Narayana Pai, J.
1. In this reference under section 64(1) of the Estate Duty Act, 1953, made at the instance of the assessee by the Central Board of Direct Taxes, the question referred is :
'Whether, on the facts and in the circumstances of the case, the entire property held by the deceased valued at Rs. 12,23,794 was chargeable to estate duty ?'
2. The deceased mentioned in the question was one Mohammed Hussain Sait, who died on the 22nd of March, 1955. The value of Rs. 12,00,000 and odd mentioned above is the value determined for what the department considered to be the entire property held by the deceased, apparently upon the footing that it was his exclusive separate property held by him exclusively which devolved in its entirety upon his heirs by the rules of Mohammadan law relating to succession. The accountable persons were his two sons, Abdulla Sait and Sattar Sait, who, according to the department, would be some among the heirs of the deceased.
3. The contention put forward by the accountable persons, the two sons of the deceased, was that what is described as 'the entire property' in the question was not property to which the deceased Mohammed Hussain Sait alone had full and exclusive rights, but that the said property was the joint family property of the deceased and themselves, his sons, according to the principles of Hindu Mitakshara law applicable to coparcenary property which the class of Mohammadans called Cutchi Memons, to which thy belong, had even after their conversion to Mohammadanism some centuries ago retained and continued to observe, and that, therefore, the only property which can be rightly and validly subjected to estate duty was the deceased Mohammed Hussain Sait's 1/3rd share which devolved by survivorship on his two sons, the accountable persons.
4. In support of these contentions, the accountable persons relied upon a decision of the Madras High Court reported in Siddick Hajee Aboo Bucker Sait v. Ebrahim Hajee Aboo Bucker Sait and some evidence also. The evidence relied upon was in the nature of averments or assertions made in applications made to the Madras High Court for the grant of letters of administration or other legal representation on the death of one or the other of the ancestors of the parities, in which the central point was that the parties were members of an undivided family governed by the principles of Mitakshara Hindu law and that upon death the interest of the deceased in the properties had survived to the surviving members of the family. There was also among the pieces of evidence a deed of settlement by male members in favour of female members, proceeding on the the footing that but for the settlement the female member could not as of right lay any claim to or in respect of the joint family properties.
5. The original assessing authority, viz., the Deputy Controller of Estate Duty, Madras, totally rejected all the contentions. So far as the evidence is concerned, he expressed the opinion that at the highest the evidence proved nothing more than mere assertions by the parties and the sustainability or otherwise of the claims involved in the said assertions had never been the subject of adjudication or decision by any court. In regard to the decision of the Madras High Court cited above, the officer was of the opinion that it was not quite clear on the point or not clearly in favour of the case sought to be made by the accountable persons. He referred to certain decisions of the Bombay High Court, relating to Cutchi Memons of Bombay and thought that the opinion of the Bombay High Court, which ultimately got crystallised in the case of Haji Oosman Haji Ismail v. Harroon Saleh Mohamed, represent the correct legal position and should be applied, especially because the majority of the Cutchi Memons are to be found in Bombay and what is true of them or applicable to them may with reasonable certainty be applied to Cutchi Memons resident in other parts of India also. The said opinion of the Bombay High Court is to the effect that the application of the rules of Hindu law of customs to the Cutchi Memons is limited to the rules of inheritance and succession and does not extent to other rules relating to the Hindus, and that therefore a sons of a Cutchi Memon cannot be said to have acquired an interest by birth in the ancestral property of his father.
6. The accountable persons appealed to the Central Board of Direct Taxes. The Board accepted both the conclusions as well as the line of reasoning adopted by the Deputy Controller. The Board also though that the evidence by way of the assertions was not sufficiently strong and that the decision of the Madras High Court in Siddick Hajee Aboo Bucker Sait v. Ebrahim Hajee Aboo Bucker Sait does not place the matter beyond doubt. The Board also referred to a decision of the erstwhile Mysore High Court in Elia Sait v. Dharanayya, in which the court expressed a preference for the Bombay view.
7. The Board, however, though that the question of law was of sufficient importance and accepting the application of the accountable persons has framed and referred to this court the question mentioned above.
