Parents are Hindu, child is governed by Hindu Law.

  • October 2, 2017
  • 11:30 pm
  • Harsh Vardhan Tripathi

Justice JB Pardiwala also held that as per Section 26 of the Hindu Succession Act, only children born after conversion and their descendants will not be entitled to inherit property.

The brief facts of the case are that a Hindu man passed away in October 2004, leaving behind property for his three children. On his demise, his son and one of his daughters (the respondents in the High Court case) were entered in the record of rights by succession vide entry no. 1502. The name of applicant was not entered, presumably because she had converted to Islam after marriage.

The applicant then filed an affidavit for the purpose of getting her name also mutated in the revenue record. The same was done through revenue entry no.1668. Her siblings challenged this entry before the Deputy Collector, Vadodara on the ground that the Hindu Succession Act would not apply to her, as she had converted to Islam. The challenge was dismissed.

Gujarat High Court

Unsatisfied with the order, the respondents sought to file a revision application before the Collector, who accepted the same. The new entry made in the revenue records therefore stood cancelled. The applicant then preferred a revision application before the Special Secretary, Revenue Department (SSRD), which was rejected. Thus, the applicant sought to challenge this decision before the High Court.

Appearing for the applicant, Advocate Dhruv Dave submitted that merely because his client got married to a Muslim and converted herself by embracing Islam would not scupper her to claim a share in the ancestral property in accordance with the provisions of the Hindu Succession Act.

Parthiv Shah, appearing on behalf of the respondents, argued the contrary. He also claimed that the applicant was guilty of filing a false affidavit by affirmed the same in her name before the conversion.

From a reading of Section 2 of the Act, Justice Pardiwala came to the conclusion that conversion does not preclude persons from inheriting property under the Act.

“Explanation (a) to Section 2 of the Act makes it clear that any child, legitimate or illegitimate both of whose parents are Hindus, are Hindus by religion. Sub section (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.”

The judge also pointed out that though change of religion was considered as grounds for forfeiture of inheritance in the past, things have changed since the Caste Disabilities Removal Act.

“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.”

The Court also shot the argument of the respondent counsel that the applicant filed a false affidavit while trying to get her name mutated in the revenue record.

“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.”

The Court concluded,

“…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.”

Justice Pardiwala also made it clear Section 26 does not interfere with a convert’s right to inherit property.

“Section 26 of the Hindu Succession Act 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.”

Therefore, the Court quashed the orders of the SSRD and the Collector, and affirmed the order passed by the Deputy Collector.