Home Cutchi Memons Act Overview of the Cutchi Memons Act, 1938

Cutchi Memons Act

Overview of the Cutchi Memons Act, 1938

October 11, 2021

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This article is written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed understanding of the Cutchi Memons Act, 1938.

Table of Contents

Introduction

In order to understand the Cutchi Memons Act, 1938, it is necessary to understand the term “Cutchi Memon” which may appear to be unfamiliar to the majority of the readers. It is believed that around 1404 AD a group of around 700 individuals who originally belonged to the Lohana community belonging to the Sindh region accepted Islam as their religion under Pir Abdul Qadir Gilani of Baghdad. Therefore, it can be said that the Cutchi Memos were Hindus who had converted to the Islamic religion around four hundred years ago. Cutchi Memon is a community that used to practice retail trade as street vendors, and the weighing scales they used were called “meimon” from where they came to be known as Cutchi Memon. This story is one of the versions of the origin of Cutchi Memon, a community that appears to be approximately six hundred years old. While there exist several other theories behind the origin of Cutchi Memon, which one of them spells the truth is difficult to ascertain. It is said that the ruler of Cutch (also spelled as Kutch or Kachchh), a district in the state of Gujarat, invited a group of Muslims to reside in his kingdom. This group of Muslims was called “Mumins” which further became familiar by the name of “Memons”. The Memons majorly reside in India, and parts of Pakistan with a population of 9 lakhs, and 7 lakhs respectively. In India, the Cutchi Memons are governed by Islamic laws as they voluntarily opted for them. Previously they were governed by the Indian legislation Cutchi Memons Act, 1920 which has now been repealed and replaced by the Cutchi Memons Act, 1938. This article intends to provide a detailed explanation of the small statute that has received significance over the years in law books, lectures, and research papers.

The Cutchi Memons Act, 1938

On the 8th of April 1938, the Indian legislature had promulgated the Cutchi Memons Act, 1938 to provide a codified governing statute for the Cutchi Memons in matters relating to succession, and inheritance. The Act stated that the Cutchi Memons will be ruled by the Muhammadan law in subjects of inheritance and succession. This being the underlying intent of the legislation, the same comprises three short provisions that execute the purpose of the Act of 1938.

The provisions of the Cutchi Memons Act, 1938

The Cutchi Memons Act, 1938 is made up of three sections which are:

Section 1: Short title and commencement.
Section 2: Cutchi Memons to be governed in certain matters by Muhammadan Law.
Section 3: Savings.

Section 1: Title and commencement

Section 1 of the Act reads as, “ (1) This Act may be called the Cutchi Memons Act, 1938.

(2) It shall come into force on the 1st day of November 1938.” The Section thus provides the name of the Act along with which it states that the Act commenced from 1st November 1938. Before understanding Section 2 of the Act, it is necessary to analyze Section 3.

Section 3: Prospective application of the Act of 1938

Section 3 of the Act of 1938 deals with savings. The Section reads as, “Nothing in this Act shall affect any right or liability acquired or incurred before its commencement or any legal proceeding or remedy in respect of any such right or liability, and any such legal proceeding or remedy may be continued or enforced as if this Act had not been passed.”

The provision provides that the Act will be functioning prospectively thereby not affecting any right, or liability that had been acquired prior to the promulgation of this Act. Further, it also states that if there existed any legal proceeding, or that had commenced, or provided prior to the implementation of this Act, and is continuing at present, then the same will in no way be affected by the provisions of this Act. Thus Section 3 of the Act bars retrospective operation of the statute.

Section 2: Matters of governance

Section 2 of the Act reads out as, “Subject to the provisions of Section 3, all Cutchi Memons shall, in matters of succession and inheritance, be governed by the Muhammadan Law.” The provision, therefore, lays down certain matters in which the Cutchi Memons will be governed mandatorily by the Muhammadan law provided the same is applied prospectively. The matters are inheritance and succession.

Testamentary powers of Cutchi Memons

It is because of Section 2 of the Cutchi Memons Act, 1938 that the Cutchi Memons enjoy the same testamentary powers as the Muslims in general. The testamentary power, also known as bequeathable third provides that no Muslim can make a bequest that exceeds one-third of his assets after deducting the funeral charges and debts that need to be made after the death of the person. If the bequeathed property exceeds beyond the one-third limit, then in such circumstances the consent of other heirs stands mandatory.

Let us hypothetically imagine that Mr. R is a Cutchi Memon who passed away in the year 1945 leaving behind a Will in which he had bequeathed half of his existing property to his best friend Mr. Q. Now, will the Will made by Mr. R be valid, and would it have made any difference if Mr. R died in the year 1937 instead of 1945?

