The Bengal, Agra and Assam Civil Courts Act, 1887 — Section 37 and Its Impact on Muslim Succession Law
- Umang
- 4 hours ago
- 16 min read
Table of Contents
A Mahomedan dies in the former United Provinces, leaving behind a widow, daughters, and a paternal uncle. Under the classical Mahomedan law of inheritance, the widow takes her prescribed Quranic share, the daughters divide between them two-thirds of the estate, and the uncle is excluded. That, at any rate, is what the fiqh prescribes. But a custom prevailing in his family holds that daughters do not inherit in competition with agnates. Which rule governs?
The answer — or rather, the contested process of arriving at it — is exactly the problem that Section 37 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act XII of 1887) was at the centre of for nearly half a century. That section is a deceptively simple provision. Its text applies Mahomedan law to Mahomedans in the specified territories in matters of succession, inheritance, marriage, and religious usage.
It says nothing about custom. Yet the courts read it, for a long period, as accommodating proof of custom at variance with the Mahomedan law. The story of how that reading came about, was overturned, and was finally settled by the Muslim Personal Law (Shariat) Application Act, 1937 is one of the more instructive episodes in the legislative history of Muslim personal law in India.
The Framework: How Mahomedan Law Is Applied in Indian Courts
Before turning to Section 37 itself, it is necessary to fix the general principle that governs the entire inquiry. Mahomedan law is applied by courts in India to Mahomedans not in all matters, but in some matters only.
The rules of Mahomedan law that Indian courts apply fall under three divisions: those expressly directed by the Legislature to be applied to Mahomedans; those applied as a matter of justice, equity and good conscience; and those that are not applied at all — such as Mahomedan criminal law and the Mahomedan law of evidence.
Only the first two categories are operative. In all other respects, Mahomedans in India are governed by the general law.
Expressly Enacted vs. Justice, Equity and Good Conscience
The distinction between these two categories carries a decisive consequence. Rules that have been expressly directed to be applied must be applied even if the court considers them at variance with justice, equity and good conscience. Rules applied only under the residuary conscience standard may be withheld if the court finds them opposed to that standard.
Where a rule of Mahomedan law is well-settled in the view of the classical expositors, it is not open to the court to disregard or reject it on the ground of illogicality or unsoundness — provided, of course, it is not actually contrary to justice, equity and good conscience. (Mohd Ismail v. Abdul Rashid (1956) 1 All. 143, 154 (F.B.).)
Section 37 belongs squarely in the first category. It expressly directs courts to apply the Mahomedan law to Mahomedans. That is its significance — and the source of the controversy about whether custom could displace it.
Section 37: Legislative Text and Territorial Scope
Section 37 of the Bengal, Agra and Assam Civil Courts Act XII of 1887, read together with the Bengal and Assam Laws Act, 1905 (Sections 2 and 3), applies to West Bengal, Bihar, the former United Provinces (Agra) and Assam — except such portions of those territories as are not subject to the ordinary civil jurisdiction of the High Courts.
The Substantive Command
The section directs the civil courts of those territories to decide all questions relating to "succession, inheritance, marriage or any religious usage or institution" by the Mahomedan law in cases where the parties are Mahomedans — except in so far as that law has, by legislative enactment, been altered or abolished.
Three features of this formulation deserve notice. First, the subject matter is expressly enumerated: succession, inheritance, marriage, and religious usage or institution. These are not defined by reference to a residuary formula; they are affirmatively specified. Second, the Mahomedan law governs as the primary rule of decision, not as a default. Third, the only qualification expressly stated is legislative alteration or abolition — not custom.
The Residuary Clause: Justice, Equity and Good Conscience
The section then provides that in cases not within the matters listed, and not provided for by any other law for the time being in force, the decision shall be according to justice, equity and good conscience. This residuary clause operates in the interstices — for matters not falling within succession, inheritance, marriage, or religious usage, and for which no specific law exists.
For the Mahomedan law of gifts, for example, which Section 37 did not expressly cover in those territories, courts resorted to this residuary clause when applying the classical law. (Karan Ilahi v. Sharf-ud-din (1916) 38 All. 212, 35 I.C. 14.)
The Silence on Custom: A Fateful Ambiguity
The section makes no reference whatsoever to custom. This silence is in sharp contrast to the formulations adopted in other provincial statutes of the same era. The Punjab Laws Act IV of 1872, Section 5, expressly placed custom first in the hierarchy of applicable rules — ahead of the Mahomedan law. The Madras Civil Courts Act III of 1873, Section 16, directed courts to apply "the Mahomedan law or by custom having the force of law." The Bombay Regulation IV of 1827, Section 26, directed courts to apply the usage of the country before the personal law of the defendant.
