1. The appellants are the three daughters of a Sunni Hanafi Bohra named Issa. Hasan who died on 12th January 1954 in the town of Muli which formed -part of the former State of Saurashtra at that time and where the deceased had settled. The deceased had left behind him several agricultural pieces of lands, a residential house and certain other property described in Schedule 'A' to the plaint, which was instituted on April 14. 1965. in the Court of the Civil Judge (Junior Division). Muli and the suit was registered as Regular Civil Suit No. 40 of 1965. The plaintiffs claim that they are the daughters of deceased Bohra Issa and are governed by the Hanafi School of Mahomedan Law and are thus entitled collectively to a share as sharers according to Mahomedan Law. The plaintiffs claim that after the demise of their father defendant No. 1 Vohra Karimbhai step-brother of the plaintiffs was managing the estate of the deceased. They claimed Partition of the suit properties and separate possession as sharers, They also claimed accounts to be taken of the yield of the properties. It was alleged that an agricultural field bearing S. No. 1820 which, was left by deceased Vohra is a was sold away by defendant No. I to defendant No. 3 by a sale deed and this was without the consent of the plaintiffs. The plaintiffs thus filed the suit for Partition, allotment of share 'and for accounts of the property left by deceased, Defendant No. 1 to the suit is the step-brother of the plaintiffs. Defendant No. 2 is the real mother of the plaintiffs; defendant No. 3 is the Purchaser of field S. No. 1820. Defendant No. 2 supported the plaintiffs' case. Defendant No. I who was the real contestant resisted the suit and contended that the parties were governed by the Principles of Hindu Law in matters of inheritance and succession and therefore the Plaintiffs were not entitled to any share as sharers, nor to any share or interest in suit Property according to principles of Hindu Law. Defendant No. 3 admitted to have purchased the field from defendant No. 1. He contended that the parties were governed by the Hindu Law in matters of succession and inheritance. He pleaded that he was a bona fide Purchaser for value without notice. The material question on which the parties joined the issue was whether the Parties who were Sunni Hanafi Bohras were governed by the principles of Mohammedan Law or whether they were governed by the principles of Hindu Law in matters of inheritance and succession. It is an admitted position that the defendant No. 1 was not able to Point out any instance showing that the Sunni Bohras of the Hanafi School who were residing in the area, which formed Part of the former Muli State in Kathiawar, and which subsequently joined the United States of Saurashtra in its formation in 1949 which then became the State of Saurashtra had adopted principles of Hindu Law so far as inheritance and succession matters were concerned. The only contention of the defendant No. 1 was that the Sunni Bohras of Gujarat were governed by the principles of Hindu Law in matters of inheritance and succession as laid down by certain judicial decisions and, therefore the parties to the suit are governed by Hindu Law in such matters. The Plaintiffs' evidence, on the contrary, was that they were Ghanchi Sunni Bohras of Hanafi school and that the Bohras who have settled down in Gujarat are different from those in the Muli area and that they had no relations or social contacts with the Bohras of Gujarat; that the plaintiffs' community was spread over in 32 villages in the Muli area and they were required to marry their 'sons and daughters within the area of these 32 villages only. The learned trial Judge found the Sunni Ghanchi Bohras of Hanafi school of the Muli area were in absence of any custom to the contrary proved governed by the principles of Mahomedan Law, He thus decreed the suit of the plaintiffs and declared that the plaintiffs and their sister Bai Amina (not a party to the Proceedings) were -collectively owners of undivided 7/24th share, defendant No. 1 was the owner of 7/12th share and defendant No. 2 was the owner of 1/8th share in the suit properties consisting of five fields bearing survey Nos. 18-19-21-22-24 more particularly described in Schedule attached to the Plaint Ex. 1 and -also in the residential house and the 'Vada' described in the Schedule. He ordered that the properties be Partitioned and divided in such a way that the Plaintiffs be allotted their share in the property. He directed the Collector, Surendranagar to effect partition of lands of undivided agricultural properties assessable to payment of land-revenue to the Government. He directed the defendants to submit accounts of the properties in their occupation for a period of three years Prior to the date of the suit. He directed the appointment of a commissioner to partition the suit home and the Wada' and to ascertain the valuation of the suit house and the 'Vada' for purposes of payment of court-fees. He thus passed a preliminary decree in these terms. Defendant No. 1 being aggrieved by this decree filed Civil Appeal No. 101 of 1966 in the Court of the District Judge at Surendranagar to which appeal the three plaintiffs defendant No. 2 and defendant No. 3 were joined as co-respondents. The learned District Judge has, an a consideration of several decisions reported in Bombay . Kathiawar and Western India States Agency Law Reports taken the view that Sunni Bohras belonging to the erstwhile areas