Whether muslim wife can inherit property of her husband who has embraced hindu religion?

(ii) Whether off-springs born out of a Mohameddan marriage would
inherit property of their father on death if he became a Hindu before death?
30. So far as inheritance of the properties of a Muslim dying intestate is clear.
It has been held in the Holy Book, Al Quran itself as follows:
“Allah commands you regarding your children. For the male a share equivalent
to that of two females.” (Al Quran 4:11)
This ayat shows that the command is to a believer. What will happen if
the believer turns to be nonbeliever, is the question in the present case. An
apostate from Islam and an original non-Muslim are equally viewed from the
stand point of Islam so that if a deceased Muslim leaves behind him 3 heirs, one
of whom is a non-Muslim, the second an apostate and the third a Muslim, in that
event, according to Mohameddan Law, the first two would be excluded from
succession and the inheritance would entirely go to the Muslim heir even if he is 
the remotest in terms of the degree of proximity of the deceased. This shows
that an apostate is excluded from inheritance of properties from his Muslimancestors. Coming to the question of the converse case, Jurist Ameer Ali quoted
from Fatwa-e-Alamgiri (Vol. VI, P. 631) and commented that under Sunni Law, a
Muslim does not inherit from a non-Muslim nor does a non-Muslim inherit from a
Muslim. Similarly, Dr. Abid Hasan observed in his ‘Islamic Laws of Inheritance’ by
quoting from Sahih Al-Bukheri that according to Prophet (SAWS), a Muslim
cannot be the heir of a disbeliever, nor can a disbeliever be the heir of a Muslim.
According to him, generally speaking, this is also the majority view that a Muslim
cannot inherit from a non-Muslim.
31. Then what would happen to the properties of an apostate if his Muslim
heirs cannot inherit? It is pointed out that in a Dar-ul-Islam (that is the country
which is governed by law of Islam), such properties would vest in Bait-Ul-Mal and
it would lapse accordingly. But in a country like India which is not a Dar-ul Islam
escheat or lapse cannot take place upon apostasy. This is because the law of
escheat, lapse or Bona vacantia can take place in India only by operation of
Article 296 of the Constitution. The pre conditions of Article 296, obviously do not
include apostasy. Thus, it is clear that from the stand point of Mohamedan law, a
Muslim cannot be heir of a non-believer.
32. Looking the incident from a different perspective it would appear that
when the apostate dies after embracing Hinduism he was being governed by the
tenets of Hindu Law at the time of his death. In the case in hand, learned trial
court also followed the same principle to hold that as a Hindu, Samir Ranjan
Choudhury could not have contacted a second marriage with Krishna Das when 
he had a spouse living. Obviously, the learned court examined the incident from
the light of section 5(1) of the Hindu Marriage Act, 1955 thus applying the
doctrines of Hindu Law. Had he applied Hindu Succession Act, 1956 for the
purpose of deciding inheritance of the properties left behind by the deceased, in
that event the question would have arisen as to whether a non Hindu would be
entitled to inherit property of a Hindu. This can be tested by examining a
hypothetical case where son of a Hindu renounces Hinduism and becomes a
Muslim and thereafter his Hindu father dies. Obviously, in such case the son who
embraced Islam renouncing Hinduism, perhaps would not have been held a legal
heir of the deceased Hindu and his properties would have been shared only by
his Hindu legal heirs. Inheritance under the Dayabhaga School of Hindu Law is
governed by the principle of giving oblation. Obviously, once converted to other
religion, a son cannot give oblation following Hindu rituals and so even on such
historical view point a converted son of a Hindu looses his right to inherit
properties of his father. Same is the case in case of renunciation.
33. Secton 26 of the Hindu Succession Act, 1956 casts some light in matter
involving conversion from Hinduism to another religion. It provides that children
born to a Hindu converted to any other religion after his conversion shall be
disqualified from inheriting properties of any Hindu relative unless such childrenor descendants are Hindus at the time succession opens. The indication is clear
that to inherit properties of a Hindu, one must be a Hindu when succession
opens. The example of a Hindu son embracing Islam during life time of his father
is only taken to test as to whether a Muslim son of a Hindu on apostasy from
Islam can inherit share from his deceased Hindu father. 
34. While Hadith like Sahih Al-Bukheri as well as Fatwa-e-Alamgiri prescribes
that a Muslim cannot be heir of a disbeliever or non Muslim, even the Hindu Law
does not permit inheritance to a son who renounces Hinduism during life time of
his father. The sum total is that both from the stand point of Mohameddan Law
as well as the Hindu Law of succession, inheritance does not take place beyondthe periphery of religion. A Muslim inherits properties of his Muslim ancestor and
a Hindu can inherit properties of his Hindu ancestor. In the case in hand, the two
off-springs of Saydur Rahman Hazarika alias Samir Ranjan Choudhury from his
Muslim wife, Musstt. Parbin Rahman Hazarika admittedly continue pursuing
Islamic faith after their father renounced Islam. So, whether doctrine of
representation would apply to make them entitled to inherit properties of their
grand-father does not arise in the present case but what is clear is that the
properties apparently acquired by their father after his conversion to Hinduism
would remain beyond their reach to them as they cannot be heir of a disbeliever
(Fatwa-e-Alamgiri, Vol VI, P. 631 and Sahih Al-Bukheri). The second point for
determination accordingly stands answered holding that the respondents No. 2
and 3 being not legal heirs of Late Samir Ranjan Choudhury shall not be entitled
to succession certificate as prayed for.
