Judgement

Appeal from a judgment and decree of the Court of Appeal for Eastern Africa (March 6, 1914) reversing a decree of the High Court of East Africa (September 16, 1913).

The appeal related to the estate of one Haji Ismail Mithu (hereinafter called the deceased), who was a member of the Indian sect known as Memons and who died intestate on March 15, 1912, at Mombasa. The sole question was whether the succession was governed by Hindu law, as the appellant contended, or by Mahomedan law, as the respondent contended.

The origin of the sect of Memons appears from the judgment and from the Khojas and Memons Case. (( 1847) Perry’s Oriental Cases, 110.) They are a sect of Mahomedans who were originally Hindus, and who at their conversion retained their Hindu law of succession as a customary law. About fifty or sixty years ago Memons began to migrate from Cutch to East Africa, and at the date of the suit there were, according to the evidence, upwards of a hundred Memon families at Mombasa.

The father of the deceased was one of the first Memons who migrated to East Africa, coming from Cutch with his wife and children, including the deceased. The deceased was himself a merchant at Mombasa and died intestate on March 15, 1912, leaving him surviving his widow (the respondent), who had no issue, and two sons by an earlier marriage. Letters of administration were granted to his eldest son, the appellant.

The respondent instituted the suit in the High Court of East Africa against the appellant, claiming administration of the estate-and a declaration that she was entitled to a one-eighth share, which it was admitted she should receive if Mahomedan law applied. The appellant by his defence contended that the estate was governed by Hindu law and that the respondent was consequently only entitled to maintenance during her widowhood, which maintenance he offered.

The suit was tried by Hamilton C. J. It was admitted at the trial that in Cutch the succession to the estates of Memons is governed by Hindu law. Oral evidence was given on behalf of the appellant (defendant) that, although certain members of the Mombasa community of Memons had in {particular instances adopted the Mahomedan rules of succession, other intestate estates had been and were being dealt with among the community upon the basis of Hindu law. The respondent on the other hand adduced evidence as to certain cases, of which their Lordships regarded eleven as fully proved, in which during the previous ten years succession had taken place according to Mahomedan law. Seven administration files were also put in evidence which established, at any rate in three or four cases, that a distribution of the estates of Memons had taken place according to that law. In the course of the trial it was admitted that the Hindu custom under which the ornaments of a childless widow return to the husbands family was followed among the Memon community in Mombasa.

The Chief Justice held that it was incumbent upon the plaintiff (respondent) to prove not only that the Memons of Mombasa had discontinued to observe the Hindu custom, but that they had, since their arrival in Mombasa, adopted a custom not previously followed by them as a community, and that that new custom must be shown to be ancient and invariable and be established by clear and unambiguous language. He held that the evidence showed that there was not a uniform practice of inheritance among Memons in Mombasa and that the respondent had not discharged the onus of proof which was upon her.

The Court of Appeal for Eastern Africa (Morris-Carter C.J., Carter J., and King-Farlow J.) upon appeal reversed this decision. Morris-Carter C.J. was of opinion that the rule that in order to displace the customary incidence of the Hindu law of succession among Memons it was necessary to prove an ancient and invariable custom to the contrary did not apply in the case of Memons who had migrated from India. In the present case he considered that if the plai