Judgement

Appeal (No. 123 of 1928) from a decree of the Chief Court of Oudh (December 2, 1927) affirming a decree of the Additional Subordinate Judge of Fyzabad.

The question for determination in the appeal was whether by virtue of the Caste Disabilities Act, 1850, a Hindu in the province of Oudh has a right to inherit according to Hindu law the estate of a Shia Mahomedan who was descended from a Shia Mahomedan, but had become a convert to Islam in 1843.

The facts appear from the judgment of the Judicial Committee.

The Chief Court (Stuart C.J. and Wazir Hasan J.) by a joint judgment reported at I. L. R. 3 Luck. 155 held that upon the true construction of the Act it did not assist the plaintiff in his claim to succeed by Hindu law.

1930. June 30. Dunne K.C. and Wallach for the appellant referred to the cases mentioned in the present judgment, also to Rupa v. Sardar Mirza (( 1920) I. L. R. 1 Lah. 376.) and to Khunni Lal v. Gobind Krishna Narain. (( 1911) L. R. 38 I. A. 87.)

De Gruyther, K.C. and Dube for the respondents were not called upon.

The judgment of their Lordships was delivered by

LORD ATKIN. This is a case which involves a question of the inheritance of a property in Oudh, and it involves an important question as to the position of heirs of an ancestor who renounced his original religion of Hinduism and became a Mahomedan. The ancestor in question was a man named Jagardeo Singh, who was in 1843, at the date of his conversion to Mahomedanism, a member of an undivided Hindu family tracing their descent, so far as is necessary to this case, from a common ancestor, Sangram Shah. Jagardeo Singh, as stated, was converted to Mahomedanism in 1843 and he died in 1844. He left two sons and two daughters, or at any rate he had two sons and two daughters, and one of the sons, who is the grandfather of the present defendants, was Agha Hasan Khan, who married and had a daughter, who married and whose children are the three defendants, 1, 2 and 3, in this case. On the death of the widow of Agha Hasan Khan the three children came into possession of the property which had belonged to Jagardeo Singh and had descended in that way to their grandfather. The property is claimed in this action by one Mitar Sen Singh, who is a descendant in the sixth generation of Babu Sangram Shah and would be the proper heir and would succeed to this property in accordance with Hindu law, on the footing that a custom prevailed in the family, as is alleged, which excludes females from inheritance. That custom has not gone to proof in this particular case. Its existence has been assumed for the purpose of the case, and their Lordships will so deal with the matter.

The plaintiff founds his claim upon the Caste Disabilities Removal Act, Act XXI. of 1850, which applied to Oudh at this time. It is important to bear in mind the words of the Act. It first of all recites s. 11 of Ben. Reg. VII. of 1832. Then it says " Whenever in any civil suit the parties to such suit may be of different persuasions, when one party shall be of the Hindu and the other of the Muhammedan persuasion, or where one or more of the parties to the suit shall not be either of the Muhammedan or the Hindu persuasions, the laws of those religions shall not be permitted to operate to deprive such party or parties of any property to which, but for the operation of such laws, they would have been entitled ; and whereas it will be beneficial to extend the principle of that enactment throughout the territories subject to the government of the East India Company; it is enacted as follows."

The enacting part is contained in one clause, s. 1 " So much of any law or usage now in force within the territories subject to the government of the East India Company as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of