The main legal point established in the judgment is that the Cutchi Memons continued to observe the rules of Hindu law even after their conversion to Islam, and that the Muslim Personal Law (Shariat) Application Act did not apply to matters outside the specific topics enumerated in the Act. The court favored the Madras view that the rules of Hindu law relating to coparcenary property applied to Cutchi Memon families.

Narayana Pai, J.—In this reference under section 64(1) of the Estate Duty Act, 1953, made at the instance of the assessee by the Central Board of Direct Taxes, the question referred is :

"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 ?"

2. The deceased mentioned in the question was one Mohammed Hussain Sait, who died on the 22nd of March, 1955. The value of Rs. 12,00,000 and odd mentioned above is the value determined for what the department considered to be the entire property held by the deceased, apparently upon the footing that it was his exclusive separate property held by him exclusively which devolved in its entirety upon his heirs by the rules of Mohammadan law relating to succession. The accountable persons were his two sons, Abdulla Sait and Sattar Sait, who, according to the department, would be some among the heirs of the deceased.

3. The contention put forward by the accountable persons, the two sons of the deceased, was that what is described as "the entire property" in the question was not property to which the deceased Mohammed Hussain Sait alone had full and exclusive rights, but that the said property was the joint family property of the deceased and themselves, his sons, according to the principles of Hindu Mitakshara law applicable to coparcenary property which the class of Mohammadans called Cutchi Memons, to which thy belong, had even after their conversion to Mohammadanism some centuries ago retained and continued to observe, and that, therefore, the only property which can be rightly and validly subjected to estate duty was the deceased Mohammed Hussain Sait's 1/3rd share which devolved by survivorship on his two sons, the accountable persons.

4. In support of these contentions, the accountable persons relied upon a decision of the Madras High Court reported in Siddick Hajee Aboo Bucker Sait v. Ebrahim Hajee Aboo Bucker Sait and some evidence also. The evidence relied upon was in the nature of averments or assertions made in applications made to the Madras High Court for the grant of letters of administration or other legal representation on the death of one or the other of the ancestors of the parities, in which the central point was that the parties were members of an undivided family governed by the principles of Mitakshara Hindu law and that upon death the interest of the deceased in the properties had survived to the surviving members of the family. There was also among the pieces of evidence a deed of settlement by male members in favour of female members, proceeding on the the footing that but for the settlement the female member could not as of right lay any claim to or in respect of the joint family properties.

5. The original assessing authority, viz., the Deputy Controller of Estate Duty, Madras, totally rejected all the contentions. So far as the evidence is concerned, he expressed the opinion that at the highest the evidence proved nothing more than mere assertions by the parties and the sustainability or otherwise of the claims involved in the said assertions had never been the subject of adjudication or decision by any court. In regard to the decision of the Madras High Court cited above, the officer was of the opinion that it was not quite clear on the point or not clearly in favour of the case sought to be made by the accountable persons. He referred to certain decisions of the Bombay High Court, relating to Cutchi Memons of Bombay and thought that the opinion of the Bombay High Court, which ultimately got crystallised in the case of Haji Oosman Haji Ismail v. Harroon Saleh Mohamed, represent the correct legal position and should be applied, especially because the majority of the Cutchi Memons are to be found in Bombay and what is true of them or applicable to them may with reasonable certainty be applied to Cutchi Memons resident in other parts of India also. The said op