Law Web: Whether Hindu Daughter After Converting To Islam is entitled to Inherit Property of her parents?

The change of religion and loss of caste have long ceased

to be the grounds of forfeiture of property and the only

disqualification to inheritance on the ground that the person

has ceased to be a Hindu is confined to the heirs of such

convert (Section 26). 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.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION NO. 15825 of 2017

NAYANABEN FIROZKHAN PATHAN @ NASIMBANU FIROZKHAN PATHAN.

PATEL SHANTABEN BHIKHABHAI & 4.

CORAM: MR.JUSTICE J.B.PARDIWALA

Date : 26/09/2017

As a neat question of law is raised in this petition, the

matter is taken up, with the consent of the learned counsel

appearing for the respective parties, for final disposal at the

admission stage itself.

This petition although titled as one under Article 226 of

the Constitution of India, yet, in substance, is a petition under

Article 227 of the Constitution of India.

By this application under Article 227 of the Constitution of

India, the applicant calls in question the legality and validity of

the order dated 22nd March 2017 passed by the SSRD at

Ahmedabad, by which the SSRD rejected the revision

application filed by the applicant herein, thereby affirming the

order of the Collector, Vadodara, dated 29th November 2011.

The facts of this case may be summarised as under :

The applicant herein took birth as a Hindu. There is no

dispute in this regard. The dispute between the parties

pertains to the parcels of land enumerated below :

Village Block No. Area [H-RA]

Type

Vemali 52/8 0.33.39 2.50 Rs./Ps.

Vemali 54/8 0.31.36 2.25 Rs./Ps.

Vemali 107/B/8 0.04.05 0.25 Rs./Ps.

Vemali 191/8 1.89.19 16.18 Rs./Ps.

The lands referred to above are the ancestral properties.

The applicant herein happens to be the sister of the

respondent no.1 and the respondent no.2. They all are children

of one Bhikhabhai Patel. Bhikhabhai Patel passed away on 12th

October 2004. On his demise, the names of the respondent

nos.1 and 2 came to be entered in the record of rights by

succession vide entry no.1502. At that point of time, the name

of the applicant herein was not entered along with her brother

and sister.

It appears that the applicant, having learnt about the

mutation of entry no.1502 in the record of rights, filed an

affidavit dated 13th December 2007 and produced it before the

authority concerned for the purpose of getting her name also

mutated in the revenue record. This led to the mutation of

entry no.1668 dated 19th December 2007. This entry no.1668

came to be later certified. The private respondents herein

questioned the mutation of revenue entry no.1668 before the

Deputy Collector, Vadodara, by filing an R.T.S. Appeal No.137

of 2008. This entry came to be challenged substantially on the

ground that the applicant herein although Hindu by birth, but

later having married to a Muslim and having embraced Islam,

she would ceased to be a Hindu and, therefore, the Hindu

Succession Act would not apply in her case.

The appeal filed by the private respondents before the

Deputy Collector came to be dismissed vide order dated 16th

September 2009. The private respondents, being dissatisfied

with the order passed by the Deputy Collector, preferred a

revision application before the Collector. The Collector

accepted the argument of the private respondents and allowed

the revision application. The disputed entry no.1668 came to

be cancelled. The applicant herein, being dissatisfied with the

order passed by the Collector, preferred a revision application

before the SSRD and the SSRD, by its impugned order, rejected

the revision application and thought fit to affirm the order

passed by the Collector.

Being dissatisfied with the orders passed by the SSRD

and the Collector, the applicant is here before this Court with

this application under Article 227 of the Constitution of India.

The Collector, while allowing the appeal filed by the

private respondents, held as under :

“On carefully examining the case-papers of the lower

court and the submissions made by the parties, it

appears that the lands situated at Mouje Vemali, Taluka

Vadodara, bearing Survey Nos.52/8, 54/8, 107/B/8, 191/8

are the ancestral lands owned by late Shri Bhikhabhai

Ranchhodbhai. On his demise, an entry bearing no.1502

came to be entered on 12.4.2004, which is also certified.

