It has also been held in A. G. v. Jimbabai (41 Bom. 181), that the testamentary powers of Khojas and Cutchi Memons are not restricted to one-third, as among the other Muslims, but they have acquired by custom, the power of disposing of the whole of their property by will, and that such will is to be construed according to the rules applicable under Hindu law.
Testamentary Powers of Khojas:
Prior to the coming into force of the Shariat Act, 1937, Cutchi Memons, Khojas, Sunni Bohras of Gujarat and Molesalam Girasias of Kathiawar and Broach were governed by Hindu law in matters of inheritance and succession, and therefore, could dispose of the whole of the property by will. Such wills were construed by the rules of Hindu law relating to wills.
Now, S. 3 of the Shariat Act gives any person belonging to one of these communities and who is a resident of India, the option of abandoning the customary (i.e. Hindu) law, and adopting Muhammadan law.
If such a person execrises this option, he will be governed by Muhammadan law by which a Muslim cannot, by will, dispose of more than one-third of his property without the consent of his heirs. In cases governed by the Muhammadan law under the Shariat Act, the will is to be construed by the rules of Muhammadan law relating to wills.
After the passing of the Shariat Act, 1937, all these Muslim communities are governed by strict Muslim personal law in matters relating to intestate succession and wakfs created by testaments (wills). But so long as they have not made a declaration under section 3 of the Act, they continue to be governed by rules of Hindu law on matters relating to wills and legacies.
The result is that even after the passing of the Shariat Act, a Khoja can still make a will of the whole of his property under the customary law, and the construction of his will, except as regards provisions regarding trusts and wakfs, will be governed by the rules of Hindu law.
Teatamentary Powers of Cutchi Memons:
As regards Cutchi Memons, the application of customary Hindu law is now completely abrogated, by virtue of The Cutchi Memons Act, 1938. This Act provides that Cutchi Memons shall be governed; in ail matters of personal law, by Muslim law.
This Act clearly lays down that all Cutchi Memons shall, in matters of succession and inheritance, be governed by Muhammadan law. Prior to the passing of this Act, the Shariat Act, 1937, provided that in all matters of personal law, other than wills and legacies, Cutchi Memons are governed by strict Muslim Personal law.
Thus, the combined effect of these two Acts is to abrogate totally the application of customary Hindu law to Cutchi Memons, who are now governed in all matters by Muslim law.
Today, the testamentary power of Cutchi Memons is the same as that of other Muslims; in other words, a Cutchi Memon cannot bequeath more than one-third of his property without the consent of his heirs; nor can he bequeath his property to any one or more of his heirs.
Summary of Cutchi Memons Act, 1938:
The Cutchi Momons Act, 1938, is an Act to provide that all Cutchi Memons are to be governed in matters of succession and inheritance by the Muhammadan law. The Act came into force on 1st November, 1938. S. 2 of the Act lays down that “subject to the provisions of S. 3, all Cutchi Memons shall, in matters of succession and inheritance, be governed by the Muhammadan law.”
Sec. 3 of the Act provides that the Act is not retrospective, and it does not affect any right or liabilties acquired or incurred before its commencement; any such legal proceeding or remedy may be continued or enforced as if this Act had not been passed.
X, a Cutchi Memon, dies in 1940, leaving a will in which he has bequeathed half his property to his friend Y. Is the will valid? Would it make any difference if he died making the same in 1937?
Under the Cutchi Memons Act, 1938, a Cutchi Memon is governed by Muhammadan Law in all matters of succession and inheritance. The bequest by X in favour of Y a stranger, is in excess of the legal one-third, and cannot take effect, unless X’s heirs consent thereto after X’s death. If the heirs refuse their consent, the bequest will abate.
If X had died in 1937, he would have been subject to the Muhammadan Law of wills only if he had made the necessary declaration under S. 3 of the Shariat Act, 1937. In the absence of such a declaration, the bequest would be valid.