IN THE GAUHATI HIGH COURT

Case No: Intest.Cas. 4/2009

 Smti Krishna Das Choudhury,V  Musstt. Parbin Rahman Hazarika,

Dated : 23.12.2015
Citation:2016 (5) ALLMR(JOURNAL) 71

This is an appeal under section 384 of the Indian Succession Act, 1925
(hereinafter referred to as ‘the Act’) preferred by the opposite parties in
Succession Case No. 432/2006 of the Court of learned Additional District Judge
(FTC) No. 3, Kamrup at Guwahati thereby challenging the judgment and order
dated 23.12.2008 passed in the aforesaid case. The Additional District Judge by
that order held that the appellant herein is not entitled to succession certificate
with respect to the debts and securities of Late Samir Ranjan Choudhury alias
Saydur Rahman Hazarika although her two daughters are entitled to share along
with respondent No. 1 Parbin Rahman Hazarika and her one son and daughter.
2. The Succession Case No. 432/2006 was registered upon an application
filed by Musstt. Parbin Rahman Hazarika, her daughter Musstt. Farhanaz Rahman
Hazarika and her son Md. Salidur Rahman Hazarika under section 372 of the Act
against the present appellants as opposite parties. According to the petitioners of
the case, Late Saydur Rahman Hazarika was a Muslim and he was a permanent
resident of Dhirenpara in Guwahati. He died at the age of 49 years within the
jurisdiction of the learned District Judge at Kamrup and thereafter the petitioners
being his widow and two off-springs performed the last religious rites and
formalities. The petitioners stated that Saydur Rahman Hazarika alias Samir
Ranjan Choudhury married Parbin Rahman Hazarika on 14.07.1982 and from
their wedlock, the petitioners No. 2 and 3, namely, Musstt. Farhanaz Rahman
Hazarika and Md. Salidur Rahman Hazarika were born. Thereafter, in the year
1993 he lived with Smt. Krishna Das, an alleged concubine and out of that living
together the opposite parties No. 2 and 3, namely, Smt Samishna Choudhury and
Smt. Sandipshna Choudhury were born who were 12 years and 2 years
respectively at the time the application was filed. Saydur Rahman alias Samir
Ranjan Choudhury suddenly died in the year 2006 living behind three petitioners
as his legal heirs. He was maintaining a pharmacy. He left behind a sum of Rs.
38,000/- in account No. 16979853601 dated 05.08.2003, Rs. 6,260/- in account
No. 169798565661 dated 09.09.2003 and Rs. 64,900/- in fixed deposit vide
Account No. 16979201278 with Sahara India, Maligaon Branch. He had also Rs.
50,000/- in Policy No. 481604161 dated 28.01.1999 and Rs. 5,00,000/- in Policy
No. 481916984 dated 28.12.1999 with Life Insurance Corporation of India,
Guwahati Branch I, Panbazar and Rs. 18,000/- in daily deposit account No.
17306 with Guwahati Cooperative Urban Bank Limited. It was further stated that
in all these accounts Smt. Krishna Das, an alleged concubine was made nominee.
This Krishna Das has been claiming the amount and if she gets the same, the
applicants would be deprived from their legitimate right being legally married 
wife and legitimate son and daughter respectively. With these averments of fact,
the three petitioners prayed for issuance of succession certificate in favour of
petitioner No. 1, Musstt. Parbin Rahman Hazarika, so as to enable her to
withdraw the money mentioned in schedule to the petition.
3. After service of notice, the opposite parties appeared and submitted
objection on 17.11.2006 stating that the application under section 372 of the Act
is not maintainable, that applicant No. 1 (Parbin Rahman Hazarika) was no
longer wife of the deceased who had converted himself from Islam to Hinduism
and so the applicant No. 1 has no locus standi to file the application. Moreover,
the objector No. 1, Smt. Krishna Das Choudhury was the legally married wife of
Samir Ranjan Choudhury after he became a Hindu by conversion and assumed
the Hindu name of Samir Ranjan Choudhury in the year 1983. She claimed that
she is legally entitled to get the succession certificate. According to her, Samir
Ranjan Choudhury died in her presence on 20.07.2006 but the applicants
forcefully took away the dead body on the teeth of great opposition of the
objector and other people of the locality. She, however, performed Shraddha
ceremony as per Hindu rites. She denied her status of concubine or a kept. She
was legally married to Samir Ranjan Choudhury and consequent to the marriage
two minor daughters were born to her who are named as Samishna Choudhury
and Sandipshna Choudhury. The deceased had a pharmacy under the name and
style of Krishna Clinical Chamber at Bhutnath, Guwahati. She denied all other
allegations made in the applications and prayed that the application filed by the
applicants be rejected with cost.
4. Thereafter by order dated 17.11.2006, the learned court asked the parties
to prove their respective cases and fixed the matter on 05.12.2006 for evidence
of the first party. On the fixed date, the applicants filed four affidavits, the first
one is by the applicant No.1, Musstt. Parbin Rahman Choudhury, the second one
is by Md. Tamizur Rahman Hazarika, the third one is by Md. Jamal Ahmed and
the fourth one is filed by Musstt. Piyara Begum.
5. PW 1, Parbin Rahman Hazarika reiterated the statements made by her in
the application. She stated that on 14.07.1982 Saydur Rahman Hazarika alias
Samir Ranjan Choudhury who is the son of Md. Tamizur Rahman Hazarika
married her at Shantipur Hill Side as per Muslim law and thereafter she started
living with him. On 27.06.1984 she gave birth to a female child and named her
as Farhanaz Rahman Hazarika. On 23.07.1987 she gave birth to a male child who
has been named as Salidur Rahman Hazarika. In the year 1987 the family shifted
to Dhirenpara Masjid Galli and started living with the in-laws. Her husband was a
pharmacist and had a shop in a rented room of one Raghunath Choudhury. In
the year 1993, objector Smt. Krishna Das ‘managed to acquire’ her husband
Saydur Rahman Hazarika alias Samir Ranjan Choudhury who kept Smt. Krishna
Das in various rented houses from time to time and lived occasionally with her as
a result of which Krishna Das gave birth to two daughters, namely, Samishna
Choudhury and Sandipshna Choudhury. Her husband died on 20.07.2006
whereupon his landlord Chandan Sharma informed Wahebur Rahman Hazarika,
her brother in law over telephone and thereafter she rushed to Sanjivani Hospital
and found him dead. No one was present there and so took away the dead body
with the help of other family members to Dhirenpara and then buried his dead
body at Guwahati Kabarsthan, Athgaon. Religious function was also subsequently
held as per Muslim custom on the occasion of her husband’s death. She claimed
that her husband was a Muslim and never renounced Islam. He died as a Muslim.
