31. Exhibit Com. 13 and 19 I must reject as being contradicted by written documents. Indeed Exh. Com. 13 went so far as to deny that his wife got any share in her father's estate which is quite at variance with Exh. O and Exh. Q.
If I make no further comment on the other commission witnesses, it must not be assumed that I implicitly accept their evidence so far as it goes. I will only add that as the defendant's evidence is practically all taken on commission, he is endeavouring to establish a custom on the evidence of witnesses not one of whom (except himself and Exh. Com. 3) will have been subject to personal scrutiny by any Court. It is only fair, however, to say that Exh. Com. 3 struck me favourably during the short time he was in the witness-box before me. He is not, however, an independent witness, being a brother-in-law of defendant 1 and the duly constituted attorney of defendant 2 (see his written statement).
32. As regards the twenty-one instances which I said I had rejected, I should perhaps explain briefly my principal reasons for such rejection. Instance No. 1 is too doubtful in view of the allegations that the property was not divided and was eventually lost. These allegations seem to me substantially true. In No. 2 the division was after this suit began : it was made in Africa; and really rests on hearsay evidence, the sons and daughters not being called. Instance No. 8 depends on the evidence of witnesses Exhs. Com. 1 and 21 whom as I have already said I consider unreliable. In Instance No. 4 the widow claimed a share according to Mahomedan law and her claim went to arbitration. The award (Exh. Com. 8 A) appears to have been based on Hindu law, but in view of the claim being contrary to the alleged custom I can hardly accept the instance as a satisfactory one. Instance No. G is too doubtful. I think the release (Exh. 4 A) amounted to a distribution according to Hindu law, and was not a winding-up of a partnership as Mr, Davar contends. On the other hand the release is dated the 11th October 1915 and by that time the present suit had been started. Further it is clear from the sale-deed, Exh. A, and the suit, Exh. A 36, that the estates of the father and a step-brother of Instance No. 6 devolved according to Mahomedan law. The pedigree which I have marked Exh. 13 F shows the children the father (Haji Abu Jiwa) had by his two wives, and in this connection Hawabai, the daughter, must not be confused with the daughter-in-law of the same name, nor with another daughter named Hurbai. It was Hawabai, the daughter, whom the defendant himself (see Questions 134-135) and his witnesses (Exhs. Com. 2 and 21) stated took a share by way of charity or as a poor sister, a statement which as I have already said I reject having regard to the sale-deed, Exh. A 1. It was then ingeniously argued by Mr. Setalvad that I should regard the case as a striking example of Hindu law applying to Porebunder residents and Mahomedan law to Bombay residents, on the ground that Instance No. G and his brother No. 10 remained in Porebunder while their father went to Bombay as did their step-brother the subject of suit Ex. A36. This contention I do not accept. The release, Exh. 4A, is too recent to warrant that conclusion, for amongst other things it may have been prompted by late decisions in the Porebunder Courts. On the other hand it is clear from Exh. A1 that the father's estate devolved according to Mahomedan law, as did also that of one of the step-brothers of Instance 6. Instance No. 10 is a brother of No. 6 and is only deposed to by witness Exh. Com. 1 and 2, the former of whom falsely denies that Hawabai got a share according to Mahomedan law.
Instance No. 9 is another example of the unreliability or want of candour of witnesses Exts. Com. 1 and 2. The examination-in-chief contains the usual answer that the daughter got no share. It appears, however, from the cross-examination and also from the evidence of the defendant himself (Questions 399-408) that Instance No. 9 had a vacant piece of land and a house. The vacant land he sold to his sons in his life-time, so the story about the sons' separate houses which they afterwards built on his land may be eliminated. . The remaining property, viz., the house, has not yet been divided.
Instances Nos. 12 and 13 are only given by witness Com. 1. He has muddled up Instance 12 with another case : and as regards No. 13 he had not the candour to state in examination-in-chief that No. 13 was the testator in the Porebunder litigation (Exh. 10A and B), and that No. 13 left a will (Exh. 23) by clauses 4, 8, 10, 11 and 12 of which he gave directions for division according to Mahomedan law.