8. We might state at the commencement a few basic facts as to which there is not and cannot be any controversy.
9. The deceased as well as the accountable persons belong to the class of Muslims called Cutchi Memons. Their ancestors, so far as one could state on available information, settled down in Madras city, about four or five generations ago and later came down to what is called the Civil Station area of Bangalore and settled down. They owned considerable immovable properties situated in the city of Madras as well as Civil Station area of Bangalore. They were carrying on trade mostly in Civil Station. Most of the properties were acquired by one or the other of the ancestors of the deceased Mohammed Hussain Sait.
10. Regarding the documents produced by the assessees, their genuineness is not disputed, not their statements as to the circumstances in which they came into existence. We might, therefore, summarise the facts briefly as follows at the outset :
11. The genealogy of this family to the extent necessary for this case is the following :
(1) Haji Aboobucker Sait|(2) Haji Abdulla Sait|(3) Hussain Sait(Pre-deceased his father)|---------------------------------------| |(4) Oomer Sait (5) Abdul Satter Saitdied on 3-4-1925 died on 30-3-1927|-----------------------------------------------------------------| | | |(6) Mohammed Hussain Sait Rabia Bai Asia Bai Halima Baidied on 22-3-55|---------------------------------------------------------------------| |(7) Abdulla Sait (8) Sattar Saitborn on 7-1-30 born on 23-9-33.
12. On the death of No. 2 mentioned above, his grandsons, Nos. 4 and 5, applied to the Madras High Court for Letters of Administration in O.P. No. 47/1909. In that application they stated that the deceased Haji Abdulla Sait was a senior male and managing member of their undivided family, and that under the Hindu law, which applied to their family, all the properties of the undivided family have passed by survivorship to the surviving members of the family. After stating that all the immovable properties are already within their possession and administration, they sought the issue of letters for reducing to possession shares in certain incorporated companies which had refused to make over the shares to them without legal representation. A grant as prayed was made in their favour by an order dated 19th April, 1909.
13. Because the said grantees died before completing the administration, No. 6, Mohammed Hussain sait (i.e., the present deceased), applied in O.P. No. 188 of 1927 for a grant debonis non to administer the un administered portion of the estate. In the said petitioner also there is a statement to the effect that the deceased Haji Abdulla Sait belonged to the Cutchi Memons, a sect of Mohammedan community which was governed by the Hindu law. The grant as prayed was later made to him by an order dated 31st of January, 1928.
14. No. 6 also made separate applications regarding the estate of the original deceased grantees, Oomer Sait, No. 4, and Abdul Satter Sait, No. 5. In respect of Abdul Satter Sait, an application was made in O.P. No. 79/1928 in April, 1928, for grant of letters of administration. In respect of Oomer Sait, an application made on December 14, 1929, in O.P. No. 1/1930 was for secession certificate. In the said two applications also he has mentioned that the deceased concerned therein belonged to the Cutchi Memons, a sect of Mohammed Community which was governed by the Hindu Law. He also refers to the members of the family as members of an undivided family governed by Hindu law.
15. On February 1, 1928, No. 6, Mohammed Hussain Sait, executed a deed of settlement in favour of his sister Asia. The preamble of that document recites that the settlor, Mohammed Hussain Sait, his father, Abdul Satter Sait, and paternal uncle Oomer Sait, members of an undivided Cutchi Memon were family governed by Hindu law, and that on the death of Oomer Sait on 3rd April, 1925, his younger brother, Abdul Satter Sait, and his son, the settlor, Mohammed Hussain Sait, became entitled to the properties by survivorship, and that on the death of Abdul Sattar Sait on March 30, 1927, the settlor, Mohammed Hussain Sait, alone became the sole surviving member of the family seized and possessed of all its properties. We should mention in this connection that the settlor Mohammed Hussain Sait's two sons, Abdulla Sait and Satter Sait, the present accountable persons, had not been born at that time. They were born subsequent, Abdulla Sait, in January 1933. Under the settlement a monthly payment of Rs. 50 was made available to the settlee Asia, on the security of the immovable properties described in the schedule attached to the deed.
