Charles Sargent, C.J.
1. This appeal arises out of a suit instituted by Cassumbhoy Ahmedbhoy, of Bombay, against his father Ahmedbhoy Hubibbhoy, to establish his claim to a one-third share in the ancestral family property, which he alleges came to the latter on the death of his father, Hubibbhoy Ebrahim, under his last will and testament. The defendant by his written statement denied the allegation that the property came to his hands, as stated in the plaint, was ancestral property according to the laws and usages governing the Khoja community in Bombay, and, further, that the distinction, according to Hindu law, between ancestral and self-acquired property had any application to, or has ever been recognized, or acted on, by any Khojas in Bombay, and that plaintiff did not on birth, or at any time, become a co-parcener or sharer to any extent in the said property with the defendant. At the hearing, after the issue had been framed, a question was raised whether the plaintiff could contend that the property was ancestral in Hubibbhoy's hands without amending the plaint. The Court ruled that an amendment a was not necessary, but two additional issues were raised. The Judge of the Division Court held that the wealth which Hubibbhoy Ebrahim left by will to defendant had been acquired by Hubibbhoy by means of a nucleus property inherited by him from his father Ebrahim, and that in the absence of a custom to the contrary, which he held not to be proved by the defendant, the law of the Mitakshara was applicable to the case, and referred it to the Commissioner to take an account of the ancestral property come into the possession of the first defendant, and to ascertain and report the amount of the same. As to, the law applicable to Khojas, the learned Judge of the Division Court relied on judgments of the Court of Appeal in the cases of Shivji Hasam v. Datu Mavji Khoja 12 Bom. H.C. R 281 and Hirbai v. Gorbai 12 Bom. H.C. R. 294 . In the former case Sir M.R. Westropp, C.J., who delivered the judgment of himself and West, J., says (p. 292): 'The traditionary doctrine of the Supreme Court and of the High Court has for upwards of at least twenty-five years, been that, in the absence of proof of special usage to the contrary, the law applicable to Khojas is, in matters relating to property, succession, and inheritance, Hindu law as administered in this Presidency;' and the Court accordingly held that there being no evidence of special custom to the contrary among the Khojas. at Thana, that the members of a Khoja family would be bound by the necessary acts of the manager. And again in Hirbai v. Gorbai 12 Bom. H.C. R 294 where the question was between the rival claim, of the widow and mother of the deceased, Sir M.R. Westropp, sitting with Melvill, J., says: 'It has been generally assumed that,, in the absence of proof of custom to the contrary, the law of succession and inheritance amongst the Khojas is the law of the origin, viz., Hindu.' Mr. Justice Jardine considered that the questions raised by the present suit fell within the general terms of the rule as enunciated in the above cases with respect to Khojas, and finding that the son's right, as alleged by the plaintiff, to insist on the partition of ancestral property, whether moveable or immoveable, during kin f father's lifetime, had been decided to be in accordance with Hindu law in Jugmohandas v. Sir Mangaldas Nathubhoy I.L.R. 10 Bom. 528 threw the onus on defendant of proving the existence of a custom amongst Khojas which was opposed to such right. Now it is to be remarked that the rule of this Court to which Sir M.R. Westropp refers in the last case, is based on a dictum of Sir M. Sausse in Gangbai v. Thavar Mulla I. Bom. H.C. R. 71 and the practice which had prevailed during the previous twenty-five years in granting letters of administration to the estates of deceased Khojas which is particularly referred to in the judgment of the Division Court in Hirbai v. Garbai 12 Bom. H.C. R. 294 . The dictum of Sir M. Sausse, that 'the Khoja caste had been held to be governed by Hindu customs and laws of inheritance,' must have been based on the practice of granting letters of administration to Khojas prior to 1863, when Gangbai v. Thavar Mulla 1 Bom. H.C. R. 71 was decided; for besides the case before Sir E. Perry in 1847, which certainly did not lay down any such rule, the question would appear to have never arisen except on the ecclesiastical side of the Court. So far, therefore, as the rule is confined to the simple question of inheritance and succession, as to which the law books present no difficulty, it would appear to be based on a long-established practice of the Court of applying Hindu law in the absence of proof of custom to the contrary, which might well justify the onus being thrown on the party alleging such custom, of proving it. Hirbai v. Gorbai 12 Bom. H.C. R. 294 Shivji Hasan v. Datu Mavji Khoja 12 Bom. J.C. R. 281 and Rahimatabai v. Hirbai I.L.R. 3 Bom. 34 are all illustrations of the application of the rule in dealing with the evidence on questions of that nature. But whereas in the present case the issue is as to a right upon which, more specially as regards moveable property with which we are now concerned, the greatest doubt and difference of opinion has prevailed, not only in the Courts of this country--as appears from the judgment in Jugmohandas v. Sir Mangaldas Nathubhoy I.L.R. 10 Bom. 528 --but amongst all writers and jurists who have given their attention to the subject, as pointed out in the judgment