of Kathiawar must be held to be Sunni Bohras of Gujarat for the purpose of deciding the question as to whether they are governed by Hindu Law or Mahomedan Law in matters of inheritance and succession. He has found that the contending parties to the suit are Sunni Bohras and belong to the Hanafi School of Law and they like the Sunni Hanafi Bohras of Gujarat. are governed by the Hindu Law in these matters. To reach this conclusion, he has relied on certain Passages in paragraphs 22 and 26 of the Principles of Mahomedan Law, 17th Edition by Sir Dinshaw Mulla. He has thus accepted the appeal of original defendant No. 1 and non-suited the original plaintiffs. It is against this decision that the present second appeal is directed and is filed by the original plaintiffs as the appellant. To this appeal the original defendants are the parties and shown as co-respondents.
2. Mr. V. V. Mehta, learned advocate appearing on behalf of the appellants herein, has contended before me that the Sunni Hanafi Bohras of the Muli area of the former State of Saurashtra are not shown to have adopted by custom the principles of Hindu Law in so far as matters of inheritance and succession are concerned. He has contended that the Sunni Hanafi Bohras to which Mahomedan sect the Parties to these proceedings belong are converts to Islam and in absence of a custom to the contrary, succession to the estate of the convert is governed by the Mohammedan Law He has contended that the Sunni Bohras of the former Saurashtra State and especially of the Muli area of the State cannot be equated with the Sunni Bohras of Gujarat and the precedents on which the learned District Judge has relied upon relate either to the. Sunni Bohras of Gujarat or to the Kutchi Memons and therefore the precedents have no relevance in the instant case, Mr. H. M. Thakore learned advocate appearing on behalf of the respondent No. 1 who is the original defendant has supported the judgment and decree now under appeal. He has contended that Mule area now forms Part of the Gujarat State and is in the same territorial area and, therefore, the Sunni Bohras of that area must be equated with the Sunni Bohras of Gujarat and are governed by the principles of Hindu law in matters of inheritance and succession. He has fairly conceded that defendant No. 1 has not been able to lead evidence of any custom showing that the Sunni Bohras of the Muli area or of the Saurashtra area had adopted the Principles of Hindu Law in matters of inheritance and succession. He has conceded that no such custom has been proved. He has, however relied on the Precedents which are discussed by the learned District Judge in paragraphs 12 and 13 of his judgment with which I will have occasion to deal with in this judgment.
3. Thus, the short but important question which falls for my determination in this appeal is as to whether the Sunni Hanafi Bohras of the Muli area of the former Saurashtra State are governed by the Principles of Hindu law in so far as matters of succession and inheritance are concerned as alleged by the respondent No. 1 herein or whether they are governed by the principles of Mahomedan law as is the case of the appellants herein.
4. Now it is not in dispute before me that the parties to this appeal except the Purchaser of a field who is respondent No. 3 with whose case I am not concerned in this appeal are Sunni Hanafi Bohras who have settled down in the town of Muli which was the capital of the former Muli State and which had integrated in the United States of Saurashtra on its formation some time in the year 1949. which then became the State of Saurashtra. Saurashtra State continued to exist as a 'part B-State until the reorganization of the States in the year 1956 and the formation of the bigger bilingual Bombay State in which the Saurashtra State area was merged. On the bifurcation of the bigger bilingual State of Bombay in the year 1960 and when Gujarat State came to be formed the Saurashtra area fell within the Gujarat State. Deceased Vora Issa Hasan who is the father of the appellants-plaintiffs and respondent-defendant No. 1 who had settled down in Mull had died on January 12 1954 at a time when Muli formed part of the erstwhile Saurashtra State. He died leaving several agricultural Pieces of land a house a 'Vada' and some other properties more particularly described in the Schedule attached to the plaint about which there is no dispute. The appellants are the three daughters of deceased Vora Issa Hasan by his second wife Bai Halu who was defendant No. 2 in the suit and who is respondent No 2 herein. Respondent-defendant No. 1 is the son of the said deceased Vora Issa Hasan by his first wife who had died before Vora Issan Hasan took defendant No. 2 as the second wife. It is not in dispute before me that if the principles of Mahomedan law hold the field and govern the parties. The three appellants and their sister Amina will inherit the suit properties as residuary and respondent No. 1 will take as residuary and defendant No. 2 will take as sharer according to the principles of Mohammedan law. There is some dispute about the share allotted by the learned trial Judge in the operative part of his judgment to which I will refer at the appropriate stage. There is likewise no dispute that if the Principles of Hindu law would govern the parties the plaintiffs would not be entitled to any inheritance which would go to respondent defendant No. 1 alone as survivor and the appellants-plaintiffs must be non suited.