16. There was then another application produced by the accountable persons, viz., their own application to the Dist. Court at Civil Station, Bangalore, being Miscellaneous No. 131/1955, for grant of Letters of Administration in respect of the estate of their deceased father Mohammed Hussain Sait. It is not necessary to place any particular value thereon for our present purpose because it is a recent document subsequent in date to the death of Mohmmed Hussain Sait in relation to whose estate the present question of estate duty arises.
17. It appears that after the conclusion of arguments in the appeal before the Central Board of Direct Taxes, a deed of partition in another family of Cutchi Memons of Civil Station, Bangalore, was sent to the Board for perusal in reply to a query put to the counsel at the time of the argument whether he could give any instances of partition in other families of Cutchi Memons. The appellate order attaches no particular value to this document, because after referring to its having been produced by the advocate for the appellants, it is disposed of with the observation 'I am afraid no great weight can be attached to this piece of evidence.' It is also unnecessary for us to make any further reference to this document because the case for the accountable persons, as we shall point out later, must depend largely on the documents already referred to above, examined in the light of the applicability or otherwise of the decision of the Madras High Court in Siddick Hajee Aboo Bucker Sait v. Ebrahim Hajee Aboo Bucker Sait.
18. The question whether and, if so, to what extent, Muslims belonging to the class called Cutchi Memons are or continue to be governed by, and if so by what portion of, the Hindu law in relation to property has been the subject of consideration in several decisions of High Courts, most of which are decisions rendered by the Bombay High Court. It is also a well accepted fact that the members of this community, originally resident in Cutch, were Hindus governed by the Hindu law of the Mitakshara school before they were converted to Islam about four or five centuries ago. At some subsequent period they migrated in large numbers to Bombay and in smaller numbers to other areas like Madras State. Some of the families, who originally came down to Madras, later migrated to Bangalore and settled in the area called the Civil Station. A few of them are also known to have settled in portions of territory belonging to the erstwhile princely State of Mysore. They were mostly traders and with profits of their trade acquired considerable immovable property in places where they settled.
19. The question has to be examined primarily in the light of the decisions of courts and the proved practice or custom followed by the parties in question through these centuries and the modifications, if any, engrafted by them on the principles of Hindu law originally retained by them even after their conversion. Before examining the question that way, it will be convenient to dispose of the argument relating to the effect, if any, that two statutes may be said to have on the question. They are what are called (1) the Cutchi Memons Act, and (2) the Muslim Personal Law (Shariat) Application Act, commonly called the Shariat Act.
20. As already stated the deceased and his ancestors of some generations as well as his descendants were residents of Civil Station area at Bangalore. Until the said area was retroceded to the princely State of Mysore in 1947, it was being administered centrally by the viceroy as the Crown Representative. By virtue of powers vested in him as such, he has been from time to time extending to the said area certain statutes of the Indian legislature either with or without modifications. It would appear that the Cutchi Memons Act of 1938 enacted by the Central Legislature was not at any time extended by the Viceroy to the Civil Station. But in 1948, some time after the area had been retroceded to Mysore, the Mysore Legislature passed what is called the Retroceded Area (Application of Laws) Act, 1948, extending thereto the laws and enactments in force in the princely State of Mysore. Among the laws or enactments which so stood extended was the Mysore Cutchi Memons Act which is a copy of the Central Act of the same name and contains only three sections. The first of them declares the name of the Act and brings it into force on the 1st day of July, 1943. Section 2 and 3 read as follows :
'2. Subject to the provisions of section 3, all Cutchi Memons shall, in matters of succession and inheritance, be governed by Mohammadan Law.
3. Nothing in this Act shall affect any right or liability acquired or incurred before its commencement, or any legal proceeding or remedy in respect of any such right or liability and any such proceeding or remedy may be continued or enforced as if this Act had not been passed.'
21. By virtue of section 3, the position would be that if the assessee before us are right in their case that they are governed by the Hindu Law relating to joint family property or coparcenary property involving the doctrine of the right by birth an devolution by survivorship, then both the accountable persons having been born long before the coming into force of the Act must be taken to have acquired a right by birth in their father, Mohammad Hussain's property, which is not taken away but preserved by section 3 of the Act, and that should they fail in their case, any reference to any section of the Act would be unnecessary from the point of view of either of the contending parties before us.
22. The Shariat Act was passed by the Central Legislature in 1937. It was never extended to the Civil Station, Bangalore, any time before its retrocession to the princely State of Mysore. As originally enacted, that Act did not apply to what under the Constitution came to be called Part 'B' States. It became for the first time extended to Part 'B' States by virtue of the Central Act 48 of 1959 (which came into force on February 1, 1960), called the Miscellaneous Personal Laws (Extension) Act, 1959, which amended its extent clause in such a way as to apply the statute to whole of India except to Jammu and Kashmir.
23. The principal operative section of the said Act is section 2, which reads :
'2. Notwithstanding any custom or usage to the contrary, in all question (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq ila, zihar, lian, khula and mubarrat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs (other then charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).'
24. This section, it will be noticed, is mandatory and applies to all Muslims the Muslims Personal Law in regard to matters enumerated therein. Section 3 gave a further option to Muslims to attract the application to them of the principles of Muslim Personal Law in respect of certain additional topics also. The relevant portion of that section, viz., sub-section (1) reads :
'(1) Any person who satisfies the prescribed authority -
(a) that he is a Muslim, and
(b) that he is competent to contract within the meaning of section 11 of the Indian Contract Act, 1872, and
(c) that he is a resident of the territories to which this Act, extends may by declaration in the prescribed form and filed before the prescribed authority declare that he desire to obtain the benefit of the provisions of this section and thereafter the provisions of section 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies were also specified.'
25. The argument on behalf of the department strongly pressed before us was that whatever might have been the position before the application or extension of Shariat Act to the Civil Station in 1960 and whatever may be the principles of customary law or custom by virtue of which the Cutchi Memons resident in Civil Station could claim that they should be governed by any rules of Hindu law in regard to their property, after the extension of the Shariat Act notwithstanding the previous position by virtue of any customary law, they are precluded from contending that any rue other than the rules of the Muslim Personal Law applies to them or to their property. Two answers are made to this contention on behalf of the accountable persons.
26. The main contention on behalf of the department is sought to be supported by a decision of the Supreme Court in Mohammad Yunus v. Syed Unnissa. Interpreting the force or effect of the words in section 2 of the Shariat Act to the effect that in all matters enumerated therein, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law, their Lordships state that the statute would apply not only to suits and proceedings instituted subsequent to the coming into force of the statute but also to suits and proceedings pending on that date whether in original courts or tribunals or in appeal. The statement is contained in paragraph 10 of their judgment at page 811 of the report. Their Lordships open the paragraph by stating :
'Manifestly by this 'Act, the rule of decision' in all questions relating to intestate succession and other specified matters including wakfs where the parties to the dispute are Muslims is the Muslim Personal Law.'
27. After pointing out that the mandate of the statute is directed against the court and enjoins it to apply the Muslim Personal Law in all cases of the type mentioned above, their Lordships state :
'The intention of the legislature appears to be clear; the Act applies to all suits and proceedings which were pending on the date when the Act came into operation as well as to suits and proceedings filed after that date. It is true that suits and proceedings which have been finally decided would not be affected by the enactment of the Shariat Act, but if a suit or proceeding be pending even in appeal on the date when the Act was brought into operation, the law applicable for decision would be the Muslim Personal Law if the other conditions prescribed by the Act are fulfilled.'
28. The first answer made to this contention on behalf of the accountable persons before us is that the Act applies only to the matters specifically enumerated in section 2 and not any other matters. and that the coparcenary property law of the Mitakshara school which the assessees claim applies to them is not one of the enumerated matters. Secondly, it is stated that the rules of the Muslim Personal Law should be made the rule of decision only in cases where the parties, to the dispute are Muslims which means that both the contending parties, whether as plaintiff and defendant or as appellant and respondent, must be Muslims.