Even in 2003 and 2004 he had sworn two affidavits identifying him as Islam for
the purpose of obtaining birth certificate of daughter and son. She claimed to be
the only legally married wife of Saydur Rahman Hazarika alias Samir Ranjan
Choudhury and claimed succession certificate for a total sum of Rs. 6,77,160/-.
She proved birth certificate of her daughter and son as Ext. 1 and 2 respectively,
the certificate issued by Guwahati Kabarsthan on 29.11.2006 as Ext. 3 and death
certificate of Saydur Rahman Hazarika as Ext. 4.
6. She was thoroughly cross examined by the objectors. She disclosed in
course of cross examination that her father was late Karuna Sharma and she was
a Hindu before her marriage. She could not produce any document to show that
she was converted to Islam at any point of time. She admitted that her husband
identified himself as Samir Ranjan Choudhury in some papers and as Saydur
Rahman Hazarika in some papers. He started identifying himself as Samir Ranjan
Choudhury in some papers since 1993 but she was not fully aware about the
same. She was married as per Muslim rites. After marriage she stayed in
Shantipur hill side and thereafter shifted to own house at Dhirenpara in the year
1993 to live with father in law, brother in law, sister in law and others. At the
time of her marriage, her husband had a pharmacy in the rented house of
Raghunath Choudhury under the name and style of Hazarika Medical Hall and
later on it was renamed as Krishna Medical Hall. She denied that her husband
converted himself to Hinduism by swearing an affidavit on 28.09.1993. She
denied her knowledge as to registered marriage of her husband with Krishna Das
after converting himself into Hinduism. She denied the suggestion that after
becoming Hindu, her husband accepted Raghunath Choudhury as his father or
that he abandoned the applicants to live together with Krishna Das. She,
however, admitted that the opposite parties No. 2 and 3 are the two daughters
of her husband. The debts and securities mentioned in the application were not
acquired by her husband prior to 1993. Her daughter and son were aged about
23 years and 20 years respectively as on the date of cross examination and they
gave no objection in her favour for obtaining succession certificate with respect
to the schedule debts and securities. She denied the suggestion that till his death
her husband lived with Krishna Das or that he made Krishna Das as his nominee
or that Krishna Das and her sisters were also entitled to money.
7. PW 2, Md. Tamizur Rahman Hazarika was the father of the deceased. He
testified that Saydur Rahman Hazarika alias Samir Ranjan Choudhury being his
eldest son, married Parbin Rahman Hazarika as per Muslim customary law on
14.07.1982 at his residence in Shantipur hill side and started living with her. Out
of their wedlock Farhanaz Rahman Hazarika was born on 27.06.1984 and Salidur
Rahman Hazarika was born on 23.07.1987. In the year 1987 he shifted to
Dhirenpara masjid Galli. Saydur was a pharmacist and used to run a pharmacy at
Bhutnath till his death in a rented room of Raghunath Choudhury. In the year
1993 Krishna Das ‘somehow managed to acquire his son Saydur Rahman
Hazarika’ and thereupon he kept her in rented house and occasionally lived with
her in various rented houses whereupon two daughters, namely, Samishna
Choudhury and Sandipshna Choudhury were born out of that cohabitation. 
Suddenly he heard on 20.07.2006 from his son Wahebur Rahman that Saydur
was taken to Sanjivani hospital in serious condition. He immediately sent Parbin
Rahman Hazarika there along with Wahebur Rahman and his grand children who
found the dead body of Saydur Rahman Hazarika alone and brought the same to
Dhirenpara whereafter burial was done at Guwahati Kabarsthan on the same
day. They performed necessary religious rites as per Mahameddan law.
According to him, Parbin Rahman Hazarika is the only wife of Saydur whose
mother Zaheda Begum had died long back on 16.04.1997.
9. This witness was duly cross examined by the objectors when he admitted
that he had described his son as Samir Ranjan Choudhury in his examination in
chief but he did not know anybody by that name. He later on came to know that
Raghunath Choudhury accepted Saydur as his son and thereupon named him as
Samir Ranjan Choudhury. While marrying Parbin, his son lived with him in the
rented house at Durgasorovar. Now he lives in his own house at Dhirenpara. He
had purchased 1 K 5 L of land at Dhirenpara on 07.02.1986 in the name of his
wife. Now his four sons, three daughters and five grand children are living with
him. Samir Ranjan Choudhury had a pharmacy at Bhutnath by the name of
Hazarika Medical till his death. He was not aware if Saydur had sworn affidavit to
become a Hindu. He came to know about registered marriage of his son with
Krishna Das two months later. Subsequently he came to know that Saydur lived
with Krishna as husband and wife. He denied the suggestion that Saydur had
severed all his relations with them but admitted that on the date of death Saydur
was with Krishna. After death of Saydur, Krishna did not permit to take the dead
body from the house at Bhutnath and so the dead body had to be brought by 
taking help of police for burial purpose at Athgaon Kabarsthan. Saydur had two
daughters from Krishna. He admitted that he was not aware as to what was
written in the affidavit evidence and he signed the same without knowing the
content but he believed it to be correct. He denied that Krishna Das Choudhury
and her two daughters are also entitled to the money left behind by Sayadur. He
did not admit that Krishna Das was socially and legally married wife of Sayadur.
