Proved custom governs post-migration personal law, but wider Hindu-law property rights for Cutchi Memons in Travancore were not established.

For a migrating community, the applicable personal law after settlement depends on proved custom or usage, and the party asserting a change bears the burden of proof. The material did not establish that Cutchi Memons settled in Travancore were governed by Hindu law in all matters of property, including joint family property, right by birth and survivorship. Nor was there proof of a custom extending Hindu law beyond succession and inheritance, or of adoption of Mahomedan law in those wider matters after migration. The wider regime was therefore not established on the record.

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Issues: (i) Whether Cutchi Memons settled in Travancore were governed by Hindu law in all matters of property, including joint family property, right by birth and survivorship, or only in matters of succession and inheritance; (ii) Whether the assessee had proved any custom or usage showing that, after migration to Travancore, the community had adopted Mahomedan law in matters other than succession and inheritance.

Issue (i): Whether Cutchi Memons settled in Travancore were governed by Hindu law in all matters of property, including joint family property, right by birth and survivorship, or only in matters of succession and inheritance.

Analysis: The applicable legal position depends on the customary law retained by the community after migration and the surroundings in which it settled. The earlier decisions considered show that the Hindu law applicable to Cutchi Memons is not uniform everywhere; it may extend beyond succession and inheritance where the community settled among Hindus and adopted that law as its customary law. For Travancore, the relevant enquiry is whether the community there retained that wider Hindu-law regime. The material relied on did not establish any general rule that Cutchi Memons in Travancore were governed by Hindu law in all matters.

Conclusion: The wider Hindu-law rule governing joint family property, right by birth and survivorship was not established for Cutchi Memons settled in Travancore.

Issue (ii): Whether the assessee had proved any custom or usage showing that, after migration to Travancore, the community had adopted Mahomedan law in matters other than succession and inheritance.

Analysis: A change from the original personal law after migration is a matter of proof, and the burden lies on the party asserting that change. On the facts found, there was no proof of a custom or usage extending Hindu law to matters beyond succession and inheritance, nor proof of a change to Mahomedan law by local custom after migration. The assessee therefore failed to discharge the burden of establishing the asserted wider application of Hindu law.

Conclusion: The assessee did not prove the alleged custom or usage, and the Tribunal's view could not be sustained.

Final Conclusion: The reference was answered against the assessee, and the revenue's position was upheld on both questions.

Ratio Decidendi: For a migrating community, the extent of the personal law applicable after settlement is determined by proved custom or usage, and a party asserting a change in the original law bears the burden of proof.

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