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 heirs ’ consent.

The Muslim Personal Law (Shariat) Application Act, 1937 (Shariat Act) sought to reform this imbalance. Section 2 mandated that Muslim law govern 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 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.¹ Shortly after, in Hirbai v. Gorbai (1875), Justice Sargent reiterated that “the Khojas are governed by Hindu law on the ground of long usage.”²

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.”³

The celebrated Aga Khan Case of 1866 (the Khoja Inheritance Case) cemented this position. Chief Justice Perry held that daughters could not inherit under Mahomedan law because the custom of the community disallowed it.⁴ 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 contrasted with Islamic law, which limits bequests to one third unless heirs consent. In Sir Tharia Topan v. The Collector of Bombay (1901), the court observed that it was “common knowledge” that Khojas executed wills with the full freedom of Hindus.⁵ By the 1930s, the rule was so entrenched that unless a contrary usage was proven, Khoja wills were presumed to be governed by Hindu law. 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 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 Act was introduced.

The Shariat Act, 1937 and Section 2
The Shariat Act, 1937 was introduced to curb customs that denied Muslims their Quranic rights. Muslim leaders and organizations pressed for reform, particularly for women who had been deprived of inheritance by community practices. The 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 2 of the Shariat Act, 1937 provides:

“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).”⁶

By including intestate succession, the legislature directly struck at the Hindu-based customs of Khojas and Cutchi Memons. From 1937 onward, 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 2 is any reference to wills or testamentary succession. This omission preserved Khoja testamentary freedom. Unless a Khoja voluntarily opted into Shariat under Section 3, his will continued to be read under Hindu law custom.

Section 2 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.⁷

Section 3 of the 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.⁸

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:

1. Intestate succession governed exclusively by Muslim law, with no scope for custom. Widows, daughters and mothers now received fixed shares.
2. Testamentary succession remained governed by Hindu law custom, unless a testator opted into Shariat. A Khoja could still will away his entire estate.
3. 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 Cassamalli v. Mahomedalli Rajaballi:
In this 1947 ruling, the Bombay High Court held that the Shariat Act abrogated custom only for matters listed in Section 2. 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.⁹

Aliyarkhan Amirkhan 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:

“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.”¹⁰

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.¹¹

Illustrative Scenarios

1. A Khoja dies intestate in 1940 leaving a widow and 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 Memon Act, 1920 allowed optional adoption of Muslim law, but the 1938 Act 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 Act, 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 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.

By - Chaitanyaa Bhandarkar