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9. What Sir Erskine Perry had to try in Hirbae v. Sonabae (1847) Perry O.C. 110 was a narrow question of an asserted custom amongst these sectaries. The plaintiffs claimed under the Mahommedan law (the authority of the Quran) their share of their father's estate. The defendant set up a custom of the Khojas by which daughters were entitled to no more than maintenance and dower. Exactly the same point was in controversy in the connected case. But it will be seen from the judgment that at that time the Memons occupied a better social position than the Khojas, and were already recognised as a flourishing and progressive community. Part of the C reasoning, then contained in the first part of the judgment, is to be restricted entirely to the Khojas as they then presented themselves to the learned Chief Justice, Although the Khojas were described as generally poor, illiterate, and ignorant of their own law and religion, a considerable sum must have been directly or indirectly at stake. The estate of Hadjibhai Mir Ali is stated to have been about three lacs of rupees. A custom, as yet res integra, was to be proved ; yet it appears that all the evidence was recorded in two days. In that short time the learned Chief Justice says that a great deal of oral evidence fairly representing the views of the entire sect was taken. What a contrast between those days and these ? Were such a suit to come up for trial in this High Court to-day it is safe to say that it would occupy months. And it certainly does seem surprising that within the compass of two days the Court should have been able to get evidence enough to satisfy itself upon so large and vital a question as that which was then determined. It is significant too that the learned Chief Justice very plainly thought that by affirming the alleged custom he was conferring a benefit upon the Khojas and Memons, and giving legal sanction to a venerated and highly prized usage. This is clear, I think, from that part of the judgment in which the question of how far the lex loci should be applied is elaborately and learnedly discussed. It is part of Fate's grim irony that what was meant to be so great a boon should have with the lapse of time turned out to be a grievous burden. In 1847 the Khojas, collectively were a scattered ignorant sect, residing principally in Cutch, Kathiawar and Bombay, whose commercial activities had not extended much beyond retail business on a very small scale, and many of them dressed like the Hindus, one of whose customs they were interested at this time in upholding. But to-day the Khojas like the Memons are far from being illiterate, have made great strides in social and commercial development, and for their numbers are probably as rich and thriving an industrial community as any to be found in the Empire. There is probably not an intelligent leader, or fairly representative man in the whole sect, who would not be pleased to be relieved of this nightmare of the Hindu law, of the joint family hanging over all his business activities. The case was different even then with the Memons, and Sir Erskine Perry notes that having regard to the great amount indirectly at any rate involved in his decision it is likely that the decision of the Privy Council will be invited. It would not therefore be fair to criticize this judgment from a point of view suggested by the first part of it alone, or to doubt that it would have been or might have been different had the state of both Khojas and Memons in 1847 been what it is to-day. But I cannot too strongly insist upon the extremely restricted scope of the enquiry. It was restricted to one alleged custom and that alone, namely, the custom of excluding females from any share in a paternal estate. As far as I can see, and I have read the whole judgment very carefully, and I may say with interest and admiration, the learned Chief Justice never meant to decide or supposed himself to be deciding anything more. It was a custom which all that was influential and likely to be audible in the sect, was interested in affirming ; those who pleaded against it for their rights under their own law were young defenceless women. Even to-day the Khojas and Memons would probably not object to the continuance of that custom standing alone. But parts of the learned Chief Justice's judgment, which are really no more than obiter, appear to pre-suppose as the ground of his decision a view that the Khojas and Memons had adopted not only this custom but the whole of the Hindu law to which it owes its origin. If the judgment be strictly analyzed it will be found to go no further than this. (1). That a reasonable custom alleged and proved to have existed among a class, and not opposed to the written law of the ruling power (meaning here the English Statute Law), may be sanctioned by the Court. (2). That the words in the Charter of the Supreme Court, "Law and usages of the Mahornmedans" did not preclude a custom being legally recognized although it might conflict with the Divine law of the Quran. (3). That this particular custom was proved to exist among both Memons and Khojas. (4). That for the purposes of that case, the lex loci must be subordinated to the personal law of the litigants and that old well established usage, not conflicting with any written law of the ruling power, was part of that personal law and ought to be enforced by the English Courts. I hope I may be permitted to say that Sir Erskine Perry's judgment in this case is one of which this High Court may well be proud. But it certainly does not go the length or anywhere near the length to which it appears to have been carried later.