10. PW 3, Md. Jamal Ahmed, claimed to be the maternal uncle of the
deceased. He stated that his nephew, Saydur Rahman Hazarika alias Samir
Ranjan Choudhury married Parbin Rahman Hazarika on 14.07.1982 as per
Muslim customary law and started living with her in their residence at Shantipur
hill side. Out of the wedlock a daughter was born in 1984 and a son was born in
1987. The family shifted to Dhirenpara masjid Galli in the year 1987 and have
been living there. Saydur had a pharmacy in the rented house of Raghunath
Choudhury at Bhutnath, Guwahati-9. He suddenly died on 20.07.2006 and the
dead body was taken from the hospital to Dhirenpara residence and then to
Guwahati Kabarsthan for burial. He was an Islam by faith till his death and the
applicants are his only legal heirs.
11. This witness was also cross examined by the objectors when he admitted
that he had come to know from his lawyer that in the year 1993 Saydur had
taken the name of Samir Ranjan Choudhury. He was not aware about the name
of the pharmacy described in paragraph 5 of his affidavit. He came to know over
telephone that Samir Ranjan Choudhury died in Sanjivani hospital and he himself
did not go there. He did not see the dead body being taken from Sanjivani
hospital to Dhirenpara. He heard about the same from others. But there was a 
dispute about burying the body of Saydur in Athgaon Kabarsthan. He was not
aware as to whether Saydur used to live in Dhirenpara house till his death. He
was also not aware if Saydur started living with the opposite party since 1993 by
assuming the name of Samir Ranjan Choudhury. He denied the suggestion that
he was falsely deposing.
12. PW 4 was Piyara Begum. She claimed to know the applicants since 1987.
According to her, Parbin Rahman Hazarika was the legally married wife of Saydur
Rahman Hazarika alias Samir Ranjan Choudhury and they used to live with their
son and daughter in Dhirenpara which she knew being a neighbour. Tamizur
Rahman Hazarika and Zaheda Begum were the parents of Saydur. Zaheda died
earlier. Saydur died on 20.07.2006 and his dead body was buried at Athgaon
Kabarasthan. Parbin Rahman Hazarika and their family performed the last rites.
Saydur was a Muslim till his death and Parbin Rahman Hazarika is the only legally
married wife of Saydur who never married for the second time. In course of her
cross examination she admitted that she cannot read and write and she did not
know what is there in her evidence in affidavit. She could not say since when
Saydur assumed the name of Samir Ranjan Choudhury. She could not say as to
when was Parbin Rahman married to Saydur although she claimed to be present
in their marriage. She did not know that Saydur became a Hindu by swearing
affidavit in the year 1993. She was not aware if Saydur had married Krishna Das
after assuming the name of Samir Ranjan Choudhury. She had no knowledge if
Krishna Das was the legally married wife of Saydur.
13. The objectors examined 4 witnesses, namely, Smt. Krishna Das
Choudhury (DW 1), Santosh Choudhury (DW 2), Anil Bezbaruah (DW 3) and
Dinesh Das (DW 4).
14. Krishna Das reiterated her statements made in the objection. She stated
that on 30.11.1993 she got married to Samir Ranjan Choudhury before the
Marriage Officer, Kamrup at Guwahati before which Saydur Rahman Hazarika
had converted himself into a Hindu and assumed the name Samir Ranjan
Choudhury by swearing an affidavit on 28.09.1993. Ext. A is the marriage
certificate and Ext. B is the copy of the affidavit. Raghunath Choudhury accepted
Samir Ranjan Choudhury as his son after the latter had become a Hindu and
performed all religious rites as per Hindu customs. They started living together as
husband and wife in a rented house at Shantipur and out of the wedlock two
daughters, namely, Samishna Choudhury and Sandipshna Choudhury are born.
Samir Ranjan used to run a pharmacy under the name and style of Krishna
Clinical Chamber at Bhutnath till his death on 20.07.2006 and left behind her and
her two daughters in misery. They performed Shraddha ceremony on 02.08.2006
at Bhutnath. Ext. C was the death certificate and Ext. D is an invitation card of
Shraddha ceremony of Samir Ranjan Choudhury. She further stated that her
husband opened accounts with Sahara India Maligaon Branch, Life Insurance
Policy and bank account in Guwahati Cooperative Apex Bank Limited, Fatasil
Branch and the total amount of money was 4,77,160/-. This was the hard earned
money from pharmacy business and she herself used to sit along with him in the
pharmacy during the evening hours to extend all helps. This money was saved
by her husband for better education and marriage of their two daughters and she 
was appointed as nominee in these accounts. She and her two daughters are
entitled to the aforesaid money left behind her husband Samir Ranjan
Choudhury. He was a popular figure in the locality. In the year 2003 he donated
the idol of Mother Goddess Durga in the Puja held in the locality. After sudden
death of Samir Ranjan, the applicants with the help of anti-social elements
forcibly took away the dead body for which she lodged a complaint with Officer
In-charge, Bharalumukh Police Station who for reasons not known to her, did not
take any action. She claimed to be entitled to succession certificate under section
370 of the Indian Succession Act.
15. In course of her cross examination she stated that she had read her
affidavit evidence before swearing. She writes story, poems etc. and her
occupation is business. Tamijul Rahman Hazarika is the father of Saydur Rahman
Hazarika who by Ext. B changed his name to Samir Ranjan Choudhury but
showed his father’s name as Tamizur Rahman Hazarika. There is no document to
show that Raghunath Choudhury accepted Samir Ranjan Choudhury as his son.
