Khoja Succession in India: Customary Law and the Impact of the Muslim Personal Law (Shariat) Application Act, 1937

Introduction

The law of succession governing the Khoja Community in India represents a striking intersection of custom, statute, and identity. The Khojas, largely Shia Imami Ismaili Muslims of Western India, were originally Hindus who converted to Islam centuries ago. Yet, in matters of inheritance, they retained Hindu practices even when these diverged sharply from Islamic norms.

Before 1937, courts consistently treated Hindu law as the governing framework for Khoja succession. This meant that daughters were excluded from intestate inheritance if sons survived, and widows received at best limited rights. At the same time, Khoja testators enjoyed complete testamentary freedom, as they could dispose of their entire estate by will, unlike Muslims under Islamic law, who are restricted to one-third without heir’s consent.

The Muslim Personal Law (Shariat) Application Act, 1937 (Shariat Act)¹ sought to reform this imbalance. Section 2² mandated that the Muslim law governs intestate succession, gifts, trusts, wakfs, and related subjects, notwithstanding any custom or usage to the contrary. Yet, it conspicuously left out wills. The result was a dual regime that continues today: intestacy follows Shariat, while wills are still interpreted according to Hindu-based Khoja custom unless a testator voluntarily opts into Shariat.

Historical overview of Khoja succession customs

Colonial recognition of custom

In the 19th century, British colonial courts consistently recognised that Khojas followed the Hindu law of succession. In Shivji Hasam v. Datu Mavji Khoja (1874), the Bombay High Court applied Hindu rules of inheritance to a Khoja family dispute.³ Shortly after, in Hirbai v. Gorbai (1875), Sargent, J., reiterated that “the Khojas are governed by Hindu law on the ground of long usage”.⁴

Mulla’s Principles of Mahomedan Law summarised the prevailing view: “In the absence of proof of special usage to the contrary, Khojas and Cutchi Memons in the Bombay Presidency are governed in matters of succession and inheritance, not by Mahomedan, but by Hindu law.”⁵

The case of Hirbai v. Sonabae (1853) cemented this position. Chief Justice Perry held that daughters could not inherit under Mahomedan law because the custom of the community disallowed it.⁶ This decision, along with later authorities, made Hindu law the default governing succession for Khojas across the Bombay Presidency. By the early 20th century, courts took judicial notice of this presumption. A Khoja asserting that Islamic law applied had to affirmatively prove it.

Intestate succession

Under this customary regime, intestate succession among Khojas mirrored Hindu Mitakshara principles. Sons inherited to the exclusion of daughters, and widows, if they inherited at all, took only a limited estate akin to that of a Hindu widow. The effect was the systematic disinheritance of women, who under Shariat would have received defined shares as Quranic heirs.

Testamentary succession

Khojas also retained Hindu testamentary capacity. A Khoja could dispose of his entire estate by will. This contrasts with Islamic law, which limits bequests to one-third unless the heir’s consent. InBy the 1930s, the rule was so entrenched that unless a contrary usage was proven, Khoja wills were presumed to be governed by Hindu law. In Fidahusein Pirmahomedalli v. Bai Monghibai⁷, the Bombay High Court, while relying on Advocate-General v. Karmali⁸, held that the question of a Khoja’s testamentary capacity was conclusively settled. The Court observed that a Khoja of the Shia Ishna Ashari sect could dispose of the whole of his property by a testamentary disposition, reaffirming that Khojas enjoyed full testamentary freedom. The result was complete testamentary freedom, even to the extent of disinheriting Quranic heirs.

Illustration: A Khoja patriarch dies in 1930, leaving a son and a daughter but no will. The son takes the estate, the daughter receives nothing. If the same patriarch leaves a will giving everything to the daughter, the will is upheld in full. Under Shariat, this would be impossible, since the widow and son have fixed entitlements.

This dual pattern, women excluded in intestacy but wills upheld in full, was the backdrop against which the Shariat Act⁹ was introduced.

The Shariat Act and Section 2

The Shariat Act¹⁰ was introduced to curb customs that denied Muslims their Quranic rights. Muslim leaders and organisations pressed for reform, particularly for women who had been deprived of inheritance by community practices. The Shariat Act declared that in key areas of family and succession law, Muslim personal law would apply notwithstanding any custom or usage to the contrary.

Section 2¹¹ of the Shariat Act provides:

2. Application of personal law to Muslims.—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments), the rule of decision in cases where the parties are Muslims shall be the Muslim personal law (Shariat).¹²

By including intestate succession, the legislature directly struck at the Hindu-based customs of Khojas and Cutchi Memons. From 1937 onwards, intestacy had to follow Shariat, ensuring that women received their Quranic shares. The inclusion of “special property of females” further guaranteed women control over property they acquired by inheritance, gift, or contract.

The opening words, “notwithstanding any custom or usage to the contrary”, gave the provision overriding force. Courts consistently rejected pleas of custom in intestacy cases after 1937.