Section 37 of the Bengal, Agra and Assam Civil Courts Act stood alone in enacting personal law without any express reference to custom. The courts were therefore confronted with a question the Legislature had not answered: could a party set up a custom at variance with the Mahomedan law to displace the rule that the section itself directed to be applied?
The Allahabad High Court's Original Construction: Custom Excluded
The first judicial answer to this question was categorical. The Hon'ble Allahabad High Court, in Jammya v. Diwan (1900) 23 All. 20, held that Section 37 must be construed as excluding evidence of custom. The reasoning was straightforward: the section directed the court to apply the Mahomedan law; it mentioned no exception for custom; and in the absence of any express provision for custom, the personal law must prevail.
In the provinces of Bengal, Agra and Assam — unlike in Punjab — the Legislature had chosen not to place custom in the hierarchy. The court had no warrant to insert it.
That was the law in the Agra territories for over a decade.
The Privy Council Intervenes: Muhammad Ismail v. Lala Sheomukh
In 1912–13, the Judicial Committee of the Privy Council considered the question directly in Muhammad Ismail v. Lala Sheomukh (1912) 17 Cal. W.N. 97, 15 Bom. L.R. 76, 18 I.C. 571 (P.C.), and reached the opposite conclusion. The Privy Council held that Section 37 must be construed as subject to proof of family custom at variance with the Mahomedan law. The Allahabad High Court's construction was overruled.
The effect was significant. Section 37 — which on its face said nothing about custom — was now read as capable of being displaced by proof that the succession in a particular family was governed by a custom derogating from the Mahomedan law. The entire structure of succession litigation in the Bengal, Agra and Assam territories was thereby altered. A defendant claiming under custom could now lead evidence in those courts, just as in Punjab or Madras — notwithstanding that Section 37 had never said so.
The post-Privy Council courts took that ruling and applied it. In Ali Asghar v. Collector of Bulandshahr (1917) 30 All. 574, 40 I.C. 753, the Allahabad High Court gave effect to the Privy Council's construction and began admitting custom-based defences in succession disputes under Section 37. The old Jammya v. Diwan position was abandoned.
The Requirements for Proving a Valid Custom
Having admitted the admissibility of custom evidence under Section 37, the courts then had to define the standard of proof. They adopted a strict rule: the custom must be ancient and reasonable, and the burden of proof lies upon the party who sets up the custom. (Abdul Hussein v. Sona Dero (1918) 45 I.A. 10, 45 Cal. 450, 43 I.C. 306.)
Ancient, Reasonable, and Proved by Instances
A custom cannot be presumed. It must be established by evidence of specific instances — actual past cases in which the family or community concerned followed the usage claimed. The custom cannot be enlarged by parity of reasoning. If the custom is proved in one aspect, it does not automatically extend to other aspects by analogy.
(Muharram Ali v. Barkat Ali (1931) 12 Lah. 286, 125 I.C. 886, ('30) A.L. 695.) Moreover, an individual cannot abrogate a long-established custom by a mere personal declaration. The abrogation of a custom in favour of Mahomedan law requires a continuous course of conduct — not a unilateral announcement. (Sardar Bibi v. Haq Nawaz Khan (1934) 15 Lah. 425, 149 I.C. 575.)
One additional requirement flowed from the nature of the inquiry: a custom is invalid if it is repugnant to morality or public policy. The courts would not give effect to a custom whose object was inherently improper. The Privy Council itself had approved the refusal to recognise a custom of the Kanchan community whose object was the continuation of prostitution as a family business. (Ghasiti v. Umrao Jan (1893) 21 Cal. 149, 156, 20 I.A. 193.)
The Evidentiary Instruments: Wajib-ul-arz and Riwaz-i-am
In the agrarian territories to which Section 37 applied, custom was typically documented through revenue settlement records. Two such documents were of particular evidentiary importance.
The wajib-ul-arz is a statement of rights and usages recorded by revenue officers at the time of settlement — a village document that purports to set out the rights of various categories of cultivators and landholders. The riwaz-i-am is a record of general custom prevailing in a region or district. Both could be produced as evidence of custom in succession disputes.
