[1950] EACA 40

# ORIGINAL CIVIL

## Before de LESTANG, J.

# IN THE MATTER OF THE TRUSTS OF THE WILL OF PREMIL DHANJI. $(Deceased)$

#### AND

# IN THE MATTER OF THE MINOR SONS (1) AMIRALI, (2) HASSANALI, (3) ZULFIKARALI AND (1) SHERBANU, (2) KHATIJA, (3) KULSUM, (4) SHAH SULTAN, (5) GULZAR, (6) MINOR DAUGHTER MALIK SULTAN, (7) SAKINABAI, (8) SAKUBAI

### Trust Cause No. 7 of 1950 (Mombasa)

# Inheritance—Khoja Esmailia—Codicil—Hindu and Mohamedan Customary law— Hindu Wills Act, 1870—Whether applicable.

A summons for directions was taken out by the executors of the will of Premiji Dhanji as to whether they should give effect to an alleged codicil modifying the deceased's will. The deceased was an Esmailia Khoja. The codicil was undated, unsigned and unattested though in deceased's handwriting.

## Held (30-11-50).—(1) The codicil was valid under customary Hindu and Mohamedan law but invalid under the Hindu Wills Act, 1870.

(2) Though it is conceded that for inheritance and succession Esmailia Khojas are governed by Hindu Law the question is whether the Hindu Wills Act applies to Esmailia Khojas.

(3) The Hindu Wills Acts does not apply to Esmailia Khojas as by "Hindus" is meant the followers of the Hindu religion.

(4) The Law of succession and inheritance does not include the "forms" of wills and the codicil was valid.

Cases cited and followed: Abdul Karim and Others v. Kermali, A. I. R. (1920) Bombay 140: re Ali Lalji Gulamina, Tanganyika Territory Probate and Administration Cause No. 15 of 1943 (unreported).

Cases dissented from or distinguished: Abdulla Karim and Another v. Saleh<br>Hassan, Zanzibar Protectorate Law Reports, Vol. 1 p. 150: Framroze P. Doctor v.<br>Mohomed Premji and Others, Zanzibar Protectorate Law Reports, Vol. 1 Fazal Haji Khakoo v. Fatamabai, Zanzibar Protectorate Law Reports, Vol. 1. p. 598.

#### Satchu for petitioners.

C. A. Patel for minor daughters. $\cdots$

C. H. Patel for minor sons.

JUDGMENT.—This is an application by the Executors of the Will of Premiji Dhanji—deceased, for directions as to whether in the administration of the deceased's estate they should give effect to an alleged codicil modifying the will.

The deceased was an Esmailia Khoja who died in Mombasa on the 12th November, 1949. He left a will properly executed and dated 19-12-46 and also a document entitled "This will is for daughters" (hereinafter referred to as codicil) written in his own handwriting but undated, unattested and unsigned. The codicil was made by the deceased about one month before his death and was found among his papers. This codicil would be valid under both Customary Hindu Law and Mohamedan Law which do not require that any particular formalities should attach to the execution of a will but it is clearly invalid under the Hindu Wills Act. 1870, which has been applied to the Colony. Since, however, it is conceded that in matters of inheritance and succession, Esmailia Khojas are governed by Hindu Law the point which arises for decision in this application is whether the Hindu Wills Act, 1870, applies to Esmailia Khojas. In my view, both, on the true interpretation of the Act itself and on authority this question must be answered in the negative. As regards interpretation there are, in my view, two grounds for deciding that the act does not apply to Khojas.

Firstly the Act is made applicable to Hindus and by Hindus must be understood the followers of the Hindu religion. Although it would appear that Esmailia Khojas were original by Hindus who were converted to Islamism about half a century ago they are not Hindus any more as they now practice the Mohamedan Religion. Because owing to their origin they are still governed in matters of succession and inheritance by Hindu Customary Law it does not, in my view, necessarily follow that they are bound by the statutory law relating to Hindu wills. The law of succession and inheritance does not include the form of wills. Secondly, the Act does not apply to all Hindus but to Hindus in certain specified territories of what was then British India. How would the Act apply to Khojas? Would it apply to all of them or only to those residing in the territories to which the Act applies? The answer, in my view, is that it does not apply to them at all. The Khojas are governed by Customary Hindu Law and not by Statutory Law which may from time to time be enacted expressly for the Hindus.

As regards authority this important question does not appear to have been the subject of any authoritative decision by the Courts $i_n$ Kenya. It has, however, been considered by the Courts in India, in Tanganyika and in Zanzibar. In Abdul Karim and Others v. Kermali, A. I. R., 1920, Bombay, 140, it was held that Khojas were not within the scope of the Hindu Wills Ac., 1870, and this decision was followed in Re Ali Lalji Gulamani, Tanganyika Territory Probate and Administration Cause No. 15/1943 (unreported), a copy of the decision in that case was handed over to me by learned Counsel for the applicants and it reads as follows:—

"On the authority of the decision in Abdul Karim and Others v. Karmali (A. I. R. 1920 Bombay 140), I find that the Hindu Wills Act is not applicable to the will of a Khoja Mohammedan. The oral will of Ali Lalji Gulamani is accordingly declared to be a valid will.

### Usual citation to issue."

I have, however, been referred to three decisions of the High Court of Zanzibar which, it is contended, are to the opposite effect. The earliest of them is the case of Abdulla Karim and Another v. Saleh Hassan, Zanzibar Protectorate L. R. Vol. 1. p. 150 which was decided in 1902. In the course of the Judgment this passage occurs—"the Hindu Wills Act section 2 applies to Hindus and therefore Khojas". No authority is quoted for this rather startling proposition which for the reasons which I have already given does not appear to me to be either correct or logical. The two other cases were decided in 1909 and 1918 respectively. They are Framroze P. Doctor v. Mohomed Premji and Others, Zanzibar Protectorate L. R. Vol. 1 p. 306 and Fazal Haji Khakoo v. Fatamabai, Zanzibar Protectorate L. R. Vol. 1 p. 598. In both these cases it was decided, inter alia, that the construction of the will of a deceased Khoja was governed for the purpose of succession and inheritance by Hindu Law. This principle is not disputed in the present case and there is nothing in these decisions to indicate that a Khoja is governed by the Hindu Wills Act, 1870. Indeed there is no reference whatsoever in both these cases to that Act.

In my view, the first case is not an authoritative decision while the two others are not in point and it seems to me that both on principle and on authority the Hindu Wills Act, 1870, does not apply to Khojas at all. Consequently the codicil is valid and must be given effect to. The costs of these proceedings will be paid out of the estate.