Conspicuously absent from Section 2¹³ is any reference to wills or testamentary succession. This omission preserved Khoja testamentary freedom. Unless a Khoja voluntarily opted into the Shariat under Section 3¹⁴, his will continue to be governed by the Hindu law custom.

Section 2¹⁵ did, however, include gifts, trusts, and wakfs. Courts later clarified that even testamentary trusts or wakfs created by a will must comply with Muslim law, since these subjects are expressly listed.¹⁶

Section 3¹⁷ of the Shariat Act allows any Muslim to declare, in a prescribed form, that he wishes to be governed by Shariat in all matters, including wills and legacies. Once made, such a declaration bound the person and his descendants.¹⁸

For Khojas, this meant that a testator who wished to forgo the community’s customary privilege of full testamentary freedom could opt into Shariat and thereby restrict his will to the one-third limit and mandatory shares. In practice, few Khojas made such declarations.

The result was a bifurcated system:

(a) Intestate succession governed exclusively by Muslim law, with no scope for custom. Widows, daughters, and mothers now received fixed shares.

(b) Testamentary succession remained governed by Hindu law custom, unless a testator opted into Shariat. A Khoja could still will away his entire estate.

(c) If a will disposed of only part of the estate, the undisposed residue devolved intestate under Shariat. This created practical complexity: the same estate could be partly governed by custom and partly by Shariat, depending on the scope and validity of the will.

Judicial clarification

Ashrafalli Cassim Ali Jairazbhoy v. Mahomedalli Rajaballi

In this 1947 ruling, the Bombay High Court held that the Shariat Act abrogated custom only for matters listed in Section 2¹⁹. Since wills were not included, Khoja testamentary freedom survived. However, trusts and wakfs created by a will fell within Section 2 and had to comply with Muslim law. The Court struck down a testamentary trust benefiting unborn male heirs as void under Shariat.²⁰

Aliyarkhan Amiyatkhan v. Rambhau-Motiram

In this 1948 ruling, the Division Bench reaffirmed that intestacy was governed by Muslim law post-1937, but wills continued under custom. The Court held thus:

3. … to the extent that the Khoja was governed by Hindu law in matters of intestate succession, the custom was overridden…. But his customary law qua testate succession remained unaffected.²¹

The Court upheld a Khoja’s will leaving his entire estate to his daughter, excluding the widow. The will was valid under custom, even though under Shariat it would have been invalid beyond one-third.

Nina Anwar Merchant v. Karim Ul Haq Meghani

In a recent 2024 judgment, the Bombay High Court reiterated that Khoja intestacy follows Muslim law, but testate succession is governed by Hindu law custom. The Court upheld interim relief in favour of a beneficiary under the will, noting that Khoja wills allow complete testamentary freedom.²²

Illustrative scenarios

(1) A Khoja dies intestate in 1940, leaving a widow and a daughter. Under Shariat, the widow receives one-eighth and the daughter one-half. Under pre-1937 custom, both could have been excluded.

(2) A Khoja dies in 1948, leaving a will bequeathing all property to his son. The will is valid, even though Shariat would have required fixed shares for the widow and daughter.

(3) A Khoja creates a testamentary trust for unborn descendants. The trust fails, as Shariat prohibits bequests to unborn persons.

Comparative note: Cutchi Memons

Cutchi Memons, another community of Hindu converts, faced a different legislative path. The Cutchi Memons Act, 1920²³ allowed optional adoption of Muslim law, but the Cutchi Memons Act, 1938²⁴ made Muslim law compulsory for them, eliminating testamentary freedom. Khojas, by contrast, retained autonomy in wills. This divergence reflects Parliament’s nuanced approach to different communities.

Conclusion

More than 85 years after the Shariat Act²⁵, the Khoja succession law remains a dual system. Intestacy secures women’s shares under Shariat. Testamentary succession still preserves Hindu-law based freedom. Courts have consistently upheld this arrangement. From a policy standpoint, the law reflects compromise. It corrected the gross inequities of intestacy while leaving scope for community autonomy in wills. Critics argue this allows patriarchy to persist, as a will can still disinherit daughters. Defenders point to freedom of testation as a valuable right, one that has long-standing cultural resonance for Khojas. Khoja succession law illustrates the tension between reform and continuity. The Shariat Act of 1937 swept away discriminatory customs in intestacy, ensuring women their Quranic shares. Yet, it deliberately left untouched the community’s customary freedom in wills. The Bombay High Court has consistently affirmed this duality: intestate succession under Shariat, testamentary succession under custom. Unless the Parliament legislates otherwise, or the Supreme Court rules differently, this remains the settled law. The crucial question is whether the deceased Khoja left a will. If yes, the will is construed under Hindu custom, with full testamentary freedom. If no, Shariat governs. The answer to that question determines the entire framework of succession.