Updated: Mar 7

Read first part here

Analysis of the Judicial view

K.P Chandrasekharappa

The case of K.P. Chandrasekharappa[1]is of relevance. The facts before a two-judge bench of the Mysore High Court were as follows. The applicant, the brother of the deceased, had filed an appeal under the inheritance provision of the Indian Succession Act, opposing an order dismissing similar claims towards the property of his deceased sister. It must be noted that the deceased sister was a Hindu but after the death of her first husband she converted to Islam and married a Muslim. The applicant, her brother, was a Hindu governed fully by Hindu Law. The sister’s Muslim husband had died in 1939 and she had died in 1947, leaving no children behind. This application was also opposed by the brothers of the Muslim husband of the deceased in the district court. The learned district court judge had held that neither of the two contesting parties, based on their legal relationship with the deceased, had a legally correct claim to the property.

The High Court noted that there was no dispute over the time of her death and the status of her religion at the time of her dying. The judges then made a reference to the work of various distinguished jurists on Indian personal laws like Mayne and Mulla, to shed more light on the nuance in this area of law.[2] It was established that both Hindu and Muslim law, under ordinary circumstances, forbid any valid title to relatives from the previous religion of the convert or the descendants of the deceased convert after the act of conversion. Muslim law makes it clear that a Hindu cannot inherit the estate of a Muslim and vice versa.

The court stressed that the Caste Disabilities Removal Act[3] could not be used as a plank of statutory protection in this scenario by the appellant as the act only protects the rights of the convert and not of the convert’s descendants or relatives. It made a reference to a privy council judgement[4] on similar facts where Lord Atkin had reached a similar conclusion to hold that the claims of the Hindu relatives to a convert’s property cannot be availed through the Act and had observed that upon a change of faith, the personal law governing the convert’s descendants also changes.

To put forward the law regarding the disqualification of the descendants of converts more clearly, two conditions must be in co-existence for them to be disqualified: firstly, they must not be still faithful to or a part of the earlier religion of the convert and secondly, they must be born after the conversion of the convert.[5] I also want to stress that section 26 of the Hindu Succession Act, 1956[6] ,currently, also reflects the same legal principle in limiting the inheritance rights of the convert’s descendants upon the property.

Nayanaben Firozkhan Pathan

Another case which merits examination is the much more recent holding of the Gujrat High Court in Nayanaben Firozkhan Pathan.[7]

The appellant was aggrieved by the order of the district collector which was affirmed by the district revenue court of Ahmedabad. The issue pertained to the validity of the claim of the applicant to the family property. The applicant was born as a Hindu female but later on married a Muslim man and embraced Islam. The lower courts in this matter had held that the Hindu Succession Act would simply not be applicable in this case as she herself changed her religion and the strict rules of inheritance of Hindu and Muslim Law do not permit such an inheritance. They also accepted an argument reliant on the exclusionary operation of Section 2 of the Hindu Succession Act.[8]

The High Court drew light towards the still operative provision of the Caste Disabilities Removal Act, 1850 which specifically protected the person who had renounced or converted from their religion and held that the Hindu Succession Act would apply to the applicant and she would be eligible for her share of family property. It also stressed upon the holistic and complete nature of the Hindu Succession Act and looked down upon the inclusion of disabilities which are not expressly provided for in the code.

The court tried to bring in a second line of reasoning,[9] in addition to the primary reliance on the Caste Disabilities Removal Act, to support its conclusion by holding that the applicability of section 2 of the Hindu Succession Act was limited towards determining the applicability of the act with regard to only the intestate and not the heirs. Therefore, with regard to heirs, the previous disqualifications to inheritance in Hindu Law, such as the requirement of chastity in widows for valid inheritance, were abolished through the operation of Section 28[10].

I believe this second line of reasoning employed by the court is wrong and problematic as the religion of the heir is certainly acknowledged and accounted for in the legislative design of the Hindu Succession Act. A prime example is found in section 26, which excludes and disqualifies the descendants of the convert but also accounts for their inclusion and requalification, if they are found as members of the Hindu religion at the moment of the opening of the succession.[11] This is also the reason why the Gujrat High Court overturned the lower Court’s conclusions and relied primarily on the Caste Disabilities Removal Act to reach the conclusion it arrived at. It also showcases the existing lacunae in our current legal regime as courts have primarily been reliant on the Caste Disabilities Removal Act[12] to reach similar judicial conclusions with legitimate legal backing.

At this point, it is imperative to understand that the Act has remained the primary law, till it was repealed in 2018[13], to protect and provide for the people who renounce or convert from their religion. It has been a shining beacon for the cause of individual religious liberty and freedom of religion. The courts, post the repeal of the act, are now faced with an uphill task when it comes to similar matters.

Balchand Lalwant