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IN THE HIGH COURT OF GAUHATI
N. CHAUDHURY, J.
Smti Krishna Das Choudhury – Appellant
Versus
Musstt. Parbin Rahman Hazarika – Respondents
Case No: Intest.Cas. 4/2009
Decided On : 23.12.2015
Indian Succession Act, 1925 - Section 384 - Hindu Marriage Act, 1955 - Section 5(1) - Issuance of succession certificate - Appeal preferred by opposite parties in Succession Case challenging judgment and order passed in aforesaid case - Additional District Judge by that order held that appellant herein is not entitled to succession certificate with respect to debts and securities - According to petitioners of case Late was a Muslim and he was a permanent resident - He died at age of years within jurisdiction of District Judge and thereafter petitioners being his widow and two off-springs performed last religious rites and formalities - Held, Obviously court examined incident from the light of section 5(1) of Hindu Marriage Act thus applying the doctrines of Hindu Law - Had he applied Hindu Succession Act for the purpose of deciding inheritance of properties left behind by deceased in that event question would have arisen as to whether a non Hindu would be entitled to inherit property of a Hindu - This can be tested by examining a hypothetical case where son of a Hindu renounces Hinduism and becomes a Muslim and thereafter his Hindu father dies - Obviously in such case son who embraced Islam renouncing Hinduism perhaps would not have been held a legal heir of deceased Hindu and his properties would have been shared only by his Hindu legal heirs - Inheritance under School of Hindu Law is governed by principle of giving oblation - Appeal allowed
Key Points: - Apostasy by a Muslim husband operates as complete and immediate dissolution of marriage (!) (!) (!) . - After apostasy, the marital tie with the Muslim wife is automatically severed, and she is not entitled to succeed as his widow (!) . - Children born from the apostate's Muslim marriage are generally not entitled to inherit from him if he dies having embraced another faith (!) (!) (!) . - Succession to the deceased's properties follows the religion of the heir at the time succession opens; non-Muslims are typically excluded under both Mohameddan and Hindu law (!) (!) (!) . - The trial court's finding that the deceased married as a Hindu and that his marriage under Hindu law excluded the Muslim wife and children from succession is supported (!) (!) (!) . - The appeal is allowed, granting succession certificate only to the Hindu wife and children under Hindu law (!) (!) .
This is an appeal under section 384 of the Indian Succession Act, 1925 (hereinafter referred to as ‘the Act’) preferred by the opposite parties in Succession Case No. 432/2006 of the Court of learned Additional District Judge (FTC) No. 3, Kamrup at Guwahati thereby challenging the judgment and order dated 23.12.2008 passed in the aforesaid case. The Additional District Judge by that order held that the appellant herein is not entitled to succession certificate with respect to the debts and securities of Late Samir Ranjan Choudhury alias Saydur Rahman Hazarika although her two daughters are entitled to share along with respondent No. 1 Parbin Rahman Hazarika and her one son and daughter.
2. The Succession Case No. 432/2006 was registered upon an application filed by Musstt. Parbin Rahman Hazarika, her daughter Musstt. Farhanaz Rahman Hazarika and her son Md. Salidur Rahman Hazarika under section 372 of the Act against the present appellants as opposite parties. According to the petitioners of the case, Late Saydur Rahman Hazarika was a Muslim and he was a permanent resident of Dhirenpara in Guwahati. He died at the age of 49 years within the jurisdiction of the learned District Judge at Kamrup and thereafter the petitioners being his widow and two off-springs performed the last religious rites and formalities. The petitioners stated that Saydur Rahman Hazarika alias Samir Ranjan Choudhury married Parbin Rahman Hazarika on 14.07.1982 and from their wedlock, the petitioners No. 2 and 3, namely, Musstt. Farhanaz Rahman Hazarika and Md. Salidur Rahman Hazarika were born. Thereafter, in the year 1993 he lived with Smt. Krishna Das, an alleged concubine and out of that living together the opposite parties No. 2 and 3, namely, Smt Samishna Choudhury and Smt. Sandipshna Choudhury were born who were 12 years and 2 years respectively at the time the application was filed. Saydur Rahman alias Samir Ranjan Choudhury suddenly died in the year 2006 living behind three petitioners as his legal heirs. He was maintaining a pharmacy. He left behind a sum of Rs. 38,000/- in account No. 16979853601 dated 05.08.2003, Rs. 6,260/- in account No. 169798565661 dated 09.09.2003 and Rs. 64,900/- in fixed deposit vide Account No. 16979201278 with Sahara India, Maligaon Branch. He had also Rs. 50,000/- in Policy No. 481604161 dated 28.01.1999 and Rs. 5,00,000/- in Policy No. 481916984 dated 28.12.1999 with Life Insurance Corporation of India, Guwahati Branch I, Panbazar and Rs. 18,000/- in daily deposit account No. 17306 with Guwahati Cooperative Urban Bank Limited. It was further stated that in all these accounts Smt. Krishna Das, an alleged concubine was made nominee. This Krishna Das has been claiming the amount and if she gets the same, the applicants would be deprived from their legitimate right being legally marriedwife and legitimate son and daughter respectively. With these averments of fact, the three petitioners prayed for issuance of succession certificate in favour of petitioner No. 1, Musstt. Parbin Rahman Hazarika, so as to enable her to withdraw the money mentioned in schedule to the petition.
3. After service of notice, the opposite parties appeared and submitted objection on 17.11.2006 stating that the application under section 372 of the Act is not maintainable, that applicant No. 1 (Parbin Rahman Hazarika) was no longer wife of the deceased who had converted himself from Islam to Hinduism and so the applicant No. 1 has no locus standi to file the application. Moreover, the objector No. 1, Smt. Krishna Das Choudhury was the legally married wife of Samir Ranjan Choudhury after he became a Hindu by conversion and assumed the Hindu name of Samir Ranjan Choudhury in the year 1983. She claimed that she is legally entitled to get the succession certificate. According to her, Samir Ranjan Choudhury died in her presence on 20.07.2006 but the applicants forcefully took away the dead body on the teeth of great opposition of the objector and
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