Instances Nos. 14 and 15 are brothers of No. 13. Both died in Africa and may have been domiciled there. Apart from witnesses Ext. Com. 1 and 2, Instance 14 is only deposed to by Exh. Com. 5 and Instance 15 by Exh. Com. 14. Exhibit Com. 5, however, was not present at the alleged division, and his statement that the daughter got no share appears to be based solely on his allegation as to custom, and the daughter is not called. Exhibits Com. 5 and 1 differ by seven years as to the date of the death of instance 15. Consequently it becomes doubtful whether any daughter survived No. 15 and so was in a position to take.
Instances 21, 22 and 23 are only deposed to by Exh. Com. 1.
In Instance No. 26, the sons gave each daughter Rs. 700 or Rs. 800 on returning from Africa. This would roughly correspond with the amount the daughters would have taken under Mahomedan law, and consequently this instance seems too doubtful.
In Instance No. 28 it would seem doubtful whether the property consisted of more than a valueless equity of redemption. Be that as it may the daughter was required to join in the sale. Instance 33 depends on witness Exh. Com. 13.
In Instance No. 37 there was litigation in the Courts of Pretoria with reference to the minor daughters, and the decree is not produced.
Instance No. 40 is only deposed to by Exh. Com. 10 and there is no evidence that this instance loft any property.
Instance No. 43 is not shown to have left any property. He admittedly left no landed property at Ranavav.
Instance No. 49 is also too doubtful to rely on. He admittedly left no landed property, and I am not satisfied that he left any moveable property, although he may at one time have been 'worth about two to three thousands.
33. As regards the sixteen Instances which may be said to be established, I do not think their collective weight is great having regard to the general comments I have made, and in particular those as regards age and the absence of documents. Even as regards Instance No. 5 where there is a document, Exh. Com. 5 A, there is a doubt whether the property in question was not partnership property. Mr. Setalvad says, however, that quality as well as quantity is supplied, if I add to these sixteen instances, the fifteen instances referred to in the judgment of Mr. Maru Exh. 8. This I cannot do. For one thing I have not got the depositions or record in that suit. Even if I had, I should have to consider whether they are admissible under Section 32 of the Indian Evidence Act and if so they would have to be weighed against the instances to the opposite effect given in Exh. K, and also presumably in that judgment in the Porebunder Court of Appeal which was reversed by the Huzur Court in Exh. 10 D and which I much regret has not been produced befor mo despite my enquiries as to why it was not forthcoming.
34. As regards the evidence of the defendant himself, I think he adds little to what was said on commession , but I should say a word about his general evidence on the five pedigrees Exhs. 13A to E. The case as opened to me was that these five pedigrees all showed Hindu succession. In examination-in-chief the defendant beyond saying generally that the pedigrees were correct, gave no evidence as to how the various estates devolved. In re-exainination I gave leave to adduce this evidence having regard to counsel's opening, and accordingly the defendant testified generally that in no case did a daughter or widow take a share according to Mahomedan laws. Cross-examination, however, proved that he had little or no personal knowledge on the point and in many instances he did not even know whether the persons in question had left any property. The pedigrees may, therefore, I think, be disregarded except in so far as they contain persons enumerated in the Table of Instances which I have already dealt with.
35. I next turn to the plaintiff's evidence in opposition to the alleged custom. It consists of thirteen trial witnesses and two commission witnesses. Taking the trial witnesses first, witnesses Nos. 2, 3, 5 and 13 are good types of the trading community. They gave their evidence well and I accept it. Witness 9 was of a superior position and his evidence also was useful. Witness No. 1 is the pleader I have already referred to and witnesses 7 and 8 were only formal witnesses. Witnesses Nos. 4 and 0 are not as important as others, and No. 10 may, I think, be disregarded. Nos. 11 and 12 are the plaintiff and her husband.
These witnesses depose between them to numerous instances of Mahomedan succession, but the bulk of them relate to persons domiciled in Bombay. Throe instances are however proved to my satisfaction as being cases of Mahomedan succession amongst Halai Memons domiciled in Porebunder State, viz.,
(a) Saleh Mahomed Haji Vali of Ranavav who died on 2nd November 1910. The distribution of his estate is evidenced by Exhs. O and Q, and by the oral testimony of his brother (witness No. 2). It is clear that he remained a Ranavav man. Even the defendant admits that (see Questions 118-119). This deceased was Instance No. 34 in the Table of Instances but was naturally enough abandoned by Mr. Setalvad.
(b) Sulleman Hussam Kalli of Ranavav who died in 1901. I think the Release Exh. A17 bears out the evidence of witness No. 2 (see Questions 47-49 and 103-105) and of witness No. 13 (see Questions 13-20 and 69-70) to the effect that the widow took a share according to Mahomedan law. It is clear that this deceased remained a Ranavav man. And
(c) Osman Hamid of Porebunder who died in 1877. This is an important case deposed to by witness No. 3. The Release Exh. U 1 shows clearly that the widow and daughter took shares according to Mahomedan law. The deceased was clearly a Porebunder resident (see Questions 20 and 37). His pedigree is Exh. U 5,
36. Other instances are given of alleged residents in Porebunder State, e.g., Mahomed Juma Chaya (Question 50) and Mahomed Jusub Patel (Question 54) by witness No. 2 : and Haji Mahomed Juma (Question 47) and Jusub Ahmed (Question 69) by witness No. 5. The last of those is borne out by the conveyance, Exh. A16, but it would seem from Question 163 of witness No. 5 that he resided mostly in Bombay. The other three cases rest mainly on hearsay and I think it safer to reject them although the dividing line between them and some of the defendant's instances which I have accepted may be a narrow one.
37. I may add that witness No. 3 gives an excellent example of Mahomedan succession in the case of his father Haji Ahmed who was originally a Porebunder man but was probably a resident of Bombay at his death on the 31st July 1885. The plaints, Exhs. S1 and S2 in the Administration Suits 33 and 84 of 1886: the family agreement Exh. T1 (which states that the shares ' are according to the Mahomedan law and agreeably to the opinions of Kazia (Judges) and Moulvis (Lawyers)': the decree Exh. T 2 which approved the agreement on behalf of minors and the Release, Exh. T 3 by a brother and his sisters, all prove an instance of the custom which exists among Halai Memons In Bombay in a way which is in striking contrast to the type of evidence put forward on behalf of the defendant. Two other similar instances as regards Bhavnagar are given by witness No. 4 with reference to his grand-father and father and are supported by Plaints Exhts. VI and W1, Decrees Exhs. V2 and W2, respectively. Further, the defendant's witness Haji Ibrahim Goega (the Treasurer of the Bhavnagar Jamat in Bombay) admitted this, and indeed claimed that he himself was governed by Mahomedan law and had never heard of any alleged change of personal law on migration from Kathiawar to Bombay. I attach importance to this latter statement, for the deponent is an independent witness: he is in a responsible position as Treasurer, and he impressed me very favourably.
38. The evidence of the plaintiff herself on the question of custom I propose to treat as I do in effect that of the defendant, viz., to disregard it. As regards the plaintiff's husband he claimed in the Porebunder litigation (Exhs. 10 A-E) that Hindu law applied. Consequently in the present suit he was in rather an embarrassing position which he did not improve by fencing with the questions. He loft an unfavourable impression on my mind ; and the defendant may legitimately point to Question 110 as showing that this witness could not cite any instance in his family of a daughter getting a share. As against this it must be borne in mind that the deponent is only aged 30, so his personal experience is limited.
39. Nor do the plaintiff's two commission witnesses carry the plaintiff's case any further. Exhibit Com. A after saying that he had heard Porebunder Memons were governed by Hindu law went on to depose to the case of Sale Mahomed Haji Vali where the witness held the widow's Power of Attorney, and where as I have already said she took a share according to Mahomedan law (see Exh. 0). Exhibit Com. B deposes principally to the same instance. He is only 28 and I do not think his evidence on the other cases is of any real assistance. The plaintiff at one time proposed to call other witnesses on commission, but she appears to have had some difficulty in getting them to attend. At any rate two Warrants were issued against proposed witnesses (Exh, N) but without result.
40. This leads me to a point on which the defendant naturally relies, viz., the comparative weakness of the plaintiff's Porebunder evidence as compared with the defendants. In considering this point I must also consider whether there is any reasonable explanation of those sixteen recent or comparatively recent instances which the defendant has established, as opposed to the three contrary instances which the plaintiff has established. One possible explanation is that some at any rate of these sixteen instances may be due to legal advice founded on a misapprehension of the Bombay decisions with reference to Cutchi Memons or Khojas. If the Judges themselves in Porebunder and elsewhere were under this misapprehension, it is likely that some counsel are either of the same opinion or have advised their clients in accordance with that opinion.
Another possible explanation may lie in the legislation which was proposed for Cutchi Memons and which was based on the principle that each Cutchi Memon should have the option either to retain Hindu law or else to adopt Mahomedan law as regards inheritance and succession. The original bill was a private bill No. 17 of 1885 (see Bombay Government Gazette for 1885, part VI, p. 52) and as drafted it applied to Memons generally without distinguishing Cutchies and Halais. This was rectified in the later and Official Bill No. 13 of 1890 (sea Bombay Government Gazette for 1896, part VI, p. 149) which was confined to Cutchi Memons. Exhibit M shows that the Police Notice, Exh. L was also advertised in the Porebunder State Gazette. One may assume that the Government of India took this step because it did not wish Legislation in British India to prejudice the community of Halai Memons who are partly within and partly without British India. At any rate it seems probablo that the Porebunder Halai Memons were consulted as to their wishes. Witness Exh. Com. 2 says (Question 63) :
In 1897 the leaders of the Memon Community were asked by the Administrator to state what law they followed in matters of inheritance and succession. We said that we have adopted Hindu law. We were told that the Bombay Government wanted to know whether the Porebunder Memons and the other Memons of Kathiawar wanted to follow Mahomedan law. We replied in the negative.
Witness Exh. Com. 5 is much to the same effect. He says (Question 41) :
The leaders of Jamat had assembled at my shop. I was present there. They decided to inform the Administrator that the Jamat has approved of Hindu law of inheritance by which they were governed.
The phrase ' adopted Hindu law ' is a curious one for Exh. Com. 2 to use, seeing that the defendant's case is that Hindu law has been retained and not adopted ; but in view of what Exh. Com. 5 says, too much stress must not be laid on that phrase. I think, however, it may well be that although the Jamat was not convened (see Exh. Com. 5, Question 72) the community got an impression that they had a choice as to which law should be adopted and that their leaders having once decided on Hindu law, it would be improper to act contrary to that decision or to give evidence against it But how those leaders arrived at that decision is another matter. Exhibit Com. 2 who is now a leader does not even know the injunctions of the Koran upon which the Mahoinedan law of inheritance is based. He says (Questions 134-135):
We believe that those who do not follow the Sareh (Koran) are Kajars (infidels). The point of inheritance is based on custom and I do not know whether the question of inheritance is treated of in the Sareh. I do not know how many matters the Sareh comprises. I have not learnt it.
I do not say that the above explanations have been legally proved, for, except in so far as they are legitimate inferences from the evidence, they must be considered as hypothetical. It is one of the misfortunes of commission evidence that at the trial Judge and counsel have to take this evidence as they find it and irrespective of the course the case may take when heard. But disregarding the above explanations, one still has to remember that the onus of proof is on the defendant.
41. I have now dealt with most of the leading contentions which wore urged on me with such force by Mr. Setalvad and Mr. Davar. Mr. Setalvad did indeed urge on me one other, viz., that the Kojahs and Memons case (1847) P.O.C. 110 should be adopted as the standard of proof, and that the defendant's evidence in the present case was at least as strong as that which Sir Erskine Perry thought sufficient to establish Hindu succession in 1847. I think however that the true test is that laid down by the Privy Council in Ramalakshmi Ammal v. Sivananantha Perumal Sethurayer (1872) L.R.IndAp 1 which I have already mentioned, for I have no reason to suppose that there is any difference in Porebunder law as to the requisite proof of a custom. Accordingly I do not propose to discuss the question whether the evidence before Sir Erskine would now-a-days satisfy that test. But I may add that the practical result of Sir Erskine's decision is hardly calculated to induce the Court to modify the strict standard of proof required for a custom. Cases such as Jan Mahomed v. Datu Jaffar (1913) 15 Bom . L.B. 1044 Mangaldas v. Abdul Razak (1014) 16 Bom. L.R. 224 and Advocate General v. Jimbabai (1915) 17 Bom. L.B. 799 show the difficulty of saying where the law of inheritance and succession begins and where it ends, and there appears to be still much uncertainty as to the precise legal position of Cutchi Memons and Khojas. Unfortunately the efforts of Government to remedy by legislation this uncertainty in the law and consequent hardship came to naught.
I should also mention that my attention was drawn to Section 32 of the Indian Evidence Act; and also to the ruling of the Privy Council in Garurudhwaja Parshad Singh v. Saparan-dhwaja Parshad Singh to the effect that a witness may state his opinion as to the existence of a family custom and give as the grounds thereof information derived from deceased persons : but this must be independent opinion based on hearsay and not mere repetition of hearsay. In considering the evidence I have borne this ruling in mind, though possibly I have been too lenient in its application to some of the defendant's instances which I have held to be established.
There was one extraneous matter which had little or no bearing on the question of custom, but which affected the plaintiff and defendant personally, and which occupied unfortunately a good deal of time. The defendant alleged in effect that this action was brought out of spite because of a quarrel about a house he had bought for the plaintiff, and because of his subsequent refusal to execute certain repairs. The threats alleged by the defendant wore after the municipal notice to repair which was received by the defendant about the 26th July 1915 (see Exh. 19). Unfortunately for this contention the evidence of Mr. Daphtary (plaintiff's witness No. 8) shows clearly that this litigation was contemplated months before, viz., in January 1915, shortly after the testator's death. The Power of Attorney (Exh. A 3) from the plaintiff to her husband, which had been engrossed about the 28th January 1915, was executed on the 16th July 1915, and consequently before the municipal notice. The documentary evidence therefore so far as it goes is against the defendant. As regards the oral evidence I may disregard the plaintiff's husband, but I think the plaintiff is just as likely to be telling the truth as her brother the defendant and as she is supported by the documents I decide this point in her favour. But it is quite a bye point, and only material on credibility and costs.
42. I now turn to my conclusions.
Viewing the case as a whole, does the evidence satisfy the test required to prove a custom in a Court of Law After weighing all the evidence to the best of my ability, and after giving duo consideration to the arguments of counsel, I am of opinion and so hold that it does not, and that the defendant has not discharged the onus of proof which lies upon him.
The result is that in my judgment the Testator was governed by the Mahomedan law of inheritance and succession at the date of his death, and that accordingly the defendant fails in this suit.
The formal issues are :-
(1) Whether the Intestate Haji Abu belonged at all material times to a family of Halai Memons who werc settled in Porebunder ?
(2) Whether as regards Inheritance and Succession, Halai Marions so settled in Porebundcr as aforesaid (a) retained Hindu law at the time of their conversion to Islam ; or (b) have by immemorial custom adopted Hindu law ?
(3) Whether Halia Memons so settled as aforesaid are governed by Hindu law as regards Inheritance and Succession ?
(4) Whether the intestate at the date of his death waa governed by (a) Mahomedan law ; or (b) Hindu law as regards the Inheritance and Succession to his moveable and immovoable properties (i) in Bombay and( ii) outside Bombay ?
(5) Whether the plaintiff has any and if so what interest in the property left by the Intestate ?
I anawor these issues as follows :-
(2) and (3) No.
(4) By Mahemedan law.
(5) Yes. As ono of the co-heirs of the Intestate she is entitled to a 7/32 share of his estate.