29. We shall take up the second answer for consideration first. The obvious effect of the Shariat Act is to prescribe a rule of decision in all questions relating to certain topics where the parties are Muslims; they are matters of personal law. A question in regard to those matters can really arise only as between Muslims. Further, the statement in the statute that the rule of decision is to apply to questions in cases where the parties are Muslims clearly indicates that parties to the question or the disputants are Muslims; that is to say, both disputants are Muslims. That is also what their Lordships of the Supreme Court have stated in the first sentence of paragraph 10 of their judgment which we have already quoted. So far as the question now before us is concerned, to the extent it may be described as a dispute, it is a dispute between the State on the one hand and a subject on the other, the topic or content of the dispute being the liability to pay a certain tax. That is not a question which can be decided by the application of any rules of Muslim law by which both the parties to the dispute are bound or governed. The question of Muslim law arises incidentally for the purpose of determining the extent of the property liable to pay the tax demanded.
30. The first answer is based on a decision of the Bench of the Madras High Court in Abdurahiman v. Avoomma. That was a case which dealt with a Moplah Marumakkathayam tarwad and considered the effect of the Shariat Act on the rights in respect of property of such a tarwad and its members. Rajamannar C.J., delivering the judgment of the Bench, pointed out that the Shariat Act did not apply or purport to apply to Muslims all the Muslim Personal Law applicable to all matters but only such rules as would apply to matters specifically enumerated in section 2, and, in cases to which section 3 may apply, also to those enumerated in section 3. His Lordship further pointed out that the Act cannot nor does it in terms totally abrogate or restrict the operation of any custom in respect of matters other than those enumerated in section 2 or 3, as the case may be. One of the matters so held to be outside the scope of the Act was the special law called Marumakkathayam law which governed the tarwad (joint family) and tarwad property of Mapillas of Malabar District, Madras State.
31. Now, a Marumakkathayam tarwad is also a joint family of certain class of Hindus carrying with it specially peculiar incidents and special checks and controls about the holding, enjoyment and disposal of the property. The said system or the rules comprised therein are like the peculiar rules of the Mitakshara law applicable to Mitakshara joint family or coparcenary. In both the cases, devolution of property is not by the application of the rules of succession or inheritance of the type known to Roman law or English law but by special incidents peculiarly applicable to this system controlled by such doctrine as the right by birth and devolution by survivorship.
32. The basis of the decision of the Madras High Court, viz., that the Shariat Act applies the rules of Muslim law only in regard to the matters enumerated therein, has, in our opinion, to be accepted as correct not only because the very language of sections 2 and 3 indicates that the law is to be applied to topics actually enumerated (section 3, it may be noted, actually uses the words 'matters enumerated') but also because that is also what their Lordships of the Supreme Court state in Mohammad Yunus v. Syed Unnissa, viz., that the rule of decision should be the Muslim Personal Law in all questions 'relating to intestate succession and other specified matters.'
33. We have, therefore, no hesitation in accepting as correct both the answers made on behalf of the assessees to the contention pressed on behalf of the department.
34. We might add another reason in support of the same conclusion.
35. The charging section of the Estate Duty Act, viz., section 5, directs that in the circumstances mentioned therein a duty called the estate duty should be levied and paid upon the principal value of all property which passes on the death of person after the commencement of the Act. Section 6 states :
'Property which the deceased was at the time of his death competent to dispose of shall be deemed to pass on his death.'
36. Obviously and necessarily, the property which can be regarded as property passing upon one's death for the purpose of levying estate duty is the property which the deceased was at the time of his death competent to dispose of. The words 'at the time of his death', in our opinion, take in not merely the factual situation but also the application of the law to it on that date. If, on the facts and circumstances available at the time of his death and in accordance with the law in force on that date, a deceased person could have disposed of certain items of property, such items would certainly come within the description of the property as stated in section 6 and it is only such property that can attract the liability to estate duty under the said Act.
37. For these reasons, both the Acts, Cutchi Memons Act and the Shariat Act, become irrelevant for the examination of the dispute before us.
38. So far as the decisions of courts are concerned, though there are many decisions, the effect of all of them can be gathered on a reading of three decisions, viz., Haji Oosman v. Harroon Saleh Mahomed, Siddick Hajee Aboo Bucker Sait v. Ebrahim Hajee Aboo Bucker Sait and Elia Sait v. Dharanayya.