The Privy Council had, in the context of the Punjab, examined the evidentiary value of these instruments. (Uman Parshad v. Gandharp Singh (1887) 14 I.A. 127; Beg v. Allah Ditta (1914) 44 I.A. 89, 44 Cal. 749.) Their force was not absolute — they could be challenged and contradicted — but they constituted the primary documentary evidence through which custom was established in the courts of the region.
The Substantive Impact on Muslim Succession Law
The practical question underlying all of this procedural law is: what kinds of custom were actually pleaded in succession disputes under Section 37, and how did they affect Muslim women and other heirs?
Agnatic Succession: The Chief Grievance
The primary mischief that Section 37 — and later the Shariat Act, 1937 — addressed was the custom of agnatic succession prevalent chiefly in Northern India. Under this custom, succession descends in the male line, excluding all females except the widow and the daughter, and even those are allowed only a life interest or bare maintenance — not the full heritable share that the classical Mahomedan law confers upon them. This custom has the added inconvenience of being subject to numerous exceptions and sub-varieties, making it uncertain in application. (Beg v. Alla Ditta (1917) 44 Cal. 749, 44 I.A. 89, 38 I.C. 354.)
The contrast with the Mahomedan personal law is stark. Under the classical rules of Sunni succession, female heirs — wives, daughters, mothers, sisters — take prescribed fractional shares. A daughter, for example, takes one-half of the estate if she is the sole daughter, or two-thirds shared equally if there are two or more daughters. None of this was available to a Muslim woman in a family governed by agnatic custom, if that custom was successfully proved before the court.
There is a further peculiarity of Mahomedan succession that makes the agnatic custom particularly harsh: there is no concept of a joint Mahomedan family in the Hindu law sense. Under the Mahomedan law, each heir takes a separate, vested, and definite share immediately on the death of the ancestor — the estate devolves at the moment of death, not upon a family unit. There is no intermediate vesting in an executor or administrator.
(Sakina Begum v. Shahar Banoo (1935) 10 Luck. 433, ('35) A.O. 62.) And crucially, there is no principle of representation — a grandson cannot claim through a predeceased son in Sunni law (Moola Cassim v. Moolla Abdul (1905) 33 Cal. 173, 32 I.A. 177) — which means the personal-law scheme of shares is both specific and fragile. When custom displaces these shares, the displacement falls most heavily on women and on collateral branches of the family.
Special Property of Females
A second category of custom that Section 37 brought into litigation was the custom affecting the special property of females. The rule of Mahomedan law is that property received by a woman through inheritance or gift is her absolute property. Against this, some communities practised a custom whereby property so received did not vest in the female recipient as her own but reverted to the heirs of the last male owner on her death. This custom, in effect, made the female a life tenant of her own inheritance.
(Muhammad v. Amir (1889) P.R. 31; Kann Din v. Umar Baksh (1888) P.R. 3.) The Shariat Act, 1937 — as discussed below — was specifically addressed to abolishing this custom.
The Exclusion of Daughters
A further variety of custom involved the exclusion of daughters from inheriting in competition with agnates, or altogether. Under the personal Mahomedan law, where daughters are excluded from inheritance — whether by custom or statute — they are treated as non-existent for the purpose of calculating shares, and the shares of the other heirs are recalculated accordingly.
(Muhammad Kamil v. Imtiaz Fatima (1908) 36 I.A. 210, 31 All. 557.) But the exclusion itself could only be established by proof of the custom; without that proof, the personal law shares would prevail. There is no custom that daughters can inherit a father's property only as khananishia daughter or not at all — such a custom has to be pleaded and proved by cogent evidence. (Ghulam Hassan v. Mst. Saja, A.I.R. 1984 J&K 26.)
The Shariat Act, 1937 and Its Effect on Section 37
The Muslim Personal Law (Shariat) Application Act, 1937 (Act XXVI of 1937) fundamentally reordered the relationship between custom and personal law across India. Section 2 of the Shariat Act, operative from 7th October 1937, directed that in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trusts and wakfs — the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat), "notwithstanding any custom or usage to the contrary."
The scope and purpose of Section 2 was explicitly to abrogate custom and usage in so far as they had displaced the rules of Mahomedan law. (Mahomed Aslam Khan v. Khalilul Rehman (1947) 51 C.W.N. 832, 231 I.C. 55.) After 7th October 1937, a party pleading agnatic custom, or a custom of excluding daughters, or a custom reducing female property to a life interest, could no longer be heard in the courts of Bengal, Agra and Assam in the subjects covered by the Shariat Act. The Privy Council's 1912 ruling — admitting custom under Section 37 — was, in substance, overridden.
