Back
1922 Supreme(SC) 55
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD DUNEDIN, LORD PHILLIMORE, SIR JOHN EDGE, AND MR. AMEER ALI.
KHATUBAI - Appellant
Versus
MAHOMED HAJI ABU - Respondents
On Appeal from the High Court at Bombay.
Decided On : November 9, 1922.
Solicitors for appellant: Waltons & Co.
Solicitors for first respondent: T. L. Wilson & Co.
A special custom excluding females from succession, based on Hindu law, can displace general Mahomedan law for certain communities of converts if established by evidence of de facto practice in their place of domicile, regardless of the practices of migrated branches of the same community.
Headnote:(A) Mahomedan Law; Hindu Law of Succession; Indian Succession Act - Succession to the estate of a convert - Whether a special custom excluding females from succession can displace general Mahomedan law - Where a community of converts has historically followed Hindu law regarding the exclusion of females, such custom may be engrafted on Mahomedan law. (Paras 1-3)
(B) Domicile and Custom - The personal law of an intestate is determined by their domicile and the customs of their community in that domicile - The fact that a branch of a community migrating to a different city follows general religious law does not necessarily imply that the original community in the place of origin followed the same law; the migrants may have renounced the custom upon migration. (Paras 4-6)
(C) Evidence of Custom - Custom is established by de facto practice - Decisions of local courts and oral testimony indicating a consistent application of a specific law over general religious law are sufficient to establish a custom that excludes females from succession. (Paras 7-9)
Facts of the case:
An intestate died leaving a widow, a son, and a daughter. The daughter filed a suit claiming her share of the estate under Mahomedan law. The respondents contended that the intestate was domiciled in a native state and belonged to a community of converts who, by immemorial custom, followed Hindu law of succession, which excludes females.
Findings of Court:
The court affirmed the concurrent findings that the intestate was domiciled in the native state. It found that the evidence, including numerous local court decisions and oral testimony, established the custom of applying Hindu law to exclude females from succession for members of that community in that specific domicile.
Issues: Whether the succession to the estate of a member of a specific community of converts domiciled in a native state is governed by general Mahomedan law or by a custom based on Hindu law that excludes females.
Ratio Decidendi: The court ruled that a special custom can displace general Mahomedan law if proved by clear evidence of practice. The practice of a migrated branch of a community in a different city is not conclusive evidence of the custom in the place of origin, as the migrants may have adopted the general religious law after leaving. Where local judicial decisions and evidence consistently show the application of Hindu law excluding females, such custom prevails.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
-
family law
-
succession
-
intestate succession
- customary law
-
intestate succession
-
succession
-
private international law
- domicile
Judgement
Appeal (No. 115 of 1920) from a judgment and decree of the High Court in its appellate jurisdiction (September 21, 1918) reversing a decree of Marten J. (December 18, 1917).
The appeal related to the succession to the estate of one Haji Abu Haji Habib, a Halai Memon, who died intestate at Bombay on November 30, 1914, leaving him surviving a widow (respondent No. 2), a son (respondent No. 1), and two daughters—namely, the appellant and a daughter who died shortly after her father.
The appellant, the intestates daughter, brought the present suit in 1915 in the original civil jurisdiction of the High Court. By her plaint she claimed the share to which she was entitled in her fathers estate on the assumption that the succession was governed by Mahomedan law, and administration. The first defendant-respondent by his written statement pleaded that the intestate was a native of Porbandar, and alleged facts to show that he had retained his domicil there, although that term was not used in the pleading. He stated that Halai Memons of Porbandar and of Kathiawar generally, either had retained the Hindu law of succession upon their conversion to Mahomedanism, or that that law was theirs by immemorial custom; and that it had frequently been determined by the Courts in Kathiawar that Halai Memons there were governed by that law of succession. The second defendant filed a written statement to the same effect; the other two defendants supported the plaintiffs case.
Both Courts in India found that the intestate was domiciled in Porbandar, and that the case had to be determined according to the law governing Halai Memons of Porbandar. The trial judge (Marten J.) held that the Halai Memons being Mahomedans, Mahomedan law applied unless it was displaced by a special custom governing the succession, and that the evidence on behalf of the first and second defendants was not sufficient to establish such a custom. The appeal was heard by Scott C.J. and Macleod J. and was allowed. The learned judges did not reverse the decision of the trial judge that the onus of proof lay upon the present respondents 1 and 2, but they found upon the evidence that the custom alleged was established. The appeal is reported at I. L. R. 43 B. 647.
1922. June 19, 20; July 3, 4, 6, 7. De Gruyther K.C. and C. L. Farwell for the appellant. Succession to the intestate was governed by Mahomedan law. Even if the question of domicil had been properly raised by the pleadings, which was not the case, it was wrongly imported into the case. Halai Memons are of one class, not two classes, and being Mahomedans succession amongst them is governed prima facie by Mahomedan law see 37 Geo. 3, c. 142 , s. 13, which was in operation until 1916. A special custom as to succession in order to displace the Mahomedan law must be proved by clear and unambiguous evidence; evidence of local custom, or as to the occasional exclusion of females is insufficient Muhammad Ibrahim Rowther v. Shaikh Ibrahim Rowther (( 1922) L. R. 49 I. A. 119); Abdul Hussein Khan v. Sona Dero . (( 1917) L. R. 45 I. A. 10, 17.) In the Khojas and Memons Case (( 1847) Perrys Oriental Cases, 110, 115) it was stated that Halai Memons of Kathiawar then observed Mahomedan law. The Bombay High Court from 1847 has applied Mahomedan law in suits for the administration of the estates of Halai Memons. If, contrary to the appellants contention, Halai Memons of Porbandar can be regarded as a class distinct from other Halai Memons, no special custom affecting them was established. The Halai Memons of Bombay follow the Mahomedan law of succession as the law governing them at the time of their migration; had they then followed Hindu law they would have taken that law with them, whether they went to Bombay or to Porbandar Parbati Kunwar Debi v. Jagadis Chunder Dhabal (( 1902) L. R. 29 I. A. 82.); Balwant Rao v. Baji Rao . (( 1920) L. R. 47 I. A. 213.) The short period which elapsed between the migration of Halai Memons to Bombay
