Judgment

SHELAT, J.:- This appeal by certificate, is directed against the judgment of the High Court of Mysore dated February 3, 1967 whereby it answered in the negative the question referred to it under S.64 (1) of the Estate duty Act, XXXIV of 1953.

The question was:

"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?"

The said property comprised shares and securities of the value of Rupees 25,778/-, and immovable properties at Bangalore and Madras respectively valued at Rs.5,42,500/- and Rupees 6,10,100/-.

2. The assessment in question pertained to the estate of Hajee Mahomed Hussain Sait, the father of the two respondents, who died at Bangalore on March 22, 1955 leaving the said properties. The said Hajee Mahomed Hussain and the respondents belonged to Cutchi Memon sect amongst the Muslims. The respondents claimed that Cutchi Memons at one time were Hindus residing in Sind, that some four or five hundred years ago they were converted to Islam like the members of another such sect, the Khojas, that they migrated thence to Cutch and from there spread themselves to Bombay, Madras and other places. Their case was that despite their conversion, the Cutchi Memons retained a large part of Hindu law as their customary law including its concepts of joint family property, the right of a son by birth in such property and its devolution by survivorship. Further, neither the Cutchi Memons Act, XLVI of 1920, nor the Muslim Personal Law (Shariat) Application Act, XXVI of 1937, nor the Cutchi Memons Act, X of 1938 applied to them. That being the position, there was no question of the passing of the said properties to them on the death of their father as envisaged by S.3 of the Act or its being applicable to them or the said properties, the said properties having come to them under the Hindu law rule of devolution of joint family property by survivorship. Their case was that only one third of the said properties, that is, the undivided share of their deceased father, could be properly said to have passed to them on his death and to be assessable under the Act.

3. The Deputy Controller rejected these contentions as also the evidence led by the respondents in support thereof and assessed duty at Rs.2,05,996.41 P. on the basis that the entire estate valued by him at Rs.12,23,794/- was assessable. The respondents filed two separate appeals, both of which were rejected by the Central Board of Revenue by its order dated December 30, 1961, and as aforesaid, at the instance of the respondents referred to the High Court the aforesaid question.

4. In support of their contentions, the respondents had produced before the Deputy Controller the following documents as evidence of the Hindu law being their customary law:

(i) O.P. No. 47 of 1909 -- A petition before the High Court of Madras and the High Court s order thereon.

(ii) O.P. 188 of 1927 -- --do--

(iii) O.P. 79 of 1928 -- --do--

(iv) O.P. 1 of 1930 -- --do--

(v) The judgment of the High Court of Madras in Civil Revision Petition No.1727 of 1930.

(vi) The Judgments of the same High Court in Siddick Hajee Aboo Bucker Sait v. Ebrahim hajee, Aboo Bucker Sait, AIR 1921 Mad 571 and Abdul Sattar Ismail v. Abdul Hamid Said. AIR 1944 Mad 504.

These were produced to show that the rules of Hindu law were consistently acquiesced in and applied to their family and the other Cutchi Memons settled in Madras. They also relied on the fact that the High Court had issued letters of administration to them although they had paid succession duty only on one third of the said estate. The Deputy Controller held that neither the said evidence, nor the fact of their having paid succession duty on one third of the said estate only concluded the issue before him, viz., that the rules of Hindu law, including the rules as to joint family property and its devolution by survivorship constituted the customary law of Cutchi Memons in