BOMBAY HIGH COURT
Mridula Bhatkar, J.
Balchand Jairamdas Lalwant —Appellant
versus
Nazneen Khalid Qureshi —Respondent
Appeal from Order No.1175 of 2014
Decided on 6.3.2018

IMPORTANT POINT
Hindu converted into other religion is not disqualified to claim the property under Section 26 of the Act.

Headnote:Hindu Succession Act, 1956—Sections 2(1)(a)(c) and 26—Whether a Hindu converted into Islam is disqualified to receive a property of father who died intestate ? No—Respondent-Plaintiff, sister of appellant-defendant filed injunction suit in respect of suit premises, a residential flat on plea that she being daughter had inherited share in property after death of her father—Appellant-defendant contested suit and Notice of Motion on plea that plaintiff got married to Muslim in year 1979 and changed religion and thus lost right in suit property—Trial Court held suit maintainable and allowed interim injunction in favour of plaintiff—Appeal—Hindu Succession Act was not applicable to children of convert but convert himself or herself was not excluded from application of the Act by virtue of section 26 of the Act—Hindu converted to other religion is not disqualified to claim property under section 26 of the Act—No reason to interfere.

       Held: The Andhra Pradesh High Court, Madras High Court, Calcutta High Court and Gujarat High Court which are relied by the learned Counsel for the respondent in all the respective judgments (supra), have considered Section 26 of Hindu Succession Act and held that the Hindu Succession Act is not applicable to the children of the convert. However, a convert himself or herself is not excluded from the application of the Act by virtue of this Section. The submission of the learned counsel Mr. Jha that Section 2 and Section 26 are to be read together and not in isolation, is correct and therefore, the provisions under section 2, especially Explanations, can be read alongwith Section 26. The Section disqualifies the converts descendants. Thus, in Explanation (a) and (b) of Section 2, it is stated that child either legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion, this Act is applicable and thus it expresses the converse situation that the children born to converts are not covered under Section 26 of the Act. Therefore, they are disqualified from inheriting the property of any of their Hindu relatives. The last portion of Section 26 is a rider to disqualification, which reads that “Unless such children, i.e., children of converts themselves or their descendants are Hindus at the time when succession opens”. This portion is consistent with Explanation (c) which states about the application of Act to a convert or re-convert to the Hindu, Buddhist, Jain or Sikh religion. It means that if the child of a convert after attaining majority embraces either to Hindu, Buddhist, Jain or Sikh religion before succession opens, then the act is applicable to such child of convert to Hindu. Similarly, if a convert again prefers re-conversion to being a Hindu or the religion covered under section 2 when succession opens, then on account of reconversion to Hindu is again qualified to inherit the property of Hindu also his descendants will be qualified to claim property of their ancestral. The legislature did not include the convert under the caption of disqualification. Section 26 is a specific section on the point of disqualification due to conversion wherein the legislature could have mentioned the “convert” along with the “converts descendants”, however, the convert himself is not included under the ambit of section 26 and hence not disqualified. It is logically also very consistent as discussed earlier. The Personal Law is applicable to a person who is converted into Islam, Christian or any other religion for the purpose of marriage, guardianship etc., however, while deciding the inheritance, the fact of the religion of the person at the time of birth has to be taken into account to eliminate legal anomaly. Therefore, under section 26, the children of converts are not Hindu by birth due to conversion of their parents and so they are not covered under the Hindu Succession Act. However, their parents, who are Hindu by birth, cannot be disqualified for inheritance of their father who is Hindu because their father’s property and inheritance governed under the Hindu Succession Act.

       While dealing with the aspect of conversion, a basic question emerges why a person needs to get converted. The conversion may be due to force or it may be a free choice. Why person chooses to change religion and accept other religion? For most of the people in the world, the religion is a way of life which regulates a particular life style, beliefs and culture. A person may think by adopting particular way of life and faith, his search of many unknown questions like existence of universe, who he is etc. can be answered. He may think that following a particular religion is a correct path, which may lead to a spiritual journey. Therefore, the constitution of India has guaranteed right to religion as fundamental right and in our secural country, any person is free to embrace and follow any religion as his or her conscious choice. Hence, Hindu converted into other religion is not disqualified to claim the property under Section 26 of the Act.

       In the present case, the respondent/plaintiff is a sister who has converted to Islam. She claims the suit property as her father’s selfacquired property. The appellant/brother has disputed the same. However, this can be tested on the basis of evidence of the parties at the time of trial. The suit is maintainable. The objection raised by Mr. Jha is not sustainable in view of the findings given above. The trial Court has rightly passed the order of injunction against the appellant/defendant with a view to keep the property in tact and available. No interference is required in the order of the trial Court. (Paras 14, 16 and 21)

       Result: Appeal dismissed.