1. In this Appeal from Order, a question required to be addressed whether a Hindu converted into Islam is disqualified to receive a property of a father, who died intestate?

2. The respondent/plaintiff is a sister of the appellant/defendant. The respondent has filed Suit No. 3480 of 2010 pursuant to Notice of Motion No. 956 of 2010 in Suit No. 3480 of 2010 (H.C. Suit No. 928 of 2010 for injunction restraining the defendants from creating third party right of whatever nature in respect of the suit premises, i.e., residential flat situated at Matunga (West), Mumbai. It is the case of the respondent/plaintiff that the suit flat and one shop is a property of her deceased father, however, the appellant has sold the shop after father's death and now he wants to sell the flat also. The respondent/plaintiff has averred that she being a daughter has right in the said property. Including the respondent/plaintiff, the appellant/defendant has five sisters and so the respondent/plaintiff claims her share in the suit property and therefore sought that the flat is not to be sold and the appellant/defendant is in exclusive possession of the suit flat. The appellant/defendant while contesting the Notice of Motion has submitted that the respondent/plaintiff got married to Muslim in the year 1979 and as she has changed the religion, she lost the right in the suit property. It is also submitted that the suit flat is also purchased out of his own income. The trial Court considering the prima facie case allowed the Notice of Motion and defendant nos. 1 to 5 were restrained from creating third party right in respect of suit flat. Hence, this Appeal.

3. The learned counsel Mr. Jha, at the outset, has submitted that the suit is not maintainable, as the plaintiff is converted to Islam and therefore, she cannot claim any proprietary right in the father's property. He submitted that this is the main challenge in this Appeal. He submitted that under section 2(1)(a)(c) of Hindu Succession Act, 1956, this Act is not applicable to the persons who are Muslim, Christian, Parsis and Jews by religion. He submitted that Section 2(1)(a) & (b) are inclusionary by which Hindu, Jain, Buddhist, Sikh are covered under the Hindu Succession Act and Section 2(1)(c) of the Hindu Succession Act is exclusionary by which Muslim. Christian, Parsis and Jews are excluded. In support of his submissions, the learned counsel relied on the following decisions:

(i) Judgment of the Supreme Court in the case of The Controller of Estate Duty Mysore, Bangalore vs. Haji Abdul Sattar Sait & Ors. (1972) 2 SCC 350)

(ii) Judgment of the Supreme Court in the case of Sultana Begum vs. Prem chand Jain (1997) 1 SCC 373)

(iii) Judgment of Madras High Court in the case of K. Sivanandam & Anr. vs. Maragathammal

(iv) Judgment of Andhra Pradesh High Court at Hyderabad in the case of Jujjavarapu Yesurao vs. Nadakuduru Kamala Kumar & Ors. (2007) 5 ALD 140).

The learned counsel has submitted that in the case of Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan vs. Patel Shantaben Bhikhabhai & Ors in Special Civil Application No. 15825 of 2017, which is relied upon by the respondent/ plaintiff, Justice Pardiwala of Gujarat High court has relied on the Caste Disabilities Removal Act, however, the said act is repealed and therefore, the observations made by the Single Judge of the Gujarat High Court in that context cannot be taken into account while appreciating the issue on convert. He argued that under no circumstances, Hindu Succession Act can be made applicable to Muslim convert, as the application of the Act is expressly barred to Muslim, Christian and Parsis under section 2(1)(c). He argued that the scheme of the Act as a whole is to be taken into account and therefore, Section 26 cannot be read in isolation by ignoring Section 2(1)(c) of the act. On reading of Section 2(1)(c), the application of the Act is explicitly clear that it is not applicable to Muslim. He, therefore, argued that the A