Prior to the coming into force of the Shariat Act of 1937, Cutchi Memons and Khojas and Sunni Bohras of Gujarat and Molesalam Girasias of Broach were governed by Hindu Law in matters of inheritance and succession, and therefore, could dispose of the whole of their property by wills.
Such wills were construed by rules of Hindu Law relating to wills. Now, S. 3 of the Shariat Act, 1937, gives any person belonging to any of these communities and who is a resident of India, the option of abandoning the customary (i.e., Hindu) law and adopting Muhammadan Law.
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If he exercises this option, he will be governed by Muhammadan Law, under which a Muhammadan cannot, by will, dispose of more than one-third of this property. In cases governed by the Muhammadan Law under the Shariat Act, the will is to be construed by the rules of Muhammadan Law relating to wills.
Whether the Shariat Act is Retrospective:
The Lahore High Court had, in an old case, held that the Shariat Act, 1937, is not retrospective in effect. In other words, it does not affect any rights or liabilities which may have arisen before it came into force. (Roshan Ali v. Rahmat Bibi, A.I.R. 1943 Lah. 219)
However, the Supreme Court has, in a later case, held that the words of S. 2 of the Act (see above) are mandatory, and that the intention of the legislature is that the Act should apply to all suits, proceedings and appeals which were pending when the Act came into operation, and not only to suits, proceedings and appeals filed after that date. (C. Mohammed Yunus v. Syed Unissa, 1962 1 S.C.R. 67)
Changes Effected by the Act:
1. The Shariat Application Act, 1937, provides a statutory recognition to the rule of Islam that its law applies to all who profess the religion of Islam. It makes Muhammadan law applicable expressly to all Muslims. After the passing of the Act, Courts cannot refuse to apply Muhammadan law on any point, on the ground that it is opposed to justice, equity and good conscience.
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2. Secondly, the Act abrogates the customs and usages which are contrary to the rules of Muhammadan law, as regards all matters enumerated in S. 2 of the Act. As regards these matters, the Courts cannot recognise any custom or usage which abrogates the rules of Muhammadan law.
Customary law, as it prevailed in Punjab, Gujarat, and South India and elsewhere, had been objected to on various grounds. It was said that this customary law was (i) uncertain, (ii) that its ascertainment was expensive, and (iii) that rights granted to women under this law were inadequate and in marked contrast with fuller rights provides by Muhammadan Law.
After the passing of the Act, a custom or usage is inapplicable, unless embodied in an enactment, and the mere fact that it has been recognised by the Courts will not support it.
The chief grievance which the Act is designed to redress is the custom altering the Muhammadam laws of intestate succession. Thus, the Act seeks to abolish the custom of agnatic succession amongst Muslims in north India, the custom of matriarchal succession amongst Moplas (who followed Marumakattayam law), and the custom of succession according to Hindu law among the Khojas, Sunni Bohras, Halai Memons of Gujarat and Molesalam Girasias of Kathiawar.
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Lastly, Muslim communities such as Khojas, Cutchi Memons, Bohras, Halai Memons and the like, who have descended from the original Hindu ancestry, were, prior to the passing of the Muslim Personal Law (Shariat) Application Act, 1937, governed by Hindu law, so far as inheritance and succession were concerned.
After the passing of the Act, they are not governed by Hindu Law, so far as they are affected by that Act, which makes the Muslim Personal Law applicable to all these converts to Islam. Some provisions of the Act are coercive, i. e., they apply whether the parties desire or not, and some provisions are only persuasive, i.e., they apply only if the parties so desire.
Now all Muslims (including converts to Islam) are governed by the Muslim Personal Law, notwithstanding any custom or usage to the contrary, in all questions except questions relating to agricultural land.