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3. Ever since Sir Erskine Perry's famous judgment delivered in the year 1847 in what is commonly known as the Kojahs and Memons' case (1847) Perry O.C. 110 it had become almost customary in this Court to treat these two sects as though they were on precisely the same footing and must necessarily be governed to the same extent by the mixed law declared by one decision after another to be applicable to them. In the course of the trial it became clear that however the questions directly in issue be approached, evidence confined to practices and customs of the Khojas could not really be relevant. Assuming that the Court had to enquire here into an alleged custom of the Cutchi Memon sect, its decision will have to be given upon evidence that such a custom had universally prevailed and been long established not amongst the Khojas but amongst the Cutchi Memons. Nor could the mere fact that evidence was forthcoming to show that a similar custom has been adopted by the Khoja Community make that evidence relevant in this case. It is perhaps unfortunate that the expectations, with which the trial was entered upon, have so far been frustrated that the judgment can declare no more than what is shown to be the law governing the powers of Cutchi Memons to dispose of their property by will. It is further to be noted that notwithstanding the habit of regarding the Khojas and Cutchi Memons as in all respects identical for the purposes of such a discussion, they are really distinguishable upon broad theoretical grounds which might have, if they have not had, practical consequences. While there are many peculiar features in the sectarianism of the Khojas, strongly marking them off from orthodox Mahomedanism, the Cutchi Memons except for the alleged historical fact that they were originally Hindoos, and were converted four-hundred or five-hundred years ago to Mahomedanism, are, at the present day, strict and good Moslems. In a recent case of Jan Mahomed v. Datu Jaffar I examined the whole case law touching both the Khojas and the Cutchi Memons critically and, I think, exhaustively. It was a great satisfaction to me to find that Macleod J. is in entire agreement with the conclusions then reached. In a very recent case of Mangaldas v. Abdul Razak (1914) 15 Bom. L.R. 224 that learned Judge had to deal with a cognate point indirectly arising out of the general proposition which must be said to have been established by the decisions of this Court that the Khojas and Cutchi Memons are governed by the Hindu law in all matters of simple succession and inheritance. I think that Macleod J.'s judgment in that case is theoretically correct and draws more than one very necessary distinction. The very same questions indirectly arise here, as, I think, they always must, until this Court has decided much more clearly than it ever yet has done within what limits the practical application of the proposition I have just cited must be confined; for it is obvious that in considering the testamentary capacity of a Cutchi Memon the Court will almost necessarily be brought at once into contact with the legal notions peculiar to the law of the joint Hindu family. I think it will be convenient to incorporate the whole of my judgment in the case of Jan Mahomed v. Datu Jaffar by reference here. It would be mere idle waste of time and vain repetition to cover the ground again; and such criticism as has been directed against parts of that judgment in the present argument has only confirmed me in the conviction that it is substantially accurately reasoned and lays down correct conclusions. In minor points it might require modification here and there in the light of the fuller information given me during this trial regarding the procedure and details of the cases tried before Sir Erskine Perry in 1847 and Scott J. in 1885. But as a critique raisonne of the manner in which the legal doctrine grew in this High Court and came to be accepted by succeeding Judges and the profession generally, I still entirely adhere to it, It has been a source of great satisfaction to me that in the course of his able and interesting argument, the oldest, greatest and by far the most experienced Advocate of this High Court at the present time more than once admitted the general correctness of my reasoning throughout my judgment in the case of Jan Mahomed v. Datu Jaffar (1918) 15 Bom. L.R. 1044. He said that it had been his own view as far back as 1885 when he advanced it tentatively before Scott J. in the case of Mahomed Sidick v. Haji Ahmed (1885) I.L.R. 10 Bom. 1. But he thought it was now much too late to undo what had already been done and had enured through these years into a settled doctrine of the Court and the accepted rule of practice with the profession. To that extent I am prepared to agree with Mr. Inverarity.