5. As aforesaid the appellants plaintiffs and respondents-defendants Nos. 1 and 2 are converts to Mahomedanism and they are Sunni Hanafi Bohras who have settled down in Muli and it was at Muli that Vora Issa Hasan died on January 12, 1954. It is well settled that in absence of a custom to the contrary, succession to the estate of a convert to Mohammedanism is governed by the Mohammedan law vide paragraph 21 of the Principles of Mohammedan Law by Mullah, 17th Edition page 19 Mohammedan Law applies not only to Mohammedans by birth but by religion also. A convert changes not only his religion but his Personal law also. As laid down by a Division Bench of the Bombay High Court in Bai Baiji v. Bai Santok, (1896) ILR 20 Bom 53 at P. 57, the principles laid down in the various decisions which govern the case of Hindu converts may thus be stated
'(1) that, 'though the Mahomedan Law generally governs converts to that faith from the Hindu religion, yet (2) a well-established custom of such converts following the Hindu Law of inheritance would override the general presumption; (3) that this custom should however be confined strictly to cases of succession and inheritance; (4) and that if any particular usage. at variance with the general Hindu Law applicable to these communities in matters of succession, be alleged to exist, the burden of proof lies on the party alleging such special custom.'
As observed therein:
'These Principles may now be regarded as settled and they govern the presumptions of law and the burden of Proof in cases like the present if the Borah community to which the Parties belong are shown by the evidence in this case to occupy the same position and status as the Khojas and Cutchi Memons.'
The Principle clearly laid down is that the Mohammedan Law generally governs converts from the Hindu religion but a well-established custom of such converts to the contrary will override the general presumption, The burden of proving a well-established custom falls on the party denying the general presumption. The Sunni Bohras of the Muli area were originally Hindus and became subsequently converts Jo Mahomedanism. Thus, the general presumption that would arise is that the parties to these proceedings except defendant No. 3 will be governed by the Mahomedan Law generally and in matters of inheritance and succession also unless a custom to the contrary is proved about such matters. In absence of a custom to the contrary inheritance and succession to the estate of a convert to Mohammedanism will be governed by the Mohammedan Law. It is thus to be seen whether such a custom to the contrary is proved in the instant case, As observed by me earlier, it was the case of the respondent No. 1 that the parties were governed by the principles of Hindu Law in matters of succession and inheritance by custom. It is well settled that a custom is a rule which in a particular family or a particular class or community or in a particular district. has from long usage obtained the force of law. Such custom must be ancient, certain and reasonable, and being in derogation of the general rules of law. must be construed strictly and it must be established by clear and unambiguous evidence. Mere linguistic, territorial or political divisions will not be decisive. General statements quite impossible of contradiction to the effect that the Muslim converts of a Particular area are governed by Hindu Law in such matters are not enough. In the instant case, the respondent No. 1 has not been able to prove any instance pointing that way much less to establish such a custom. In absence of any such evidence, the general presumption that the parties would be governed by Mahomedan Law must prevail.
