JUDGMENT
Macleod, J.
1. The first plaintiff obtained decrees for large amounts in two Suits, Nos. 404 of 1911 and 707 of 1912, filed against one Abdul Razak Haji Sulaiman. The second plaintiff obtained a decree against the same person in Suit No. 719 of 1912. Warrants for the arrest of Abdul Razak were issued in execution of the said decrees, and on the 4th January 1913 he was arrested by the Sheriff’s bailiff. It is alleged that Abdul Razak then proposed that he would execute a legal first mortgage of all his share, right, title and interest in the ancestral properties belonging to the joint Cutchi Memon family of which he was a member as a condition for the plaintiffs agreeing to release him from arrest.
2. Accordingly Abdul Razak signed an agreement undertaking to execute such a legal mortgage. On the 9th January a draft mortgage was sent to Abdul Razak for approval but Abdul Razak then alleged that he signed the agreement under threats, coercion, undue influence and pressure while he was under the influence of liquor.
3. The plaintiffs thereupon filed this suit on the 10th March against Abdul Razak praying for specific performance of the agreement of the 4th January.
4. Thereafter Abdul Razak filed his petition in insolvency and the Official Assignee was added as the 2nd defendant on the 5th July 1913. When the plaint was amended no relie was asked for against him.
5. The 1st defendant filed his written statement on the 8th September 1913. He denied that he had any share or interest in any ancestral properties which was at present capable of being transferred by way of mortgage, sale, or otherwise. He contended that the two writings signed by him on the 4th January were not binding on him as he was made to execute them by coercion, fraud and undue influence.
6. The 2nd defendant filed his written statement on the 18th September. He did not admit that the 1st defendant had a share in certain ancestral properties as alleged. In the alternative he contended that if the 1st defendant had a share the agreement signed by him was not binding either on the 1st defendant or on himself. I allowed the plaintiff to amend the plaint so as to claim relief against the 2nd defendant also.
7. The first issue raised was whether the 1st defendant had any present interest in the properties referred to in para 1 of the plaint capable of being transferred. I determined to take evidence and hear arguments on this issue in order to decide it before going on to the further issue, whether the agreement was binding on the 1st defendant and whether specific performance could be decreed.
8. One Ebrahim, a Cutchi Memon, died many years ago leaving four sons Ludha, Abdul Wahed, Osman and Noor Mahomed. They started the business of Ludha Ebrahim & Co. in partnership. Ludha and Osman died without issue. Abdul Wahed had seven sons of whom Sulaiman was the eldest. Noor Mahomed had two sons, Essac and Oomer, and a daughter. Oomer had two sons Abdul Sattar and Dawood.
9. In 1909 Abdul Sattar, then the only surviving male member of Noor Mahomed’s branch, filed a Suit, No. 86 of 1909, against the members of the branch of Abdul Wahed seeking for partition of what was called the ‘joint family property’. On the 13th April 1909 a consent decree was passed in that suit whereby it was decreed that the plaintiff should take the properties moveable and immoveable described in Schedule A to the decree in full satisfaction of his share in the joint family property and business, the decree to operate as a partition of the joint family property and business between the plaintiff and the defendants.
10. At that time Sulaiman had four sons and one daughter, all minors, the eldest son being Abdul Razak, the present 1st defendant.
Pedigree
EBRAHIM
_________________________________|_________________________________________
| | | |
Ludha Abdul Wahed Oosman. Noor Mahomed.
(dead.) (dead.) (dead.) (dead.)
| |
| _________________|_____________
| | | |
| Essac (dead.) Oomer. Fatmah
| Rahmatbai (dead.)
| |
| ____________|__________
| | |
| Abdul Sattar. Dawood
| (dead.)
|
|
__________________|________________________________________
| | | | | | |
Sulaiman. Abdulla. Essa Ahmed. Joonas. Hasham. Abdul Latif.
| (dead.) (dead.) (Separated.)
|
|
|
|
__|_______________________________________________________________
| | | | |
Abdul Razak Abdul Rehman. Abdul Aziz. Abdul hamid. Rabbiabai.
11. The proposition laid down by Mr. Inverarity for the plaintiffs was as follows:
12. The son of a Cutchi Memon takes a vested interest by Manqaldas birth in ancestral property in the hands of his father.
13. He relies for that proposition on decisions of this Court to the effect that Cutchi Memons in all matters of inheritance and succession are governed by Hindu law.
