Judgement Appeal from a judgment and decree of the Court of Appeal for Eastern Africa (March 6, 1914) reversing a decree of the High Court of East Africa (September 16, 1913). The appeal related to the estate of one Haji Ismail Mithu (hereinafter called the deceased), who was a member of the Indian sect known as Memons and who died intestate on March 15, 1912, at Mombasa. The sole question was whether the succession was governed by Hindu law, as the appellant contended, or by Mahomedan law, as the respondent contended. The origin of the sect of Memons appears from the judgment and from the Khojas and Memons Case. (( 1847) Perry’s Oriental Cases, 110.) They are a sect of Mahomedans who were originally Hindus, and who at their conversion retained their Hindu law of succession as a customary law. About fifty or sixty years ago Memons began to migrate from Cutch to East Africa, and at the date of the suit there were, according to the evidence, upwards of a hundred Memon families at Mombasa. The father of the deceased was one of the first Memons who migrated to East Africa, coming from Cutch with his wife and children, including the deceased. The deceased was himself a merchant at Mombasa and died intestate on March 15, 1912, leaving him surviving his widow (the respondent), who had no issue, and two sons by an earlier marriage. Letters of administration were granted to his eldest son, the appellant. The respondent instituted the suit in the High Court of East Africa against the appellant, claiming administration of the estate-and a declaration that she was entitled to a one-eighth share, which it was admitted she should receive if Mahomedan law applied. The appellant by his defence contended that the estate was governed by Hindu law and that the respondent was consequently only entitled to maintenance during her widowhood, which maintenance he offered. The suit was tried by Hamilton C. J. It was admitted at the trial that in Cutch the succession to the estates of Memons is governed by Hindu law. Oral evidence was given on behalf of the appellant (defendant) that, although certain members of the Mombasa community of Memons had in {particular instances adopted the Mahomedan rules of succession, other intestate estates had been and were being dealt with among the community upon the basis of Hindu law. Oral evidence was given on behalf of the appellant (defendant) that, although certain members of the Mombasa community of Memons had in {particular instances adopted the Mahomedan rules of succession, other intestate estates had been and were being dealt with among the community upon the basis of Hindu law. The respondent on the other hand adduced evidence as to certain cases, of which their Lordships regarded eleven as fully proved, in which during the previous ten years succession had taken place according to Mahomedan law. Seven administration files were also put in evidence which established, at any rate in three or four cases, that a distribution of the estates of Memons had taken place according to that law. In the course of the trial it was admitted that the Hindu custom under which the ornaments of a childless widow return to the husbands family was followed among the Memon community in Mombasa. The Chief Justice held that it was incumbent upon the plaintiff (respondent) to prove not only that the Memons of Mombasa had discontinued to observe the Hindu custom, but that they had, since their arrival in Mombasa, adopted a custom not previously followed by them as a community, and that that new custom must be shown to be ancient and invariable and be established by clear and unambiguous language. He held that the evidence showed that there was not a uniform practice of inheritance among Memons in Mombasa and that the respondent had not discharged the onus of proof which was upon her. The Court of Appeal for Eastern Africa (Morris-Carter C.J., Carter J., and King-Farlow J.) upon appeal reversed this decision. Morris-Carter C.J. was of opinion that the rule that in order to displace the customary incidence of the Hindu law of succession among Memons it was necessary to prove an ancient and invariable custom to the contrary did not apply in the case of Memons who had migrated from India. In the present case he considered that if the plaintiff had produced sufficient evidence to show that the custom of Hindu succession had ceased to be generally observed by the Memons in Mombasa and the defendant had not led sufficient evidence in rebuttal, she was entitled to succeed without proving a special custom. After referring to Hirbai v. Gorbai (( 1875) 12 Bomb. After referring to Hirbai v. Gorbai (( 1875) 12 Bomb. H. C. 294.), he said that, Memons being a Mahomedan sect, less stringent proof was required of the discontinuance of a Hindu custom where they had come into a country in which Mahomedan influence was powerful than would be required in the case of Hindus seeking to prove the discontinuance of a Hindu custom. Upon an examination of the evidence he was of opinion that that adduced by the defendant (the present appellant) was of little value and that the plaintiff had proved a discontinuance in Mombasa of the custom whereby Memons inherit according to Hindu law. Carter J~ and King-Farlow J. delivered judgments agreeing with that of the Chief Justice. The defendant appealed. Nov. 19. Sir Erle Richards, K.C., and Austen-Cartmell, for the appellant. It is established by the Khojas’ and Memons Case (Perrys Oriental Cases 110.) that the Hindu law of succession applies among Memons throughout India. If any local custom varying that rule