Saving clause preserves coparcenary birth rights in joint family property, limiting estate duty to the deceased's retained share.

Under the Cutchi Memons Act, 1938, succession was brought under Mahomedan law, but the saving clause protected rights already acquired before commencement. Because the father and son had each acquired a half share by birth in the joint family property under the prior Hindu law, those shares were treated as crystallised on commencement and the son's undivided half share remained intact despite no prior partition. For estate duty purposes, only the father's remaining half share was treated as property passing on death.

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Issues: Whether, on the coming into force of the Cutchi Memons Act, 1938, the eldest son of a Cutchi Memon father acquired and retained a half share in the joint family properties by birth so that only the father's remaining half share passed on his death for estate duty purposes.

Analysis: Under section 2 of the Cutchi Memons Act, 1938, Cutchi Memons were thereafter governed by Mahomedan law in matters of succession and inheritance, but section 3 preserved rights acquired before the Act commenced. On the date of commencement, the father and the son were the only coparceners, and each had a right by birth to a half share under the Hindu law previously governing them. A conjoint reading of sections 2 and 3 required the shares to be treated as having crystallised for the purpose of applying the new succession regime, and the son's pre-existing right by birth could not be defeated merely because no partition had earlier taken place. The decision of the Supreme Court in a materially similar situation supported the conclusion that the pre-existing undivided interest was saved and did not pass on the father's death.

Conclusion: The son's half share was saved by section 3 of the Act, and only the father's other half share was property passing on death. The answer to the referred question was therefore in the affirmative and against the Revenue.

Ratio Decidendi: Where a statutory change in personal law is subject to a saving clause, a pre-existing coparcenary right by birth in joint family property is preserved, and the undivided share so protected is not treated as passing on the death of the ancestor for estate duty.

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