6. Mr. Thakore's only contention was that the Sunni Hanaft Bohras of Gujarat are governed by the principles of Hindu Law in such matters and, therefore the contending Parties to these proceedings who had settled down in the Muli area which formed a part of the former Saurashtra State must now be considered to be on the same footing as the Sunni Bohras of Gujarat because the former Muli -or Saurashtra State territory now forms a Part of Gujarat State, Now, it is true that the Sunni Bohra Mahomedans of Gujarat and the Molesalam Girasias are governed by Hindu Law in matters of succession and inheritance vide Mulla on Principles of Mahomedan Law, paragraph 26. The eminent jurist has therein relied upon the decisions in Bai Baiji v. Bai Santok, (1896) ILR 20 Bom 53 (supra) and Nurbai v. Abhram Mahammad, AIR 1939 Bom 449. Now the case in (1896) ILR 20 Bom 53 related to the custom of the Sunni Bohra Mahomedan community of Dhandhuka Taluka in Gujarat. Indisputably. Dhandhuka formed Part of the former British India and was a Taluka in Gujarat. The parties to these proceedings are Sunni Bohra Hanaft Mahomedans of the Muli State. Muli State admittedly was not a Part of Gujarat and was a princely State earlier and at the material time was integrated into the State of Saurashtra. The established custom of the Saurashtra area in such matters and especially of the Muli area would govern them and not the custom as prevalent in the Dhan dhuka Taluka. This is essentially a question of fact and unless the Court feels satisfied that the oral and written evidence adduced in the case establishes such custom in derogation of the general rules of Mohammedan law, the Court cannot presume such a custom simply because the concerned area has now come to be placed in a Particular State which, in this case, is Gujarat State The Bombay case governs the Sunni Bohras in the northern Part of Gujarat because such a custom was established as obtaining amongst them and for which reliance was also Placed on some relevant precedents. No such precedents or custom are established here so as to govern the converts of the Muli or roundabout area and there can be no general custom in such cases. The decision in AIR 1939 Bom 449, related to the parties who had settled down in Anand. which form a -part of Gujarat and of British India and had such established custom. The Bombay decision in Bai Aasha v. Bai Biban. (1957) 59 Born LR 470. also relied upon by Mr. Thakore related to the Sunni Bohras of the territory formerly known as the Baroda. State and the con Bohras were governed by Hindu law in matters of succession and inheritance was upheld therein on Justice Was has while dealing with the question relied on Paragraph 26 of Mulla's Principles of Mohammedan law, referred to earlier. The view taken was that the word 'Gujarat' which was used in paragraph 26 was a territorial term and it was used in its territorial sense, meaning the territory which was then geographically known as Gujarat. It was observed that in assigning a meaning to the word 'Gujarat' in Paragraph 26 of Mulla's Principles of Mahomedan Law, we would not be justified in discriminating interest between the former States which were situated in the territory of Gujarat. It was then observed that the word 'Gujarat' in paragraph 26,must make the application of the law in matters of succession and inheritance Bohras of Gujarat tention that such facts of the -case Mr. Sunni therefore, be so construed as to amongst the Sunni uniform, whether they resided in one State of Gujarat or the other State or whether they resided in those Parts of Gujarat which were under the jurisdiction of the Province of Bombay. Apart from that. the learned Judge has relied upon a decision of the Baroda Privy Council in Chhotalal v. Bai Sakar. (1939) 49 Baroda LR 415. wherein it was laid down 'that there was no codified law in the Baroda State governing matters of succession and inheritance amongst the Sunni Bohras and that in the absence of codified law upon those subjects the Sunni Bohras were governed by Hindu law in so far as they had adopted it in matters of succession and inheritance as their personal law.' The question was then considered whether the Sunni Bohras of the former Baroda State had, in matters of succession and inheritance, adopted Hindu law as their personal law in light of the relevant evidence on record. It was on such considerations that Mr. Justice V was held in that case that the Sunni Bohras of the former Baroda State were governed by Hindu law in so far as they had adopted it in matters of succession and inheritance as their personal law. Relying on this decision, Mr. Thakore tried to contend before me 'that Muli or the Saurashtra area comprised in the former, Saurashtra State must be equated with 'Gujarat' simply because that area now forms Part of Gujarat. In my opinion that is not a correct approach to the problem. Whether a Particular area wherein the Parties or the converts had settled down is now comprised in a particular Political division or 'State' cannot be the decisive test it is the custom