39. The first of them, as already stated, contains a full statement of the law as declared by the Bombay High Court and applied as correct thereafter.
40. The decision of the Madras High Court, which is a detailed judgment by Kumaraswamy Sastri J., discusses all the leading cases of the Bombay High Court reported right up to the time the said judgment came to be delivered.
41. The difference between the Bombay view and the view taken by Kumaraswamy Sastri J., which may be referred to as the Madras view, is this, viz., that whereas according to the Bombay view as stated in Haji Oosman v. Harroon Saleh Mahomed, the rules of Hindu law which applied to Cutchi Memons should be limited to rules relating to topics of succession and inheritance, the Madras view is to the effect that the rules of the Mitakshara law relating to coparcenary property including the doctrine of the right by birth and devolution by survivorship apply and not merely the rules of succession.
42. The case in Elia Sait v. Dharanayya is of importance from the point of view of the department for the reason that it has expressed preference for the Bombay view. It should, however, be noted that there is not in the judgment any discussion of principles in support of the preference so expressed; nor was it necessary for their Lordships for the purpose of the said case to decide whether the Cutchi Memons retained or continued to retain their adherence to the Hindu law rules applicable to joint family or coparcenary property. The actual point for decision was whether they could act on the Hindu law rules as to adoption and make an adoption; the decision was that they could not, and for the said decision it was immaterial whether they did or did not retain the Hindu law rules as to joint family property.
43. Now, there can be no doubt that, so far as the territory subject to the jurisdiction of the Bombay High Court is concerned, the law as declared by the Bombay High Court alone applies in the territory subject to the jurisdiction of the Madras High Court. But the question is, firstly, which of these views must be regarded as a rule of decision properly applicable to the assessees before us and, secondly, which of the views should, in the circumstances of this case, be regarded as more logical and more appropriate of acceptance.
44. As we have already stated, Cutchi Memons were originally Hindus resident in Cutch and before their conversion were governed by the Mitakshara school of Hindu law, among the more important rules of which are the rules relating to coparcenary property including the doctrine of right by birth and devolution by survivorship. We may now state that even though there are two views as stated above, there is no difference of opinion on the question that at the time or so long as Cutchi Memons continued to reside in Cutch they continued to be governed by the Mitakshara law even in respect of their joint family property after their conversion.
45. An examination of the various cases decided by the Bombay High Court, in a chronological order starting from the earliest case decided in 1847 called the case of Khojas and Memons, discloses that what is now regarded as the Bombay view was not the view which has always been invariably taken by the Bombay High Court from the very commencement. In earlier stages, the form in which the question was examined was whether it was open to Muslims to plead a custom opposed to or not in accordance with the dictates of Koran. It was pointed out that there was no such prohibition in Koran as to disentitle Cutchi Memons from retaining and continuing to observe certain rules of Hindu law by which they were bound before their conversion. In Shivji Hasam v. Batu Mavji Khoja, the Bombay High Court stated :
'We think that we must consider it as the 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 amongst Khoja Muhammadans.'
46. In Cassumbhoy Ahmedbhoy v. Ahmedbhoy Hubibhoy decided in 1887, the original side of the same High Court stated :
'Having set forth the evidence produced by plaintiff, I must state my conclusion, which is that the opinions given and the instances proved combine to show that the customs of the Khojas as to partition of ancestral property are substantially identical with the ordinary Hindu law, as might have been expected seeing that in other matters this identity has already been affirmed by decisions of learned judges passed after enquiry into the facts.'
47. (We might mention that there was little difference between Cutchi Memons and Khojas so far as this aspect of the matter is concerned).
48. The case went up on appeal and was decided by Sargent C.J. and Bayley J. whose judgment is in Ahmedbhoy Hubibhoy v. Cassumbhoy Ahmedbhoy, For the first time, their Lordships struck a dissenting note and observed that the rule of Hindu law applicable to Khoja Muhammadans was confined to questions of inheritance and succession and that there was no presumption in favour of the rule of Hindu law giving a son the right to partition as against his father being applicable to Khojas.
49. In 1890, Sir Charles Sargent C.J. and Scott J. decided the case In the Matter of Haroon Mahomed. Sargent C.J., who delivered the judgment, observed :
'The appellant is a Cutchi Memon, and belongs to the same family as the other persons who have been made insolvents. As Cutchi Memons the rules of Hindu law and custom apply to them, and the position of the appellant with regard to the family property must be determined by the same considerations as would apply in the case of a member of a joint and undivided Hindu family.'
50. There is a clear cleavage of opinion in these two cases which was noticed by Kumaraswamy Sastri J., who confessed that it was not possible for him to reconcile the two decisions.
51. The other lines of cases in Bombay dealt with the testamentary power of Cutchi Memons and Khojas and the existence or otherwise of the right in a son to interdict alienations by a father or manager. In the former, the parties consistently took up the position that they were not governed by the Muslim Personal Law restricting the testamentary power to one-third of the disposable property but by the Hindu law rule that they could dispose of property in its entirety provided the property is self-acquired property and not joint family property. The case Mahomed Sidick v. Haji Ahmed is an illustration. In regard to the other matter, the parties took up the position that, although the Hindu law relating to undivided family property may be applicable to them, the rule of Hindu law which entitled or empowered a son to interdict an alienation had not been adopted by them or, at any rate, should be held to have been discarded by them after conversion. They succeeded in getting the Bombay High Court to accept that position. From that, the next natural step was to deny the son the right to ask for a partition during the lifetime of his father.
52. This slow change in the attitude of the parties and the complexion of the view of the law taken by the Bombay High Court is explicable on the ground that Khojas and Cutchi Memons, who were carrying on extensive trade in Bombay, were moved by exigencies of their business activities to relieve themselves from what may be regarded as restrictions of the Hindu law not quite suitable to a progressive commercial community. Indeed, observations to that effect are found in more judgments than one delivered by the Bombay High Court.
53. In Siddick Hajee Aboo Bucker Sait v. Ebrahim Hajee Aboo Bucker Sait Kumaraswamy Sastri J. summarised the effect of the decisions of the Bombay High Court at pages 581 and 582 of the report. His Lordship points out that until 1913, the current of authority was decidedly in favour of the view that the law relating to Hindu joint family applied to Khojas. The dissenting note, for the first time struck by Sargent C.J. in the case of Ahmedbhoy Hubibhoy v. Cassumbhoy Ahmedbhoy was not adhered to by himself in the case of Haroon Mahomed. After pointing out the possible reasons for the change in the current of authorities as indicated by us above, Kumaraswamy Sastri J. expresses his own opinion in the following terms :
'The question is not so much whether after their conversion, a custom sprang up at variance with the Hindu law but whether they retained their old law to any and if so to what extent. I do not think that there is much force in the argument that when the Cutchi Memons became converts to Mohammedanism they adopted Muhammadan law in its entirety and then began to graft on it rules of Hindu law at variance with the law of the religion and that this process stopped with the simple point of succession an inheritance. It is remarkable what a strong hold the joint family system had on the community and how converts to Mohammedanism have clung to and lived and traded together even though they in other respects conformed to the law of the Koran. The Mapillas of Malabar whose ancestors were Hindu converts to Mohammedanism have adopted the system of owning tarwad property and are governed by the rules of the Marumakkathayam law as regards tarwad property.'
54. His Lordship also points out in another portion of the judgment that it is not quite easy or logical to make any distinction such as indicated by the expression 'succession and inheritance' on the one hand and joint family devolution on the other, and import into Hindu Mitakshara law conceptions which are peculiar to other systems of law and wholly foreign to it. In Commissioner of Wealth-tax v. P.F. Pinto (T.R.C. No. 2 of 1966) decided by us on January 18, 1967, we have pointed out the extreme difficulty, if not logical impossibility, of adopting only the Hindu law of succession without adopting the Hindu law of joint family property also because it is almost an integral part of the rules of Hindu law of succession even when they apply to absolutely separate and self-acquired property of a father. When such property descends to the sons, the sons take it as ancestral property which attracts the right by birth of their sons and they must, therefore, hold it as joint family property of themselves and their sons.