The present opponent – Nayanaben alias Nasimbanu has

renounced the Hindu religion and on 11.7.1990 she has

voluntarily and without any force embraced Islam. On

25.1.1991, she married to one Muslim boy Firozkhan as

per the Muslim rites and rituals, which is also registered

on 30.1.1991 as per the provisions of the Registration

Act. As the opponent has embraced Islam, the provisions

of the Hindu Succession Act, 1956 cannot be enforced in

her case, which itself is apparently clear. Therefore, the

present opponent will have to seek appropriate relief to

establish her right of share from the civil court. Moreover,

at the relevant point of time the succession entry

no.1502 of the deceased has also been certified, for

which they have not raised any dispute. As per the

provisions of the law, they should have come with a

dispute with regard to the mutation entry no.1502. As

she failed to do that, her demand to consider her as the

heir by reentering the succession entry of the deceased

is not as per the rules. As the decision taken by the lower

court is contrary to the provisions of the law, the same

deserves to be rejected. Therefore, the following order is

passed:

O R D E R

The application of the applicant is allowed and the order

bearing no.RTS/Appeal/137/2008 dated 16.9.2009 passed

by the Deputy Collector, Vadodara, is rejected. It is

ordered to cancel the mutation entry no.1668 dated

21.2.2008 entered in the village record.”

The SSRD, while rejecting the revision application filed by

the applicant herein, held as under :

“Considering the revision application filed by the

applicant, oral submission, written submissions made on

behalf of the opponent nos.1 and 2 as well as considering

the impugned order of the Collector, it appears that the

disputed lands are the ancestral properties owned by late

Bhikhabhai Ranchhodbhai and on his demise, succession

entry no.1502 came to be entered. Nayanaben had

voluntarily renounced the Hindu religion and embraced

Islam on 11.7.1990 and married to one Firozkhan Pathan

on 25.1.1991 as per the Muslim rites and rituals, which

has also been registered on 30.1.1991. The applicant has

also changed her name from Nayanaben to Nasimbanu.

As the applicant has adopted Muslim religion, the

provisions of the Hindu Succession Act, 1956, cannot be

enforced in her case. Despite that, she can seek an

appropriate relief with regard to her share and right from

the competent civil court. That itself is a clear fact. The

detailed and reasoned order passed by the Collector after

examining the orders of the lower courts and considering

the provisions of the Act, Rules and Circulars of the

Government is a just, legal and proper order.”

Mr.Dhruv K.Dave, the learned counsel appearing for the

applicant, vehemently submitted that the SSRD committed a

serious error in passing the impugned order. He would submit

that merely because his client got married to a Muslim and

converted herself by embracing Islam that by itself would not

disentitle her to claim a share in the ancestral property in

accordance with the provisions of the Hindu Succession Act. In

such circumstances referred to above, Mr.Dave prays that

there being merit in this petition, the impugned orders be

quashed and the petition be allowed.

On the other hand, this petition has been vehemently

opposed by Mr.Parthiv Shah, the learned counsel appearing for

the private respondents.

Mr.Sharma, the learned AGP has appeared on behalf of

the State respondents.

Mr.Shah submitted that a Hindu woman who has

embraced Islam by renouncing her religion is not entitled to

inherit the properties of a Hindu. Relying on Section 2 of the

Hindu Succession Act, Mr.Shah submitted that the Act applies

to any person, who is a Hindu by religion, in any of its forms or

developments and to any person who is a Buddhist, Jain or Sikh

by religions and to any other person who is not a Muslim,

Christian, Parsi or Jew by religions.

The second limb of Mr.Shah’s submission is that without

questioning the legality and validity of the revenue entry

no.1502 mutated in the record of rights on 12th October 2004

on the demise of Bhikhabhai Patel, the applicant herein could

not have got her name mutated vide entry no.1668. To put it

in other words, according to Mr.Shah, the applicant is guilty of

filing a false affidavit, which is at page-72 Annexure-R2,

wherein she has solemnly affirmed in the name as Nainaben,

daughter of Bhikhabhai Ranchhodbhai Patel. According to

Mr.Shah, on the date when the affidavit was affirmed, she was

already married to one Firozkhan Pathan and her name was

also been changed to Nasimbanu Firozkhan Pathan. According

to Mr.Shah, unless and until the competent authority cancels

the entry no.1502, the entry no.1668 could not have been

mutated. This argument of Mr.Shah proceeds on the footing

that even if the applicant herein is held to be liable to inherit

the ancestral property, the name of the applicant could not

have been entered in the revenue record without the

cancellation of entry no.1502.