She has not submitted any document to show that Saydur gave up Islam to
become a Hindu. Saydur ran a pharmacy in a rented shop belonging to
Raghunath Choudhury. As per Ext. A her marriage was solemnised with Samir
Ranjan Choudhury, son of Raghunath Choudhury. In the month of December,
1993 she was married to Samir Ranjan in Kamakhya temple. She was not aware
if Samir Ranjan was married to Parbin Rahman earlier and if they had a son and
daughter out of that marriage. Now she has seen them in the court. She
disclosed names of various persons in the house of whom she lived with Samir
Ranjan. In all the documents of bank and L.I.C. the name of Samir Ranjan is 
shown. Ext. D invitation card was published in Piyali Press. She denied the
suggestion that Ext. D was printed for litigation purpose. At the time of death,
Samir Ranjan used to live in a house opposite to the pharmacy. Men of Parbin
Rahman took away the dead body of Samir Ranjan from Sanjivani hospital. The
dead body was first brought to pharmacy. Thereafter she informed Bharalumukh
police station but as no action was taken, Parbin Rahman took away the dead
body from pharmacy. She was not aware if Parbin Rahman had buried the dead
body as per Muslim custom. But she claimed that Parbin Rahman was not the
legally married wife of Saydur Rahman. She denied the suggestion that she is not
entitled to any money of Saydur Rahman.
16. DW 2, Santosh Choudhury, deposed that he knew Krishna Das Choudhury
and Samir Ranjan Choudhury for last 13/14 years as they used to reside in the
same locality as husband and wife with minor daughters. He and his family used
to maintain good relation with them and used to visit their home on the occasion
of birth day, annaprasan, puja etc. Samir Ranjan Choudhury became a Hindu
from Islam by swearing an affidavit and happily followed Hinduism. Samir Ranjan
had a pharmacy under the name and style of Krishna Medical in his locality and
both he and his wife played active role in organising Durga Puja in the locality.
Samir Ranjan died on 20.07.2006 but his dead body could not be cremated by
his wife as his in-laws took away the dead body and buried at Athgaon
Kabarsthan. However, he was not present on that day and came to know about
the same from others. Thereafter his Shraddha ceremony was held in the rented
house by Krishna Das. Now Krishna Das and her daughters are facing financial
hardship due to sudden death of Samir Ranjan.
17. He stated in cross examination that he knew Samir Ranjan and Krishna
Choudhury but he was not present in their marriage. He knew that Samir Ranjan
was originally a Muslim and later on became a Hindu. He gave the money for
purchase of Durga Idol during puja. He could not say to where was the dead
body of Samir Ranjan brought. He did not go to the Shraddha ceremony of Samir
Ranjan. He denied the suggestion that Samir Ranjan did not marry Krishna Das
or that Samir Ranjan did not become a Hindu. He had no occasion to see
affidavit of Samir Ranjan for becoming a Hindu. Krishna Das Choudhury was a
tenant in the house of his younger brother. He calls her as ‘bou’.
18. DW 3, Anil Bezbaruah stated that he knew Samir Ranjan Choudhury and
Krishna Das Choudhury for 15 years. He knew that they got married in the year
1993 by registration. Before entering into wedlock Samir Ranjan became a Hindu
and changed his name. As a pharmacist, he was popular in the locality and took
part in social activities. She played active role during Durga Puja. The witness
claimed that he used to pay visit to the house of Samir Ranjan during birth days
of their daughters and Bishnu Puja. Samir Ranjan was adopted as son by
Raghunath Choudhury and took care of him till his death.
19. In course of cross examination he stated that he was not present in the
marriage of Samir Ranjan and Krishna Das. Samir Ranjan Choudhury was initially
a Muslim. His father also used to reside in Santipur earlier and thereafter shifted
to Dhirenpara. He knew the father of Samir Ranjan. During registered marriage
Samir Ranjan described himself to be the son of Raghunath Choudhury but he
knew nothing about the adoption. He did not know Parbin Rahman Hazarika. He
used to purchase medicine from the pharmacy of Samir Ranjan some times and 
Samir Ranjan used to visit his house for giving injections, saline etc. He later on
came to know that Samir Ranjan Choudhury had a son and a daughter through
Parbin Rahman Hazarika. He denied the suggestion that Samir Ranjan never
married Krishna Das and he never became Hindu.
20. DW 4, Dinesh Das claimed to know Samir Ranjan and Krishna Das for 13
years last. He had a pharmacy in the locality and was known for pleasant
behaviour. He became a Hindu from Islam and was adopted as a son by
Raghunath Choudhury. He died due to sudden illness and the family members
took away his dead body. The opposite parties have been suffering from all
problems after death of Samir Ranjan.
In course of cross examination, he could not say anything about marriage
of Samir Ranjan and Krishna Das but claimed to see them living as husband and
wife. He knew nothing about conversion of Samir Ranjan into Hinduism or
adoption by Raghunth Choudhury. He heard that dead body of Samir Ranjan was
taken by his father. Earlier he did not know that Samir Ranjan had another wife
and two off-springs earlier. He did not know as to whether Krishna Das
Choudhury was the legally married wife of Samir Ranjan. Krishna Das Choudhury
was a tenant in his house when Samir Ranjan Choudhury was also living with
her.
21. Upon perusal of the evidence led by the parties both oral and
documentary, the learned trial court passed the impugned judgment and order
on 23.12.2008 disposing the succession case and thereby held that petitioner
Parbin Rahman Hazarika being legally married wife of Samir Ranjan Choudury
alias Saydur Rahman Hazarika and her one daughter, namely, Farhanaz Rahman 
Hazarika and son Md. Salidur Rahman Hazarika along with the two daughters of
Smt. Krishna Das Choudhury, namely, Smt. Samishna Choudhury and Smt.