of the Division Court in this case, it would be impossible, in our opinion, to hold that there is such a presumption in favour of the Hindu Law in force on the subject amongst Khojas at the time of their conversion in A.D. 1400 having been identical EAE with the law as it has only recently been authoritatively declared by this Court in Jugmohandas v. Sir Mangaldas Nathubhoy I.L.R. 10 Bom. 528 and of its having been retained up to the present time as to shift the onus of proof from the plaintiff, who alleges that such was the law and is now the custom of Khojas. If this view of the restricted applicability of the rule be correct, it follows that the present question between the parties should be tried exclusively on the evidence in the case, as the custom of Khojas with respect to the succession to a woman's property acquired from her husband was dealt with by Sir R. Couch in In the Goods of Mnlbai 2 Bom. H.C. R 276 and that the plaintiff, as such, should be required to prove (as he did in that case to the satisfaction of the Court), that the present custom of Khojas with respect to the question in dispute is as he alleges. It was indeed contended by Mr. Starling, for the defendant, that as the Khojas lived on the confines of Hindu civilization, it ought to be assumed that the law which then prevailed amongst the Khojas in their original home in Bind was of a more primitive type--which, there is every reason to suppose, was in force at one time--by which all the property of the family fell into a common stock, the administration of which was absolutely in the hands of the father. But centuries had elapsed since that primitive or Vedio period of Hindu history before the conversion of the Khojas, during which not only the system of the joint family (as pointed out by the learned authors of West and Buhler's Hindu Law 3rd ed. P. 713) had been undergoing dissolution, but the parental authority had suffered serious diminution and there is no Sufficient reason for assuming that the Khojds, although living on the confines of Hindu civilization, had remained entirely uninfluenced by the gradual change of ideas and habits which had taken place in the Hindu community generally.
2. The question between the parties must, therefore, in our opinion, be determined solely on the evidence in the case, apart from all presumption one way or the other. Mr. Justice Jardine having treated the rule enunciated in the above cases as applicable, and having thrown on the defendant the onus of proving a custom different from that alleged by the plaintiff, necessarily approached the evidence from that point of view, and it is not necessary for ns to express an opinion on the conclusion come to by him that defendant had failed in rebutting the presumption in favour of the Hindu law with which he started on its, consideration. It is not in dispute that the Khojas migrated from their home in Sind into Cutch and Kathiawar, and thence at the close of the last century to Bombay. The plaintiff's evidence is principally confined to the custom as it prevails in Catch and Kathiawar, where the Khojas have always been exclusively engaged in agricultural pursuits, and are by no means a wealthy community, and it is important, as Mr. Justice Jardine remarks, as showing how Khoja families dealt with the family property in quiet rural districts, where it is probable that as little change would take place in their habits and customs as in the material conditions by which they were surrounded. The result of that evidence is doubtless to show that it is usual in Kathiawar and Cutch for a father to give a son who wishes for it his share, during his father's life, of the family property--that, too, without any distinction being drawn between ancestral or self-acquired. That is the statement of one and all of the witnesses; whilst, at the same time, they would appear to distinguish between ancestral and self-acquired property with respect to the father's power of alienation without the consent of the son. The Judge of the Division Court thinks it probable that by self-acquired property was meant accretions of the family patrimony, but we find nothing to justify that conclusion in the evidence. But, if so, it must be so understood in the evidence of the Bombay witnesses. The usage appears to us, on the statement of the witnesses, to have been of the most primitive character, viz., for a father to give a son his portion and to let him go, as was done with the prodigal son and that without any distinction as to ancestral or self-acquired. However, when we come to the evidence of the Bombay witnesses, we find almost a consensus of opinion that the son has no right to demand partition either of ancestral or self-acquired property in the father's life-time, illustrated by numerous instances, of which those of Goolam Hoosain, Mahomed Cassum, Rahimbhai Virjir, Kaki Dossa, Alibhai Hubib, and others, are cases, in which there was undoubtedly ancestral property, of sons being turned out of the family house by the father, without any portion of the property in the hands of the father being given to them. No case was adduced by plaintiff of such partition having taken place except in 1844 in Hubibbhoy's own case, when he was old and going to Mecca. At the same time Mr. Justice Jardine has discussed this evidence at great length; and, considering that this 'turning out' spoken of by so many witnesses might be explained by the unwillingness of sons to enfore their rights, considered that it was not of itself sufficient to rebut the