1. In this Appeal from Order, a question required to be addressed whether a Hindu converted into Islam is disqualified to receive a property of a father, who died intestate?
2. The respondent/plaintiff is a sister of the appellant/defendant. The respondent has filed Suit No. 3480 of 2010 pursuant to Notice of Motion No. 956 of 2010 in Suit No. 3480 of 2010 (H.C. Suit No. 928 of 2010 for injunction restraining the defendants from creating third party right of whatever nature in respect of the suit premises, i.e., residential flat situated at Matunga (West), Mumbai. It is the case of the respondent/plaintiff that the suit flat and one shop is a property of her deceased father, however, the appellant has sold the shop after father''s death and now he wants to sell the flat also. The respondent/plaintiff has averred that she being a daughter has right in the said property. Including the respondent/plaintiff, the appellant/defendant has five sisters and so the respondent/plaintiff claims her share in the suit property and therefore sought that the flat is not to be sold and the appellant/defendant is in exclusive possession of the suit flat. The appellant/defendant while contesting the Notice of Motion has submitted that the respondent/plaintiff got married to Muslim in the year 1979 and as she has changed the religion, she lost the right in the suit property. It is also submitted that the suit flat is also purchased out of his own income. The trial Court considering the prima facie case allowed the Notice of Motion and defendant nos. 1 to 5 were restrained from creating third party right in respect of suit flat. Hence, this Appeal.
3. The learned counsel Mr. Jha, at the outset, has submitted that the suit is not maintainable, as the plaintiff is converted to Islam and therefore, she cannot claim any proprietary right in the father''s property. He submitted that this is the main challenge in this Appeal. He submitted that under section 2(1)(a)(c) of Hindu Succession Act, 1956, this Act is not applicable to the persons who are Muslim, Christian, Parsis and Jews by religion. He submitted that Section 2(1)(a) & (b) are inclusionary by which Hindu, Jain, Buddhist, Sikh are covered under the Hindu Succession Act and Section 2(1)(c) of the Hindu Succession Act is exclusionary by which Muslim. Christian, Parsis and Jews are excluded. In support of his submissions, the learned counsel relied on the following decisions:
(i) Judgment of the Supreme Court in the case of The
Controller of Estate Duty Mysore, Bangalore vs.
Haji Abdul Sattar Sait & Ors., (1972) 2 SCC 350
(ii) Judgment of the Supreme Court in the case of
Sultana Begum vs. Prem chand Jain, (1997) 1 SCC 373
(iii) Judgment of Madras High Court in the case of K.
Sivanandam & Anr. vs. Maragathammal, CDJ 2012 MHC 2346
(iv) Judgment of Andhra Pradesh High Court at Hyderabad
in the case of Jujjavarapu Yesurao vs. Nadakuduru
Kamala Kumar & Ors., (2007) 5 ALD 140
The learned counsel has submitted that in the case of Nayanaben
Firozkhan Pathan @ Nasimbanu Firozkhan Pathan vs. Patel
Shantaben Bhikhabhai & Ors in Special Civil Application No.
15825 of 2017, which is relied upon by the respondent/ plaintiff,
Justice Pardiwala of Gujarat High court has relied on the Caste
Disabilities Removal Act, however, the said act is repealed and
therefore, the observations made by the Single Judge of the Gujarat
High Court in that context cannot be taken into account while
appreciating the issue on convert. He argued that under no
circumstances, Hindu Succession Act can be made applicable to
Muslim convert, as the application of the Act is expressly barred to
Muslim, Christian and Parsis under section 2(1)(c). He argued that
the scheme of the Act as a whole is to be taken into account and
therefore, Section 26 cannot be read in isolation by ignoring Section
2(1)(c) of the act. On reading of Section 2(1)(c), the application of
the Act is explicitly clear that it is not applicable to Muslim. He,
therefore, argued that the Act requires harmonious construction
between Section 26 and 2(1)(a), 2(1)(c) of the Act. He further
submitted that a convert otherwise will get benefit from two laws
which is not allowed. He further submitted that the trial Court has not
taken into account all these factors and has erroneously granted
interim relief in favour of the respondent/plaintiff and injuncted the
appellant from creating any third party interest in the suit property.
4. Per contra, the learned counsel for the respondent/plaintiff,
while supporting the order passed by the trial Court and meeting the
objection of the applicability of Hindu Succession Act to the convert,
heavily relied on Section 26 of the Hindu Succession Act. He
submitted that Section 26 states that Convert''s descendants are
disqualified and there is no mention about disqualification of the
converts himself or herself. He has further submitted that the
respondent is a sister and is entitled to the property of her father and
the conversion does not disqualify convert to claim proprietary right
of his or her father''s property. The learned counsel relied on the
following decisions:
(i) judgment of Single Judge of Gujarat High Court in the
case of Nayanaben Firozkhan Pathan @ Nasimbanu
Firozkhan Pathan vs. Patel Shantaben Bhikhabhai &
Ors in Special Civil Application No. 15825 of 2017.
