Chagla, J - (1.)This is a suit for the administration of the estate of one Cassim All Jairazbhoy. He died on 8-6-1938, leaving behind him his widow (defendant 5) and six sons (the plaintiff, defendants 6, 7, 8, 9 and 10). Defendant 11 is his grandson by his son, defendant 6. Defendant 12 is his mother. Defendants 1 to 4 are the executors of his will dated 15-10-1934. Counsel have informed me that the various matters in dispute in suit between the parties have been settled, and the decision of the Court is only sought on the question of the construction of Clause 6 in the will of the deceased. 1a. The will left by the deceased is a very short document. By Clause 1 he appoints defendants 1 to 4 his executors and trustees. Clause 2 is an interpretation clause as to what the expression "trustees" signifies. Clause 3 contains several pecuniary legacies given by the deceased. By Clause 4 he makes two specific bequests of two of his properties to one of his sons. By Clause 5 he makes a bequest of all his household furniture; pictures, china, silver and plate and all other household chattels and personal estate to his wife and also of one of his immoveable properties. Then we come to Clause 6 which has created difficulties and which has called for construction at the hands of the Court. The testator prefaces this clause by stating that he is giving and bequeathing all the residue of his estate unto his trustees absolutely upon the trusts which he enumerates. The first trust is to pay the funeral debts and testamentary expenses and the legacies which he has already provided and the duty thereon and subject to that, the whole of his personal estate is given to his wife absolutely. Then by Clause 6(b) he makes a trust of his house, "Goolshanabad" at Peddar Road and he gives the right of residence in that house to his wife. Then by Clause 6(c) ha deals with his property known as "Rehemet Manor," Warden Road. He first provides for the outgoings of the property; then he directs payment to certain schools and charitable institutions; and finally directs that the balance of the income of the properties "Goolshanabad" and "Rehemet Manor," subject to the trust already created, is to be paid to his six sons and the survivor or survivors of them in equal shares absolutely. Then by Clause 6(d) he deals with the corpus of his two properties, "Goolshanabad" and "Rehemet Manor," and directs that upon the death of the survivor of his six sons they should go to the male heirs of his six sons per stirpes absolutely. Then by Clause 6(e) he provides for the rest and residue of his immoveable estate and gives it to his six sons in equal shares provided that, in the event of any of his six sons predeceasing him, the share which would have gone to that son should be divided between his male heirs.
(2.)The deceased was a Khoja Mahomedan and it has now been established by a series of authorities of this Court that in matters of succession and inheritance a Khoja was governed by Hindu law on the ground of custom. It is unnecessary to review all the authorities that establish this proposition, and they have been carefully and conveniently summarized in the judgment of Chitre J. in 38 Bom. L.R. 397.1 Sir Jamshedji Kanga for the plaintiff has, however, contended that although a Khoja, unlike a Muslim governed by strict Mahomedan law, may dispose of the whole of his property by will, when it comes to the question of the construction of that will it should be construed according to Mahomedan law and not Hindu law. Sir Jamshedji's argument is that the ordinary and natural presumption is that a Khoja being a Mahomedan is governed by Mahomedan law and in every case where it is sought to be established that the law applicable to him in any respect departs from the strict Mahomedan law it must be proved as a matter of custom; and he further urges that it never has been established as a custom that in construing the will of a Khoja Hindu law applies. The position of Khojas is very similar to that of Cutchi Memonsand Beaman J. in 41 Bom. 18l2 took the view that the question whether a devise by a Cutchi Memon was good or bad should be determined by Mahomedan law. Mirza J. had to consider this case in 54 Bom. 3583 which was a case of a Cutchi Memon's will; and in construing that will he expressly differed from the opinion of Beaman J. holding that opinion was obiter and that the will of a-Memon should be construed according to Hindu law. There is a more recent decision of our Court of Appeal-37 Bom. L.R. 686.4 The Bench consisting of Murphy and N.J. Wadia JJ. considered both the decisions, that of Beaman J. and that of Mirza J. and came to the conclusion that the decision of the latter Judge was to be preferred. It is true that the cases I have just been considering are those of Cutchi Memons, but authorities are not lacking with regard to Khojas. As far back as 1901, Sir Lawrence Jenkins, C.J. in 3 Bom. L.R. 7855 in construing the will of Sir Tharia Topan, a Khoja, observed (p. 785): "It is conceded on all sides, and I think rightly, that the will is to construed according to Hindu Law"; and again in 29 Bom. 1336 the same learned Chief Justice observed (p. 148): It is common knowledge in legal circles that Khojas continually make their wills, as though they had the testamentary capacity of a Hindu; and counsel in this case, whose experience is of the widest have informed the Court that they do not desire any issue to be raised on the point, for all parties are at one that this will must be construed on the basis of the testator having the testamentary powers of a Hindu resident of Bombay.
(3.)Sir Jamshedji Kanga points out that both these decisions are based on points conceded at the bar. But it is to be remembered, as pointed out by the Privy Council in 51 I.A. 1297 that when an obvious plea which could have been taken is not taken by eminent counsel at the bar, the irresistible conclusion is that plea was not taken because it was felt to be bad. Counsel have sufficient sense of responsibility not to argue against self-evident propositions, and the Court very often does not decide such self-evident propositions but takes them for granted. Similarly, Sir Lawrence Jenkins in both the cases to which I have referred accepted the proposition that the will of a Khoja is to be construed according to Hindu law and did not think it necessary expressly to decide the question.