Updated: Mar 7
Read first part here
Analysis of the Judicial view
The case of K.P. Chandrasekharappais 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. 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 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 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. I also want to stress that section 26 of the Hindu Succession Act, 1956 ,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.
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.
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, 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.
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. 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 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, 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.
At this juncture, the researcher will refer to the judgement in Balchand Lalwant which is set out in a timeline when the Caste Disabilities Act has been repealed.
The issue before the Bombay High Court related to the succession rights of a convert to Islam from Hinduism, specifically whether she would still be considered a valid legal heir for the objective of succession towards the self-acquired property of her Hindu father. It was held that the right to succession was by nature a proprietary right which entrenches itself upon birth under the Hindu Succession Act and such a right could not denied merely by an act of religious conversion. The court reasoned that section 26 was a provision which reflected the legislative intent on this clearly, which was to only deny the convert’s descendants the right to the property and not the convert itself, who would therefore be included since he hasn’t been explicitly excluded. Lastly, the court relied on the basic rights of liberty and religious freedom enshrined in the Constitution to protect the rights of the convert in this case.
I believe that the Bombay High Court’s reasoning in the above-mentioned judgement is flawed and even though the attempt is to reach a progressive, protectionist end goal, it opens itself up to attack by standing on shaky legal footing and thus endangers the same progressive goal it seeks to protect.
Firstly, the Hindu Succession Act grants only a speculative right to succession to self-acquired property which cements and is acquired only when the succession opens. This is in contrast to joint family property, upon which a concrete right at birth exists for every coparcener, which is only open to collapse upon the triggering of certain general disabilities. This particular absence of concrete rights towards self-acquired property is the reason why individual autonomy exists with the intestate to will away that property. It must be noted that Section 6 of the Transfer of Property Act also specifically places a bar on the transferee on acts of the transfer of the possibility of succession, since it is not a complete interest in the holdings.
Secondly, the Court had reasoned that the intent of the legislature was to allow the convert to successfully inherit through the Hindu Succession Act itself because the explicit bar to succession of property contained in section 26 only applies to the descendants of the convert and not to the convert itself. . I argue that this reasoning is in error as the Caste Disabilities Removal Act was operative when the Hindu Succession Act was enacted. Thus, logically, the right of the convert to acquire property existed before the Hindu Succession Act was even enacted and therefore that right cannot be founded in that legislation. This argument becomes stronger when we examine the core inheritance principles of Hindu law and the strong reliance of Indian courts till now on the Caste Disabilities Removal Act and not the Hindu Succession Act, to reach judicial conclusions which protect the converts rights. It can also be argued that section 26 of the Hindu Succession Act, 1956 itself showcases the belief of Hindu law, in its fundamental tenets, of using difference of religion as a bar towards valid inheritance.
Normative Thinking: Legislative Reform
There is an apparent clear need for legislative reform in this area as currently there exists no sound legal protection for the people who want to exercise religious freedom effectively in both Hindu and Muslim law in India. Reform in this area is relatively easier for Hindu law as it is a modifying and amending body of law. It is important to focus on the fact that there doesn’t seem to be enough legislative support for this move till now as it has been more than two years, since the Union government repealed the act. It is also important to understand that we must attribute full knowledge and intent to the Union government in matters of express repeal, which undergo due consideration and process by parliamentary legislative committees.
In Muslim law, the scenario is far grimmer as it is not a modifying and amending body of law and is not codified in effect. The possibility of judicial inroads also remains limited in scope in this area. The property and legal rights of Muslims who want to exercise religious freedom remain completely unprotected ever since the repeal of the Caste Disabilities Removal Act, 1850. This has formed a huge deterrence to those set of people. The only egalitarian way forward seems to be that the Union government must pass a legislation similar to the Caste Disabilities Removal Act, 1850 and grant effective statutory protection for true religious freedom against the intrinsic working of these personal laws, as the much larger and controversial task of reformation of personal laws themselves to co-relate with normative concepts of modern day liberty still remain a distant dream.
Such laws which protect the effective practice of religious freedom are deeply intertwined with the idea of human rights as autonomy towards religious choice remains a primary need of a large number of citizens. The effective detriment towards the practice of such freedom would affect the core identity and mental capacities of the affected individual. An efficient understanding of the current legal standing of Indian personal laws and their interaction with religious freedom, thus, becomes of prime importance.
At the time that the Caste Disabilities Removal Act was passed, the protection of people who had been excommunicated or removed from a particular caste was an issue of pragmatic concern. This is due to the heavy influence of caste in every aspect of a Hindu’s life at that time and this also spilled into the kinds of legal rights one enjoyed. In 1850, therefore, there was a need to protect and provide for people who had been shunned from this system. Currently, however, the Act has little relevance in matters relating to caste or the protection of the legal rights of people who have been excommunicated from a caste. This is because of the constitutional abolition of caste and the discontinuation of a pre-cursor or any attachment of caste to general legal rights. We also have newer and more context specific legislations to regulate and protect the interests of people affected by caste, therefore making the Caste Disabilities Removal Act irrelevant in this area in present day India. This is not to say that the evil shadow of caste has been vanquished or does not exist in India anymore.
