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: Justice Mridula Bhatkar
MUMBAI: The Bombay High Court, while disposing a property dispute case, has observed that a Hindu, who converted to Islam or any religion, is entitled to his/her father’s property if father died intestate (without leaving instructions about who should receive their property).
While dismissing the appeal of one Balchand Jairamdas Lalwant against a trial court order, the High Court said his sister Nazneen Khalid Qureshi, (who had converted to Islam in 1979 and married to a Muslim man), has right in the properties left behind by their father.
The question before the High Court was: Whether a Hindu converted into Islam is disqualified to receive a property of a father, who died intestate?
“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,” observed Justice Mridula Bhatkar.
Justice Bhatkar also observed that Hindu converted into other religion is not disqualified to claim the property under Section 26 of the Hindu Succession Act.
The counsel of Balchand had contended that under Section 2(1)(a)(c) of the Hindu Succession Act, 1956, this Act is not applicable to the persons who are Muslim, Christian, Parsis and Jews by religion, and since his sister is converted to Islam, she cannot claim any proprietary right in the father’s property.
Referring to Section 26 of the Hindu Succession Act, the High Court observed: “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 “convert descendants”, however, the convert himself is not included under the ambit of section 26 and hence not disqualified.”
The High Court further observed: “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 lifestyle, beliefs, and culture. A person may think by adopting a particular way of life and faith, his search of many unknown questions like the existence of the 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 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.”
Nazneen, who converted to Islam in 1979, had filed a case in a lower court in 2010 seeking injunction restraining her brother from creating third party right of whatever nature in respect of the suit premises, i.e., residential flat situated at Matunga (West), Mumbai. She had contended that the suit flat and one shop is a property of her deceased father, however, her brother Balchand has sold the shop after father’s death and now he wants to sell the flat also. Nazneen averred that she being a daughter has right in the said property. But her brother told the court that she got married to Muslim in the year 1979 and as she has changed the religion, she lost the right in the suit property. However, the trial court passed order in favor of Nazneen. Her brother challenged the order in the High Court.
While dismissing the appeal against the trial court order, the High Court (on March 6, 2018) ordered: “In the present case, the respondent/plaintiff is a sister who has converted to Islam. She claims the suit property as her father’s self-acquired 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 trial Court has rightly passed the order of injunction against the appellant/defendant (Balchand Jairamdas Lalwant) with a view to keep the property intact and available. No interference is required in the order of the trial Court. Hence, Appeal from Order is dismissed.”