55. Apart from these considerations, there is reference in the judgment of Kumaraswamy Sastri J. to a search got made by him in the records of the Madras High Court and to the result of the search which disclosed that there had been many cases in which Cutchi Memons had filed suits for partition in the same way as Hindus, claiming the application of the rules of Hindu law relating to coparcenary property. Even the parties in the suit before him, his Lordship points out, had till the time of the litigation always regulated their affairs on the footing that the Hindu law of joint family applied to them.
56. It would follow, therefore, that the decision of the High Court in Siddick Hajee Aboo Bucker Sait v. Ebrahim Hajee Aboo Bucker Sait is not merely a ruling on a point of law but also statement of the actual state of affairs in the State of Madras in relation to Cutchi Memon families.
57. We have already pointed out that Cutchi Memons, with whom we are now concerned, were originally residents of Madras City and later came down and settled in Civil Station area of Bangalore. That area was also subject to the appellate jurisdiction of the Madras High Court for a considerable length of time. Prima facie, therefore, we are unable to see the logic of the departmental authorities in preferring to apply to them the Bombay view on the sole ground that the majority of the Cutchi Memons are residents of Bombay. If it is borne in mind that at the inception, all Cutchi Memons while continuing to reside in Cutchi were governed by Hindu law rules as to joint family property, and even thereafter, whether they went to Bombay, Madras or elsewhere, were at one time governed uniformly by the same rules, and if it is further remembered that the very principles by which they were permitted to retain the rules of Hindu law would also permit them to discard portions of them, should they so desire, because they had ceased to be Hindus, it may be perfectly possible and logical among or as between people resident in different parts of this vast country, to exist or arise differences in the matter of the principles of Hindu law applicable to them or the extent to which they may be so applicable.
58. In that view, it appears to us that the more logical and a juster view to take is that the decision of the Madras High Court in Siddick Hajee Aboo Bucker Sait v. Ebrahim Hajee Aboo Bucker Sait states the position obtaining in the case of Cutchi Memon families of the type with which we are now concerned, rather than the view that all Cutchi Memons are governed by the principles as declared by the Bombay High Court.
59. If against this background we look at the various applications produced by them, there can be no doubt that what the departmental officers dismissed as mere assertions are statements of the real position. Apart from the fact that these statements were made years ago at a time when the possible enactment of a statute like the Estate Duty Act could never have been in contemplation of the parties, because no other type of dishonesty or motive for dishonesty has been attributed to the parsons who made those statements, the more reasonable view to take is that they represent the true state of affairs and that this family has been for generations regulating its affairs in accordance with the rules of the Hindu Mitakshara law. The assertions, therefore, furnish strong evidence of a continuous course of conduct consistent with the view that they were governed by the Hindu joint family law and not by the Muslim law.
60. It is no doubt true that the proceedings in which these assertions were made were uncontested proceedings and that a decision by the court was not invited on those assertions. It is also true that as against numerous decisions sought from the Bombay High Court, there have been very few decisions by the Madras High Court. But that may not be a circumstance not to give full value and respect to the decision of the Madras High Court. On the contrary, it might be an indication of the fact that in Madras area, the position has never been doubted or questioned and parties hardly ever went to court to get rid of the original principles of Hindu law retained by them. Further, the position as stated by Kumaraswamy Sastri J. in Siddick Hajee Aboo Bucker Sait v. Ebrahim Hajee Aboo Bucker Sait was accepted as correct and extracts from his judgment cited with approval in subsequent decisions of the same High Court, viz., of a Division Bench in Abdul Sattar Ismail v. Abdul Hamid Sait and of a full Bench in Abdul Hameed Sait v. Provident Investment Co. Ltd.
61. We have, therefore, no hesitation in holding that the case pressed by the assessees in the course of this assessment was the correct one and should have been accepted.
62. Our answer to the question referred therefore is as follows :
'On the facts and in the circumstances of the case, the entire property valued at Rs. 12,23,794 for the purpose of estate duty is not chargeable to estate duty but that the value which could be properly subjected to estate duty is a third thereof, being the value of the interest of the deceased Haji Mohamad Hussain Sait.'
63. The assessees will have costs of this reference. Advocate's fee Rs. 230.