Hajarkan Kalubava And Anr. vs Kesarkhan Kayamkhan And Ors. on 13 March, 1967

such specific plea was taken about the custom, their Lordships refused to look into the evidence on the ground that a serious prejudice would arise to the other party as the evidence might not be led from that particular aspect unless parties' attention was focused on the particular point by the same being raised in the pleading and by an issue also being lower Appellate Court has proceeded on the assumption that there Molesalam Muslim Garasias of Baroda were governed by the Hindu law in all respects and not merely in the matters of inheritance and succession. The lower Appellate Court has gone to the extent of holding that the Hindu law of joint family as such was applicable to these converts, even though no such special custom was ever pleaded or brought in issue at any stage of the trial. The lower Appellate Court also made out a completely new case, as we will presently consider, that defendants Nos. 2 and 3 had ratified the sale deed in favour of the plaintiffs and that from the judgment, Ex. 40 in the partition suit No. 78 of 1946-47, between the three defendants themselves, it was clear the consideration amount

presumption that the entire Hindu Law applied to these Muslim converts, unless a special custom to that effect was pleaded and proved. In Mangaldas v. Abdul Razak, 16 Bom LR 224 = ( AIR 1914 Bom 17), Macleod J., following the observations of Beaman J. In Jan Mahomed v. Datu Jaffar, 15 Bom LR 1044 = (AIR 1914 Bom 59), observed that where Mahomendas were concerned, the invariable and general presumption was that they were governed by the Mahomendan law and usage, it lay on a party setting up a custom in derogation of that law to prove it strictly. But in matters of simple succession and inheritance among Khojas and Memons they were governed by the Hindu law as applied to separate and self-acquired property. Further proceeding at pp. 229-230 (of Bom LR) = (at pp. 19-20 of AIR ) Macleod J., observed that the rules of inheritance and succession under Hindu law applied only to separate or self-acquired property. The notions of joint family business, are utterly unknown to Mahomendan law. To conclude, therefore, that because Cutchi Memons had retained the rules

of Hindu law relating to inheritance and succession which could only be applied to separate property, they

inheritance and succession included the law of the joint family. In Bai Sekar v. Ismail Gafoor, 32 Bom LR 1034 = (AIR 1937 Bom 65), the Division Bench , consisting of Broom field and Tyabji JJ,, also took the same view. At p. 1045 (of Bom LR) = (at p. 71 of AIR ),Tyabji J., observed that after Mr.Justice Beaman's elaborate judgments, followed by Macleod J., the Courts did not presume that the Khojas and Memons in Bombay were governed by Hindu law except with reference to succession and inheritance, which were presumed to be governed by the Hindu law applicable to separate or self-acquired property unless such custom was established. At p. 1054 (of Bom LR) = at p. 77 of AIR ), Broom field J., also held that the presumption as to the application of Hindu law extended only to the simple law of inheritance and succession in the case of separate property, and that the application of the coparencenary law was not to be presumed and must be proved. In view of the settled position of law, even proceeding on the footing that there was a judicially recognised custom in respect of Molesalam Muslim Garasias in the Baroda territory

that they were governed by the Hindu law in matters of successions and inheritance, there could be no such presumption that the law regarding the Hindu joint family and regarding the Karta's power of alienation would apply in case of these Muslim converts in absence of a specifically pleaded and proved custom. The learned appellate Judge was, therefore, completely wrong in holding that the deft. No. 1 had the same powers as Karta of Hindu joint family qua the other two defendants 2 and 3, as if defendants 2 and 3 formed a coparcenary governed by the principles of Hindu law. The learned appellate Judge was equally wrong in recording the finding that defendant No. 1 was the Karta of the Hindu joint family from the alleged admission in the earlier written statement Ex. 63 of defendants 2 and 3 where they had only admitted that kanaksing was managing the family property. Such an admission in an earlier proceeding without reference to the whole context could not be construed as an admission that

deft. No. 1 was managing the Hindu joint family or the law of coparcenary applied even to those Muslim coverts and such evidence could never

K.P. Chandrasekharappa vs Government Of Mysore on 18 December, 1952

husband died in 1939 and she in January 1947 leaving no children and intestate properties she was possessed of at the time of her death are according to the petition, of considerable value. The application was opposed by the brothers of the Muslim husband of the deceased. The learned District Judge held that neither the Appellant by virtue of his relationship by birth nor others on account of relationship to the husband could claim the letters. The order is not challenged by any one except the brother of the deceased. 2. It is not disputed that at the time of her death, the deceased was a Mohamadan and that there is nothing to avoid the application of the rules of Mahomadan Law except if at all that she was a convert from Hinduism. As page 79 of Mayne's Hindu Law, 10th edition, it is stated: "The descendants of a Hindu convert to Mohamadanism cannot claim to inherit to his Hindu collaterals nor conversely can his Hindu collaterals succeed to the convert or his descendants". So long back as 1888 in 11 Mys L.R. 406 (A) in a case relating to the Civil Station it was observed

The Caste Disabilities Removal Act XXI of 1850 can be of no assistance to Appellant as he is not the person who renounced his religion and no question of his rights on that ground arises for consideration. Dealing with a case of succession to the property of a Hindu who died as Muslim,convert in--'Mitar Ser Singh v. Maqbul Hasan', AIR 1930 P.O.