(ii) Judgment of Division Bench of the Andhra Pradesh High
Court in the case of Shabana Khan vs. D.B. Sulochana
& Ors., 2007 DGLS(A.P.) 755
(iii) Judgment of Division Bench of Madras High Court in the
case of E. Ramesh & Anr. vs. P. Rajini & Ors., 2002 (1) MLJ 216
(iv) Judgment of Division Bench of Calcutta High Court in the
case of Asoke Naidu vs. Raymond S. Mul, AIR 1976 Calcutta 272
5. It is useful to reproduce Section 2 of the Hindu Succession Act.
"2. Application of Act.
(1) This Act applies?
(a) to any person, who is a Hindu by religion in any of its
forms or developments including a Virashaiva, a Lingayat
or a follower of the Brahmo, Prarthana or Arya Samaj;
(b) to any person who is a Buddhist, Jaina or Sikh by
religion; and
(c) to any other person who is not a Muslim, Christian,
Parsi or Jew by religion unless it is proved that any such
person would not have been governed by the Hindu law
or by any custom or usage as part of that law in respect of
any of the matters dealt with herein if this Act had not
been passed.
Explanation.?The following persons are Hindus, Buddhists,
Jainas or Sikhs by religion, as the case may be:
(a) any child, legitimate or illegitimate, both of whose
parents are Hindus, Buddhists, Jainas or Sikhs by
religion;
(b) any child, legitimate or illegitimate one of whose
parents is a Hindu, Buddhist, Jaina or Sikh by religion
and who is brought up as a member of the tribe,
community, group or family to which such parent belongs
or belonged;
(c) any person who is a convert or re-convert to the
Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1),
nothing contained in this Act shall apply to the members of any
Scheduled Tribe within the meaning of clause (25) of Article
366 of the Constitution unless the Central Government, by
notification in the Official Gazette, otherwise directs.
(3) The expression "Hindu" in any portion of this Act shall be
construed as if it included a person who, though not a Hindu
by religion, is, nevertheless, a person to whom this Act applies
by virtue of the provisions contained in this section."
6. In the present case, a property is not an ancestral property but
it is a self-acquired property of deceased father, who has died
intestate. The respondent-brother claims that it is his property, but it
is disputed. However, it is not an ancestral property. Section 2
states about the application of the Act. Section 2 does not define
who is Hindu. It states that Hindu Succession Act is applicable to a
person who is Hindu by religion and also to the persons like
Buddhist, Jains or Sikhs by religion, however, it is not applicable to
persons who are Muslim, Christian, Parsi or Jew by religion.
Conversion from Hindu to Muslim, Christian so also from other
religion to Hindu creates other class of persons because by birth they
belong to one religion and by choice of other religion.
7. In the case of Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan (supra), an identical issue in respect of applicability of Hindu Succession Act to convert has emerged before the Single Judge of Gujarat High Court. The applicant in the said case was born Hindu and thereafter embraced Islam. The family was the owner of the ancestral landed property. After her father''s demise, her name was entered in the revenue record but the entry was challenged substantially on the ground of her conversion and hence non-applicability of Hindu Succession Act. The said entry was challenged before the Deputy Collector and it was dismissed. However, it was taken up before the Collector and the Collector allowed the Revision and impugned entry was cancelled. Therefore, the lady preferred Revision application before SSRD, which was rejected. Being dissatisfied with the order, she filed Writ invoking the writ jurisdiction of the High Court. The Single Judge of the Gujarat High Court has considered Section 2(1)(c) and the Explanation under the Section, so also section 26 of the Act. The learned Judge observed that a change of religion and loss of caste was at one time considered as grounds for forfeiture of property and exclusion of inheritance. However, this has ceased to be the case after passing of Caste Disabilities Removal Act, 1850.
8. In the case of K. Sivanandam & Anr. (supra), the Single Judge of the Madras High Court considered the conversion under the Hindu Act and also the effect of Caste Disabilities Removal Act of 1850.
