RELIGIOUS CONVERSION & SUCCESSION

INTRODUCTION

Inter-community / inter-faith marriages are increasing in India. It is
becoming common to see a Hindu woman marrying a person professing Islam or Christianity.
Subsequently, she converts to Islam or to Christianity.

In all such cases, a question often arises: whether the Hindu woman who has
converted to another religion would be entitled to succeed to the property of
her parents? Would she be a member of her father’s HUF? Further, what would be
the position of her children – would they be entitled to succeed to the
property of their maternal grandfather? Let us examine these tricky issues in
some detail.

SUCCESSION TO PARENTS’ PROPERTY

Let us first
consider what would be the position of a Hindu woman who has converted to Islam
/ Christianity in relation to her parents’ property. If the parent has made a
Will, then she can definitely be a beneficiary. This is because a Will can be
made in favour of any person, even a stranger. Hence, the mere fact that the
daughter is no longer a Hindu would not bar her from being a beneficiary under
the Will.

However,
what is the situation if the father dies intestate, i.e., without making a
Will? In such a case, the Hindu Succession Act, 1956 would apply. The Class I
heirs of the father would be entitled to succeed to the property of the Hindu
male dying intestate. The daughter of a Hindu male is a Class I heir under the
Hindu Succession Act. Now the question that would arise is whether the
subsequent religious conversion of such a Class I heir would disentitle her
from succeeding to her father’s estate.

The Gujarat
High Court had occasion to grapple with this interesting problem in the case of
Nayanaben Firozkhan Pathan vs. Patel Shantaben Bhikhabhai, Spl. Civil
Appln. 15825/2017, order dated 26^th September, 2017. In this
case, the child of a Hindu wanted to get her name entered in the Record of
Rights of an ancestral land held in the name of her deceased father. The
Collector allowed the mutation in favour of all children except one daughter
who had converted to Islam. It was held that her conversion disentitled her
from succeeding to her father’s estate. The matter reached the Gujarat High
Court. The Court observed that section 2 of the Hindu Succession Act provides
that the Act applies only to Hindus and to persons who were not Muslims,
Christians, Parsis, Jews or of any other religion. However, this section only
provides a class of persons whose properties will devolve according to the Act.
It is only the property of those persons mentioned in section 2 that will be
governed according to the provisions of the Act. Section 2 has nothing to do
with the heirs. This section does not lay down as to who are the disqualified
heirs.

The Court
further analysed the provisions of section 4 which envisages that any other law
in force immediately before the commencement of the Act shall cease to apply to
Hindus insofar as it is inconsistent with any of the provisions contained in
the Act. While a number of Central Acts were repealed as a consequence of this
section, one Act which has not been repealed is the Caste Disabilities
Removal Act, 1850. This is a pre-Independence Act which consists of one
section which states that:

‘So much of
any law or usage which is in force within India as inflicts on any person
forfeiture of rights or property, or may be held in any way to impair or affect
any right of inheritance, by reason of his or her renouncing, or having been
excluded from the communion of, any religion, or being deprived of caste, shall
cease to be enforced as law in any Court.’

The Gujarat
High Court held that a change of religion and loss of caste was at one time
considered as grounds for forfeiture of property and exclusion of inheritance.
However, this has ceased to be the case after the passing of the Caste
Disabilities Removal Act, 1850. The Caste Disabilities Removal Act provides
that if any law or (customary) usage in force in India would cause a person to
forfeit his / her rights on property or may in any way impair or affect a
person’s right to inherit any property, by reason of such person having
renounced his / her religion or having been ex-communicated from his / her
religion, or having been deprived of his / her caste, then such law or
(customary) usage would not be enforceable in any court of law. Thus, the Caste
Disabilities Removal Act intends to protect the person who renounces his / her
religion.

Further, the
Division Bench of the Madras High Court in the case of E. Ramesh vs. P.
Rajini (2002) 1 MLJ 216 has also taken the same view. It held that the
Hindu Succession Act makes it clear that if the parents are Hindus, then the
child is also governed by the Hindu Law or is a Hindu. It held that the
Legislature might have thought fit to treat the children of the Hindus as
Hindus without foregoing the right of inheritance by virtue of conversion.

Accordingly,
the Gujarat High Court concluded that all that needs to be seen is whether the
daughter was a Class I heir? If yes, then her religion had no locus standi
to her succession to her father’s property.

POSITION OF CONVERT’S CHILDREN

The position
of a person who has converted to Islam is quite clear. Section 26 of the Hindu
Succession Act clearly provides that the descendants of the convert who are born
after such conversion are disqualified from inheriting the property of any of
their Hindu relatives. Thus, the children of a Hindu daughter who converts to
Islam would be disqualified from inheriting the property of their maternal
grandfather.

This section
was explained by the Calcutta High Court in Asoke Naidu vs. Raymond S.
Mulu, AIR 1976 Cal 272. It explained that this section therefore does
not disqualify a convert. The present Act discards almost all the grounds which
imposed exclusion from inheritance and lays down that no person shall be
disqualified from succeeding to any property on the ground of any disease,
defect or deformity. It also rules out disqualification on any ground
whatsoever except those expressly recognised by any provisions of the Act. The
exceptions are very few and confined to the case of remarriage of certain
widows. Another disqualification stated in the Act relates to a murderer who is
excluded on the principles of justice and public policy. Change of religion and
loss of caste have long ceased to be grounds of forfeiture of property. The
only disqualification to inheritance is found in section 26 which disqualifies
the heirs of a converted Hindu from succeeding to the property of their Hindu
relatives. However, the disqualification does not affect the convert himself or
herself.

POSITION OF CONVERT IN FATHER’S HUF

On the
marriage of a Hindu who has converted to Islam or Christianity, his continuity
in an HUF needs to be considered if his marriage is solemnised under the Special
Marriage Act, 1954. In such a case the normal succession laws get
disturbed. This would be so irrespective of whether or not the Hindu converts.
All that is required is that the marriage must be registered under this Act.
Section 19 of this Act prescribes that any member of a Hindu Undivided Family
who gets married to a non-Hindu under this Act automatically severs his ties
with the HUF. Thus, if a Hindu, Buddhist, Sikh or Jain gets married to a
non-Hindu under the Special Marriage Act, he ceases to be a member of his HUF.
He need not go in for a partition since the marriage itself severs his
relationship with his family. He cannot even subsequently raise a plea for
partitioning the joint family property since by getting married under the Act
he automatically gets separated from the HUF. Taking the example of the
daughter who converted to Islam, even though she can now be a member of her
father’s HUF by virtue of the Hindu Succession Amendment Act, she would cease
to be a member due to her marriage being registered under the Special Marriage
Act.

SUCCESSION TO THE CONVERT’S PROPERTY

The last
question to be examined is which succession law would apply to such a convert’s
own property? If she dies intestate, would her heirs succeed under the Hindu
Succession Law (since she was once a Hindu) or the Muslim Shariya Law (since
she died a Muslim)? Section 21 of the Special Marriage Act is by far the most
important provision. It changes the normal succession pattern laid down by law
in case of any person whose marriage is registered under the Act. It states
that the succession to property of any person whose marriage is solemnised
under the Act and to the property of any child of such marriage shall be
regulated by the Indian Succession Act, 1925.

Section 21
makes the Indian Succession Act, 1925 applicable not only for the couple
married under the Act but also for the children born out of such wedlock. Thus,
for such a convert whose marriage is registered under the Special Marriage Act,
the succession law would neither be the Hindu Succession Law nor the Muslim Law
but the Indian Succession Act. The same would be the position for her children.
Of course, if she were to make a valid Will, then the Will would prevail over
the intestate succession provisions of the Indian Succession Act.

CONCLUSION

Till such
time as India has a Uniform Civil Code, succession laws are bound to throw up
such challenges. It would be desirable that the succession laws are updated to
bring them up to speed with such modern developments and issues so that legal
heirs do not waste precious time and money in litigation.  

Those who always adhere to truth do
not make false promises.

Keeping one’s promises is,
surely,  the mark of one’s  greatness.
— (Valmiki
Raamaayan 6.101.52)