251 (B). Lord Atkin held that, the provision of the said Act cannot be availed of to support the claim of the Hindu relations, with

counsel for Appellant has in the memo of appeal sought to distinguish this case by alleging that Act XV of 1938 -- the Caste Disabilities Removal Act of Mysore applicable to properties in Civil Station was not taken into account for the purpose of that decision. This Act which came into force in Mysore on 13-7-38 was made applicable to the Civil Station only on 15-84948 by Act LVII of 1948. The lady with respect to whose properties the Letters of Administration are claimed died in January 1947, before the Mysore Act was made applicable. As the inheritance cannot be in abeyance and the operation of the Mysore Act is not shown to be retrospective it is unnecessary to examine its provisions to see how far these would support the claim. The appeal is dismissed. There will be no order as to costs.

E. Ramesh And Anr. vs P. Rajini And 2 Ors. on 12 October, 2001

4. Before us also, only two objections were contended by the learned counsel for the appellants stating that the second respondent having married a Muslim and converted into Islam, she is not entitled for any share, as she has to forego the share, in view of the conversion to other religion. So far as B-schedule property is concerned, it was contended that the property cannot be divided, since the same is a residential house and consequently, the findings of the learned single Judge are liable to be set aside.

loss of caste have long ceased to be grounds of forfeiture of property and the only disqualification toinheritance on the ground that a person has ceased to be a Hindu is confined to the heirs of suchconvert (Section 26). The disqualification does not affect the convert himself or herself. This being the position, we have no hesitation to hold that the respondent who is admittedly a brother of the deceased is entitled to succeed if there be no other preferential heir."

religion. Sub-Section (3) to Section 2 of the Act explains that the term "Hindu", in any portion of the Act, shall be construed as if it included a person, who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this Section. This makes clear that if the parents are Hindus, then, the child is also governed by the Hindu Law or is a Hindu. Perhaps, 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. This is also clear by virtue of Section 4 of the Act.

13. This enactment removed the stigma to inherit the property, in case of conversion to other religion. By virtue of this provision, definitely, the conversion of a Hindu to other religion will not disentitle the convert from...(sic) his right of inheritance to the property. Hence, on these principles, definitely, the second respondent herein will not be disentitled from inheriting the property of her parents. Hence, we confirm the finding of the learned single Judge on this aspect and we answer the issue against the appellants.

Prayag Gope vs Mrs. Etnal Smart And Ors. on 31 January, 1995

Where under the law governing the parties it is open to any one member to resist a partition it is difficult to see how his rights can be taken away because another Member chooses to change his religion. The application of Act XXI of 1850 would in effect enlarge the right of the convert and out down the rights of the remaining members of the tarwad, a result which is unwarranted by the Act.

Their Lordships therefore held that when once a person has changed his religion and changed his personal law, that law will govern the rights of succession of his children. In the instant case as well, if Parbatia the apostate, was entitled to an absolute estate Under the Hindu Law, it could not be disputed that the estate would have devolved upon her or her heirs

in accordance with the law by which she was governed after conversion, namely the Indian Succession Act. The difficulty has arisen because she inherited only a life estate, which was never enlarged into an absolute one. Upon her death therefore, the limited estate reverted to the heir of her father, namely her sister Rupia, who also had a right to succeed by survivorship.

Both the parties agree, and the provisions of Act XXI of 1850 in that behalf are also clear, that Smt. Dhanki being Tirhoo's daughter inherited the house in the same legal capacity and manner as she would otherwise have done had she not renounced Hindu religion. Ex hypothesi, she took only a limited estate when succeeding as Tirhoo's daughter, even though she than was a Muslim. But for the statute in question, she undoubtedly would have been wholly excluded from inheritance. The Act does not make any inroad into nor has the effect of amending or altering the personal law of inheritance to which the convert was amenable prior to his or her conversion. It does not contain any provision, express or implied, enlarging or converting a limited estate inherited or inheritable under the Hindu law into full or absolute ownership as a result or in consequence of the conversion of the person concerned to another religion. It does no more that prevent divestment or deprivation of previously acquired or vested rights of property on account of apostasy, and secure to the convert such legal right

15. The aforesaid decision of the Allahabad High Court fully supports the submission that the Act does set either enlarge or convert a limited estate inherited by a convert into full or absolute ownership. It only removes the disability or forfeiture which the convert would have otherwise incurred under the Hindu Law, namely complete exclusion from inheritance. In the instant case we are not concerned with the other question decided in the aforesaid decision that in such a case theconvert could not claim benefit of Section 14 of the Hindu Succession Act, since the same applies only to Hindus and she was a Muslim when the Act came into force.