14. These decisions have recently been exhaustively reviewed by Beaman, J. in Jan Mahomed v. Datu Jaffar . The parties to that suit were Khojas, but it seems to be generally considered that all decisions on this vexed question relating to Khojas are equally applicable to Cutchi Memons and vice versa.
15. I entirely agree with the conclusions arrived at by Beaman, J. that “Where Mahomedans are concerned, the invariable and general presumption is that they are governed by the Mahomedan law and usage. It lies on a party setting up a custom in derogation of that law to prove it strictly. But in matters of simple succession and inheritance it is to be taken as established that succession and inheritance among Khojas and Memons are governed by the Hindu law as applied to separate and self-acquired property.”
16. Westropp C.J. in In re Haji Ismail Haji Abdula (1880) I.L.R. Bom. 452, 450, said:
We know of no difference between Cutchi Memons and any other Mahomedans, except that in one point connected with succession it was proved to Sir E. Perry’s satisfaction that they observed a Hindu usage which is not in accordance with Mahomedan law…. Under these circumstances we must hold them to be Mahomedans to whom Mahoraedan law is to be applied, except when an ancient and invariable special custom to the contrary is established.
17. That decision was given in 1880 and I think I am right in saying that up to this day no other Hindu custom or usage has been proved by evidence as having been invariably observed by Cutchi Memons from ancient time, and it seems indisputable that, without such proof, it is not within the power of this Court to impose upon any sect of Mahomedans a Hindu usage or a rule of Hindu law. There is little doubt that the legal profession is firmly convinced that Khojas and Cutchi. Memons are to all intents and purposes Hindus, governed by the Hindu law of the joint family, of will, of inheritance and succession. But the foundation for that conviction rests on a few obiter dicta in reported cases which, as Beaman, J. has shown, do not rest on evidence or on any logical basis.
18. If a Cutchi Memon dies intestate leaving sons and daughters, only his sons take shares in his estate, the daughters being entitled to maintenance instead of to a share as under Mahomedan law. Starting with that simple undisputed proposition I am asked to hold that the sons would take as joint tenants as if they were Hindus, that the property in their hands would be ancestral, and that their sons would acquire from birth an interest in such ancestral property.
19. The argument is as follows:It has been proved that there is a custom amongst Cutchi Memons that daughters are excluded from inheriting to the estate of their father dying intestate. According to Hindu law daughters do not take a share in their father’s estate, therefore Cutchi Memons are governed by Hindu law in all questions of inheritance and succession.
20. Accepting that for the moment as a sound conclusion, which in any event must be confined to intestate succession, the argument proceeds. Hindu brothers inheriting their father’s estate take as joint tenants. If they have sons, those sons acquire an interest at the same time, if they are born afterwards they acquire an interest by birth. Therefore whether such an after born son acquires an interest by birth in the joint family property is a question of inheritance. But Cutchi Memons are governed by Hindu law in question of inheritance. Therefore a Cutchi Memon acquires by birth an interest in property inherited by his father.
21. I am only now concerned with sons born after the inheritance has fallen in. It seems obvious that such sons under Hindu law acquire an interest in the inherited property not by the law of inheritance but by the law of the joint family. For the distinction between co-parcenership and inheritance, see Francis Ghosal v. Gabri Ghosal (1906) I.L.R. 31 Bom. 255, 8 Bom, L.R. 770W.
22. The law of inheritance and succession can only be applied property which devolves on the death of the owner to the reasons entitled to succeed under that law. There is no such under the Mitakshara as inheritance and succession to + family property. Such property is held by the family hl until partition. Members of the family pass away, are born, the property remains the property of members of the family who are alive at any particular moment. It is only when property ceases to be joint that the necessity arises for rules of inheritance and succession.