presumption in favour of the plaintiffs right with which he started. But without expressing any opinion as to whether that was a correct conclusion from the evidence, we cannot, apart from any such presumption, regard the evidence as to the 'turning out' of sons by their fathers without any portion of the property, whether ancestral or self-acquired, otherwise than as pointing, in the absence of special circumstances, to their being no such recognized right on the part of the sons to demand partition. It is true that the witnesses go even so far as to say that there is no distinction between ancestral and self-acquired property as regards alienation by the father, but without being able to cite any, instance of a Khoja alienating ancestral property, by will or otherwise, away from his sons; but, however that may be, the right of, the sons to object to alienation by their father is quite consistent with their having no right to demand partition; of ancestral property during his life, which is the only point now for consideration, and which affords the only reasonable explanation of their submitting to be turned out without any share. Nor, indeed, is it to be wondered at that the custom should be different in Bombay from what it is stated to have always been in. Kathiawar and Cutch. Since the Khojas have settled in Bombay which y is said to have been for the last hundred years, they have engaged in commerce, and greatly increased in wealth. From being cultivators of the land with very limited personal property, they have become active and energetic merchants, contractors and men of business, and it was only to be expected that, under these circumstances, such a custom as is stated to have existed in KathiaVar would in course of time undergo modification. Such would naturally be the wish of the leading men of the community who had accumulated capital, and would gradually under their influence permeate the lower strata of the body corporate until the old usage would gradually fall into desuetude, and the strict right of the son, if it ever existed, be lost with the approval of the general community. In Abraham v. Abraham 9 Moore's Ind. Ap. 195 p. 243 the Privy Council point out that usages are not independent of volition, and may (unless their continuance is enjoined by law), as they were adopted voluntarily, be also changed or lust by desuetude. The evidence of the Bombay witnesses leads, in our opinion, to the conclusion that such a change has gradually taken place in the Khoja community, with respect to the son's right to partition, since their emigration to Bombay. It is also worthy of remark that on the occasion of the Khoja Commission, appointed by the Government in 1878 to prepare a draft project of law on succession for Khojas, the peculiar title of sons by the Mitakshara law to ancestral property by birth is disregarded. The 7th Section of the Bill which was drafted provided that for the purposes of the Act, i.e., for the purposes of intestate succession, there should be no distinction between ancestral and self-acquired property, and this would appear from the proceedings to have given rise to no difference of opinion in the community. Upon the whole of the evidence we have come to the conclusion that plaintiff has not proved that, according to the general custom of Khojas in Bombay, the son is entitled to demand partition of ancestral property. The plaintiff's own conduct in allowing so many years, during which he was on the worst possible terms with his father, to pass without claiming, or even suggesting in his correspondence with his father that he had such a right as he now claims, would seem to show that he was not aware of any such custom as he now relies on.
3. This is sufficient for the decision of the case, but we think it advisable to express an opinion on the question--doubtless a difficult one--whether Hubibbhoy's property was ancestral, as A having arisen from a nucleus of property inherited from his father Ebrahim--for it was assumed that since the decision in Jugmohandas v. Sir Mangaldas Nathubhoy I.L.R. 10 Bom. 528 it had been settled that if Hubibbhoy's property was self-acquired, it would not become ancestral by being devised to Ahmedbhoy. To establish this it lies on the plaintiff for we entirely agree with Farran, J., in Nanabhai Ganpatav Dhairyavan v. Achratbai I.L.R. 12 Bom. 122 that the onus is on the party alleging it to give satisfactory proof that Hubbibhoy succeeded to property on his father's death; and further, as the Privy Council say in Rampershad Tewarry v. Seochurn Doss 10 M Ind. Ap. 505 'that it contributed in a material degree to the acquistion of the funds employed in his trade.' Now Ebrahim died in A.D. 1816, having held, as this evidence we think satisfactorily shows, the honourable position of waras in the community to which a man is appointed for his moral worth and respectability rather than his wealth, and it was not disputed that he was living in a house at Chinch Bandar when he died, which, however, stood in his son's name, but there is no evidence to show what other property he left, except the statements of Dhurrumsey Poonjabhoy and Mowji to which we shall afterwards refer. As to the business which ultimately resulted in so much wealth, the evidence of plaintiff's witness Mowji, or the defendant's witness Alibhai Hubib, can leave little doubt that Hubibbhoy was already engaged in trade before his father's death. He was Ebrahim's only son, and as Ebrahim was between 50 and 60 when he died, he may well have set him