if any which the converts to Mahomedanism have adopted in matters of succession and inheritance in derogation of the general rules of Mohammedan law which will be decisive the matter. This Bombay decision does not lay down an absolute Proposition of law that the word 'Gujarat' means the territory, which is known as 'Gujarat' at a given time. Such a view would lead to an anomalous situation if new Political divisions are created or re-organisation of States is again made some time in the days to come and some territories which now from part of 'Gujarat' are placed in some other territorial or political division or some others are added to 'Gujarat' depending on the political exigencies or other considerations then obtaining. In any view of the matter, the Saurashtra area of Muli which was formely a princely State and presumably not a progressive State could not be aid to have been governed by the progressive view of the Baroda State or the view as prevailed in the Northern Gujarat in places like Anand and Dhandhuka. Muli area was at considerable distance from what was then North Gujarat and it is not shown that similar custom and way and view of life prevailed in Muli area. It is well recognised that Hal Memons of Porbandar in Saurashtra (Kathiawar) follow in matters of succession and in heritance Hindu law and not Maheomedan law, differing in this respect from Halai Memons of Bombay. Daoodi and Sulaiman Bohras being adherents of the Western Branch of the Ismailis have always been governed by Mohammedan (Shia) law. A Cutchi Memon has different testamentary Power and so have the 'Khoias'. Thus it depends upon the, adoption of such customs by a community which is converted to Mohammedanism. A particular community may - adopt the principles of Hindu law in matters of inheritance and succession and in such a case, it could well be urged that such custom will prevail. But it will be a question of fact whether such a custom is adopted hi a Particular area. The Saurashtra or Mull area simply because it has now come to be comprised in the Gujarat area, can be sad to be the Gujarat area for the purpose of determining the question of adoption of such a custom, A political reorganization of a State would not necessarily bring in a change in the outlook of the people. It is not unknown that the modes of living and thinking the ordinary customs, the dialect, the social custom the general outlook, the religious Practices and the customs governing matters of succession and inheritance even amongst the People of the same religious faith are not uniform in all parts of what is now 'Gujarat.' Unless our cherished dream of emotional integration is achieved and regional tendencies disappear. We cannot say that a uniform custom is evolved. The question before me is one of a custom governing the converts to Mohammedanism and as aforesaid, such custom has to be established by leading cogent evidence of such ancient certain and reasonable custom. Such custom being in derogation of the general rules of law must be construed strictly. No such custom is established here as aforesaid. No authenticated case has been relied upon and no attempt has been made to furnish any instance of such custom. The only evidence led on behalf of the defendant No. I am a bare statement that the parties were governed by Hindu law in matters of inheritance and succession but it was then admitted that the defendants are not in a position to cite any instance on the point. In my opinion, such evidence cannot be considered to be evidence as to general prevalence of Hindu rules of succession and inheritance in a Mahomedan community in Preference to the rules of Mohammedan law.
7. The decision of the Court of the Agent to the Governor in Kathiawar presided over by the Judicial Assistant in Memon Haji Pinnamad Isak v. Memon Abhram Haji Pirmamad of Bahtwa at present living in Rajkot. 13 Kathiawad LR 182, which was sought to be relied upon by Mr. Thakore related to the case of partition amongst Halai Memons of Bantwa and what was held therein was that no Presumption can arise as to the existence of the Hindu law of Partition among ancient Hindu converts to Islam and that the burden should have been placed on the person alleging such a custom, but was wrongly Placed on the other side. The case was therefore, remanded to the trial Court for recording evidence on the point as the question was of importance to a large community. The decision has thus no relevance in this case. The decision of the Court of the Judicial Commissioner, Western India States Agency in Memon Issa Mussa of Jetpur v. Ahmad the alleged son of Mussa Mamad. 