Custom and Muslim Law in British India

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ritish Institute of International and Comparative Law

Custom and the Muslim Law in British IndiaAuthor(s): George RankinSource: Transactions of the Grotius Society, Vol. 25, Problems of Peace and War, Papers Readbefore the Society in the Year 1939 (1939), pp. 89-118Published by: Cambridge University Press on behalf of the British Institute of International and

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( 89 )

CUSTOM AND THE MUSLIM LAWIN BRITISH INDIA.

By the Right lon. Sir GEORGE RANKIN, Kt., LL.D.

(Read before the Society at India House on June 21, 1939.)

Important changes have recently taken place in India withregard to customary law in its application to Muslims. In 1935the local legislature of the North West Frontier Province passedan Act (VI of 1935) providing that a large number of mattersas to which custom had been the rule of decision primarilyapplicable by the Courts should in the future be decided inaccordance with the Muslim Personal Law (Shariat) where the

parties are Muslims. The matters upon which this change oflaw was to have effect were numerous and wide--succession,special property of females, betrothal, marriage, divorce,dower, guardianship, minority, bastardy, family relations,wills, legacies, gifts, any religious usage or institution includingwaqf (trust or trust property). The Muslim law was, however,made to apply to these subjects only in so far as it had not beenaltered or abolished by legislative enactments and was notopposed to the provisions of the local Law and JusticeRegulation. Subject, however, to any such statutory provisions,the primary rule of law, which for Muslims as for Hindus andothers had formerly been custom, and which had allowed ofeffect being given to the Hindu or Mahomedan Law only inthe absence of proof of custom, was no longer so far as Muslimsare concerned to be in force. Custom was to make way for theShariat or religious law itself.

This provincial Act of 1935 was followed in 1937 by an

all-India Act passed by the Central Legislature (Act XXVI of1937) to a similar-though not the same-effect. By 1987agricultural land, charities and charitable religious endowmentswere no longer within the competence of the Central Legislature

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90 CUSTOM AND THE MUSLIM LAW IN BRITISH INDIA.

and had to be excluded from its Shariat Act of 1937. TheMuslim law as to

adoption,wills and

legacies was,under this

statute, to be applied in derogation of customary law only tothose Muslims who should make a formal declaration of theirdesire therefor and to their minor children and descendants.But otherwise the widest range of subjects is included under thenew rule that custom or usage shall, in the case of Muslims,give way to the Muslim Personal Law (Shariat). The Actmentions intestate succession, special property of females,marriage, the various forms of Mahomedan divorce, main-tenance, dower, guardianship, gifts, trusts, trust propertiesand wakfs (if not charitable or religious). The unavoidableexclusion of agricultural land has, of course, made a considerablegap in the effectiveness of the new principle as comparativelylittle of the land of India can be placed outside this category;on the other hand it is only in certain parts of India that rightsin agricultural land are governed by custom as distinct from thegeneral law.

These legislative changes were made in accordance withMuslim opinion: indeed by the force of sentiments prevailingwidely among Muslims and strongly represented in the IndianLegislative Assembly. Much of the care taken by the Legis-lature (since 1872 at least) to respect the customs of the peoplehas, it would seem, been misguided. We are now witnessinga revolt against custom and in favour of the law-that is, thepersonal or religious law of the parties. It is, I think, a new

phenomenonin the relations between law and custom. It would

at least have been found interesting (had they lived to hear ofit) by a number of persons-administrators as well as lawyers-whose work for India has been affected by it-Warren Hastings,Sir George Campbell, Sir William Jones, Sir Henry Maine, SirJames Stephen. The history of the British efforts o ensure thatthe Indian peoples should have the benefit of being governed bytheir own laws is a history which has more than one chapter.Upon Hindu law, for example, important effects for better

and for worse have resulted from the facts that it has beenadministered by British Indian Courts and has developed underthe influence of English Judges in India and on the JudicialCommittee of the Privy Council. But we are here concerned only



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CUSTOM AND THE MUSLIM LAW IN BRITISH INDIA. 91

with the Mahomedan Law, and it is necessary to avoid assumingthat

anyvaluable

generalisationscan be made which are

applicable equally to the Shara and the Shastras. Though bothMahomedan Law and Hindu Law are religious in origin, and tosome extent in sanction and in content, they are very differentin their attitude towards custom, which has a greater scope ininfluencing Hindu Law. Under the Hindu system , saidSir James Colvile, delivering the judgment of the JudicialCommittee in 1868, clear proof of usage will outweigh thewritten text of the law (a). Sir Charles Roe, in a well-knownFull Bench case of the Punjab Chief Court, observed: It maybe remarked that Hindu law itself is after all only customarylaw embodied in treatises and idealised and ascribed to a divineorigin (b). In his History of India (Book I, Ch. V), 8rd ed.1849, p. 48, Mountstuart Elphinstone writes: I scarcely knowwhere to place, so as to do justice to the importance assignedto it in the Code (c), the respect enjoined to immemorial custom.It is declared to be ' transcendent law' and 'the root of all

piety . It 'is indeed to this day the vital spirit of the Hindusystem, and the immediate cause of the permanence of theseinstitutions.

Mahomedan law, on the other hand, gives to custom a limitedand special value; and the change to which we have referredmarks the end of an interesting and prolonged experiment andthe beginning of a new phase in the history of Islam in India.The Mahomedan law is a religious law: but this statement is

perhapsmore

readily acceptedthan understood. The

Koran,which lies at the root of it, is reverenced not as having beencomposed by the Prophet but as on a higher plane: it beingtheir general and orthodox belief ,-as it is put in Sale'sclassical Preliminary Discourse- that it is of divine origin-nay, that it is eternal, uncreated, remaining, as some expressit, in the very essence of God . It contains not only a bodyof religious doctrine centring round the main tenet of the unityof God, as well as a number of occasional passages arising fromparticular emergencies; but also a number of laws and directions

(a) Collector f Madura v. Mutu Ramalonga (1868),12 M. I. A. 397.(b) Gujar v. Sham Das, 107 P. R. 1887, p. 245.(c) That is, the Code or Institutes of Manu.



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upon such matters as marriage, divorce and inheritance which

maybe

regardedas the institution of a civil law. These direc-

tions are the commands of God. God hath thus commandedyou concerning your children. A male shall have as much asthe share of two females , etc., etc.-so runs the well-knownpassage in the fourth chapter (Sura) which often adds to itsrules the sentence, This is an ordinance from God and Godis knowing and wise . But while a great deal that is basic toMahomedan law could be learnt by reading the second, fourth,fifth and sixty-fifth uras of the Koran, it would be an errorto suppose that the sacred book contains the whole of the law.