9. It is rightly pointed out by the learned counsel Mr. Jha that the Caste Disabilities Removal Act was repealed on 8th August, 2017. The learned Single Judge of Gujarat High Court passed the judgement in Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan on 26th September, 2017, i.e., one and half month after the Act was repealed. It is to be noted that the Ministry of Law & Justice, Government of India have found that many Acts in India have become unusable and obsolete either due to sufficient constitutional provisions or existence of other parallel laws or on account of social or technological changes. Thus, by notification dated 8th August, 2017, the Law Ministry collectively repealed nearly 91 acts and 10 ordinances by common Notification.
10. In the case of The Controller of Estate Duty Mysore, Bangalore (supra), the Full Bench of the Supreme Court, while dealing with the issue held that a property can be chargeable to estate duty or not, also considered a question whether converts retain part of their original personal law relating to inheritance of property. The Hon''ble Supreme Court took a view that if there is wholesome conversion, then the convert is seizured from the original religion and therefore, Mahomedan law is applicable not only to the person by birth but by religion also. Under the Mahomedan Law, person converted to Mahomedan, changes not only his religion but also his personal law. A question before this Court is different i.e., about right of inheritance of a convert, who was Hindu, in father''s property under the Hindu Succession Act.
11. In the case of Sultana Begum (supra) on the interpretation of statute, the Hon''ble Supreme Court has held that the statue has to be read as a whole to find out the real intention of the legislature. This settled principle of law cannot be disputed.
12. In the case of Jujjavarapu Yesurao (supra) the question was upon conversion from Hindu to Christianity, whether Hindu law is applicable and the Court gave finding that on conversion, the Hindu law ceases to have any continuing obligatory force upon the convert. It is further held that if one member of Joint Hindu Family converts to Christian, it would result in complete dissolution of entire family and from that time, the members of Hindu family cannot be treated as members of Joint Hindu Family. Thus, the facts in the said case and of the case is hand vary.
13. At this stage, let me advert to Section 26 of Hindu Succession Act, which reads thus:
26. Convert?s descendants disqualified.?Where, before
or after the commencement of this Act, a Hindu has ceased
or ceases to be a Hindu by conversion to another religion,
children born to him or her after such conversion and their
descendants shall be disqualified from inheriting the
property of any of their Hindu relatives, unless such
children or descendants are Hindus at the time when the
succession opens.
14. The Andhra Pradesh High Court, Madras High Court, Calcutta
High Court and Gujarat High Court which are relied by the learned
Counsel for the respondent in all the respective judgments (supra),
have considered Section 26 of Hindu Succession Act and held that
the Hindu Succession Act is not applicable to the children of the
convert. However, a convert himself or herself is not excluded from
the application of the Act by virtue of this Section. The submission of
the learned counsel Mr. Jha that Section 2 and Section 26 are to be
read together and not in isolation, is correct and therefore, the
provisions under section 2, especially Explanations, can be read
alongwith Section 26. The Section disqualifies the converts
descendants. Thus, in Explanation (a) and (b) of Section 2, it is
stated that child either legitimate or illegitimate, both of whose
parents are Hindus, Buddhists, Jains or Sikhs by religion, this Act is
applicable and thus it expresses the converse situation that the
children born to converts are not covered under Section 26 of the
Act. Therefore, they are disqualified from inheriting the property of
any of their Hindu relatives. The last portion of Section 26 is a rider
to disqualification, which reads that "Unless such children, i.e.,
children of converts themselves or their descendants are Hindus at
the time when succession opens". This portion is consistent with
Explanation (c) which states about the application of Act to a convert
or re-convert to the Hindu, Buddhist, Jain or Sikh religion. It means
that if the child of a convert after attaining majority embraces either
to Hindu, Buddhist, Jain or Sikh religion before succession opens,
then the act is applicable to such child of convert to Hindu. Similarly,
if a convert again prefers re-conversion to being a Hindu or the
religion covered under section 2 when succession opens, then on
account of reconversion to Hindu is again qualified to inherit the
property of Hindu also his descendants will be qualified to claim
property of their ancestral. The legislature did not include the
convert under the caption of disqualification. Section 26 is a specific
section on the point of disqualification due to conversion wherein the
legislature could have mentioned the "convert" along with the
"converts descendants", however, the convert himself is not included
under the ambit of section 26 and hence not disqualified. It is
logically also very consistent as discussed earlier. The Personal Law
is applicable to a person who is converted into Islam, Christian or
any other religion for the purpose of marriage, guardianship etc.,
however, while deciding the inheritance, the fact of the religion of the
person at the time of birth has to be taken into account to eliminate
legal anomaly. Therefore, under section 26, the children of converts
are not Hindu by birth due to conversion of their parents and so they
are not covered under the Hindu Succession Act. However, their
parents, who are Hindu by birth, cannot be disqualified for
inheritance of their father who is Hindu because their father''s
property and inheritance governed under the Hindu Succession Act.