In support of his submissions, he has placed reliance on

the following case-law :

(1) Sundarammal v. Ameenal, AIR 1927 Madras 72;

(2) C.V.N.C.T. Chidambaram Chettyar v. Ma Nyein Me

and others, AIR 1928 Rangoon 179;

(3) Ponniah Nadar Devadas Silas v. Esakki Deviana and

others, AIR 1954 Kerala 180;

(4) Rajeshwar Baburao Bone v. State of Maharashtra,

AIR 2015 SC 3024; and

(5) Sitaben v. Bhanabhai Madaribhai Patel, (2002)2 GLR

1365.

Having heard the learned counsel appearing for the

parties and having considered the materials on record, the

only question that falls for my consideration is, whether a

Hindu daughter can inherit from her father after getting

married to a Muslim and embracing Islam.

Section 2 of the Hindu Succession Act reads as under :

“2. Application of Act.- (1) This Act applied -

(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

Christian, Parsis 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;

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.

Sub clause (a) of Sub-Section (1) of Section 2 of the Act

specifies that the Act applies to any person, who is a Hindu by

religion in any of its forms. Explanation (a) to Section 2 of the

Act makes its clear that any child, legitimate or illegitimate

both of whose parents are Hindus, are Hindus by religion. SubSection

(3) to Section 2 of the Act explains that the term

"Hindu", in any portion of the 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. This makes clear that

if the parents are Hindus, then, the child is also governed by

the Hindu Law or is a Hindu. Perhaps, the Legislature might

have thought fit to treat the children of the Hindus as Hindus

without foregoing the right of inheritance by virtue of

conversion. This is also clear by virtue of Section 4 of the Act.

Section 4 of the Act reads as under :

“4. Over-riding effect of Act.- (1) Save as otherwise

expressly provided in this Act, -

(a) any text, rule or interpretation of Hindu law or

any custom or usage as part of that law in force

immediately before the commencement of this Act

shall cease to have effect with respect to any

matter for which provision is made in this Act;

(b) any other law in force immediately before the

commencement of this Act shall cease to apply to

Hindus in so far as it is inconsistent with any of the

provisions contained in this Act.”

Section 4(1)(b) of the Act envisages that any other law in

force immediately before the commencement of this Act shall

cease to apply to Hindus in so far as it is inconsistent with any

of the provisions contained in the Act. Following the said

provision, a number of Central Acts had been repealed, which

are inconsistent to the provisions of (he Act. However, the

Caste Disabilities Removal Act, 1850 (Act 21 of 1850) had not

been repealed so far. This Act contains only one Section, which

is as follows :

"Law or usage which inflicts forfeiture of, or affects,

rights on change of religion or loss of caste to cease to

be enforced ; So much of any law or usage now in force

within India as inflicts on any person forfeiture of rights

or property, or may be held in any way to impair to affect

any right of inheritance, by reason of his or her

renouncing, or having excluded from the communion of,

any religion, or being deprived of caste, shall cease to be

enforced as law in any Court."

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

the passing of the Caste Disabilities Removal Act, 1850.

Section 1 of the Caste Disabilities Removal Act inter alia

provides that if any law or (customary) usage in force in India

would cause a person to forfeit his/her rights on property or

may in any way impair or affect a person’s right to inherit any

property, by reason of such person having renounced his/her

religion or having been ex-communicated from his/her religion

or having been deprived of his/her caste, then such law or

(customary) usage would not be enforceable in any court of

law. The Caste Disabilities Removal Act intends to protect the

person who renounces his religion.

In the case of E.Ramesh and Anr. v. P. Rajini and 2 Ors.

[(2002) 1 MLJ 216], a Division Bench of the Madras High Court

has held that by virtue of Section 1 of the Caste Disabilities

Removal Act, the conversion of a Hindu to another religion will

not disentitle the convert to his right of inheritance to the

property.

As stated above, a Hindu convert does not lose the right

to inherit property under the Hindu Succession Act, 1956.

Therefore, the applicant herein is entitled to inherit her share

in her father’s property and the Hindu Succession Act shall

apply to her with regard to her right to inherit her share in her

father’s property.

It may be noted that Section 26 of the Hindu Succession

Act states that if a Hindu has ceased to be a Hindu by

conversion to another religion, children born to the convert

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. However, this section has

no impact on the convert’s right to inherit property from her

Hindu relatives and shall only apply to the children born after

conversion and their descendants.

Thus, where ‘A’ has got three sons namely ‘B’, ‘C’ and

‘D’ converts to Christianity during the life time of ‘A’. On the

death of ‘A’, ‘D’ will be entitled to claim a share along with ‘B’

and ‘C’. He would not be disqualified to inherit as per Section

26 of the Act and would get 1/3 share in the property of ‘A’.

In the above illustration if ‘D’ dies after conversion during

the lifetime of ‘A’ leaving behind him his two sons ‘M’ and ‘N’,

who are born to him after conversion, ‘M’ and ‘N’ would be

excluded from inheritance.

WHO IS A MOHAMMEDAN ?

A whole course of conduct has been prescribed by the

Muslim religion for a Mohammedan. All actions are divided into

five classes by Muslim jurists or faqihs.

(1) farz (p. faraiz), acts the omission of which is

punished and the doing of which is rewarded;

(2) manzoob or mustahabb, acts the doing of which is

rewarded but the omission of which is not punished;

(3) jaiz or mubah acts the doing of which is permitted;

(4) makruh, acts which are disapproved but are legally

valid;

(5) haram, acts strictly prohibited and punishable.

In all matters to which the Mohammedan Law applies, all

Mohammedans are governed by the Mohammedan Law even if

they are converts to Islam. Conversion to Islam makes the

Islamic Law applicable. The previous religious and personal law

is substituted by Islam and with so much of the personal law as

necessarily follows from that religion.

According to the Mohammedan Law, a Hindu cannot

succeed to the estate of a Mohammedan. When a person

becomes a Mohammedan by conversion and had a child which

survived him the child would be his heir and not his relatives

who are still Hindus.

None of the contentions put forward by Mr.Shah, the

learned counsel appearing for the private respondents, has

appealed to me. Section 2 of the Hindu Succession Act simply

provides a class of persons whose properties will devolve

according to the Act. It is only the property of those persons

mentioned in Section 2 that will be governed according to the

provisions of the Act. Section 2 has nothing to do with the

heirs. This section does not lay down as to who are the

disqualified heirs.

Sections 24, 25, 26 and 28 of the Act lay down the

provisions how a person is disqualified.

Section 24 provides, “certain widows re-marrying may

not inherit as widows”. Section 25 disqualifies a murderer from

inheriting the property of the person murdered. Section 28

provides that no person shall be disqualified from succeeding

to any property on the ground of any disease, defect or

deformity, or save as provided in this Act, on any other ground

whatsoever. The most important section is Section 26. Section

26 reads as follows :

“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.”

This Section, therefore, does not disqualify a convert. It

only disqualifies the descendants of the convert who are born

to the convert after such conversion from inheriting the

property of any of their Hindu relatives. Section 28 of the Act

discard almost all the grounds which impose exclusion from

inheritance and lays down that no person shall be disqualified

from succeeding to any property on the ground of any disease,

defect or deformity. It also rules out disqualification on any

ground whatsoever except those expressly recognized by any

provisions of the Act. The exceptions are very few and

confined to the case of re-marriage of certain widows. Another

disqualification stated in the Act relates to a murderer who is

excluded on the principle of justice and public policy (Section

25). The change of religion and loss of caste have long ceased