Though the Mahomedan Law purports to be founded essen-tially on the Koran, most of the rules and principles which nowregulate the lives of Muslims are not to be found there (d).As it developed in the second and succeeding centuries of theMahomedan era, not Mahomedan law merely but Mahomedanismas a religion, social system and mode of life came to be restednot only on the Koran but on three other foundations:

(1) traditions of the sayings and acts of the Prophet (hadis orsunnat), (2) the unanimous consent of the learned doctors(ijma), and (3) analogical reasoning (kiyas). This is truedoctrine among the Sunnis who follow the four Imams in placingthe sources of their law in that order of importance (e). Thedifferent chools allow different mportance to these principlesand the schism between Shias and Sunnis has meant that verydifferent alues have been attributed to the different raditions.In any view the pre-Mahomedan institutions of Arabia-thebackward and indeed barbaric state of society which came tobe described as the days of ignorance -had a profound effectupon the law of Islam not only directly but also indirectly-that is through and by means of traditions as to what theProphet did and said. This is the more intelligible when wereflect that Islam did not profess to be a new religion formulatedby Mahomed, but the continuation of religious principlesrevealed by earlier prophets or teachers, Hebraic and other.

The conception of law as the speech of God is accompaniedby recognition that God has promulgated his laws from time to

(d) Ameer Ali, 4th ed., Vol. I, p. 8.(e) Fusul Karim v. Haji Mowla Baksh (1891), L. R. 18 I. A. 59, 70-1.



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time since the days of Adam, that they admitted of modificationfrom time to time, and that the laws revealed might becomeforgotten or corrupted. Hence the Mijtahids or jurists by theconsensus of their opinion are a source of law: though we maynote that there has been diversity of opinion on the questionwhether ijma may be collected in modern times. The individualdeductions of jurists by means of analogical reasoning have theauthority proper to expositions of the law: their scope is limitedto matters not provided for by the Koran or tradition orconsensus of opinion among the learned. The schools of law

differ much in the comparative value and authority which theyattribute to kiyas and to tradition.

What, then, is the place of custom in the law of Islam?What room is there for custom apart from the usages of Arabiain the time of the Prophet unrepealed by him, or sanctioned byhis conduct or his silence ? A short answer may be given fromSir Abdur Rahim (f), the distinguished lawyer who presides overthe Indian Legislative Assembly:-

As to customs which have sprung up since the Prophet'sdeath, their validity is justified on the authority of the text,which lays down that whatever the people generally considerto be good for themselves is good in the eye of God. Thusthe conception of law as an emanation from God is said tohold good in the case of customary laws as well. Customas a source of laws resembles analogical deduction in oneimportant respect, it has no legal force if it be repugnantto the revealed law or to the law founded on ijnma. Itresembles ijma to this extent that the legal character of acustom has no relation to juristic reasoning, just as theauthority of a law passed in ijma is not affected n any wayby the reasons which influenced the learned. But customarylaw is of inferior authority compared to ijma inasmuch asit is based on the practice of the people generally while ijmnaimplies deliberation on the part of men well versed in the

principles of law. It is, however, of superior authority toa rule based merely on analogy.

(f) Muhammadan Jurisprudence, p. 55, 136.



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And again (p. 136):--It is laid down in Hedaya that custom holds the same

rank as ijma in the absence of an express text and in anotherplace in the same book custom is spoken of as being thearbiter of analogy. . . . There is agreement of opinionamong the Sunnis that custom overrides analogical law anda student of Muhammadan law cannot help noticing thatcustom played no small part in its growth, especially duringthe time of the Companions and their successors. TheHanafi writers on jurisprudence include custom as a source

of law under the principle of istihsan or juristic preference(or, as we might say, equity).Thus there is no difficulty n taking account of custom upon

certain questions, e.g., whether for purposes of a valid marriagea man of one trade is the equal of a woman whose father followsanother trade, whether in the absence of express agreementdower is payable in two parts, prompt and deferred, and if sowhat amount of prompt dower is payable, and is it payable

beforeconsummation of the

marriage?But,

verydifferent s

the position when it is proposed that custom should be allowedto regulate such matters as succession and inheritance or tointerfere with the fundamental rules laid down in the Koran togovern marriage and divorce. The limited sphere within whichthe Mahomedan law recognises custom was considered by theBombay High Court in 1925 (g), where a custom that the officeof kazi should devolve by heredity in a certain village was heldto be bad as Mahomedan law does not recognise any such right.The Court accepted as correct the statement that custom (urf)is recognised as one of the sources of Mahomedan Law undercertain conditions, especially if it is not unreasonable, nor againstpublic policy, nor against the recognised principles of theMahomedan Law (h).

British responsibility for administering law and justice toIndians generally in Bengal may be taken to have begun in 1765when the East India Company obtained from the Moghul

Emperor the grant of the diwani-the management of the(g) Kasamkhan v. Kaji Abdulla Kaji Mahamad (1925), 93 I. C. 135.(h) Civil Law of Palestine, by C. A. Hooper (Jerusalem, 1936), Vol. II,

p. 13.



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CUSTOM AND THE MUSLIM LAWIN BRITISH INDIA. 95

revenue and civil justice. The Moghuls had administeredMahomedan law both civil and criminal: their administration,though exceedingly corrupt and inefficient, had the merit ofleaving questions between Hindus to be decided according totheir own Shastras. The Mahomedan criminal Courts did notcome to an end till 1790. In Calcutta, Madras and Bombay,British civil Courts had been established in the seventeenthcentury: in 1726 by Royal Charter, Mayors Courts were set upwith an appeal to the Governor and Council and thence to theKing in Council. This Charter was treated as introducing into

the Indian Presidencies all the common and statute law ofEngland as it stood in 1726, and by an amending Charter of 1753it was made clear that these Courts were limited in their juris-diction to suits between persons who were not natives unless byconsent of the parties. In a judgment of Lord Stowell is to befound a well-phrased, if old-fashioned, explanation of the curiousposition of these British Settlements and Courts establishedwithin a Mahomedan country. He had, he said, made enquiryof a

personof the

greatest authority on such a subject who isjust returned from the highest judicial situation in that country-doubtless his friend, Sir Robert Chambers-and he put theposition of Calcutta thus:-

In the western parts of the world, alien merchants mixin the society of the natives, access and intermixture arepermitted and they become incorporated almost to the fullextent. But in the East from the oldest times an immisciblecharacter has been kept up: foreigners are not admitted intothe general body and mass of the society of the nation: theycontinue strangers and sojourners as all their fathers were:Doris amara suam non intermisceat undam (i) . . . Thoughthe sovereignty of the Mogul is occasionally brought forwardfor purposes of policy, it hardly exists otherwise than as aphantom: it is not applied in any way for the regulation ofthese establishments. This country exercises the power ofdeclaring war and peace, which is among the strongest marks

of actual sovereignty, and if the high, or as I may almostsay, this empyrean sovereignty of the Mogul, is sometimes

(i) Virgil, Ed. X, 5.



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brought down from the clouds, as it were, for purposes of

policy,it

byno means interferes with that actual

authority,which this country and the East India Company, a creatureof this country, exercises there with full effect (k).In 1765 the position changed: the question is no longer how

the Moghuls treated the British but how the British treated theMuslim and the Hindu inhabitants of Bengal. Warren Hastingsacted upon the grant of the diwani by ordaining (Regulation IIof 1772, s. 27) that in all suits regarding inheritance, succession,marriage, caste and other religious usages or institutions, thelaws of the Koran with respect to Mahomedans, and those ofthe Shastras with respect to Gentoos (Hindus) should beinvariably adhered to. The Regulating Act of 1773 and theSupreme Court's Charter of 1.774 having introduced some con-fusion as to the powers of the Supreme Court over Indiansoutside Calcutta, were amended by the Act (21 Geo. 3, c. 70)of 1781 which restricted the powers of the Supreme Court, sofar as Indians were concerned, to the limits of the town of

Calcutta ( the Maratha ditch ), leaving the mofussil tothe Company's Courts and the Regulations of the Governor-General in Council save as regards disputes between EuropeanBritish subjects. Within the town of Calcutta the rule of lawprescribed by section 17 of the Act of 1781 was somewhatdifferent from the rule laid down for the Company's Courts in1772. The language was Provided that their inheritance andsuccession to lands, rents and goods, and all matters of contractand

dealingbetween

partyand

party,shall be determined in the

case of Mahomedans, by the laws and usages of Mahomedans,and in the case of Gentoos, by the laws and usages of Gentoos;and where only one of the parties shall be a Mahomedan orGentoo by the law and usages of the defendant.

The directions of 1772 and of 1781 as to native law and usagegive way in many matters now to express legislative enactment,as there now exists a large body of law which is common to allparts of India and to all persons therein. This common law of

India is statutory. The Indian Contract Act, the Transfer ofProperty Act. the Indian Succession Act and many other Acts

(k) The Indian Chief (1800),3 Rob. Adm. Rep. 29.



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will spring to mind as instances. But in the town of Calcuttaand over a large part of eastern India-Bengal, Bihar, Agra,Assam-the general provisions which were laid down in 1772 and1781 have continued to the present day with no more than verbalalterations, notwithstanding that the two provisions are dis-crepant and that there is no foundation in common sense forthe difference between them. The provision of 1781 is now ina more generalised form section 112 of the Government of IndiaAct (1915, 5 & 6 Geo. 5, c. 61), and that of 1772 is section 87of the Bengal, Agra and Assam. Civil Courts Act (XII of 1887).

Bombay,as we shall later

notice, presented special problemsas to custom early in the nineteenth century and in the secondhalf of that century the Punjab presented others. But towardsthe end of the eighteenth century, at the initial stage of Britishadministration, the whole emphasis was upon the right of theMahomedan community to the Mahomedan law-a right whichWarren Hastings had recognised in 1772 and which wasreaffirmed by Regulation IV of 1793. This had the strongapproval of Sir William Jones, whose letter (March 19, 1788)to the Governor-General has been often quoted and discloses thestandpoint of that date :-

Nothing could be more obviously just than to determineprivate contests according to those laws, which the partiesthemselves had ever considered as the rules of their conductand engagements in civil life: nor could anything be wiserthan by a legislative Act, to assure the Hindu and Mussulmansubjects of Great Britain that the private laws, which they

severally hold sacred, and violation of which they wouldhave thought the most grievous oppression, should not besuppressed by a new system, of which they could have noknowledge, and which they must have considered as imposedon them by a spirit of rigour and intolerance .The sincerity of this belief is shown by the action of Warren

Hastings in having the Hedaya translated into Persian (whenceit was translated by Hamilton into English (1791)). Also bythe elaborate proposals (1) of Jones for a digest of Hindu andMahomedan law and by his own work on the Sirajiyyah andSharifiyyah. In 1793 by Bengal Regulation XI of that year

(1)Cf. p. 306 of Lord Teignmoutha Life of Jones.G.S. 7



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(amended in 1800) the custom of impartibility which had beenpermitted to

governcertain extensive zemindaries, and to cause

them to devolve entirely oAithe eldest son or next heir to theexclusion of all other relations, was declared to be void asrepugnant to both Hindu and Mahomedan laws. This was,however, soon amended by Regulation X of 1800, and the jointeffect of the two Regulations is very difficult o assess.

At first the fullest effect was given by the Company's Courtsto the principle of respecting the Mahomedan law and it wascarried beyond the scope of the matters mentioned in Regula-tion IV of 1793: The Courts of this country have invariablyapplied in practice the Mahomedan Law to a variety of casesother than those coming under the denomination of inheritance,marriage, caste, and even if immemorial and recognised practicedid not legalize the action of the Courts, it cannot be said thatwhen this Court administers to Mahomedans their own law, theydo otherwise than administer justice according to equity andgood conscience (m). In cases within the terms of the

Regulation the Judicial Committee has been vigilant to enforcethe Mahomedan law in spite of objections taken to it from thestandpoint of other systems. They can conceive nothing morelikely to give just alarm to the Mahomedan community than tolearn by a judicial decision that their law, the application ofwhich has been justly secured to them, is to be over-riddenupon a question which so materially concerns their domesticrelations (n). In that case the Judges of the Sudder Courtof Calcutta had refused to follow the Mahomedan law upon aquestion of a Mahomedan husband's claim for restitution ofconjugal rights. The Privy Council have gone so far as touphold a divorce pronounced by the husband under compulsionand threats upon the principle expressed by Jackson, J., in1869: We are not at liberty to substitute for the express ruleof Muhammadan law as expounded by the best authorities thatwhich according to our opinion might be a more enlightenedand proper rule of law (o).

(m) Zohorooddin irdar v. Raharoollah Sirdar (1864),Gap No. W. R. 187.(n) Munshee Busloor Ruheem v. Shumsoon-nissa Begum (1867), 11

M. I. A. 551.(o) Ibrahim v. Enayetur, 4 Beng. L. R. 13; 12 W. R. 460; Rashid Ahmad

v. Anisa Khatim (1932), 59 I. A. 21.