15. In the case of Asoke Naidu (supra), adoptive Hindu mother had left property for adopted son who was muslim and therefore his inheritance was challenged on the ground of applicability of Hindu Succession Act to Muslim. The Division Bench of Calcutta High Court took a view that disqualification does not affect the convert himself or herself but it may affect their children.
16. While dealing with the aspect of conversion, a basic question emerges why a person needs to get converted. The conversion may be due to force or it may be a free choice. Why person chooses to change religion and accept other religion? For most of the people in the world, the religion is a way of life which regulates a particular life style, beliefs and culture. A person may think by adopting particular way of life and faith, his search of many unknown questions like existence of universe, who he is etc. can be answered. He may think that following a particular religion is a correct path, which may lead to a spiritual journey. Therefore, the constitution of India has guaranteed right to religion as fundamental right and in our secural country, any person is free to embrace and follow any religion as his or her conscious choice. Hence, Hindu converted into other religion is not disqualified to claim the property under Section 26 of the Act.
17. When the issue of succession is considered, one cannot lose sight that minimum two persons are involved in the process. One, who is the owner or has property and on the other hand, there is a person who claims or receives property, a successor. In the absence of these parties, Succession Act cannot be enforced. Assuming before conversion to Islam or Christianity, a convert was going to receive the property from Hindu, then that Hindu owner has every right to get governed by the personal law of which he belongs to. It is a legitimate expectation of the owner of the property that his property to be governed, distributed and inherited as per personal law of the religion he belongs to. So far as Hindu Succession Act is concerned, if Hindu owner dies intestate, then the distribution or inheritance of his property is to be necessarily governed by Section 8 of the Hindu Succession Act. If he makes will of his self-acquired property, then his will to prevail. However, if he dies intestate, i.e., without making a testamentary disposition of the property, then Section 8 is to be pressed into service. It is useful to reproduce at this stage Section 8 of the Hindu Succession Act.
"8. General rules of succession in the case of males.
The property of a male Hindu dying intestate shall
devolve according to the provisions of this Chapter?
(a) firstly, upon the heirs, being the relatives specified in
class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the
heirs, being the relatives specified in class II of the
Schedule;
(c) thirdly, if there is no heir of any of the two classes,
then upon the agnates of the deceased; and
lastly, if there is no agnate, then upon the cognates of the
deceased".
Thus, devolution of property of such Hindu male shall be as per the
specified Class-I and Class-II Schedule or sub-section (c) and (d) of
Section 8. Son, daughter, widow, mother etc. fall in Class-I
Schedule. Suppose a widow embraces Christianity or Islam religion
after death of her Hindu husband, then the conversion shall not
come in the way of devolution of the property of her husband.
18. The right to inheritance is not a choice but it is by birth and in
some case by marriage, it is acquired. Therefore, renouncing a
particular religion and to get converted is a matter of choice and
cannot cease relationships which are established and exist by birth.
Therefore, Hindu convert is entitled to his/her father''s property, if
father died intestate.
19. I hereby rely on the ratio laid down by the Single Judge of the Gujarat High Court in the case of Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan (supra) wherein the learned Judge has held that :
"The disqualification does not affect the convert himself or
herself. This being the position, I have no hesitation to hold
that the applicant who is admittedly a sister of the private
respondents, i.e., the daughter of late Bhikhabhai Patel, is
entitled to succeed in getting her name mutated in the record
of rights as one of the legal heirs. The provisions contained
in Section 26 of the Hindu Succession Act is the only
provision dealing with the right of succession of children born
to a convert after the conversion. However, this provision
does not disqualify the convert himself from succeeding to
the property of the Hindu father."
20. In the case of Shabana Khan (supra) the lady converted into
Islam before her father''s death and after death of her father, she
claim father''s property. In the case of E. Ramesh & Anr. (supra),
due to conversion by Hindu sister into Islam, her right of inheritance
to father''s property was challenged. The Division Bench of the
Andhra Pradesh High Court in Shabana Khan and the Division
Bench of Madras High Court in E. Ramesh relied on Section 26 of
the Hindu Succession Act and said that she is entitled to inheritance.
21. In the present case, the respondent/plaintiff is a sister who has converted to Islam. She claims the suit property as her father''s selfacquired property. The appellant/brother has disputed the same. However, this can be tested on the basis of evidence of the parties at the time of trial. The suit is maintainable. The objection raised by Mr. Jha is not sustainable in view of the findings given above. The trial Court has rightly passed the order of injunction against the appellant/defendant with a view to keep the property in tact and available. No interference is required in the order of the trial Court. Hence, Appeal from Order is dismissed.