Sandipshna Choudhury are legal heirs of Late Samir Ranjan Choudhury and they
are entitled to inherit the debts and securities mentioned in schedule to the
application in equal share. The learned trial court arrived at the finding of facts
that Samir Ranjan Choudhury was initially a Muslim and while following Islam he
married petitioner No. 1, Parbin Rahman Hazarika whereupon one daughter and
a son were born to him. But before his marriage with opposite party Krishna Das
Choudhury, he got converted to Hinduism and thereafter solemnised marriage
with the opposite party and thus as on the date of marriage with the opposite
party Saydur Rahman Hazarika alias Samir Ranjan Choudhury was a Hindu. As on
that date he had another wife, namely, Parbin Rahman Hazarika alive and so the
second marriage with Krishna Das Choudhury was not valid as because by that
time he was governed by Hindu law. The two daughters born out of the wedlock
with Krishna Das Choudhury, though illegitimate, became legal heirs of the
deceased and so they are entitled to get succession certificate to the extent of
one-fifth of the total amount. From perusal of the impugned judgment it would
appear that the learned court held 5 persons to be legal heirs of deceased Samir
Ranjan Choudhury applying the principle of Hindu Succession Act, 1956 and
thereby found them to be entitled to equal shares being 1/5th each with respect
to the schedule properties.
22. This judgment and order has been challenged by Smt. Krishna Das
Choudhury and her two daughters before this court under section 384 of the
Indian Succession Act, 1925. The respondents have not challenged the findings 
of facts arrived at by the learned trial court that Saydur Rahman Hazarika
became Hindu by conversion and started identifying him as Samir Ranjan
Choudhury and thereafter he married Krishna Das. There is no dispute that
appellants No. 2 and 3, namely, Samishna and Sandipshna are not daughters of
Saydur Rahman Hazarika alias Samir Ranjan Chouhdury. So these findings of
facts need not require any interference. Having noticed the findings of the
learned trial court and upon perusal of the materials available on record the
following points for determination arise in the present case:-
(i) Whether Muslim marriage subsists after a Muslim becomes
an apostate?
(ii) Whether off-springs born out of a Mohameddan marriage
would inherit property of their father on death if he
became a Hindu before death?
23. I have heard Mr. YS Mannan, learned counsel for the appellants and Mr.
PK Kalita and Mr. GN Kakati, learned counsel for the respondents. I have perused
the lower court records entirely.
(i) Whether Muslim marriage subsists after a Muslim husband becomes
an apostate?
24. Mr. YS Mannan, learned counsel for the appellants, submits that
admittedly in the case in hand the deceased had become an apostate by
converting himself into Hinduism. It is evident from Ext. B dated 28.09.1993 that
Saydur Rahman Hazarika declared on 28.09.1993 by swearing an affidavit that
he became a Hindu. In paragraph 3 of Ext. B he stated that this affidavit would
be produced as a piece of evidence to prove his name and religion and his
conversion whenever necessary. He declared that from the date of swearing he
would be known as Samir Ranjan Choudhury instead of Saydur Rahman
Hazarika. This affidavit was sworn before a Magistrate at Guwahati and has gone
into evidence without objection. The learned court, therefore, has held that the
deceased became a Hindu. On 30.11.1993 vide Ext. A, he married Smt. Krishna
Das, daughter of Anil Das and thereupon marriage certificate No. 407/1993 was
issued to him by the Marriage Officer, Kamrup at Guwahati under section 13 of
the Special Marriage Act, 1954. This marriage has not been annulled or
challenged by anybody. According to him, immediately on conversion of Saydur
Rahman Hazarika from Islam to Hinduism, his marriage with his Mohameddan
wife, namely, Musstt. Parbin Rahman Hazarika became automatically dissolved
and so as on 30.11.1993 when Samir Ranjan Choudhury married Smt. Krishna
Das vide Ext. A, he did not have another spouse living as on that date and so his
marriage with Krishna Das could not have been held to be invalid by the learned
trial court.
25. Conversion of a Muslim into any other faith is called Apostasy. The church
of Islam declared apostasy as a danger to the state and abandonment of Islam
came to be considered as renunciation of allegiance to the Islamic
commonwealth and consequently it was understood to be nothing short of
treason. Islamic law prescribes death penalty for such offence but not at the
stake or by drowning or hanging. The extreme penalty was given only to the
adult male, murtedd, the traitor apostate provided he was a born Muslim.
However, the converts to Islam were exempted from death penalty. Jurist Ameer
Ali made this revelation in his illustrious commentary by quoting from Dar-ul-
mukhtar; Fatwa-i-Alamgir (Vol. II;p-357). In case of women who abandoned
Islam she was to be imprisoned until she returned to the faith. As observed by
Ameer Ali, among the Hanafis whose views are reflected in Hedaya, the fatwa-iAlamgiri
and other works, considered that on apostasy from Islam of either
husband or wife whether it takes place before or after consummation of
marriage, ipso facto the marriage die. It is held that in modern times the practice
has been considerably modified and it is generally recognised that when the
husband renounces Islam but his wife continues to remain a Muslim, their
connection becomes unlawful. However, if the husband returns to the faith
before completion of her iddat (the probation she has to observe as if he were
dead) there would be no need for remarriage between them. This means that if
he returns after expiry of iddat period in that moment they have to get
remarried. This is only an indication to the fact that on apostasy his marital tie
with his Mohameddan wife gets automatically snapped without pronouncement
of talak.
26. The effect of conversion of a Muslim in regard to marriage received
attention of the Law Commission of India. In its 18th report the following two
paragraphs found place:
“8. So far, we have considered the position arising on conversion to
Islam from a monogamous faith. Taking next, the converse case of conversion
from Islam to some other faith, the effect of such conversion is, under Muslim
law, that the marriage stands automatically dissolved. An exception to this has
been enacted by section 4 of the Dissolution of Muslim Marriages Act, 1939.