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But if we concentrate our attention on the parts of Indiaalready mentioned-Bengal, Bihar, Agra and Assam-whoseordinary civil Courts have been governed since 1798 by enact-ments substantially identical with the rule laid down by WarrenHastings in 1772, we find that it was long doubted whetherMahomedan law was patient of invasion by custom. No provi-sion for giving effect to custom was made by the terms of theCivil Courts Act (XII of 1887) or its predecessors. The HighCourt of Allahabad from 1866 till it was on this point overruledin 1913 by the Judicial Committee stoutly refused to recognisespecial usage in derogation of the Mahomedan law. In a FullBench case (p) it was held that when a family has professedthe Muhammadan religion for successive generations, the Courtsin this country on the occasion of a claim to succession beingmet by a plea of special usage, are bound to dispose of the caseunder the Muhammadan law, and cannot recognise any suchplea of usage, which is opposed to the Muhammadan law. In1866 the Judicial Committee are seen to be in doubt about the

admissibilityof custom to

varythe Mahomedan law:

Theymust, however, observe that to control the general law, if indeedthe Muhammadan law admits of such control, much strongerproof of special usage would be required than has been given inthis case (q).

The Calcutta High Court in 1882 (r), noticing theseobservations, threw doubt upon a previous decision which hadapplied to Mahomedans the presumption as to joint familywhich arises in the case of Hindus. Prinsep and O'Kinealy JJ.observed -

The Mahomedan law of inheritance is based on the SuraNissa in the Kuran which was revealed in order to abrogatethe customs of the Arabs and on the Hadis or traditions ofthe Prophet. According to the principles of Mahomedan lawany attempt to repudiate the law of the Kuran would amountto a declaration of infidelity such as would render theindividual concerned liable to civil punishment by the Kasee

(p) Sarmast Khan v. Kadir Dad Khan (1866), Agra Full Bench Rulings,Vol. I, p. 38.(q) Jowala Baksh v. Dharm Singh, 10 M. I. A. 511.(r) Hakim Khan v. Gul Khan, 10 Cal. L. Rep. 603.



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Sir LawrenceJenkins aid in a case before he Judicial Committeein 1922:-

The litigants are Muhammadans to whom this Actapplies: so that prima facie all questions as to successionamong them must be decided according to MuhammadanLaw. In India, however, custom plays a large part inmodifying he ordinary aw, and it is now established thatthere may be a custom at variance even with the rules ofMuhammadan Law governing he succession n a particularcommunity of Muhammadans. But the custom must beproved (u).In Bombay, the question of custom became of vital

importance o Muslims. The charter of the Bombay SupremeCourt (1827) contained for the town of Bombay the samereference s the Madras Charter had introduced o the laws andusages which a Native Court would have applied. For themofussal of Bombay Regulation IV of 1827 prescribes hat therule of decision should be the following n the following rder:

first, Acts and Regulations; if none, the usages of the country;if none, the law of the defendant. [In the absence of otherspecific ule justice, equity and good conscience is prescribedas the ultimate rule in all Provinces.] In 1847 Sir ErskinePerry as Acting Chief Justice had to consider he legal positionof two bodies or sects-viz., the Khojas and the Cutchi Memons;and held that in the absence of proof of special usage to thecontrary these people, though Mahomedans, are governed inmatters of succession and

inheritance,ot

bythe Mahomedan

but by the Hindu law (x). Khojas and Cutchi Memons wereoriginally, t would seem,Hindus: long ago they became convertsto Islam but have retained the Hindu law of succession andinheritance hough not the other doctrines of the Hindu law.The position of such an individual has been epigrammaticallydescribed as a living Mahomedan but a dead Hindu . (TheKhojas (y) are well known as having the Aga Khan as theirspiritual head.) In both the cases before Sir Erskine Perry the

(u) Muhammad Ibrahim Rowther v. Shaik Ibrahim Rowther (1922),I. L. R. 45 Mad. 308, 314.(x) Hirbai v. Sonabai, Perry's O. C. 110.(y) Ad.-Gen. v. Aga Khan (1866), 12 Bom. H. C. R. 323.



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claim was by a female relying on her Koranic right of inheritanceand

repudiatingthe Hindu

principleswhich exclude women

from inheritance. The cases had to be decided under the termsof the Supreme Court Charter: its reference to the principleswhich would have been applied to the suit had it been broughtin a native Court was separately considered. It was madematter of grave argument whether any custom conflicting

with the express text of the Koran can be valid amongst aMuhammadan sect . Sir Erskine Perry, referring o the clausein the Charter, said:-

I think it is quite clear that the clause in question wasframed solely on political views, and without any referenceto orthodoxy, or the purity of any particular religious belief.It was believed erroneously that the population of Indiamight be classified under the two great heads of Muhammadanand Gentoo, and the- use of the latter term as a nomengeneralissimum, which is unknown by-the-bye in any easterntongue, or even in colloquial use except in the Presidency of

Madras, shows that the main object was to retain to thewhole people lately conquered their ancient usages and lawson the principle of uti possidetis. It may be questionedwhether one individual in the Legislature-with the excep-tion perhaps of Mr. Burke-was aware of the sectariandifferences which distinguished Shea from Sunniy; and noteven that great man, we may be assured, was at all consciousthat there were millions of inhabitants in India such as Sikhs,Jains, Parsis, Hebrews and others who had nothing or nextto nothing in common with Brahminical worship. But thepolicy which led to the clause proceeded upon the broadeasily-recognisable basis of allowing the newly conqueredpeople to retain their domestic usages. ... I am clearlytherefore of opinion that the effect of the clause in theCharter is not to adopt the text of the Koran as law, anyfurther than it has been adopted in the laws and usages ofthe Muhammadans who came under our sway: and if anyclass of Muhammadans, Muhammadan dissenters as theymay be called, are found to be in possession of any usagewhich is otherwise valid as a legal custom and vihich doesnot conflict with any express law of the English Government,



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they are just as much entitled to the protection of this clauseas the most orthodox

Sunniywho can come before the

Court .This was a very important decision. In so far as it removed

all danger that the law of India should attempt to enforce anystandard of Islamic orthodoxy, it must command approval.Until early in the nineteenth century it was very generallyassumed in India that Mahomedan law meant Sunni law. Butthis school is itself divided into four sects called after the fourdoctors or Imams-the Hanafi, the Shafei, the Maleki, and theHanbali. In Oudh the reigning family was of the Shia school-the party of Ali; but in Bengal, and throughout India as awhole, the majority of Muslims are Sunnis, and it has been heldthat there is a presumption that a Mahomedan is a Sunni andthat a Sunni is governed by Hanafi law (z). The judgment ofLord Watson delivered in 1890 in a case where the question atissue was whether a certain widow lady died a Sunni or a Shiathrows a sidelight upon the history of this matter.

b ut it must be kept in view that at the date of theseproceedings (1805 and 1810) the only course of successionrecognised by the Native Courts was that of the Sunnis,which had been the general law of the country from the timewhen it first came under Mahomedan rule: it is by no meanscertain that the Sudder Court, or litigants before it, alwayspaid regard to or understood their rights under the Shia law.The observation just made does not apply to the state of thelaw in 1838. Long before that time the supremacy of Sunnilaw had disappeared, and it must have been generally knownthat the Shia rule governed the succession of Shias and theSunni rule that of Sunnis (a).Indeed it was in 1841 that the Privy Council affirmed the

right of Shias to have law administered to them in accordancewith their own traditions and beliefs. The judgment of BaronParke (b) upon section 15 of Regulation IV of 1793 was asfollows -

(z) Bafatun v. Bilaiti (1903). T. L. R. 30 Cal. 683, 686; Akbarally v..lahomedally (1932), 34 Born. L. R. 655.