The Drafting Anomaly and the Amending Act of 1943
Here arose an interesting legislative puzzle. Section 6(3) of the Shariat Act, as originally enacted, purported to repeal Section 37 of the Bengal, Agra and Assam Civil Courts Act, 1887, in so far as it was inconsistent with the provisions of the Shariat Act.
But was Section 37 actually inconsistent with the Shariat Act? The answer, on careful analysis, was no. Section 37 directs courts to apply the Mahomedan law — it says nothing about custom.
It was only the Privy Council's judicial construction of Section 37 that had introduced custom as a permissible ground of departure. The section itself, in its bare text, was perfectly compatible with the Shariat Act. Section 37 of the Bengal, Agra and Assam Civil Courts Act was in no way inconsistent with the provisions of the Shariat Act, and therefore the sub-section purporting to repeal it was unnecessary — and potentially misleading.
The Legislature recognised this.
Sub-section (3) of Section 6 of the Shariat Act was subsequently omitted by the Amending Act XVI of 1943. The Privy Council's construction of Section 37 as subject to proof of family custom was therefore no longer admissible — but it was the Shariat Act's substantive provision, not a repeal of Section 37, that achieved this result.
The Agricultural Land Exception
One area where custom survived the Shariat Act was agricultural land. Section 2 of the Shariat Act expressly excluded questions relating to agricultural land from its mandate. This exclusion was deliberate: agricultural land, as a subject matter, fell within the competence of State legislatures, and the general pattern of customary landholding in Northern India was too deeply embedded to be swept away by a Central Act.
The pre-Shariat Act law — including the post-Privy Council admissibility of custom under Section 37 — therefore continued to apply in succession disputes relating to agricultural land in the Bengal, Agra and Assam territories after 1937.
The Cooch-Behar Anomaly: A Study in Complexity
No discussion of Section 37 and the Bengal territories is complete without reference to the peculiar position of Cooch-Behar. Before its merger into West Bengal, the Mahomedan subjects of the former Cooch-Behar State were not governed by Mahomedan law in matters of inheritance at all. They were governed by Hindu law — a survival of the pre-merger regime of the State.
The Mahomedan Inheritance Act II of 1897, which came into force on 1st April 1897, provided that any Mahomedan subject of Cooch-Behar desiring to be governed by the Mahomedan law in matters of inheritance could make a declaration to that effect — but unless and until such a declaration was made, the Hindu law applied.
After merger, this anomaly persisted. The Cooch-Behar (Assimilation of Laws) Act, 1950 (Act LXVII of 1950) came into force on 1st January 1951, but its Section 3 provided that the Mahomedan Inheritance Act, 1897 would continue in force in Cooch-Behar until the State Government appointed a date for its cesser by notification.
It was only from 1st July 1980 — the date notified by the State Government — that the Mahomedan Inheritance Act, 1897 ceased to be in force and the Muslim Personal Law (Shariat) Application Act, 1937 came into force in Cooch-Behar.
The consequence was stark. A Mahomedan from Cooch-Behar who died on 26th February 1978, without having made the required declaration under the 1897 Act, continued to be governed by Hindu law in matters of inheritance — notwithstanding that the Shariat Act had been in force throughout India since 1937. The question of substitution of heirs in a pending suit filed by such a Mahomedan had to be determined in accordance with the Hindu law. (Anisur Rahaman v. Jalilar Rahaman, A.I.R. 1981 Cal. 48.)
Orissa: The Extension of the Bengal Regime
Before the creation of Orissa as a separate province under the Government of India Act, 1935, the Bengal, Agra and Assam Civil Courts Act, 1887, had already been extended to Orissa. When Orissa became a new province under the 1935 Act, the Orders in Council (dated 3rd March 1936) brought the Shariat Act into operation there as well after its enactment in 1937 — in the same terms as in the rest of the Bengal, Agra and Assam territory. The Orissa courts thus became part of the same legal continuum, applying personal law under the combined effect of the Civil Courts Act and the Shariat Act.
Current Position for Practitioners
For advocates and judges dealing with Muslim succession disputes in the former Bengal, Agra and Assam territories today, Section 37 of the Bengal, Agra and Assam Civil Courts Act operates as the general statutory foundation — but it must now be read together with the Muslim Personal Law (Shariat) Application Act, 1937, and with the Constitution of India.
Several propositions may be stated with confidence.