At the end, the researcher feels that the importance of such legislation must be understood along with the social upliftment impact it necessarily carries. Religions, as we observe, are at times morally regressive and make certain groups inside them feel oppressed. Such oppression can lead to the deterioration of the quality of life, since religion plays an integral part of life in the subcontinent. Dalits, for example, may feel suffocated within the Hindu faith and may want to convert to a different faith. At this juncture, it is fundamental that the legislature comes in and provides towards the pragmatic needs of these people and ensures that they are not left in a worse off position materially because of their choice to exercise religious faith. The world’s largest democratic republic must actually function like that, not just appear to do so.
1. The Constitution of India, 1950
2. The Hindu Succession Act, 1956
3. The Caste Disabilities Removal Act, 1850
4. The Repealing and Amending (Second) Act 2017
5. The Transfer of Property Act, 1882
6. The Schedule Castes and Tribes (Prevention of Atrocities Act) 1989.
1. In re Jnenendranath Ray’s Goods, (1921) ILR 49 Cal 1069 (Privy Council)
2. Commissioner of Income Tax v. Pratap Chand, AIR 1959 Punj 415 (Punjab High Court)
3. K.P Chandrasekharappa v. Govt. of Mysore, AIR 1955 Mys 26 (Mysore High Court)
4. Mitar Ser Singh v. Maqbul Hasan, AIR 1930 P.C 251 (Privy Council)
5. Nayanaben Firozkhan Pathan v. Patel Shantaben Bhikabhai and others, (2018) 59 (2) GLR 1796 (Gujarat High Court)
6. Balchand Lalwant v. Nazneen Qureshi, 2018 SCC Bom 307 (Bombay High Court)
1. M. Galanter, The Religious Aspects of Caste (Princeton University Press, 1966)
2. G. Vishwanathan, After Colonialism (Princeton University Press, 1995)
3. J. Mayne and V. Kumar, Mayne’s Treatise on Hindu Law & Usage (17th edn, Bharat Law House 2014)
4. D. Mulla and I. Khan, Principles of Mahomedan Law (21st edn, LexisNexis 2017)
5. S. Sajāwandī and others, Al Sirajiyyah: the Mahommedan law of Inheritance (5th edn. Premier Book House 1977)
6. B. Ambedkar, Annihilation of Caste: an undelivered speech (Arnold Publishers, 1990)
1. M. Galanter, Caste Disabilities and Indian Federalism, (1961) Volume 3 Issue 2, Journal of Indian Law Institute
2. V. Dhagamwar, Freedom of Religion, (2003) Volume 38 Issue 20, Economic and Political Weekly
3. M. Galanter, Law and Caste in Modern India, (1963) Volume 3 Issue 11, Asian Survey Review
4. A. Saeed, Freedom of Religion, apostasy and Islam, (2017) Volume 4 Issue 12, American Journal of Asiatic Studies.
K.P Chandrasekharappa v. Govt. of Mysore, AIR 1955 Mys 26. K.P Chandrasekharappa v. Govt. of Mysore, AIR 1955 Mys 26 (3)-(4). The Caste Disabilities Removal Act 1850, § 1. Mitar Ser Singh v. Maqbul Hasan, AIR 1930 P.C 251. John D. Mayne and Vijender Kumar, Mayne’s Treatise on Hindu Law & Usage (17th edn, Bharat Law House 2014). The Hindu Succession Act 1956, § 26. Nayanaben Firozkhan Pathan v. Patel Shantaben Bhikabhai and others, (2018) 59 (2) GLR 1796. The Hindu Succession Act 1956, § 2. Nayanaben Firozkhan Pathan v. Patel Shantaben Bhikabhai and others, (2018) 59 (2) GLR 1796 (31)-(40). The Hindu Succession Act 1956, § 28. The Hindu Succession Act 1956, § 26. The Caste Disabilities Removal Act 1850, § 1. The Repealing and Amending (Second) Act 2017, the first schedule. Balchand Lalwant v. Nazneen Qureshi, 2018 SCC Bom 307.  The Hindu Succession Act 1956, § 26.  The Transfer of Property Act 1882, § 6. Marc Galanter, ‘Law and Caste in Modern India’ (1963) 3(11) ASR, 551; Marc Galanter, The Religious Aspects of Caste (Princeton University Press 1966). The Constitution of India 1950, art 17; The Schedule Castes and Tribes (Prevention of Atrocities Act) 1989.
Title Image Source: Centre for Law and Policy Research
This article has been written by Karundeep Singh. Karundeep is a final year law student at NLSIU.