(a) Mt. Hayat-un-Nissa v. Sayyed Muhammad A.41 han (1890), L. R. 17f. A. 73.

(b) Rajah Deedar Hossein v. Ranee Zuhoor-oon-Nissa, Moo. I. A. 441, 477.



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According to the true construction of this Regulationin the absence of

any judicialdecisions or established

practicelimiting or controlling its meaning, the Mahomedan law ofsuccession applicable to each sect ought to prevail as tolitigants of that sect. It is not said that one uniform lawshould be adopted in all cases affecting Mahomedans but thatthe Mahomedan Law, whatever it is, shall be adopted. Ifeach sect has its own rule according to the Mahomedan law.that rule should be followed with respect to litigants of thatsect. . . . It is true that Soonee law has generally prevailedbecause the great majority of the Indian Mahomedans areSoonees, there being very few families of the Sheeah sect,except those of the reigning princes, which will account forthe prevalence of the Soonee doctrines in the Courts, butthere is no practice which excludes the application of theSheeah law to the rights of persons professing the tenets ofthat sect.But in other respects the decision of Sir Erskine Perry

has been approved by the highest authority and its principlesextended to similar cases. The position was put by LordDunedin in 1922 (c) in the following terms:-

There are among the Mahomedans certain groups whoseancestors were Hindus and professed the Hindu religion, andwere then converted to Islam. Among these groups maybe reckoned, as is shown by decided cases, Khojas, SuniBorahs, Molesalam Girasias, Cutchi Memons, NassapoonaMemons; and lastly Halai Memons, to which group thedeceased belonged. Now with regard to the groups otherthan Halai Memons, it has been held by a succession of casesbeginning with a case decided by Sir Erskine Perry in 1847,that the converts had retained their Hindu law relating tothe exclusion of females from succession, and that that lawhad been engrafted as a custom on the Mahomedan lawalthough not in accordance with the rules of the Koran.Though accepted by the Judicial Committee and the Indian

Courts, the retention by such converts to Islam of Hinduprinciples of succession and inheritance has not always met withaEpproval from Mahomedan lawyers. The late Syed Ameer

(c) Khatubai v. Mahomed Haji Abu (1922),L. R. 50 I. A. 108, 111.



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Ali (d) appears to have considered that the decision of SirErskine

Perryis not in consonance with later decisions of the

Privy Council such as Abraham v. Abraham ((1863), 9 Moo.I. A. 195) and Jwala Bakhsh v. Dharam Sing ((1860), 10Moo. I A. 511). He complains as regards Khojahs and CutchiMemons:- because these two communities were originallyHindus, they have been held by the British Courts of Justiceimmutably bound by Hindu customs . Although many ofthem have for years past tried to place themselves under thelaw of the religion they profess, the British Indian Courts haveallowed them so far no escape from the bondage they hadaccepted on their original conversion. This complaint mayor may not be regarded as valid as a complaint against theCourts of Law, but the Shariat Act of 1937 has abolished thereign of custom as regards succession and inheritance (subjectto the exceptions, e.g., for agricultural land which it contains)and has provided for a facultative escape from the rule of customso far as regards adoption, wills and legacies. Formerly by Acts

of 1920 and 1923 Cutchi Memons could by formal declarationsubject themselves, their minor children and their descendantsto the Mahomedan Law in matters of succession and inheritance.As regards wills, the chief feature of the Mahomedan law is thatonly one-third of a man's property is disposable by his will:Khojahs and Cutchi Memons who do not elect to the contrarywill apparently continue to be free of this restriction.

The territories now forming the Punjab were acquired atdifferent

dates,but the

greater partof its

presentextent had

been attained by 1849, and in 1854 there was promulgated abook compiled by Sir Richard Temple and called the PunjabCivil Code. In 1849 it was considered that the Governmentof India possessed the right of legislating for them as they wereconquered territories, and a Despatch of 1849 which spoke ofthe Government's desire to uphold native institutions andpractices and to maintain village co-parcenaries became the basisof the observance of customary law. When Sir Barnes Peacockcast doubt on the right of Government to make laws for non-regulation provinces by mere executive order, a provision was

(d) Mahommedan Law, Vol. II, 5th ed., 1929. See pp. 140, 136, 10.



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introduced into the India Councils Act of 1861 confirming alllaws

previouslymade; but this Act was

regardedas a declaration

that Sir Barnes Peacock had been correct in his opinion. ThePunjab Civil Code was a manual containing rules from manydifferent sources-the Regulations, Hindu Law, MahomedanLaw, English Law and also provincial usage. The work wasacted on as though it were a code of substantive law for somesixteen years and it was looked upon as containing the civil lawof the Punjab. It was held at one time that it had acquiredthe force of law by virtue of the India Councils Act but that

view was later overruled. Its general effect between 1854 and1872 has been described by saying that in questions relating tosuccession, the principal relations of family life and to thetransfer of landed property otherwise than from landlord totenant, it prevented, by the strength it gave to custom, theimportation either of the English law or usually of the moreintricate provisions of the Hindu and Mahomedan law, amongstthe rural population. (Tupper: Punjab Customary Law,

vol. I, p. 7.) It was superseded by the Punjab Laws Act of1872, which was drafted by Sir James FitzJames Stephen, whohad succeeded Sir Henry Maine as Legal Member of Council.This Act deprived the Punjab Civil Code of any legal forcethough it is in some matters regarded as evidence of custom.The statute of 1872 is the main enactment which the ShariatAct of 1937 was intended to alter. It introduced custom as theprimary rule of decision provided always that the customwas not contrary to justice, had not been declared void bycompetent authority, or altered or abolished by law. Aftercustom, Mahomedan and Hindu law, if not modified by customor altered or abolished by legislation. The long list of subject-matters to which this system was to be applied we have alreadyseen in the Shariat Act: succession, special property of females,betrothal, marriage, divorce, dower, adoption, guardianship,minority, bastardy, family relations, wills, legacies,.. gifts,partitions, any religious usage or institution-all are mentioned

in the Act of 1872.That priority should be given to custom as overridingMahomedan or Hindu law was strongly advocated by Sir GeorgeCampbell at the meeting of the Governor-General's Legislative