10. The next case in chronological order is Gangbai v. Thavar Mulla (1863) 1 B.H.C.R. 71. This was a suit or petition by Gangabai, (who must, I think, have been the same Gangabai, plaintiff v. Sonabai in the Khoja case just discussed) to have a charitable bequest contained in the will of Rahamatbai, widow of Sajan Mir Ali, set aside and to have her whole one-fourth of the residuary estate so bequeathed in chanty, as the sole heir of Sajan Mir Ali. It is pretty clear from the form of the petition that whatever Sir Erskine Perry had decided or meant to decide in the Khoja, and Memon case, neither the petitioner here, nor her legal advisers, nor the Court, understood that decision to have made the entire Hindu law of the joint family applicable to these Khojas. Else of course there could have been no question of the widow making a will at all. The point actually decided is quite unimportant but the case is interesting because it illustrates the almost hopeless confusion of thought, which prevailed at that time in the Court, over questions of Hindu and Mahommedan law. The judgment was delivered by Sir Mathew Sausse, who says: " It appears that Rahimatbai was a female of the Khoja caste, which although Muhammadan in religion, has been held to have adopted, and to be governed by, Hindu customs and laws of inheritance." I pause here to observe first that the Khojas are not a caste. Sir Erskine Perry is careful to call them sectaries. The use of the word "caste " implies that they were rather Hindu than Mahommedan and goes a long way towards begging the crucial question. But what follows illustrates still better the extremely loose way in which law is made by judicial decisions. It certainly was not held, as I have just pointed out, that the Khojas and Memons had adopted Hindu customs and laws of inheritance generally. Not a word, I believe, will be found in Sir Erskine Perry's judgment to support the proposition that he held that the Khojas had adopted the Hindu law or laws of inheritance. What he did find was that a single particular custom, which belongs rather to the Hindu than the Mahommedan law, was proved to exist among Khojas and Memons. Later the learned Chief Justice says: " Now represents the rights of the Khoja or Hindu heir at law". Again it is assumed without any evidence that Khoja and Hindu are interchangeable terms when prefixed to the words " heir at law," an assumption, it is submitted with respect, for which there is absolutely no foundation.

11. In 1866 In the Goods of Mulbai (1866) 2 B.H.C.R. 276 was decided. It was held by Couch C. J. that by the custom of Khojas, when a widow dies intestate and without issue, property acquired by her from her deceased husband does not descend to her blood relations but to the relations of her deceased husband. Here we come in limine upon another instance of that confusion of thought or loose use of language which hangs like a pall over this branch of the law. The actual point decided was that there was a custom proved amongst the Khojas (by the evidence of three witnesses only as far as I can see) which entitled the husband's relatives to succeed to his widow's estate, if she died intestate, in preference to her own kin. What is remarkable is that it appears to have been taken for granted in the statements of the witnesses quoted that a Khoja widow could will away the whole of her husband's estate, which is as inconsistent with the Hindu as with the Mahommedan law. The learned Chief Justice says: "I agree with the observations of the counsel for the caveator that the law by which the Khojas are governed is not, properly speaking, Hindu law, but probably that law modified by their own peculiar customs ; and I think it has been sufficiently established that there is a Khoja custom which excludes the wife's relations from succeeding to property such as this." All the comment which such a passage requires is that it appears to assume that in the first instance Khojas would be governed by the Hindu, rather than the Mahommedan law, and that it would lie on any Khoja so alleging to prove that the Hindu law had been modified by some Khoja custom. With great submission that inverts the order of procedure. For surely in every case, except those in which a custom has already been legalized, it is to be presumed that the Khojas being Mahommedans are governed by the Mahommedan law until a contrary custom has been established.

