Hindu convert entitled to property of father who died intestate: Bombay HC

The Bombay High Court this week held that a person who converts from Hinduism to another religion would be entitled to her father’s property, if the latter died intestate..The judgment was passed in a case where a woman, who had converted to Islam, claimed a stake in her father’s property after his death. In 2010, the woman (respondent) had filed a case seeking an injunction restraining her kin from creating a third party right in respect of the property in question, a flat in Matunga, Mumbai..The trial court had allowed the notice of motion, thus restraining the appellants from selling the flat in question. Thereafter, an appeal was preferred before the Bombay High Court..Appearing for the appellants, Subhash Jha argued that since the respondent got married to a Muslim and converted in 1979, she has lost her right in the suit property. It was also contended that under Section 2(1)(a)(c) of Hindu Succession Act, the Act is not applicable to the persons who are Muslim, Christian, Parsis and Jews by religion. He further submitted that a convert otherwise will get benefit from two laws, which is not allowed..On the other hand, Chinmay Gupte, appearing for the respondent, submitted that though Section 26 of the Act states that a convert’s descendants are disqualified, there is no mention about the disqualification of the convert herself. Thus, his client would not be disqualified from receiving a share of her father’s property..The main issue before Justice Mridula Bhatkar was whether a Hindu converted into Islam is disqualified to receive a property of a father, who died intestate. Justice Bhatkar discussed the Gujarat High Court judgment of Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan, wherein it was held that change of religion and loss of caste had ceased to be grounds for forfeiture of property and exclusion of inheritance, after passing of Caste Disabilities Removal Act, 1850. However, it was pointed out by Jha that the Caste Disabilities Removal Act was repealed on 8th August, 2017..Regardless of this fact, Justice Bhatkar noted that though Section 26 of the Act disqualifies the descendants of converts from receiving a share in property, no such bar is placed on converts themselves..“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….…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.”.It was further highlighted by Justice Bhatkar that the Constitution of India guarantees to its citizens the right to follow any religion of their choice, and that this choice would not disqualify a person from being entitled to property..“…the constitution of India has guaranteed right to religion as fundamental right and in our secular 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….…The right to inheritance is not a choice but it is by birth and in some case by marriage, it is acquired. Therefore, renouncing a particular religion and to get converted is a matter of choice and cannot cease relationships which are established and exist by birth. Therefore, Hindu convert is entitled to his/her father’s property, if father died intestate.”.On finding that the property was acquired by the father, and not by the appellant as contended, the Court refused to interfere with the trial court’s order, and dismissed the appeal..Read the judgment: