1. The simple issue I am asked to try in this case is whether a Khoja of the Shiah Ishna Ashari sect can dispose of the whole of his property by a testamentary disposition. Since 1847, when the well-known case of Kojahs and Memons' Case (1847) Perry O. C. 110 was decided, the law applicable to a dead Khoja has been agitated and a series of cases have laid down beyond doubt that in matters of simple succession and inheritance the Hindu law applies. Two of them arc Appeal Court judgments, and yet, a single Judge in recent times; threw a doubt (in itself an obiter) on the ground that only such part of the Hindu law of succession and inheritance can be said to apply as is proved to have been adopted by the Khojas. His reasoning is that ordinarily the Hindu law governs the Hindus and the Mahomedan law governs the Mahomedans. Unless, therefore, any portion of the Hindu law is proved to have been adopted by the Khojas as their personal law the ordinary presumption should prevail. The learned Judge after a lengthy examination of the case law came to the conclusion that it has not been established by evidence that the Khojas have adopted by custom the right to will away the whole of the property and he expressed an opinion that he would confine the application of Hindu law to intestate succession. The learned Judge had the limitation present to his mind that a Hindu can only will away his self-acquired property. But that is confounding the Hindu law of joint family property with rights of succession and inheritance. It has been held beyond doubt that the Hindu law of joint family property does not apply to Khojas. The famous dictum of Russell J, that a Khoja is a living Mahomedan and a dead Hindu is a paradoxical truism, A Khoja can, therefore, dispose of the whole of his property during his lifetime. The elements of ancestral or joint family property do not exist. His sons take no interest by birth. They cannot demand partition and the property in the hands of a Khoja during his lifetime is his absolute property. If the sons have no vested interest in the property during the lifetime of a Khoja father he must be taken to have died with all the property as his own. To hold otherwise would be to raise absurd questions as to heirship, and joint and self-acquired property. Either the property vests in the sons or it does not. There cannot be a vacuum and the sons' rights cannot spring into existence all at once on the father's death. A Khoja, as any living Mahomedan, can make a will Ceding one-third of the property with the consent of the heirs, but such must must be given after the testator's death. If you bring in the principle joint family property the question would arise, ' Consent of which her Under the Mahomedan law or the Hindu law ' The heirs under the two systems differ. Harmony can only be established if you eliminate the Hindu law of joint family property and apply the Hindu law of simple succession and inheritance. It is well-established by authorities that the law of wills is a part of the law of succession and inheritance. Succession is either testamentary or intestate. To say that on the death of a Khoja only the Hindu law of ' intestate succession ' applies is to make an encroachment on the established rule of law that the Hindu law of joint family property does not apply to Khojas. It is not a correct statement of law to say that only such part of the Hindu law of succession and inheritance applies as is proved to have been adopted by the Khojas by custom. The conversion of Hindus of Sind by the ancestors of H. H. the Aga Khan was a mass conversion and while accepting a new faith they retained their old system of devolution of property. You adopt what you have not got. You retain what- you already possess. The correct proposition, therefore, is that whoever wants to establish that a custom derogatory to the Hindu law of succession and inheritance is adopted must prove it. No such custom derogatory to the Hindu law of simple succession and inheritance has been ever alleged or proved. The fact that it has not been alleged or proved ever since 1847 in any case involving a will, shows that it did not admit of proof and the further fact that the point was conceded in all cases of wills, though it would be to the manifest advantage of the party interested to raise the point strengthens the view that no such exception existed and the point was treated as concluded. With this preliminary rapid survey of the legal position I shall now give a short summary of the origin of Khoja sect which will be a help to appreciate the principles of the Hindu law of succession and inheritance made applicable to them.
2. The report of The Aga Khan's case (The Advocate General ex relatione Daya Muhammad v. Muhammad Husen Huseni (1866) 12 B. H. C. R. 323), in which judgment was delivered by Arnould J. in 1866, is given in a note at foot of p. 323 of 12 B.H.C.R. The issues are mentioned at p. 329 and the second issue is, ' Who and what are the .Shiah Imami Ismailis ', and the fourth issue is, ' Who and what are Khojas.' Arnould J., after careful consideration of the voluminous evidence led in the case, came to the conclusion that the Khojas were originally Hindus of trading class inhabiting the towns and villages of Upper Sind. The position and circumstances of those remote and isolated traders were manifestly such as to favour a conversion of some form or other of Mahomedanism, They were converted by Pir Sadra Din about four hundred years ago, and according to tradition of the great body of the Khoja community Pir Sadra Din came from Khorasan and was an Ismail Dai or missionary sent by Shah Islam, one of the ancestors of H. H. the Aga Khan, The form of Mahomedanism which he taught his converts was Shiah Imami Ismaili faith. Arnould J. further points out that as a rule Khojas have no mosque or masjid. As a matter of fact the only Khoja mosque in existence was that erected in 1822 in the Khoja burial ground in Bombay, where funeral rites to the dead are performed before burial. The Jamatkhana is their prayer-house, where they recite gnan (knowledge), which is a free composition in verse of some parts of Koran and Hindu mythology. Even in this composition there is no mention of the Mahomedan law of succession and inheritance. Their accepted scripture is ' Dashavatar'. At p. 359, Arnould J. gives a short summary of the scripture of Dashavatar. He says :
It is a treatise in 10 chapters containing (as, indeed, its name imports) the account of ten avatars or incarnations, each dealt with in a separate chapter. The first 9 of these chapters treat of the nine incarnations of the Hindu god Vishnu; the 10th chapter treats of the incarnation of the 'Most Holy Ali', (Ninetenths of their scripture is thus based on the Hindu divinity of Vishnu) ...the idolatry of the first 9 chapters, the semi-deification of Ali implied in the 10th chapter, alike .are utterly impossible.
The ' avatar ' is manifestation of God on earth in human form to relieve dire distress. Vishnu is the centre of Hindu conception of Trinity which consists of Brahma, Vishnu and Mahesh. The first is the Creator, second Protector, and the third Destroyer. As observed in Haji Bibi v. The Aga Khan (1908) 11 Bom. L.R. 409 only a clever and astute brain could have compiled such a scripture for the acceptance of the Hindu traders in North Sind. It will be clear from this short account that the conversion of Khojas to the Shiah Imami Ismaili sect was not a case of individual conversions but was a mass or a community conversion; call it mass hypnotism if you choose. In a case like this no rigid rule of logic can govern a convert society like the Khojas. The rigid rule of law laid down in Jowala Buksh v. Dharum Singh (1866) 10 M.I.A. 511 and Mitar Sen Singh v. Maqbul Hasan Khan (1930) L.R. 57 I. A. 313 : 33 Bom. L.R. 1 applies to individual conversions. In the former case it was held that Mahomedan law applies not only to persons who are Mahomedans by birth, but by religion also. In the latter case it was held that a convert changed not only his religion, but his personal law also. These rigid logical rules may apply to individual conversions, but in the case of a community conversion the converts may retain a portion of their personal law according to their social habits and surroundings. They retain their personal law unless they consciously adopt another.
3. In Abraham v. Abraham (1863) 9 M.I.A. 195, their Lordships of the Privy Council observed (pp. 238, 239):-
He [a Hindu convert to Christianity] may renounce the old law [his own personal law] by which he was bound, as he has renounced his old religion, or, if he thinks fit, he may abide by the old law, (in the absence of any statutory provision) notwithstanding he has renounced his old religion.... The profession of Christianity releases the convert from the trammels of the Hindoo law, but it does not of necessity involve any change of the rights or relations of the convert in matters with which Christianity has no concern, such as his rights and interest in, and his powers over, property. The convert, though not bound as to such matters, either by the Hindu law or by any other positive law, may by his course of conduct after his conversion have shown by what law he intended to be governed as to these matters. He may have done so either by attaching himself to a class which,,, has adopted and acted upon some particular law, or by having himself observed some family usage or custom; ...
This case illustrates the distinction between parcenership and heirship. Parcenership must be governed by the law to which a person has become a convert; heirship may be governed by his old personal law. A Hindu convert cannot possibly remain a member of Hindu coparcenery, but the succession to his property may be governed by Hindu law. The only exception to this rule is when the succession is governed by statute, e.g., a Hindu convert to Christianity now cannot, as laid down in Kamawati v. Digbijai Singh (1921) L.R. 48 I. A. 381 : 24 Bom. L.R. 625, elect to be bound by the Hindu law as opposed to the statutory provision under the Indian Succession Act. To my mind the true principle is laid down in Abudurahim Haji Ismail Mithu V. Halimabai (1915) L.R. 43 I. A. 35 : 18 Bom. L.R. 635, known as the Mombasa case. That was a case of a Memon, another sect of Mahomedans who were converted from Hindu religion some four centuries ago, but retained their Hindu law of succession and throughout India were governed by that law save where a local custom to the contrary was proved. In fact, Memons are more orthodox converts than Khojas. In that case a Memon, whose father, some fifty years before the suit, had migrated from India and settled with his family among Mahomedans at Mombasa, lived at that place and died there intestate. It was held upon evidence of practice among Memons at Mombasa that the succession to the estate of the deceased Memon waddds governed by Mahomedan law and not by Hindu law. Viscount Haldane in delivering judgment observed as follows (p. 41) :-
Where a Hindu family migrates from one part of India to another, prima facie they carry with them their personal law, and, if they are alleged to have become subject to a new local custom, this new custom must be affirmatively proved to have been adopted, but when such a family emigrate to another country, and, being themselves Mahomedans, settle among Mahomedans, the presumption that they have accepted the law of the people whom they have joined seems to their Lordships to be one that should be much more readily made. All that has to be shown is that they have so acted as to raise the inference that they have cut themselves off from their old environments. The analogy is that of a change of domicil on settling in a new country rather than the analogy of a change of custom on migration within India. The question is simply one of the proper inference to be drawn from the circumstances.
4. The same principle is observed in Mahomed Haji Aby v. Khatubai I.L.R. (1918) Bom. 647 : 21 Bom. L.R. 85, on appeal (1922) L.R. 50 I. A. 108 : 25 Bom. L.R. 127, which is confirmed in appeal to the Privy Council, where it was held that Halai Memons of Porbander in Kathiawar follow in matters of succession and inheritance the Hindu law and not Mahomedan law differing in that respect from the Halai Memons of Bombay, and consequently upon the death intestate in Bombay of a Halai Memon of Porbander who had carried on business for many years in Bombay but was found to be domiciled in Porbander, his only son took the whole estate to the exclusion of a daughter.
5. The principle I deduce from the short history of the Khojas of Shiah Imami Ismaili sect and the case-law cited above is that a Hindu convert residing in India is governed by his personal law unless he renounces the old law and accepts the new one except where a statutory provision is made. His intention to renounce the old law is to be inferred (a) if he attaches himself to a class which follows a particular law, or (ft) .if he observes some family usage or custom derogatory to the old law, and this principle to my mind applies with greater force to a case of mass conversion like the Khojas. Having given a Bhort history of the Khoja sect and the principles of the law applicable to them, I shall now proceed to examine the case-law cited to me on the question at issue, viz., whether a Khoja can dispose of the whole of his property by a testamentary disposition. I do not wish to examine in great detail each and every authority cited to me. That has been done more than once by eminent Judges. I shall try to deduce from the case-law cited to me the principle that governs the point at issue.
6. A series of decisions were cited from 1847 (Perry's Oriental Cases, p. 110) to 1935, which with one exception lay down the proposition that in matters of succession and inheritance the Khojas are governed by Hindu law. There is only one exception established, viz., as between a childless widow and a mother the latter is preferred to the former for the grant of letters of administration : Hirbai v. Goribai (1875) 12 B. H. C. R. 294. For a short period between 1911 and 1914 Beaman J., sitting as a single Judge, threw a doubt on the correctness of the decisions of the Appeal Court presided over by Jenkins CJ. and Russell J. I shall summarise as briefly as possible the case-law cited to me on the question at issue,
7. In Kojahs and Memons' Case (1847) Perry O. C. 110, the daughter of a Khoja filed her bill against the executrices of her father's will that she, as a Mahomedan female, was entitled to a share in distribution of her father's property which was ordained in the Koran, The defendants met this demand by a plea that all the parties to the suit belonged to a certain caste or sect of Mahomedans called Khojas, which had existed from time immemorial, separate and distinct from other bodies or sects of Mahomedans, and under the government of divers laws and customs peculiar to themselves, and differing in many respects from the laws and customs of the Mahomedans : and the plea then averred a custom in the case by which the females were not entitled to any share of their father's property at his decease, nor to any benefit whatever except, if they should be unmarried to maintenance out of the estate and to a sufficient sum to defray the expenses of their marriage according to their conditions in life. Perry CJ, came to the conclusion after an exhaustive inquiry that if a custom otherwise valid was found to prevail amongst a race of Eastern origin and non-Christian faith, a British Court of justice would give effect to it, if it does not conflict with any express Act of Legislature; and he held that the attempt of the daughters to disturb the course of succession which had prevailed among their ancestors for many hundred years had failed and their appeals were dismissed with costs.
8. In 1863 in Gangabai V. Thaler Mulla (1863) 1 B. H. C. R. 71, the question was about the validity of a charitable bequest contained in the will of a Khoja, but the will itself was not challenged.
9. In 1866, in Karim Khatav V. Pardhan Manji (1866) 2 B. H. C. R. 292 it was held that by a custom of the Khoja Mahomedans when a widow dies intestate and without issue, property acquired by her from her deceased husband does not descend to her own blood relations, but to the relations of her deceased husband. Couch CJ. held, following Sir Erskine Perry, that if a custom as to succession is found to prevail amongst a sect of Mahomedans and is valid in other respects the Court will give effect to it although it differs from the rule of succession laid down in the Koran. In fact the principle of Hindu law of succession was applied.
10. In 1876 in Shivaji Hasam V. Datu Mavji Khoja (1874) 12 B. H. C. R. 281, which was a special appeal decided by Westropp C.J., it was held that it must be considered as a settled rule in Bombay that in the absence of sufficient evidence of usage to the contrary, the Hindu law is applicable in matters relating to property, inheritance and succession among Khoja Mahomedans, This decision as far as it applies to Hindu law of 'property' has not been followed in later decisions. It has been held in subsequent decisions that the Hindu law of joint family property does not apply to Khojas. In the same volume in the case of Hirbai v. Gorbai (1875) 12 B. H. C. R. 294, Sargent C. J. held that in the absence of satisfactory proof of a custom, differing from the Hindu law, the Courts of this Presidency apply to Khojas the Hindu law of inheritance and succession, He held that 'the Khojas having been originally Hindus and converted from the Hindu religion by a Dai, or missionary of the Imam of the Ismailis, to the Mahomedan religion of the Shiah division and Imami Ismaili sub-division, and being partly regulated by Mahomedan law, partly by Hindu law and partly by custom, occupy a position so peculiar that the Courts do not apply to them when seeking to prove a custom of inheritance or succession differing from the Hindu law, the stringent rule that the custom must be proved to be ancient, invariable, and submitted to as legally binding, but will act upon satisfactory evidence that it has been the general custom and accented as such by the great majority of Khoja community.
11. As I have pointed out in the earlier portion of my judgment this really is not a case of adoption of any custom but retention of an old custom of succession and inheritance prior to the period of conversion. Sargent C. J. further held that if a custom opposed to Hindu law be alleged to exist among Khojas, the burden of proof rests upon the person setting up that custom. This question of onus or burden of proof is a vital issue in all these cases. It is not correct to state that you must plead a custom opposed to Mahomedan law and prove it. On the contrary the true rule is that whoever alleges a custom derogatory to the Hindu law of succession or inheritance must prove it. No such custom derogatory to the Hindu law has even been pleaded in the present suit. At p. 305 Sargent CJ. summarised the decisions of this Court and observed that they satisfactorily showed that ' the Khojas have, for the last 25 years at least, been regarded by the Court in all questions of inheritance, as converted Hindus who originally retained their Hindu law of inheritance, which has since been modified by special customs, and that an uniform practice has prevailed during that period of applying Hindu law in all questions of inheritance, save and except where such a special custom has been proved.' He cited with approval the decision of Westropp CJ. in the same volume where it was held that in the absence of proof of special custom Hindu law of succession and inheritance must be administered in the case of Khojas.
12. In 1877 in Rahimatbai v. Hirbai I.L.R. (1877) 3 Bom. 34 it was held that the widow of a Khoja, who died childless and intestate, succeeds to her husband's estate in preference to his sister. It was also pointed out in that case that where a defendant alleged a special custom among Khoja community in variance with the Hindu law of inheritance, it was held that the burden of proving the alleged custom rested upon her.
13. In 1889 in Ahmedbhoy Hubibbhoy v. Cassumbhoy Ahmedbhoy and Rahimbhoy Alladinbhoy I.L.R. (1889) 13 Bom 534 it was held that it was not established that amongst Khojas there was any recognised right of a son to demand a partition in the lifetime of his father. The onus was again thrown on the party alleging such a right of partition in the case of Khojas to prove it. This case is the authority for the proposition that the Hindu law of joint family property does not apply to Khojas. The whole of the property possessed by a Khoja Mahomedan is his absolute property in which the sons acquire no interest by birth. It was observed that the rule, that the Hindu law as administered in this Presidency in the absence of proof of custom to the contrary is the law applicable to Khojas, is not to be understood in its widest sense, but as confined to simple questions of inheritance and succession. Sargent CJ. has in his judgment thus limited the question of inheritance and succession with reference to Hindu law of joint family property. It would be certainly a complex question of inheritance and succession if together with it the notion of Hindu law of joint family property is mixed up.
14. In 1901 in Hussenbhoy v. Ahmedbhoy I.L.R. (1901) 26 Bom. 319 : 4 Bom. L.R. 336 the will of a Khoja conferred an absolute gift, but directed that the property so given shall not be made over to the legatee until he had attained a certain age beyond the period of his majority. The direction was held to be inoperative unless the will conferred an interest in the property upon some person for the intervening period, and the legatee was entitled to have the property handed over to him as soon as he attained his majority. I have referred to this case only for the purpose of showing that although it was a Khoja will, only a question of construction was raised but the will itself was not challenged.
15. In 1901 in Sallay Mahomed v. Lady Janbai (1901) 3 Bom. L.R. 785 Jenkins C, J. held that the will of Sir Tharia Topan was to be construed according to the Hindu law. There also the question in dispute was as to the construction of the will, whether according to the law the granddaughters took the property bequeathed to them as a class or as persona designata. Here again the will itself was not challenged.
16. In 1904 in Rashid Karmali v. Sherbanoo I.L.R. (1904) 29 Bom. 85 : 6 Bom. L.R. 874 it was held by Russell and Chandavarkar JJ. that although a Khoja and his wife are married according to Mahomedan rites, at the time of his death so far as regards succession to his property he is a Hindu. If his brothers lived joint with him his widow would be entitled to maintenance out of his estate while his property devolved on them. Here the Hindu law of succession by survivorship was applied on the death of the deceased Khoja. It seems that the deceased and his brothers were living jointly and the property also was held by them jointly during the lifetime of the deceased. The principle of survivorship was thus applied to the exclusion of the widow who was held entitled to maintenance out of the estate. It was in this case that Russell J. pronounced the famous dictum that a Khoja was a living Mahomedan and a dead Hindu. He observed that a living Khoja by operation of law became a dead Hindu and his brothers living joint with him, his widow would on his death be entitled to maintenance only. In the same volume in the case of Advocate General v. Karmali I.L.R. (1903) 29 Bom. 133 : 6 Bom. L.R. 601 Jenkins C. J. and Russell J. had before them the will of a Khoja on a question of construction. Jenkins C.J. made some very pertinent observations at p. 148 of the report which are the sheet anchor of the learned counsel for the defendants in this suit, I prefer to quote the whole of that paragraph :-
But before we come to the question of construction, it is necessary first to consider briefly the testamentary capacity of the testator. He was, as I have said, a Khoja of Bombay, and although the community, of which he is a member, may popularly be reckoned Mahomedan, in some respects the civil rights of a Khoja are determined by the law governing Hindus in this Presidency; thus it is well established that on an intestacy the devolution of a Khoja's property is governed by the Hindu law. But here we have not an intestacy, but a disposition by will, and so we must determine the measure of a Khoja's testamentary capacity. In a recent case before this Court it was held on evidence there adduced that the law applicable to Hindus governed, and in this case it is agreed on at sides that this conclusion is sanctioned by the custom that prevails in Bombay, It is common knowledge in legal circles that Khojas continually make their wills, as though they had the testamentary capacity of a Hindu; and counsel in this case, whose experience is of the widest, have informed the Court that they do not desire any issue to be raised on the point, for all parties are at one that this will must be construed on the basis of the testator having the testamentary powers of a, Hindu resident of Bombay.
17. I wish to emphasize the words italicized in this quotation. It is a positive statement by the then learned Chief Justice that ' in a recent case before this Court on evidence there adduced it was held that the law applicable to Hindus governed ', and although unfortunately the proceedings of that case cannot be traced, that does not detract from the positive statement made in the judgment.
18. In this case not only the question of construction of a Khoja will was concerned, but the Court considered the question of the capacity of a Khoja to make a will. It is a case most directly in point, and one would have imagined that after an authoritative judgment of an Appeal Court presided over by an eminent Chief Justice which dealt directly with the issue of the capacity of a Khoja to make a will of the whole of his property, the question would never be raised again in this Court. It has recently been laid down that even the judgment of a single Judge should be treated as binding unless it is manifestly wrong; for nothing unsettles the law more, than a single judge trying to throw doubts on the correctness of an Appeal Court judgment. But that has happened in two subsequent cases, viz., Cassamally Jorajbhai v. Sir Currimbhoy Ebrahim I.L.R. (1911) Bom. 214 : 13 Bom. L.R. 717, in which there was a question of validity and construction of a trust deed, and Jan Mahomed V. Datu f offer I.L.R. (1913) 38 Bom. 449 : 15 Bom. L.R. 1044, which was a suit for partition. In these two cases Beaman J. threw a doubt that the custom of disposing of the whole property by testamentary disposition was not proved. In neither case the question was directly in issue and in subsequent cases this expression of opinion has been treated as obiter. His rigid logic that the Hindus were governed by Hindu law and Mahomedans were governed by Mahomedan law would not admit of any elasticity in the case of a sect of Imami Ismaili Khojas having retained the Hindu law of succession and inheritance. The whole of his reasoning was affected by the notion that the Hindu testamentary powers are inseparable from joint family property. His argument in a nutshell was that if a dead Khoja is a Hindu then he as a Hindu can will away his self-acquired property and not the ancestral property and he therefore would like to restrict the testamentary powers of a dead Khoja to self-acquired property. With all respect Beaman J. lost sight of the fact that the Hindu law of joint family property has been held not to apply to Khojas. During his lifetime a Khoja is the absolute owner of the property he is possessed of. As I have pointed out his sons did not take any interest by birth, they could not claim partition of the property. It therefore necessarily follows that when he dies, he dies possessed of his property in which no other person during his lifetime had any interest. If the sons had no interest by birth during all the time that the father was alive, their rights cannot spring into existence on his death. It must, therefore, logically be assumed that whatever property he dies possessed of, a Khoja can dispose of the same by a testamentary disposition as if the property was his absolute property.
19. In 1914, in Mangaldas v. Abdul Razak : AIR1914Bom17 Macleod J. (as he then was) had before him the case of a joint family property of a Cutchi Memon, and the question before him was whether the son of a Cutchi Memon acquired by birth an interest in the property. The question of inheritance and succession was again not before him, but he seems to have upheld Beaman J.'s opinion that the decision in Advocate General v. Karmali is not a correct statement of law. Beaman J. would apply the Hindu law of joint family property to the extent of holding that the Hindu law of intestate succession would apply to the property of a deceased Khoja. It has been held in a series of cases that the law of wills is a part of the law of succession, and when it has been held that the Hindu law of succession and inheritance applies, there is hardly any justification for excluding testamentary succession. Succession is either testamentary or intestate. Section 2 of the Indian Succession Act confirms this view. In Advocate-General of Bombay v. Jimbabai I.L.R. (1915) 41 Bom. 181 : 17 Bom. L.R. 799 Beaman J. himself admits that wills belong more properly to the law of succession or inheritance than to any quite distinct law of their own. Even as early as 1863 in Gangabai v. Thaver Mulla (1863) 1 B. H. Q. R. 71 Couch C. J. has held that the law of wills is a part of the law of inheritance and succession. A will is an instrument by which the devolution of an inheritance is prescribed, and in the civil law it is said that inheritance is of two kinds, extestamen to and ab intestate. In Advocate General of Bombay v. Jimbabai the question was with regard to the capacity of a Memon to make a will of the whole of the property. Memons are another sect of Mahomedans similarly converted about four hundred years ago. ' It has been found that they are more orthodox than the Khojas. Many wills by Khojas were produced in evidence to prove the custom and it was held that a Memon could will away the whole of his property.
20. Under the Hindu Disposition of Property Act XV of 1916, Section 2 has been framed to validate the testamentary disposition by a Hindu for the benefit of persons not in existence at the date of his death. Section 5 of that Act refers to the Khoja community. It runs as follows :-
Where the Governor General in Council is of opinion that the Khoja community in British India or any part thereof desire that the provisions of this Act should be extended to such community, he may, by notification in the Gazette of India, declare that the provisions of this Act, with the substitution of the word ' Khojas' or ' Khoja', as the case may be, for the word ' Hindus' or ' Hindu' wherever those words occur, shall apply to that community in such area as may be specified in the notification, and this Act shall thereupon have effect accordingly.
21. I cite this section for the purpose of showing how the Indian Legislature also has considered that the Hindu law of testamentary succession applies to the Khoja community. Section 2 of that Act is framed to validate the testamentary disposition by a Hindu for the benefit of persons not in existence at the date of his death. It makes an exception to the Hindu testamentary law of disposition. By Section 5 the Khoja community are invited to take the benefit of that exception if they so desire.
22. Among the cases cited to me there were at least eight cases of wills, and although it would have been manifestly to the advantage of the parties to challenge the will, the same was not done. Assuming that it is true, as was contended by the learned counsel for the plaintiffs, that the question whether a Khoja is entitled to will away the whole of his property has never been squarely put or answered, I may pertinently refer to a decision (Brij Narain V. Mangla Prasad , where their Lordships of the Privy Council held that (p. 138) :-
when a long series of cases, extending over a long period of time, the parties being represented by eminent counsel, is decided in one way, and if an evident plea had been taken and upheld the decisions would have been the other way, there arises an irresistible conclusion that the plea was not taken because it was felt to be bad.
23. In Advoate General v. Karmali, Jenkins C.J. had this aspect in mind when he stated that (p. 148) :- '
counsel in this case, whose experience is of the widest, have informed the Court that they do not desire any issue to be raised on the point, for all parties are at one that this will must be construed on the basis of the testator having the testamentary powers of a Hindu resident of Bombay.
24. But as I have observed in the earlier part of my judgment, the question of the testamentary capacity of a Khoja was directly in issue before Jenkins C.J. and Russell J. in Advocate General v. Karmali and it is a positive authority on the question in issue before me, and I feel bound by that decision.
25. On a careful consideration of the authorities cited and arguments advanced, I find all issues in favour of the defendants and hold that a Khoja of the Shiah Ishna Ashari sect can dispose of the* whole of his property by a testamentary disposition.