is relied on it must be proved as an ancient and invariable custom and established by clear and unambiguous evidence Soorendronath Roy v. Mussamat Heeramonee Burmoneah. (( 1867) 12 Moo. Ind. Ap. 81.) Although there have been in India cases in which it has been held that various incidents of Hindu law do not apply to Memons, it has never been held that a Hindu custom of succession is not applicable. The Court of Appeal relied on Hirbai v. Gorbai (12 Bomb. H. C. 294.), followed in Cassumbhoy Ahmedbhoy v. Ahmedbhoy Hubibhoy (( 1887) I. L. R. 12 Bomb. 280.), in which it was held with regard to Khojas, Mahomedans governed by Hindu law of succession, that there was not required for them such stringent proof of a custom contrary to the Hindu law of succession as would be required in the case of a Hindu. The evidence in those cases, however, showed that the new custom there relied on had existed for a considerable time, although it was not invariable or continuous. The evidence in the present case was insufficient to prove a discontinuance of the established custom. It related merely to the cases of particular estates all within the previous ten years, in some of which the Mahomedan law of succession was followed, and in some the Hindu law. The evidence in the present case was insufficient to prove a discontinuance of the established custom. It related merely to the cases of particular estates all within the previous ten years, in some of which the Mahomedan law of succession was followed, and in some the Hindu law. There was not in any of those cases any dispute raised or any legal decision. To effect a change of custom there should have been evidence of a general or communal intention to discontinue the old custom. It is a Hindu custom that the ornaments of a childless widow must be returned to her husbands family. It was admitted that that custom prevailed among Memons in Mombasa, and this is inconsistent with an adoption of the general Mahomedan law as to succession Moosa Haji Joonas v. Haji Abdul Rahim. (( 1905) I. L. R. 30 Bomb, 197.) The trial judge saw and heard the witnesses and had considerable knowledge of local conditions at Mombasa; his view of the effect of the evidence should therefore be preferred to that of the Court of Appeal. [Abraham v. Abraham (( 1863) 9 Moo. Ind. Ap. 196.) was also referred to.] The respondent was not represented. Dec. 3. The judgment of their Lordships was delivered by VISCOUNT HALDANE. This is an appeal from a judgment of the Court of Appeal for Eastern Africa reversing a judgment of the High Court of East Africa at Mombasa. The question to be decided is whether the succession to the estate of one Haji Ismail Mithu, deceased, is governed, as the appellant, who is a son, claims, by Hindu law, or whether the succession is governed by Mahomedan law, as the respondent, who is the widow, asserts. This question arose in an action brought by the respondent against the appellant claiming administration and a declaration that she was entitled, on the footing that Mahomedan law applied, to an eighth of her husbands estate. On the appellants contention the respondent, as widow of the deceased, became entitled to no more than maintenance. The deceased was a merchant who had settled at Mombasa, and was a member of the Indian sect known as Memons. According to the case as stated by the appellants counsel, some four or five hundred years ago the Loannas, a sect of Hindus located in Sind, became converted to the Mahomedan faith and took the name of Memons. The deceased was a merchant who had settled at Mombasa, and was a member of the Indian sect known as Memons. According to the case as stated by the appellants counsel, some four or five hundred years ago the Loannas, a sect of Hindus located in Sind, became converted to the Mahomedan faith and took the name of Memons. A century or so later they migrated to Cutch, where they settled. There were two migrations. Those who first migrated and their descendants became known as Cutchee Memons, while those who migrated on the second occasion, and their descendants, were called Nassapooria Memons. Both sets of migrants held to religious tenets and customs which are common to the Memon community, and, for the purposes of the present appeal, the distinction between the two sets is immaterial. Upon their conversion to Mahomedanism the Memons did not adopt the Mahomedan law as to succession, but retained their Hindu law of succession as a customary law which remained binding upon the entire Memon community at Cutch. Over half a century ago Memons began to migrate from Cutch to East Africa, and there are now, so it is stated, at least a hundred Memon families at Mombasa. The deceaseds father was a Nassapooria Memon who about half a century ago, with his wife and children, including the deceased, migrated to Mombasa, where they settled. At Mombasa the succession to Mahomedans is in general governed by Mahomedan law, although it would probably be open to immigrants to prove that they have brought with them and preserved a custom establishing special law of succession. The action was tried before Hamilton C.J. The appellant and respondent both called evidence. It was shown that in some cases, of which eleven appear to have been fully proved, succession among the members of the Memon community at Mombasa had taken place according to Mahomedan law. The only documentary evidence was also in accordance with this view. On the other hand oral evidence was given for the appellant and accepted by the learned judge who tried the case which showed that in a few cases distribution