7 WISA Law Rep, 127, relied upon by Mr. Thakore merely lays down that there is a well established custom whereby Memons in Kathiawar are in matters of succession and inheritance, including testamentary powers governed by Hindu law,' It is observed when the existence of a custom is generally known and judicially recognised it is not necessary to assertor prove it.' There cannot be any dispute about this latter proposition of law. The observation therein that in the Bombay Presidency Cutchi Memons are in matters of inheritance and succession governed by Hindu law while Halai Memons are governed by Mahomedan Law' to be found at page 129 of the Report on the contrary shows that simply because the converts are Memons, they do not fall in one or the other category. It depends upon the custom which they have adopted, if any, and the judicial precedence relating to such section the point. The decision of the Saurashtra High Court in Memon Mahmad Isabhai v. Moosa Ismail. (1949) 2 Sau LR 192. related to the parties who were Halai Memons coming from Morvi(Kathiawar) and who had settled down in Nadiad in Kaira District. and is no authority for the proposition that Sunni Bohras of Saurashtra area or of Muli area should be treated on par with the Halai Memons from Morvi or Dhandhuka or Anand. The decision of the Privy Council in Khatubai v. Md. Haji Abu. AIR 1922 PC 414, related to the succession to the properties left by a Halai Memon of Porbandar. Therein. The reports of a set of judgments of the Porbandar Court which was a native State from whose Court there was no appeal either to any Appeal Court in India or to 'the King in Council and the oral testimony from pleaders and from Persons belonging to the said community in Porbandar as to the custom of succession prevalent there were relied upon and it was held on evidence that the Halai Memons who had settled in Porbandar follow Hindu Law of successsion, This decision cannot therefore, assist Mr. Thakore. A review of all the decisions* which have been relied up-on by W. Thakore before me and to be found discussed in paragraph 12 of the judgment of the lower appellate Court merely shows that, in absence of a custom to the contrary succession to the estate of a convert to Mohammedanism, is governed by the Mahomedan law and, in my opinion this principle applies to the Sunni Hanafi Bohras that is to say, Sunni Bohras of Hanafi school of Muli to which the parties to the proceedings admittedly belong. There does not exist a general custom or any judicially re- custom that in matters of succession and inheritance the Sunni Hanafi Bohras of Muli area are governed by Hindu Law. No such custom has been established. The learned District Judge was therefore not right in taking the view that the Sunni Bohras of Muli area or of Saurashtra or Kathiawar area should be equated with the Sunni Bohras A. I R. of Northern Gujarat and would be governed by Hindu Law in such matters.
8. In the aforesaid view of the matter, I must allow the appeal of the appellants who are the original plaintiffs. Set aside the decree passed by the Court of the District Judge in Civil Appeal Not. 101 of 1966 and restore the preliminary decree passed by the learned Civil Judge (Junior Division), Mulisayla in Regular Civil Suit No. 40 of 1965 with the modification to which I will now refer. Me learned trial Judge has in the operative Part of the order declared that Plaintiffs and their sister Bai Amina are collectively owners of undivided 7/24th share defendant No. 1, is the owner of 7/12th share and defendant No. 2 is the owner of the share out of the five stated fields. a residential house and a 'Vada' listed in the Schedule annexed to the plaint. Mr. V. V. Melita for the appellant has rightly contended that according to the principles of Mahomedan Law daughters would be residuaries and will take collectively and that the three plaintiffs who are the daughters of deceased Issa along with the fourth daughter Amina who has now settled clown in Karachi will be entitled collectively to 28/48th share, each daughter getting 7/48th share and that the defendant No. I (son) gets double the share than the share of one daughter and thus will get 14/48th share and the defendant No. 2 will get 1/8th share as a sharer. Mr. Thakore appearing on behalf of the defendant No, 1 concedes: this legal position. The decree of the trial Court in so far as it declares the shares of the plaintiffs with Amina and the share of defendant No. 1 will have, therefore, to be modified. The trial Court's decree as regards the share of defendant No. 2 is maintained. I accordingly hold that the 'Plaintiffs (appellants herein) and their sister be Amina will collectively take 28/49th share and each one of them will individually take 7/48th share defendant No. I (respondent No. 1 herein) will get 14/48th share and defendant No. 2 (respondent No. 2 herein) will get 1/8th share. The decree of the trial Court is modified to this extent with this modification. I restore the preliminary decree Pasted by the learned trial Judge, set aside the decree passed by the learned District Judge and allow this appeal. There will be no order as to costs of this appeal in the circumstances of the case.
9. Mr. H. M. Thakore asks for certificate to file Letters Patent Appeal against this decision. The question is one of custom and the Proof of custom and no such proof has been adduced on behalf of the respondent No. 1 Thus to a larger Bench no substantial question of law arises. Certificate is thus not granted.
10. Appeal allowed.