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Council (March 26, 1872). He had long served in the Punjabbut had become Lieut.-Governor f

Bengal,and the

provisionwhich passed into law was introduced y him as an amendmentto Stephen's bill, which he had persuaded Stephen to accept.Having scandalised that eminent jurist by describing thePunjab as much ridden over by lawyers and declared hisopinion that if ever the country became too hot to hold us,it would be the lawyers that had done it , he observed (asrecorded n the Abstract of Proceedings):-

The provisions f the Bill which attracted his attention,and with regard to which he had the gravest doubts, were. . . the provisions of section 5 as to the laws by whichcertain questions should be decided. It enacted, in regardto a large number of subjects, that the Muhammadan lawin cases where the parties were Muhammadans, and theHindu law in cases where the parties are Hindus, shouldform the rule of decision, except where the law had beenaltered or abolished by legislative nactment, r was opposedto the provisions f the Act. He was quite willing o admitthat certain simple rules, excerpted from the Hindu andMuhammadan aw, had to a certain extent had force n thePunjab: but it appeared to him that a section of this kindwould import into the Punjab, not the simple law of theProvince, but the whole of the complications f the writtenHindu and Muhammadan laws, and the whole of thevoluminous case-law comprehended n the decisions of theCourts all over the

country,and more

especiallyin the

decisions of the High Court at Calcutta. That he regardedwith the gravest apprehension. He should so regard t, notonly because it would open a wide door for lawyers, butbecause it was not the law of the Punjab. Not one out often-perhaps not one out of a hundred-persons in thePunjab was governed by the strict provisions of the Hinduand Muhammadan aw. The only object of [his] amendmentwas to provide in simple words, in such a way that theofficers f the Punjab in administering he law might notmistake, that custom came first, and that Hindu andMuhammadan aw only came when custom failed. . .

So far as the Muhammadans were concerned, His Honour



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believed that such a provision would meet the case. Hebelieved that comparatively few of the Punjab Muhammadanswere governed by pure Muhammadan law. It had alwaysseemed to him that the Muhammadan law was a law, not fora settled place, but for a wandering people, possessed offlocks of sheep and herds of cattle, which were dividedamongst their descendants by rule of arithmetic. Therefore,in dividing property and in other matters, where the partieswere Muhammadans, it would be provided that the customsof the parties should first be ascertained; and in the absence

of any customs the Muhammadan law should prevail, andas there could not be much doubt whether the person whosecase was concerned was, or was not, a Muhammadan,His Honour thought that sufficient provision for such caseswould be made by the amendment .Protesting that it was really hardly fair to the law and

to lawyers in general to speak of them in the way in whichthe Lieutenant-Governor had spoken, Stephen agreed to the

amendment. He added:-As regards the effect of custom, there was one pointomitted which, he thought, was quite conclusive. ThePunjab had been for twenty years under British rule, andland settlements had been made everywhere. Every customthroughout the country had been most scrupulously regis-tered. The records of the different illages gave the customsof the country a degree of stability which they never hadbefore. The thing had been reduced to a certainty. ...Customary law has by no means been reduced to a certainty

even yet; but much has been done in the Punjab, Oudh andelsewhere to ascertain customs not merely by judicial decisionbut by executive action directed to establish and maintain usefulrecords of custom. In the Punjab customs relating to succes-sion, transfer of property and other matters were recorded atthe time of making the early settlements-in the fifties andsixties-in the village administration paper called the wajib ul

arz , a document which was partly a declaration of fact andpartly a written agreement. About 1864 the practice was begunby Mr. E. Prinsep of interrogating collectively villagers of thesame tribe or part of a district and in this way a record of tribal



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custom came into being called the Rivaj-i-Am . The wajib ularz was

given bystatute a

specialvalue, a

presumptionof truth

being attached to entries therein by section 46 of the PunjabLand Revenue Act, 1887. In the more modern settlements,however, the customary law has been embodied not in thesebut in a general record of custom called by the name Rivaj-i-Am,entries in which are evidence of custom under section 82 (4) ofthe Indian Evidence Act. These official records have a highvalue as evidence, though their value has sometimes beenimpaired by the Settlement Officer shaping them in a formwhich he approved and not seeing that they were confined tostatements as to customs which were in fact observed as distinctfrom endeavours to legislate for the future.

The stress laid by the Act of 1872 upon custom must notbe mistaken or exaggerated. In Abdul Hussein Khan v. SonaDero (e) the Judicial Committee approved the observation ofRobertson, J., in Daya Ram v. Sohel Singh (f):-

There is no presumption created by the clause

(section 5 of the Act) in favour of custom; on the contraryit is only when the custom is established that it is to bethe rule of decision. The Legislature did not show itselfenamoured of custom rather than law nor does it show anytendency to extend the 'principles' of custom to any matterto which a rule of custom is not clearly proved to apply.The policy of the Act cannot be judged merely from its

effect as regards Mahomedans. So far as others are concerned

it is difficult to see what other policy could well have beenexpected to yield satisfactory results. The fact is that neitherthe Hindu nor the Mahomedan systems of law as we know themhad for years had any general acceptance from the ruralpopulation; indeed the developed Hindu and Mahomedan lawof the text-books was unlikely, according to those best qualifiedto judge, to fuse well with the popular usages of the country.In the Punjab the British administration was for the first timeconfronted with the village community and with the problemspresented by villages or pattis representing joint agricultural

(e) (1918), L. R. 45 I. A. 10, 13-4.(f) 110 P. R. 1906, F. B. 410-1.



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ownership founded on common descent. As observed by SirCharles Roe

(g):-The whole principle underlying the enjoyment of andsuccession to land in villages held by a body of proprietorsbelonging to one tribe, or descended from a common ancestor,is that the land does not belong absolutely to the individualholder for the time being, it belongs to the family orcommunity (g).The basis of the most important rules of Punjab customary

law is that in most of the Punjab villages land is held by amale proprietor as a member of a village community whichat no distant period held the whole of their lands jointly,recognising in the individual member only a right of usufruct.that is a right to enjoy the profits of a portion of the commonland actually cultivated by him and his family and to sharein those of the portion still under joint management. In sucha community the proprietary title and the power of permanentlyalienating parts of the common property is vested in the whole

body (h).While a person who is not an agriculturalist or a member

of an agricultural tribe may be governed in any particularmatter by custom, and a person who is an agriculturalist maybe governed by his personal law, nevertheless on the questionwhether the Punjab customary law applies to any individualit is of importance to ask whether he is a member of anagricultural tribe and also a member of a village community.