up in trade, possibly reserving to himself only maintenance, as Hubibbhoy himself contemplated doing in A.D. 1844, and which the witnesses say is not uncommon among the Khojas. Again there is no evidence as to the extent of Hubibbhoy's trade until the beginning of Sammt 1877 (A.D. 1820-21), four years after Ebrahim's death, when the mel, or cash book, produced by the defendant, although beginning with only a cash balance of Rs. 200, would appear to show that he was then in partnership, with one Datu, with goods, &o.;, in China and in transitu to the r amount of Rs. 14,000 to which they were equally entitled; but it affords no evidence as to the capital employed. The book also shows that Hubibbhoy was drawing very small sums for family expenses, However, the business was so successful that in Samvat 1886 (A.D. 1829-30), the books showed a balance to his favour of Rs. 46,000; but the books also show that he had had several partners in the business, and had been largely assisted with capital by his wealthy relative Nathu Tajani, besides availing himself largely of the avanga system of insurance, which enables a merchant to a certain extent to dispense with capital of his own. Now this evidence by itself cannot, we think, having regard to the circumstances that Hubibbhoy had commenced before his father's death, and to the usages of the Khojas in their relations with their sons, be regarded as amounting to proof that Hubibbhoy inherited property from Ebrahim which constituted a material part of the funds employed in the trade; and we do not think that Mr. Justice Jardine regarded it indifferently. He, however, relied on the very important statement of Dhurrumsey Poonjabhoy told him in A.D. 1852 that he had got Rs. 30,000 or Rs. 40,000 from his father. Dhurrumsey says he took part in the partition between Hubibbhoy and his sons in 1852, and that it was on that occasion be told him this. Now Dhurrumsey Poonjabhoy is an old man broken in fortune, who had only recently passed through the Insolvent Court, taking an active part in this suit on the side of the plaintiff, as shown by his going to Kathiawar to obtain evidence of custom. There was no particular reason why Hubibbhoy should have told him this on the occasion of the partition. The books showed the amount of actual property to be partitioned, and no question had been raised as to the existence of ancestral property, tinder all these circumstances, it would, in our opinion, be most unsafe to rely upon a statement as to a conversation said to have taken place thirty-five years ago, by a keen, partizan witness, in a family dispute of this description, in which the spirit of partisanship is always unusually strong. This statement also, it is to be remarked, disagrees with that of the witness Mowji--doubtless not a reliable witness, but still the plaintiffs own witness--for he says that at the time of Ebrabim's death it was reported that he had left Hubibbhoy Rs. 10,000. As to the evidence of Gulam (Exhibit 70), who is an old man of eighty years of age and deposes to having been present at a conversation between Hubibbhoy and Natha in Samvat 1879 (A.D. 1822-20) with a view to their combining to bring in capital into the business, it is to be remarked that this was six years after Ebrahim's death, and Hubibbhoy may well have acquired capital in the interval. As to the alleged conversation with respect to what Ebrahim had left Hubibbhoy, it is impossible, in our opinion, to place any reliance on such evidence. Passing next to the evidence as to what occurred in Hubibbhoy's family, which commences with the settlement which Hubibbhoy proposed making in his family in 1844 in view of his advanced years, we find Hubibbhoy throughout treating his property as his own self-acquired property, of which he was the sole owner; and assuming to himself the right to dispose of the same as appears from the deed of 1844 and also from his wills of 1858, 1859 and 1864, in which he devises the residue which remained with him after the settlement with Alladm and Fazul in 1850. The, suit which was instituted by Alladin in 1860, with a view to preventing Hubibbhoy from disposing of such residue by will, was not based upon the ancestral character of the property, but either upon a special agreement, or on its having been acquired by the joint efforts of Hubibbhoy and his family constituting an undivided family, and as such, by Khoja custom not within Hubibbhoy's power to devise by his will as he might think proper. On the other hand, in Hubibbhoy's written statement his absolute property is asserted and the suit was dismissed after one day's hearing. Again in Fazul's letter, which is set out in the answer to Fazul's suit of 1862, Fazul admit that the property in Hubibhhoy's hands was self-acquired, except so much as had been vested in him as trustee of the settlement of 1850. Lastly, throughout the correspondence between the parties during the many years preceding this litigation and when they were on bad terms, there is not to be found a hint that the property in defendant's hand was ancestral. Upon the whole of the evidence hearing on this part of the case, we think that, although it makes it possible that Hubibbhoy inherited some property from his father, it must be regarded as falling short of such proof as the plaintiff ought to have given, under all the circumstances of the case, that it contributed materially to the funds which Hubibbhoy employed in the business. We must, therefore, reverse the decree, with costs throughout on the plaintiff.