in accordance with Hindu law had taken place. The only documentary evidence was also in accordance with this view. On the other hand oral evidence was given for the appellant and accepted by the learned judge who tried the case which showed that in a few cases distribution in accordance with Hindu law had taken place. It was also established that there had been a custom, or at least a practice, that ornaments given to a wife in her husbands lifetime were allowed to remain with the widow only during her life or until remarriage, a custom or practice more nearly resembling the rule which obtains among Hindus than any which regulates such cases among Mahomedans. Upon consideration of the evidence Hamilton C.J. decided in favour of the appellant. He took the view that the burden of proof lay on the respondent to show that there was a Mahomedan custom which applied to the Memons in Mombasa, that this custom was ancient and invariable, and that it had superseded the custom which governed the Cutch Memons in such cases before migration. The Court of Appeal were of a different opinion. They held that Hamilton C.J. had, having regard to the facts as established, wrongly stated the character of the burden" of proof. They took the view that if the present respondent simply produced sufficient evidence to show that the custom of Hindu succession had ceased to be generally observed by the Memons in Mombasa, that was sufficient to entitle her to succeed, if the other side failed to bring forward sufficient evidence in answer. They commented on the indications, adverse to the present appellant, furnished by the documentary records, and on what they considered to be on the whole the preponderance in trustworthiness of the oral evidence against him. That on certain occasions females should have been proved to have preferred maintenance to a share of a very small estate they regarded as in the circumstances inconclusive ; nor was the special custom or practice as to ornaments enough to displace the presumption that the general rule was that of Mahomedan law. Their Lordships are in agreement with the conclusions reached by the Court of Appeal for Eastern Africa. It seems to them that the learned judge who tried the case misconceived what, having regard to the circumstances of the Memon migration to Mombasa, was the real question for the judge who had to try the case. Their Lordships are in agreement with the conclusions reached by the Court of Appeal for Eastern Africa. It seems to them that the learned judge who tried the case misconceived what, having regard to the circumstances of the Memon migration to Mombasa, was the real question for the judge who had to try the case. Where a Hindu family migrate from one part of India to another, prima facie they carry with them their personal law, and, if they are alleged to have become subject to a new local custom, this new custom must be affirmatively proved to have been adopted, but when such a family emigrate to another country, and, being themselves Mahomedans, settle among Mahomedans, the presumption that they have accepted the law of the people whom they have joined seems to their Lordships to be one that should be much more readily made. All that has to be shown is that they have so acted as to raise the inference that they have cut themselves off from their old environments. The analogy is that of a change of domicil on settling in a new country rather than the analogy of a change of custom on migration within India. The question is simply one of the proper inference to be drawn from the circumstances. In the present case it is to be observed that it does not appear that the Memons in Mombasa have at any time established any distinctive political or social organization for themselves. Such organization as has been formed appears to have been formed mainly, if not entirely, for purposes of worship. There seems to be no sufficient reason in what has been brought before the Courts in this case for regarding the Memons who have emigrated from Cutch to Mombasa as other than a number of individual Mahomedans who have settled down among a people who are of their own religion. It does not appear that these Memons have ever as a body claimed to be outside the system of law which naturally follows from that religion and so prevails among the Mahomedans at Mombasa. Their Lordships have examined the oral evidence brought forward on behalf of the appellant. It relates to very small estates and is of an inconclusive character. There is lacking in it indication of intention to assert a principle. Their Lordships have examined the oral evidence brought forward on behalf of the appellant. It relates to very small estates and is of an inconclusive character. There is lacking in it indication of intention to assert a principle. A good deal of the evidence for the respondent is open to the same observation. But several of the documentary records distinctly support the contention that some at least of the Memon families had treated themselves as governed in point of succession by Mahomedan law, and the balance of the oral testimony appears to be on that side. Under these circumstances their Lordships think that the presumption which arises from the facts proved and the weight of evidence are both in favour of the conclusion reached by the Court of Appeal. They will, therefore, humbly advise His Majesty that this appeal should be dismissed. The respondent, who did not lodge a case or appear at the hearing, will have any costs to which she may be entitled according to the practice usual in such circumstances.