People who for generationshave drifted

awayfrom

agricultureor taken to living in cities will not be presumed to be governedby customary law. The code of agricultural custom,especially the rule relating to the power of alienation, is theresult not of any peculiar caste proclivities in the Province, butof the special exigencies of agriculture as a calling and of thespirit of self preservation which prevailed throughout the villagecommunities in order to protect their very existence (i).

On the other hand, in the case of certain agricultural tribes

(q) Sita Ram v. Raja Ram, 12 P. R. 1892.(h) Gujar v. Sham Das, 107 P. R. 1887.(i) Per Lal Chand. J., in Muhammad Hayat Khan v. Sandhe Khan, 55

P. R. 1908, at pp. 276-7.



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the existence of many judgments of the Chief Court and entriesin the

rivaj-i-am maymake it

impossibleor

verydifficult to

suppose that the customary law does not apply.The Indian village system has had its effect upon the

Mahomedan as upon the Hindu population by preventing theKoranic or Brahmanical principles from achieving completeascendancy. Both have had to give way in large measure tovillage rules and usages which had no concern with religiousthought but controlled the rotation of crops, rights of pasturage,alienation of lands, and liability to village burdens. Thus itcomes about that even in Mahomedan families and even asregards succession and inheritance custom provides not excep-tions merely but the general rule. In a case where the partieswere Mahomedan Arab-Sayads Sir Lawrence Jenkins observed:In this family custom is followed in matters of inheritance.S. . So the piesent enquiry is not whether in relation to the

particular succession now in question the ordinary personal lawis superseded by a custom, but what is the customary rule that

regulates it (k).The main feature of the Mahomedan law of inheritance isthat it gives a share to females though it goes to a great extentupon the rule of double share to the male . It contrastsstrongly with the principle of Hindu law which regards the malemembers of the joint Hindu family as the only co-parceners andwhile they exist allows to the females a right of maintenanceand no more. It contrasts also with the Hindu principle of

allowinga woman to take the estate of a limited owner and no

higher estate when as Hindu widow, mother or daughter shesucceeds by inheritance in the absence of males. Apart fromthe consent of a man's heirs, Mahomedan law allows him todispose of one-third only of the property of which he diespossessed and in the case of Sunnis gifts made to an heir areinvalid because they produce inequality among heirs. Yet inthe Punjab custom imposes on the Mahomedan who is subjectto the customary law principles which are not only foreign tohis personal law and contradictory thereof but which can beseen to be modifications of Hindu rules. Thus custom in many

(k) Hashmat Ali v. Nasib-un-Kisa (1924), I. L. R. 6 Lah. 117, 122.



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waste or with the intention of destroying he interests f thereversioners 1).

As an individual nstance may aid in explaining he movementwhich has led to the Shariat Act, the case of Mussammat ardarBibi v. Haq Nawar Khar (1934), I. L. R. 15 Lahore 425, maybe taken and its facts considered. It was tried by the DistrictJudge of Dera Ghazi Khan and was taken on appeal to a FullBench of the High Court at Lahore. The plaintiff was thedaughter f a Gishkori Biloch by name Karim Bakhsh, who diedin 1921 leaving him surviving he plaintiff, nother daughter

(since deceased), a widow and a minor on. Until 1920the ruleof succession which had prevailed in this tribe had been thatsons succeededto the entire state of their father o the exclusionof his widow and daughters. Accordingly n this case the nameof the son was entered n the revenue records as the owner ofthe lands left by the father. In 1927 the daughter (SardarBibi) brought her suit against the son, claiming that successionto their father was to be governed by Mahomedan law, whichgives a share to widow and daughters s well as to sons. Sheclaimed in the events that had happened a 7/,3 share in herfather's state. It appeared that in 1920there had been a newSettlement of the district Dera Ghazi Khan. The family nquestion lived in a village in a sub-district tahsil) calledJampur n the Sind tract-a tract about forty miles long andabout ten miles wide where the villages are not village com-munities, but rather aggregations f independent units of landincluded in a common boundary for administrative urposes.Before 1920 the Riwaj-i-ams had always recorded he Gishkorisas governed by a customary rule of succession under whichdaughters were entirely xcluded by sons. The daughters' casewas, however, hat at the last Settlement 1920) all the Gishkoriswho owned land appeared before the Settlement Officer ndmade a declaration n favour of the Mahomedan aw, i.e., theydecided to abrogate the custom and to adopt the rule ofsuccession aid down by the Mahomedan law. Those personswho made the statement had

signedit and one of them was

Karim Bakhsh himself, whose property was now in question.

(1)Kirpal Singh v. Balwant Singh (1912), I. L. R. 40 Cal. 288.G.S. 8



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The two principal tribes inhabiting Dera Ghazi Khan were theBiloch and the Jat. The latter had in this district

(notin the

Punjab proper) observed the Mahomedan law in matters ofsuccession, giving a share to widows and daughters; while theBilochs had been governed by rules of customary law like thoseprevalent in the Punjab whereby in the presence of maledescendants daughters took no share. According to the highauthority of the officer who had made the last Settlement, theposition of the Biloch tribe in question and of others like it wasthat they now profess to incline towards the adoption of the

Mahomedan law in matters of succession, but that this was athing of very recent date and more of the nature of a piouswish than a profession of actual facts . The Full Bench cameto the same conclusion as the District Judge, a Mahomedanofficer f experience, that the statements made before the Settle-ment authorities and incorporated in the riwaj-i-am had beenmade under the wave of religious renaissance and zeal whichhad passed over this district about 1920 , that the Leghari

Chief had taken the lead in the matter, and that the otherleading Biloches did not have the courage to openly professthat they would not submit to the Muhammadan Law , andmade the declaration merely to show that they were as goodMuhammadans as their Jat neighbours . The Full Bench didnot find it necessary to decide whether the custom would havebeen effectively brogated as regards the tribes by whom or onwhose behalf the declaration was made if it had been made aftermature deliberation and with a genuine determination to acton it for the future. The Court, however, did decide that justas an individual could not by declaration suddenly give up acustom which his family or tribe had for generations followed,in favour of a different ustom; so, too, he could not abrogatean old custom in favour of his personal law, the law of thereligion to which he belonged. The learned Judges did not doubt,however, that as laid down by the Judicial Committee in 1863

customs and usages as to dealing with property, unless their

continuance be enjoined by law, as they are adopted voluntarily,so they may be changed or lost by desuetude (m). They

(m) Abraham v. Abraham (1863), 9 Moore's Indian Appeals 199, 246.



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considered, however, that the abrogation of custom is to beinferred from a continuous course of conduct, and that this wasconsistent with the decision of the Privy Council in RajkishanSingh v. Ram oy Surma Mozoomdar (1876), I. L. R. 1Calcutta 186.

The Shariat Acts of 1935 and 1937 show that the wave ofreligious renaissance or zeal which in Sardar Bibi's case cameto so little was not a movement to be contemned as only sporadicand ineffective. It was a wave which took its strength from aflowing tide. The main reason for the passing of these Actswas that Muslims were beginning to consider that the Koranicprinciples which gave a right of succession to widows, daughtersand other females were more enlightened than those whichfollowed the Hindu law in regarding women as generally entitledto maintenance, but not entitled in the presence of males to ashare. The principles which the Prophet had introduced tomitigate the savage treatment of women in Arabia's days ofignorance had been a great advance and had established

themselves all the more securely that they were not too advancedto be capable of acceptance and assimilation by a primitivepeople. The doctrine of double share to the male may beregarded as one-sided but it has the merit of not excluding thefemale from all share in the inheritance. Save for the case ofwidows, to whom custom frequently gives a right for life similarto a life interest or to the limited estate of a woman at Hindulaw, the effect of custom is very generally to deprive womenof their right by the personal law whether Hindu or Mahomedan.As daughters marry into and become identified with anotherfamily than their own, a disinclination to see the family propertypass into their hands or through them is a very general featureof public opinion. But the social consequences of disinheritingfemales may be very different under a system which regardsmarriage as an indissoluble union (as Hindu law does) and underthe Muslim system which gives a power of divorce to thehusband.

When customs are recorded according to the voice of theelders of the tribe or village their insistence upon a customdisinheriting daughters can hardly be checked by any represen-tations made by the womenfolk in their own interests. Claims



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to exclude daughters from uccessionor claims to some specialcourseof successionwhich xcludesthem

maybe made for divers

oblique reasons: e.g., family ggrandisement r caste snobberymay lead to allegations of a custom of single heir succession.The framers of section 5 of the Punjab Laws Act clearly

recognised n clause (6) that there re tracts n the Punjab wherewe are rather to expect to find aw modified by custom thancustom modified y law, and while t may be truly aid of certainportions of the Province that there is not an agriculturist,whether Hindu or Muhammadan, who is really governed bypure Hindu or Muhammadan Law, I cannot but find hat therehas been a tendency n some quarters to overrate the strengthof custom based entirely upon selfish onsiderations nd verymuch to underrate he effect f religion nd its dictates (n).

A second ground of some legitimate complaint againstcustom as a rule of decision s that the existence and contentof any alleged custom is a question of fact which has to beestablished by a particular inquiry and by proof in the

individual case-a matter which varies from ribe to tribe andplace to place and which s sometimes omplicated rather thansimplified by the decisions of the Courts in previous cases.There can be little doubt that from time to time custom hasbeen emphasised beyond necessity and matters have beenrecorded as custom which might well have been left to thegeneral aw. It is expecting a great deal of village elders orpersons of similar education and position when asked whathappens when H dies leaving such and such property nd suchand such persons him surviving o answer We do not know.We never remember hat particular ollocationof circumstancesarising. If such questions were asked systematically ofthe inhabitants of English villages and the answers carefullyrecorded, the record might be expected to contain a sadadmixture f nonsense. It is highly reditable o the nhabitantsof Indian villages that the records of their customs should beas true and complete as we now have them: this is due also

to the great care and experience f Settlement Officers. In thecases (o) and text-books one may read of the essentials of a

(n) Per Robertson, J., in Daya Ram v. Sohil Singh, 110 P. R. 1906,p. 411.(o) Abdul Hussein v. Sona Dero (1918),L. R. 45 I. A. 10.



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valid custom: negative conditions are that it must not becontrary o justice, equity and good conscience, nor declaredvoid by competent uthority nor contravene ny express law.The positive conditions hat a custom must be ancient, certainand invariable are, however, not always satisfied n any highdegree where custom is relied upon to provide the generallaw, e.g., of succession, and not merely to engraft xceptionsthereupon.

The Shariat Acts of 1935 (North West Frontier Province)and 1937 (all-India) are alike in that neither s intended toabrogate any statutory rule or prohibition. Under Act I of1869 the estates known in Oudh as taluqas are governed byspecial principles of succession-male lineal primogeniture rother form f singleheir succession n accordancewith the policyof Lord Canning to encourage a species of aristocracy n thatProvince where a custom of raiguddi had obtained previous toBritish rule. The successionto these estates is not affected ythe Act of 1937, but it may well be that the Act will affect

succession to other property of the same families, since inMahomedan families a presumption rises out of the customrelating to these estates that other property s governed by asimilar family ustom. The ground of the presumption s thatthere s no distinction n Mahomedan aw between ncestral andacquired property-all property following the same rules ofsuccession (p).

That statutory provisions are not intended to be affectedis made clearer by the Act of 1935 than by the All-India Actof 1937, but the intention s the same in both.

The exception for agricultural and contained n the Act of1937differentiates t from he provincial Act of 1935. The chiefpoints upon which customary aw alters the Mahomedan lawconcern mmoveableproperty nd the succession hereto: hencethe exclusion of agricultural and takes away a very large partof the effect f the Act of 1937. It is true that custom hasinvaded or displaced the Mahomedan aw in other matters, but

it is difficult o estimate the extent and importance of thisinvasion. Thus it has been held (though not in a case between

(p) Mustaza Husain Khan v. Mahomed Yasin Ali Khan (1916), L. R.43 I. A. 269.



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Mahomedans) that the rule of iddat, the period during whicha widow or divorced wife

maynot

remarry,has no

placein

customary aw (q). The practice of adoption under customarylaw is foreign o the Mahomedan law, but it appears to haveno effect ave as a disposition of property-the appointmentof an heir by a sonless owner of land. It remains to be seenhow wide will be the effect f the Act in respect of customsamong Mahomedans to exclude females from succession, or toconfine uccession n the case of certain families o a single heir.Time will be required to disclose the manner and extent towhich the Act will have effect hroughout he different artsof India. It would need more knowledge of the country hancan be claimed by the present writer o indicate its probableresults with any fullness or any chance of accuracy. But theAct represents movement f opinion or public sentiment mongMuslims n India which s not likely to be checked, and whichmust profoundly ffect Northern ndia at least. Much of itsinfluencewill be conservative nd unseen-in that it will prevent

the introduction f new principles nto the lex loci and willtend to preserve the characteristic eatures of Muslim society.Modification y ideas derived from ther ystems nd by devicesdue to the exigency of modern conditions s a process whichcannot be avoided and is not to be condemned, but it wouldseem to be the desire of the Muslims n India that their personallaw should not be overlaid, as it were, by a tessellated carpetof particular ustoms n which the pattern of the Shariat is notto be discerned.

(q) Bhagat Singh v. Musammal Santi, 102 P. R. 1919.

Custom and Muslim Law in British India

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