In order to answer these two questions, we need to keep in mind that the Cutchi Memons Act 1938 makes it clear that the Cutchi Memons will be governed by Muhammadan law for the matters of inheritance, and succession. Taking into account the facts provided above it can be said that Mr. R had bequeathed his property to a stranger, Mr. Q, and the same is in excess of the legally prescribed bequeathable limit that is one-third. Because of this, the Will cannot take effect unless the legal heirs of Mr. R provide their consent to the same. Also, if Mr. R had died in 1937 instead of 1945, he would have been subject to Muhammadan law only.

A comparison between the Cutchi Memons Act, 1920 and the Cutchi Memons Act, 1938

Before the enactment of the Act of 1938, Cutchi Memons were governed by the Cutchi Memons Act, 1920. The arrangement of the Act of 1920 was very much different from that of the Act of 1938.

Section 2 of the Cutchi Memons Act, 1920 stated the power of the Cutchi Memons to declare that they desire to obtain the benefit yielded by the Act thereby giving consent by means of declaration before a prescribed authority to be governed by the Muhammadan law in matters of inheritance and succession. But in order to do so, a Cutchi Memon had to abide by the parameters provided by the provision which are;

A Cutchi Memon had to attain a majority in order to exercise the power of declaration; and
A Cutchi Memon had to be a citizen of British India.

But after the Act got repealed by the Act of 1938, and Section 2 mandating the application of Muhammadan law in subjects of inheritance, and succession for all the Cutchi Memons, the provision will be read according to Section 3 of the Shariat Act, 1937 which vests the power to make a declaration to,

“(1) Any person who satisfies the prescribed authority-

(a) that he is a Cutchi Memon and is the person whom he represents himself to be;

(b) that he is competent to contract within the meaning of Section 11 of the Indian Contract Act, 1872 (IX of 1872); and

(c) that he is resident in India.”

Section 3 of the Cutchi Memons Act, 1920 provided the rule-making power of the local governments, and prior to the 1938 amendment read as:

“(1) The Local Government may make rules prescribing the authority before whom and the form in which the declarations under this Act shall be made.

(2) Rules made under the provisions of this section shall be published in the local official Gazette and shall thereupon have effect as if enacted in this Act.”

But, with the 1938 amendment, the rule-making power of the local government is now to be read in accordance with Section 4 of the Shariat Act, 1937.

The Controller of Estate Duty, Mysore, Bangalore v. Haji Abdul Sattar Sait & Ors (1972)

The case of The Controller of Estate Duty, Mysore, Bangalore vs. Haji Abdul Sattar Sait & Ors (1972) came before the Supreme Court of India in 1972 that concerned the right of succession of property among Cutchi Memons.

Facts of the case

The family of the respondent who was Cutchi Memons had settled in Madras between the years 1928 and 1930 and further shifted to Bangalore Civil Station. In the meantime, the father of the respondent passed away in 1955 in Bangalore leaving behind properties that were to be charged by estate duty. The respondent had contended that his family was governed by Hindu law and therefore, the rules for distribution and devolution of joint family property were applicable by survivorship, and therefore only one-third portion of his father’s property that contributed as the undivided share will be subject to assessment under the Estate Duty Act, 1953. The Bombay High Court had observed that the application of Hindu law was prohibited on the Cutchi Memons by the provisions of the Cutchi Memons Act, 1938.

The Supreme Court’s observation

The Apex Court while deciding on this matter took into account the language of the provision of Section 3 of the Cutchi Memons Act, 1938 which reads as, “nothing in this Act shall affect any right or liability acquired or incurred before its commencement or any legal proceeding or remedy in respect of such right or liability and any such proceeding or remedy may be, continued or enforced as if this Act had not been passed.” Observing the decision in favor of the respondent, the Court held that if the respondent and his family were governed by Hindu law of property, succession, and survivorship then the son had the right to his father’s property by birth itself. And therefore, applying Section 3 of the Act of 1938 the same right cannot be taken away from the respondent.

Conclusion

Although the Cutchi Memons Act, 1938 governs a small portion of the mammoth population of India, discussing the same, and finding its mention in law books, and research journals are by itself astonishing. The recognition provided to the Cutchi Memons community by the legislation of 1938 is noteworthy and should be appreciated. But the Cutchi Memons Act, 1938 being a facilitator of Muhammadan law upholds all the loopholes that the latter incorporates thereby adding to the already existing issues.

References

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