March 7, 2018 3:16:41 am
Observing that renouncing a religion and converting is a matter of choice and cannot cease relationships that are established and exist by birth, the Bombay High Court recently said a Hindu convert is entitled to his/her father’s property, if the father died without leaving a will. “The right to inheritance is not a choice but it is by birth and in some cases it is acquired by marriage. 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,” said Justice Mridula Bhatkar.
The court was hearing a petition in which a woman claimed she has a right in her father’s self-acquired property in Matunga, which was challenged by her brother. He claimed since she had converted to Islam after marriage she is no qualified to receive any share in the property of her father.
The woman, Nazneen Khalid Qureshi, had five sisters and had claimed her share in her father’s property. She did not want the property to be sold by her brother Balchand Jairamdas Lalwant. Qureshi had filed a notice of motion in the trial court preventing her siblings from creating third party rights to the property and the trial court had allowed her prayer. The brother had then filed an appeal in the High Court against the trial court order.
Justice Bhatkar held that the trial court rightly passed the order of injunction against the brother with a view to keep the property intact and available.
“The Constitution has guaranteed the right to religion as a fundamental right and in our secular country, any person is free to embrace and follow any religion as per his or her conscious choice. Hence, Hindu converted into other religion is not disqualified to claim property under Section 26 of the Hindu Succession Act,”said Justice Mridula Bhatkar.
According to the court, the way a property is to be governed depends on the personal law of the owner of the property.
“Assuming before conversion to Islam or Christianity, a convert was going to receive the property from a Hindu, then that Hindu owner has every right to get governed by the personal law of which he belongs to. It is a legitimate expectation of the owner of the property that his property to be governed, distributed and inherited as per personal law of the religion he belongs to,” said the court.
“For most people religion is a way of life which regulates a particular lifestyle, belief and culture. A person may think by adopting a 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,” added the court. Qureshi married a Muslim man in 1979 and changed her religion.
Appearing for the brother, advocate Subhash Jha said the sister’s suit is not maintainable as she converted to Islam and therefore, cannot claim any right in the father’s property. He submitted that Hindu Succession Act, 1956, is not applicable to persons who are Muslim, Christian, Parsi or Jew.
The lawyer for Qureshi, Chinmay Gupte, supported the order passed by the trial court while relying on Section 26 of the Hindu Succession Act. Section 26 states that the convert’s descendants are disqualified and there is no mention about disqualification of the converts himself or herself.
The court held that Section 26 relied upon by Jha does not define who is Hindu. “It states that Hindu Succession Act is applicable to a person who is Hindu by religion and also to Buddhists, Jains or Sikhs, however, it is not applicable to persons who are Muslim, Christian, Parsi or Jew. Conversion from Hindu to Muslim, Christian so also from other religion to Hindu creates another class of persons because by birth they belong to one religion and by choice of other religion.”
“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,” said Justice Bhatkar.
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