31. The witness is a very intelligent and influential old man of undoubted probity who has held the high office of Sheriff of Bombay. The effect of his evidence is, I think, that while, in his opinion, his community is, at the present day, under the Hindu law of the joint family, that has not been brought about by the deliberate and volitional adoption of that law as a custom, but by the too precipitate action of the Courts. And the feeling of the better part of the sect today is strongly in favour of throwing off every feature of the Hindu law with which it has gradually been fettered. I have said that in the course of the arguments addressed me on behalf of the plaintiff in this case, I have been reproached over and over again with having insisted, upon a misconception of what actually happened at the trials, the procedure and the form of the issues, that the Courts and the profession forced a most unwelcome law upon reluctant Mahomedan sects. I think that I am vindicated, to some extent, by the strong feeling shown by this witness. It may well be that the law was not so unwelcome in 1847 as it has since become, and I certainly do not mean to suggest that the eminent Judges and counsel mainly responsible for bringing it to its present state, were not guided in each and every trial by the most correct judicial principles. But I do say, and shall remain for ever convinced that over and over again much, too much, was taken for granted, and that it was as much the decisions of the Courts and the opinion, of course, the perfectly honest opinion of the profession, as any real customary adoption by either Khojas or Cutchi Memons of parts or the whole of the Hindu law of the joint family, that have made the law as it is generally supposed to be today. One thing at least is made clear beyond all possibility of dispute, that if Mr. Wahed is a true spokesman for his sect, this sect, would, if left to itself, and not pinned down by judicial decision, renounce any such custom (admitting that it had ever been adopted) as that which the legal doctrine of this Court has now made an integral, and indeed the dominating, factor of their personal law.

I know our custom about making wills. We can dispose of our self-acquired and our ancestral property too. Was born at Malabar.

(N.B. This is the only one of these witnesses, I think, who says that Cutchi Memons can dispose of their ancestral as well as their self-acquired property by will. Possibly because being from Malabar he is not so saturated as the rest with the legal doctrine of this High Court.)

42. In cross-examination he says :

The custom had been in force many years before the decisions of the Court gave legal effect to it.

167. It is particularly instructive to note what was the nature of the caveat in Vallu Mussani's case in 1855.

A caveat was entered by the brother, alleging that his brother had been his partner and joint in food and estate and that the widow was illiterate and unfit to manage the estate, and that the widow of a Khoja leaving male issue was only entitled to maintenance.

168. I think it safe to conjecture that the first ground taken by the caveator was his own, and the true ground, while the others were suggested by his professional advisers in accordance with their own opinion. The second case cited certainly was decided rather in accordance with the Hindu than the Mahomedan law. The third was a conflict between widow and niece, the latter's objection apparently being confined to apprehensions lest the widow should alienate the property. The widow was granted administration on undertaking not to sell or mortgage. I cannot say that that is a very convincing case either way. Those appear to have been the only three contentious cases which were procurable before 1863. That is to say, no better evidence than this could be got from these records, during the seventeen years next following Sir Erskine Perry's judgment. It is obvious, I think, that no positive conclusion could or ought to be drawn from the cases decided by the Registrar, or even from these with the three contentious cases added. But the learned Judge, while conceding so much, thought that there was much subsequent corroboration, and this corroboration consists of the decisions, beginning with that of Sir Mathew Sausse in Gangbai v. Thavar Mulla (1868) 1 B.H.C.R. 71 which, I hope, I have sufficiently dealt with and disposed of in my previous judgment. These extracts will show clearly enough what I mean when I say that I find it hard sometimes to follow the reasoning of the learned Judges who one after the other built up the law administered by this Court to Khojas and Cutchi Memons. In my opinion and speaking with great respect to the many much greater Judges than I, who have handled the subject, these records of the Ecclesiastical Side of the Court appear to prove very little more than the ease and rapidity with which, within a small legal circle, a doctrine may be developed and settled. I think too that, at any rate, in the earlier days, they suggest that there was great laxity of thought and indifference, to say no more, in distinguishing clearly between Mahomedan and Hindu law, and where the latter was found to have invaded and superceded the former, setting precise limits upon these proved substitutions. Coming back to the case decided by Scott J. in 1885 I find the learned Judge saying: