INTRODUCTION

Happily, the modern Hindu Law of succession is much simpler law than the old Hindu Law. The Hindu Succession Act, 1956 kays down a uniform law of succession for all the Hindus. Old Hindu law and customary law of succession stand abrogated.

The Hindu Succession Act, 1956 preserves the dual mode of devolution of property under the Mitakshara school. The joint family property still devolves by survivorship with this important exception that id a Mitakshara coparcener dies to leave behind the other, widow, daughter, daughter’s daughter, son’s son’s daughter, son’s widow, son’s son’s widow or daughter’s son, his interest in the joint family property will devolve by succession.

The Hindu Succession Act, 1956 bases its rule of succession on the principle of propinquity, i.e., preference of heirs on the basis of proximity of relationships.

At this juncture, it would be fruitful to mention here that before 1956, several disqualifications were recognized which prevented an heir from inheriting property. Not merely the disqualified heir could not take property in inheritance but he or she also did not transmit any interest to his or her own heirs, as a disqualified person was treated as having predeceased the propositus. However, if the disqualified heir recovered from his disqualification subsequent to the opening of the inheritance, he could recover his share and divest the estate already vested in other heirs. 1 Section 27, Hindu Succession Act, 1956, lays down that “if any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before intestate”. This means that no title or right to succeed can be traced through the disqualified person. For instance, P, a Hindu, dies leaving behind a window W and a widow of a predeceased son, SW, who had remarried before his death. W will take the entire property as if SW was dead. Or suppose P dies leaving behind two brothers, A and B and nephew AS son of A. A is disqualified, heir. AS will also not inherit anything. B will take the entire property.

CONVERSION

Conversion of an heir is not barred to succession. But the children of a Hindu, who converts to non-Hindu religion cannot inherit. So also the descendants of the children cannot inherit unless such children or descendants are Hindus at the time when the succession opens.  3 Succession to the property of a convert is governed by the personal law of the community to which he is converted. For instance, succession to the property of a Hindu convert to Islam is governed by the Muslim Law, section 26 provides for the converse case. 5

FACTS OF THE CASE

• The applicant herein took birth as a Hindu. There is no dispute in this regard.
• 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 in 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, later having married to a Muslim and having embraced Islam, she would cease 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.

ISSUE

Whether any Hindu by birth who converts into some other religion can inherit the property under Hindu Succession Act?

MERIT OF THE CASE

In a landmark ruling, Hon’ble Mr. Justice J.B.Pardiwala of Gujarat High Court has held on September 26, 2017, that a Hindu daughter can inherit from her father after getting married to a Muslim and embracing Islam.

Interpreting Section 2 of Hindu Succession Act, Justice Pardiwala held 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”, he suggested.

The Gujarat High Court also relied on a judgment of the Division Bench of the Madras High Court in E.Ramesh v P. Rajini, decided in 2002, in which it was held that the conversion of a Hindu to another religion will not disentitle the convert to his right of inheritance to the property, by invoking Section 1 of the CDRA.

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 their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens.

Interpreting this provision, Justice Pardiwala held that it 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.
In the instant case, Nayanaben Firozkhan Pathan @Nasimbanu Firozkhan Pathan is the daughter of Bhikhabhai Patel of Vadodara, who passed away in 2004. She renounced Hindu religion, and embraced Islam voluntarily and without any force, on July 11, 1990, and married a Muslim boy, Firozkhan on January 25, 1991. On Patel’s death in 2004, her two brothers got their names recorded in the record of rights by succession, without her name. In 2007, she filed an affidavit before the authorities concerned for getting her name mutated in the revenue record. Her two brothers questioned the mutation before the Deputy Collector, Vadodara, by filing an appeal. The Deputy Collector dismissed the appeal in 2009. However, they succeeded in their revision appeal before the Collector. She, therefore, challenged the Collector’s order before the High Court. The High Court allowed her application, and quashed the Collector’s order, and affirmed the order of the Deputy Collector. 7

The court held as under:

“ 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. 8

Prima facie, I am of the view that for the purpose of getting her name entered in the record of rights, all that was necessary to be indicated was, that the applicant is one of the Class-I legal heirs. It was not necessary for her to declare that she is married to a Muslim and she has embraced Islam by renouncing her Hindu religion. Once the question of law is answered in favour of the applicant, I do not see any good reason to lay much emphasis on the issue of the affidavit filed by the applicant.

CONCLUSION

The court was absolutely right in interpreting the section 26 of Hindu Succession Act, 1956 which talks about the disqualifications of conversions. As the plain reading of the said provision states that the children born to the person who renounces his Hindu religion and converts into some other religion then his children would be considered as the disqualified heirs as per section 26 of the Act. In the present case, a young girl who married a Muslim man by embracing Islam is very much entitled as Class I heirs under the Hindu Succession Act, 1956.

REFERENCE

  1. Venkatalakeshnammal v. Balakrishnachari, AIR 1960 SC 1581.
  2. Hindu Succession Act, 1956 Section 27.
  3. Hindu Succession Act, 1956 Section 26.
  4. P. Patharakah v. Subbiah, AIR 1981 Ker 1980.
  5. Dr. Paras Diwan, Family Law, Ed. 10th, Allahabad Law Agency, 2013.
  6. Decided in 2002, Madras High Court, Division Bench.
  7. Read more at http://www.livelaw.in/hindu-daughter-converting-islam-not-lose-right-inherit-property-hindu-succession-act-gujarat-hc/.
  8. Decision of the present case.
  9. Image Source: NitinBhatia.in