I will hear counsel on the precise form the Decree should take and also on the question of costs.
My final word at the present stage of the case is to thank Mr. Setalvad and Mr. Davar for the great assistance they have been to me in one of the most laborious cases I have ever had to deal with.
After hearing counsel on the question of costs his Lordship delivered the following judgment on 18th December 1917.
1. I have now heard counsel on the form of the decree and on costs. The decree will be as indicated in the course of argument, viz., for administration, but be preceded by a declaration to the effect that the estate of the Intestate ought to devolve according to Mahomedan law, and that the plaintiff as one of his co-heirs is entitled to 7/32 of his estate.
2. The question of costs has given me much anxious consideration. In the first place the case was quite a reasonable one to fight on the question of domicile and the law of Poro-bunder. Secondly, I havo infants here who have submitted their interests to the Court, and now get the benefit of the plaintiff's success at very little expense. Thirdly, if the bare outline of the case had been submitted to me without any contest, I could not have determined the matter on those materials but should have directed an enquiry to ascertain the facts, and in that event the costs would prima facie have come out of the estate. Fourthly, defendant 1 succeeded on the domicile point. Under all the circumstances, therefore, I think I ought not to treat this administration action as if it was merely a contest between the plaintiff' and defendant 1 personally, in which case the losers would prima facie pay the costs personally except on the domicile point where they succeeded.
3. The proper order in the present case will, I think, be to direct what I will call the general costs of all parties to be paid out of the estate. That means that in effect defendants 1 and 2 who are the defeated parties will have to bear the bulk of the costs as they hold the largest shares in the estate.
4. But there are certain excepted costs which I must order defendant 1 to pay personally. These excepted costs are first as to the allegation in para 9 of the Written Statement that this suit was brought out of spite in consequence of a dispute about a house. This took a lot of time, perhaps two days in all and also led to many Exhibits. It was a personal matter between the parties and had no real bearing on the question of custom I had to decide. Defendant 1 was defeated on that, and must therefore pay the costs.
5. Secondly, the question as to whether Halai Memonus permanently settled in Bombay were governed by Mahomedan law. The refusal of defendant 1 to admit this protracted the proceedings considerably and led to a number of Exhibits. (See for instance Summaries Exha. A 41, 45 and 46). The admission was one which in my opinion ought reasonably to have been made, and as the defendant 1 after full time for consideration refused to make it, he must pay the costs.
6. Thirdly, the defendant 1 must pay in addition the costs of two full days' hearing in respect of (a) the time spent over his unsuccessful applications for a commission and to call further evidence after the evidence was really closed; (h) the time spent over the defendant's evidence on Pedigrees, Exhs. 13 A to 13 E; and (c) the time spent over the defendant's denial that Exh. Com. 1 was a paid witness. As regards point (b) if the defendant had stated frankly in examination-in-chief that he had no personal knowledge as to the bulk of the persons in those pedigrees and had only deposed to certain specified instances, much time would have been saved. As it was, his general answer led to his being cross-examined about almost every person. So too, point (c) took up a lot of time in evidence and argument.
7. As regards defendants 2, 3 and 4 they have been of no assistance to the Court at the trial. Their costs will therefore be confined to those of the action up to the first full day's hearing, but will include costs of hearing judgments and of argument on costs.
8. The order will therefore be for defendant 1 to pay plaintiff the excepted costs I have mentioned, and to bear his own costs in respect of the same matters. Subject to that, the costs of plaintiff and defendant 1 of the action (including the costs reserved by Mr. Justice Macleod's order) will come out of the estate, and also the limited costs I have mentioned of defendants 2, 3 and 4. This will be without prejudice to the Motion for a Receiver and for maintenance which can stand over to next sitting.
9. In making the above order I wish to say that I do not intend to lay down any general principle. I merely decide what on the facts of this particular and special case appears to me to be the proper order to make. I only regret that the costs of this heavy litigation which affects all Halai Memons alike have to be borne by the members of this particular family to the relief of the rest of their community.