23. In other words the rules of inheritance and succession under Hindu law apply only to separate or self-acquired property. The notions of joint family, joint family property, joint family business, are utterly unknown to Mahomedanlaw. To conclude, therefore, that because Cutchi Memons have retained the rules v of Hindu law relating to inheritance and succession which can only are applied to separate property they have also retained the law of the joint family with all its far reaching consequences is absolutely illogical. In this case it is not suggested that Ebrahim left any property. His four sons are referred to in the plaint in Suit No. 86 of 1909 as the founders of the business of Ludha Ebrahim & Co. Nothing is said about their having inherited any property from Ebrahim. But if they had it would not make any difference. They were, therefore, partners in that business in equal shares. The shares of the two spns who died without issue devolved on Abdul Wahed and Noor Mahomed or their issue, not by survivorship but by inheritance. To call the assets of the firm joint family property (see para 2 of the plaint in Suit No. 86 of 1909) was begging the question. Strictly speaking the suit should have been a suit for the administration of the estates of Abdul Wahed and Noor Mahomed when the same result would have followed, one-half of the assets going to Abdul Sattar and the other half to the sons of Abdul Wahed subject to the claims of females to maintenance and marriage expenses. Sulaiman and his brothers would then have held as tenants in common and there would have been no question whether their issue acquired an interest in the assets by birth.
24. In Mahomed Sidicky. Haji Ahmed (1885) I.L.R. 10 Bom. 1 it was decided by Scott, J. that a Cutchi Memon had no power to dispose of ancestral family property by will. If I am correct in thinking that it has never been proved that Cutchi Memons have retained from ancient time the distinction recognized by Hindu law between ancestral and self acquired property it must follow that the decision cannot be accepted as an authority. In that case it was argued by Mr. Inverarity, as it has been argued by Mr. Setalvad before me, that the rule of Hindu law whereby son acquires an interest in the joint family property by birth not a rule of inheritance and succession. I find from the original notes that the learned Judge has underlined his note of the argument which was taken down in extenso. I can find no answer to it, though I can sympathise with Mr. Inverarity, who failed to convince the learned Judge that that argument was sound, for finding the Court against him now when trying to support that decision. I have already declined to follow it in a recent case in which it was contended that Khojas were governed by the Hindu law of wills. I held that Khojas were in the matter of wills governed by Mahomedan law unless a custom to the contrary had been proved, and I pointed out that in all the cases then cited to me, which have now been so exhaustively analysed by Beaman, J., no trace could be found of the proof of any such custom.
25. I have been referred to passages in Broom’s Legal Maxims (7th Edn.) on the judicial rule stare decisis. The learned author remarks at p. 119:
Our common law system, as remarked by a learned Judge, consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency, and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise, and we are not at liberty to reject them, and to abandon al analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised.
26. Those remarks were intended to apply to the decisions of English Judges, which were considered as determining what was the established custom of the realm, though in fact they made law. But at p. 121 I find the following passage :
The judicial rule-stare decisis does, however, admit of exceptions, where the former determination is most evidently contrary to reason. But, even in such cases, subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law that is, that it is not the established custom of the realm, as has been erroneously determined.
27. As there is no-common law of India the decisions of Indian Judges do not determine what is the established custom of the country, but letting that pass and applying the above remarks as far as possible to the decisions of this Court on the question before me, which are by no means uniform, certain and consistent, I consider I am entitled to hold that as Mahomedans are governed by Mahomedan law, unless a custom to the contrary has been proved, if there be any previous decision of this Court, that Cutchi Memons are governed by the Hindu of the Joint family, it is manifestly contrary to reason if it pends not upon evidence that there is such a custom, but upon the argument that the Hindu law of inheritance and succession includes the law of the joint family.
28. I am all the more fortified in coming to this conclusion considering the peculiar facts of this case. It is not the case of a Cutchi Memon setting up an ancient custom that Cutchi Memons on their conversion from Hinduism many centuries ag0 retained the Hindu law of inheritance and succession and consequently the Hindu law of the joint family. Here I have a Hindu and a Parsee who, having obtained decrees against a Cutchi Memon, extract from him as a condition for his release from arrest in execution of those decrees an agreement to mortgage the interest he was supposed to have acquired by birth in properties alleged to be joint family properties in the sense in which that term is used amongst Hindus. He now denies he has any such interest.
29. It may be that in recent years Cutchi Memons have been forced by the above mentioned decisions and by the opinions of their legal advisers to believe that they are subject to the Hindu law of the joint family, but even if they have in consequence come to recognize the distinction according to that law between ancestral and self-acquired property, they are still entitled to ask this Court to hold that they are governed by Mahomedan law. In this case the plaintiffs rely entirely on the argument that a Cutchi Memon son acquires by birth an interest in property inherited by his father, by the law of inheritance and succession. This argument, in my opinion, will not bear analysis and is manifestly unsound.
30. The result is that the suit on this finding must be dismissed with costs.