12. In 1874 Shivji Hasam v. Datu Mavji Khoja (1874) 12 B.H.C.R. 281 was decided, and it is from this time onward that the law becomes more definitely stereotyped. The case is commonly summarized thus : " In the absence of sufficient evidence of usage to the contrary, the Hindu law is applicable in matters relating to property, succession and inheritance amongst Khoja Muhammadans." It will be noted that if this correctly represents the decision, a great step has been made. Now, it is to be presumed that Khojas, although Mahommedans, are governed by the Hindu law in all matters relating to "property" as well as succession and inheritance. It, therefore, becomes necessary to examine this judgment with some closenass. In the first part of the judgment devoted to the question, whether the property of the deceased had vested in the District Court, all that I need notice is that the learned Chief Justice Sir Michael Westropp speaks of Shivji as a "coparcener" and again as the manager of an undivided Hindu ' family. So far it appears to be taken for granted that the Khojas are governed by the Hindu law of the joint family, a proposition for which until this judgment there is absolutely no authority I believe to be found anywhere. The learned Chief Justics proceeds next to consider the contention that Klioj is are not necessarily governed by the Hindu law of the Mitakshara. He refers to the cause celebre of The Advocate General ex relatione Daya Muhammad v. Muhammad Husen Husen (sic) (1866) 12 B.H.C.R. 323 decided in 1866 by Sir Joseph Arnould, but does not appear to deduce anything from it. He then goes on thus (p. 291) : " But in matters relating to the property, succession, and inheritance, the Khojas appear to have retained to a considerable extent the Hindu law. In Hirbae v. Sonabae (1847) Perry O.C. 110 they succeeded in showing that the Koran did not govern the order of succession amongst them.... (Then after setting forth the facts of that case and merely inferring from those facts that Sir Erskine Perry's decision went much further than in fact it did, he goes on-) The traditionary doctrine of the Supreme Court and of the High Court has for upwards of, at least, twenty-five years, been that, in the absence of proof of special usage to the contrary, the law applicable to Khojas is in matters relating to property, succession, and inheritance, the Hindu law as administered in this Presidency. Accordingly in Gangabai v. Thavar Mulla (1863) 1 B.H.C.R. 71 we find Sir Mathew Sausse C. J. saying that the Klioja caste, although Muhammadan in religion, has been held to have adopted and to be governed by Hindu customs and laws of inheritance." I pause here to repeat that, while undoubtedly Sir Mathew Sausse does say that, it is apparently a mistake since I am unable to find any case in which anything nearly as wide as that, ever was decided. "In the Goods of Mulbai, already mentioned, it was held that when a Khoji widow dies intestate and without issue, property acquired by her from her deceased husband descends to his relations, and not to those of the widow." I pause again to point out that my critical examination of that case shows that it does not pretend even to decide more than the narrow question before it, namely, which is first in succession to a Khoja widow holding her husband's property, her own or her husband's kin? and expressly leaves it in doubt, to what extent the Khojas are governed by the Hindu law in other matters of property succession and inheritance. The learned Chief Justice goes on : " In a contest for administration in a case of intestacy, which has lately arisen between the mother and widow of a Khoja at the Ecclesiastical Side of the High Court, and, after occupying Sir Charles Sargent many days in hearing, now stands for judgment, the Ecclesiastical Registrar has collected several precedents at that side,-some being cases disposed of by the Court and others by the Ecclesiastical Registrar. In all, the Hindu law, as indicating the person entitled to succeed to the property, would seem to have been taken as the guide in granting letters of administration, except in one or two instances, in which the person so entitled expressly consented to the grant to another." This I take to be the real foundation of the decision for, as I have shown, the other cases cited so far certainly do not support it. But what is this ground ? It is so vague that it can hardly be examined. But put at the highest it seems to be no more than this, that in intestacies on the Ecclesiastical Side, the Hindu law is followed in choosing the heir. Whether that practice be warranted or not, it is surely insufficient to be the basis of so wide a proposition as that the Khojas are governed by the Hindu law in all matters relating to " property, succession and inheritance."