First, in all matters of intestate succession, special property of females, marriage, dower and guardianship, the Muslim Personal Law governs — custom to the contrary is inadmissible under Section 2 of the Shariat Act. Second, in matters relating to agricultural land, the pre-Shariat Act position survives: custom may still be proved, and the burden lies on the party claiming custom, who must show that it is ancient, reasonable, and established by cogent evidence.
Third, matters not covered by Section 37 or the Shariat Act — gifts, for example, which Section 37 does not address — are governed under the justice, equity and good conscience rubric, and may attract the Mahomedan law on that basis. Fourth, in any area where a specific legislative enactment has altered or abolished a rule of Mahomedan law — as the Indian Contract Act has done to the Mahomedan law of contract — the statutory provision governs.
One principle applies throughout: where a rule of Mahomedan law is well-settled in the view of the classical authorities, it is not open to the court to disregard it on grounds of incongruity or harshness — unless the rule has been specifically altered by statute or falls outside the area expressly directed by the Legislature.
Conclusion
Section 37 of the Bengal, Agra and Assam Civil Courts Act, 1887 is in many ways an instructive study in the limits of legislative text and the capacity of courts to read into a statute more than the Legislature placed there. The section said nothing about custom. Yet the Privy Council, responding to the reality of deeply entrenched agnatic customs in Northern India, construed it as admitting proof of family custom at variance with the Mahomedan law — a construction that rendered the section functionally similar to the Punjab and Madras formulations, despite the different statutory language.
That judicial interpolation was the law for a quarter-century, from 1912 to 1937. Its practical cost was borne principally by Muslim women in the Bengal, Agra and Assam territories: daughters who were excluded from inheritance, widows who received bare maintenance in lieu of their Quranic shares, and female heirs whose property reverted to male agnates on their death. These were the grievances that the Shariat Act was enacted to redress — and which it substantially succeeded in redressing, with the notable residual exception of agricultural land.
Section 37 itself was not repealed. It survives as the statutory authorisation for the application of Mahomedan personal law in its territorial jurisdiction — now read not as a provision capable of being displaced by custom, but as a provision that places the personal law front and centre, with the Shariat Act standing as the guardian of that position against customary derogation.
Frequently Asked Questions
Q: What is the subject-matter scope of Section 37 of the Bengal, Agra and Assam Civil Courts Act, 1887?
Section 37 covers all questions relating to succession, inheritance, marriage, and any religious usage or institution, in cases where the parties are Mahomedans. For those matters, the Mahomedan law is the rule of decision, subject only to legislative alteration or abolition. Residual matters not covered by the section and not provided for by other law are decided according to justice, equity and good conscience.
Q: Did Section 37 originally allow custom to override Mahomedan law?
In its original text, Section 37 made no reference to custom. The Allahabad High Court initially construed this silence as excluding custom evidence (Jammya v. Diwan (1900)). However, the Privy Council in Muhammad Ismail v. Lala Sheomukh (1912) overruled that position, holding that the section is subject to proof of family custom in supersession of the Mahomedan law. That custom-permissive construction was the operating rule until the Shariat Act, 1937.
Q: What standard must a custom meet to be proved under Section 37?
After the Privy Council's ruling, a custom had to be ancient, reasonable, and proved by the party relying upon it. The proof could be by specific instances of the custom being followed, or by settlement documents such as the wajib-ul-arz or riwaz-i-am. The custom could not be enlarged by parity of reasoning, and could not rest on a unilateral declaration by an individual seeking to change family usage.
Q: How did the Shariat Act, 1937 affect Section 37?
The Shariat Act, 1937, applied the Muslim Personal Law in cases where the parties are Muslims, "notwithstanding any custom or usage to the contrary", across the subjects specified in Section 2 — including intestate succession and special property of females. After 7th October 1937, custom-based departures from Mahomedan succession law in the Bengal, Agra and Assam territories became inadmissible in those subject-areas. Agricultural land was excluded from the Shariat Act, so pre-1937 customary law continues to govern succession to agricultural land.
Q: Why was sub-section (3) of Section 6 of the Shariat Act omitted by the Amending Act of 1943?
Section 6(3) of the Shariat Act had purported to repeal Section 37 of the Bengal, Agra and Assam Civil Courts Act to the extent of inconsistency. But Section 37, on its face, directed the application of the Mahomedan law — it was not inconsistent with the Shariat Act at all. It was only the Privy Council's judicial construction, not the section itself, that had accommodated custom. The Legislature therefore recognised that the sub-section was unnecessary and removed it, leaving Section 37 intact as the statutory foundation for personal law application in the region.
Comments