Section 2 of that Act provides that a woman married under the Muslim law 
should be entitled to sue for dissolution of the marriage on the grounds
mentioned therein. Under section 4, conversion of a Mahomedan wife to another
religion does not operate to dissolve the marriage, but this does not affect her
right to sue for dissolution of the marriage under section 2. Thus, so far as the
wife is concerned, conversion dies not dissolve the marriage. But as regards the
husband, the law still is that on his conversion the marriage or marriages
previously contracted by him are ipso facto dissolved.
9. Now reviewing the entire field of the law relating to conversions to
and from Islam, it will be seen (i) that the effect of conversion to Islam is the
same as that of conversion to Christianity or Hinduism – the marriage is not
dissolved; (ii) that the effect of conversion of a wife from Islam is the same as
that from Christianity or Hinduism – the marriage subsists notwithstanding the
conversion, but it may be dissolved on the grounds stated in section 2 of the
dissolution of Muslim Marriages Act, 1939; and (iii) that the effect of conversion
of the husband from Islam is, that the marriage stands dissolved by reason of
such conversion, and it is only in this particular that the Muslim law differs from
other system. We are of opinion that this difference is not so substantial as to
require the exclusion of conversion from Islam from the purview of the proposed
legislation. It is to be noted in this connection, that even the Dissolution of
Muslim Marriages Act, 1939, in so far as it enacted that by conversion the
marriage of a Muslim wife was not dissolved, was a modification of the preexisting
law on the subject, and the proposed legislation only seeks to extend the
principle of that enactment to conversion of husbands as well.”
27. The position has been made clear by enactment of Dissolution of Muslim
Marriages Act, 1939. Under section 4 of that Act conversion will operate as a 
dissolution of the marriage. Section 4 of the Dissolution of Muslim Marriages Act,
1939 is quoted below for ready reference:-
“4. Effect of conversion to the other faith – The renunciation of Islam
by a married Muslim woman or her conversion to a faith other than Islam shall
not by itself operate to dissolve her marriage.
Provided that after such renunciation, or conversion, the woman shall be
entitled to obtain a decree for the dissolution of her marriage on any of the
grounds mentioned in section 2:
Provided further that the provisions of this section shall not apply to a
woman converted to Islam for some other faith who re-embraces her former
faith.”
28. Sir D.F. Mullah considered this aspect of the matter in his commentary on
Mohammedan Law and thereupon inserted a complete paragraph under section
321 with a separate and a distinct title “Apostasy from Islam”. He has also
considered the effect of section 4 of the Dissolution of Muslim Marriages Act,
1939. Various case laws including Abdul Ghani v. Azizul Huk (1912) 39 Cal. 409,
Karan Singh v. Emperor (1933) All.L.J. 733 were considered in the notes under
this paragraph of the commentary and observed that when a Mohameddan
husband gets converted to Christianity and his wife then married another man
before the expiration of iddat period, she is not guilty of bigamy under section
494 IPC because apostasy operates as an immediate dissolution of marriage.
Section 321 of Mullah’s Mohameddan Law is relevant for the present purpose and
accordingly the same is quoted below for ready reference:-
“321. Apostasy from Islam. – (1) Before the Dissolution of Muslim
Marriages Act, 1939, apostasy from Islam of either party to a marriage operated
as a complete and immediate dissolution of the marriage.
(2) Under sec. 4 of the dissolution of Muslim Marriages Act, 1939, however,
mere renunciation of Islam by a married woman or her conversion to any other
religion cannot by itself operate to dissolve her marriage but she may sue for
dissolution of nay of the grounds mentioned in sec. 2 of the Act. Under this Act,
therefore, the decisions mentioned below are no longer good law.
(3) Sec. 4 only applies to the case of apostasy from Islam of a married Muslim
woman, and apostasy of the Muslim husband would still operate as a complete
and immediate dissolution of the marriage.
(4) The provisions of sec. 4, however, do not apply to a woman converted to
Islam from some other faith, who re-embraces her former faith. In such a case,
the law as it stood before teh dissolution of Muslim Marriages Act, 1939, will
apply, and the conversion will operate as a dissolution of the marriage.
(Emphasis supplied)
(5) Apostasy from Islam of the husband operates as a complete and immediate
dissolution of the marriage.
29. It is thus clear from above that the moment a Muslim commits apostasy,
he gets excluded from the Islamic Commonwealth and all his rights, interests,
status and relations get automatically extinguished. His marital tie with his
Mohameddan wife automatically gets snapped and his Mohameddan wife
becomes free to remarry at least after completion of the iddat period. Applying
this law in the case in hand, Saydur Rahman Hazarika became guilty of apostasy
on 28.09.1993 with the swearing of affidavit Ext. B and so his marriage with
Parbin Rahman Hazarika became automatically dissolved. Her iddat period
expired after three months and so even if he had returned to Islam after that
period he ought to have remarried her. Here the undisputed findings of fact is
that Saydur became a Hindu on 28.09.1993 and thereafter he married Krishna
Das on 30.11.1993. He got two daughters from the second marriage with Krishna
Das and ultimately he died on 20.07.2006 without returning to Islam. His
dissolution of marriage with Parbin Rahman Hazarika, therefore, was final and
not revoked. Consequently, Parbin Rahman Hazarika cannot be widow of Saydur
Rahman Hazarika alias Samir Ranjan Choudhury and so she cannot be his legal
heir under law. The first point for determination is accordingly answered in the
negative and in favour of the appellant.
(ii) Whether off-springs born out of a Mohameddan marriage would
inherit property of their father on death if he became a Hindu before death?
30. So far as inheritance of the properties of a Muslim dying intestate is clear.
It has been held in the Holy Book, Al Quran itself as follows:
“Allah commands you regarding your children. For the male a share equivalent
to that of two females.” (Al Quran 4:11)
This ayat shows that the command is to a believer. What will happen if
the believer turns to be nonbeliever, is the question in the present case. An
apostate from Islam and an original non-Muslim are equally viewed from the
stand point of Islam so that if a deceased Muslim leaves behind him 3 heirs, one
of whom is a non-Muslim, the second an apostate and the third a Muslim, in that
event, according to Mohameddan Law, the first two would be excluded from
succession and the inheritance would entirely go to the Muslim heir even if he is 
the remotest in terms of the degree of proximity of the deceased. This shows
that an apostate is excluded from inheritance of properties from his Muslim
ancestors. Coming to the question of the converse case, Jurist Ameer Ali quoted
from Fatwa-e-Alamgiri (Vol. VI, P. 631) and commented that under Sunni Law, a
Muslim does not inherit from a non-Muslim nor does a non-Muslim inherit from a
Muslim. Similarly, Dr. Abid Hasan observed in his ‘Islamic Laws of Inheritance’ by
quoting from Sahih Al-Bukheri that according to Prophet (SAWS), a Muslim
cannot be the heir of a disbeliever, nor can a disbeliever be the heir of a Muslim.
According to him, generally speaking, this is also the majority view that a Muslim
cannot inherit from a non-Muslim.
31. Then what would happen to the properties of an apostate if his Muslim
heirs cannot inherit? It is pointed out that in a Dar-ul-Islam (that is the country
which is governed by law of Islam), such properties would vest in Bait-Ul-Mal and
it would lapse accordingly. But in a country like India which is not a Dar-ul Islam
escheat or lapse cannot take place upon apostasy. This is because the law of
escheat, lapse or Bona vacantia can take place in India only by operation of
Article 296 of the Constitution. The pre conditions of Article 296, obviously do not
include apostasy. Thus, it is clear that from the stand point of Mohamedan law, a
Muslim cannot be heir of a non-believer.
32. Looking the incident from a different perspective it would appear that
when the apostate dies after embracing Hinduism he was being governed by the
tenets of Hindu Law at the time of his death. In the case in hand, learned trial
court also followed the same principle to hold that as a Hindu, Samir Ranjan
Choudhury could not have contacted a second marriage with Krishna Das when 
he had a spouse living. Obviously, the learned court examined the incident from
the light of section 5(1) of the Hindu Marriage Act, 1955 thus applying the
doctrines of Hindu Law. Had he applied Hindu Succession Act, 1956 for the
purpose of deciding inheritance of the properties left behind by the deceased, in
that event the question would have arisen as to whether a non Hindu would be
entitled to inherit property of a Hindu. This can be tested by examining a
hypothetical case where son of a Hindu renounces Hinduism and becomes a
Muslim and thereafter his Hindu father dies. Obviously, in such case the son who
embraced Islam renouncing Hinduism, perhaps would not have been held a legal
heir of the deceased Hindu and his properties would have been shared only by
his Hindu legal heirs. Inheritance under the Dayabhaga School of Hindu Law is
governed by the principle of giving oblation. Obviously, once converted to other
religion, a son cannot give oblation following Hindu rituals and so even on such
historical view point a converted son of a Hindu looses his right to inherit
properties of his father. Same is the case in case of renunciation.
33. Secton 26 of the Hindu Succession Act, 1956 casts some light in matter
involving conversion from Hinduism to another religion. It provides that children
born to a Hindu converted to any other religion after his conversion shall be
disqualified from inheriting properties of any Hindu relative unless such children
or descendants are Hindus at the time succession opens. The indication is clear
that to inherit properties of a Hindu, one must be a Hindu when succession
opens. The example of a Hindu son embracing Islam during life time of his father
is only taken to test as to whether a Muslim son of a Hindu on apostasy from
Islam can inherit share from his deceased Hindu father. 
34. While Hadith like Sahih Al-Bukheri as well as Fatwa-e-Alamgiri prescribes
that a Muslim cannot be heir of a disbeliever or non Muslim, even the Hindu Law
does not permit inheritance to a son who renounces Hinduism during life time of
his father. The sum total is that both from the stand point of Mohameddan Law
as well as the Hindu Law of succession, inheritance does not take place beyond
the periphery of religion. A Muslim inherits properties of his Muslim ancestor and
a Hindu can inherit properties of his Hindu ancestor. In the case in hand, the two
off-springs of Saydur Rahman Hazarika alias Samir Ranjan Choudhury from his
Muslim wife, Musstt. Parbin Rahman Hazarika admittedly continue pursuing
Islamic faith after their father renounced Islam. So, whether doctrine of
representation would apply to make them entitled to inherit properties of their
grand-father does not arise in the present case but what is clear is that the
properties apparently acquired by their father after his conversion to Hinduism
would remain beyond their reach to them as they cannot be heir of a disbeliever
(Fatwa-e-Alamgiri, Vol VI, P. 631 and Sahih Al-Bukheri). The second point for
determination accordingly stands answered holding that the respondents No. 2
and 3 being not legal heirs of Late Samir Ranjan Choudhury shall not be entitled
to succession certificate as prayed for.
30. Both the points for determination having been answered as above, the
impugned judgment and order is hereby set aside allowing the appeal. The
appellants herein alone shall be the legal heirs of late Samir Ranjan Choudhury
and they shall be entitled to succession certificate with respect to the subject
debts and securities. The learned trial court shall pass appropriate order for
issuing succession certificate in their favour in accordance with law.
31. The appeal stands allowed. No costs.
32. Send down the records.

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