B.S. Oberoi vs P.S. Oberoi & Ors on 14 February, 2013

right to claim intestate succession qua the Will dated 09.01.1974 of his deceased maternal grandfather Bakshi Shiv Charan Singh Puri (hereinafter referred to as the deceased). The deceased had died on 14.01.1993. During his lifetime, he got married twice. His first wife Veeranwali had predeceased him. From his second wife, he had four children i.e. one son and three daughters. The present plaintiff is the son of the pre- deceased

daughter of the deceased namely Iqbal Oberoi. She had died on 14.06.2006, leaving behind three legal heirs, the plaintiff, her elder son P.S.Oberoi (defendant No.1) and her husband K.S.Oberoi (defendant No. 13). Defendant No. 13 expired in April, 2010. 3 Before adverting to the prayers made in the suit, relevant would it be to refer to certain proceedings which were filed prior to the suit. 4 The Will of the deceased dated 09.01.1974 was the subject matter of probate proceedings instituted in the year 1996. The subject matter of the Will comprised of two immoveable properties i.e. property No. 22- 23, Friends Colony (West) and property No. 7-A, Ring Road. These immoveable properties in terms of the Will were bequeathed in favour

2010 Page 4 of 16 "(A) pass a decree of cancellation of Court‟s decree dated 6.11.2006, passed in Suit No. 171 of 2006 passed by learned ADJ (by converting the probate proceedings into a Civil Suit) and declare it as null and void „ab initio‟ and not being binding against the plaintiff, and/or B) pass a decree for partition of the suit properties mentioned in para 4 and/or i) firstly pass a preliminary decree of partition of the suit property appointing shares of the co sharers; granting the plaintiff 1/12th share of the entire estate of Late Bakshi Shiv Charan Singh through Late Smt. Iqbal Oberoi. ii) appoint a local commissioner to visit the suit property and suggest ways and means to partitioning the said property. iii) consider the report of the local commissioner and pass a final decree in terms thereof, or in modification thereof, as this Court may consider fit and appropriate; iv) in the event it is found that the said suit property is not partitionable by metes and bounds, this Court may direct other modes of partition including sale of the suit premises and apportioning the sale proceeds as per share

family. In 1987, a memorandum of family settlement between the plaintiff, his parents and his brother was recorded evidencing that the plaintiff would have no share in the family properties. The plaintiff admittedly an NRI had been living abroad. In fact after an unfortunate first marriage, he had got married for the second time to a Muslim lady which was after conversion from Hinduism to Islam. The appellant is present in Court and he has been

queried. He has admitted that he converted to Islam in 1980 after he married an Egyptian lady. This second marriage continued till March, 2003 when the parties got divorced under the Muslim law. His submission is that in 2004, he reconverted himself into a Hindu which factum has been disputed by the learned senior counsel for the respondents; submission being that there is no evidence of re- conversion. Learned counsel for the Appellant sought to rely upon FAO(OS) No.322/2010 Page 13 of 16 Section 26 of the Hindu Succession Act, 1956 to contend that the appellant was a Hindu at the time when the succession opened and therefore the disqualification provided in Section 26 did not apply to him. However, upon

would be that the interrogatories have to be answered which application is now stated to be pending before the learned Single Judge. 13 The personal status of the appellant is thus not clear to the Court; if he continues to be a Muslim and has not reconverted himself to a Hindu, the question of the applicability of intestate succession under the Hindu Succession Act, 1956 would become questionable. 14 At the cost of repetition, the whole case of the appellant being founded upon the decree dated 06.11.2006 which as per him is illegal, is questionable as admittedly after his application challenging the order dated 03.7.2006 had been dismissed, no steps have been taken by him against that order which had been passed against him. The respective Wills of the parents of the deceased who had bequeathed their shares in their properties in favour of defendant No.1 are also under challenge in separate proceedings. The personal status of the appellant is also in doubt. 15 The triple test for the grant of an interim injunction was rightly appreciated by the learned single Judge noting that no prima-facie case is found in favour of the plaintiff and the balance

Jujjavarapu Yesurao vs Nadakuduru Kamala Kumar And Ors. on 1 May, 2007

Suresh Darvade vs Arjun Ram Pandey on 19 February, 2010

provisions of the Hindu Succession Act to base his title on the suit property, therefore, the Courts below ought to have dismissed the suit. (7) On consideration of the arguments raised by the counsel for the appellant and on perusal of the records, this Court is not impressed with the arguments advanced by the learned counsel for the appellant. The document (Ex.P/3) is a grant made in favour of Jhadu Ram leasing the property in his favour. This document has been issued by the office of Collector under the signature of Additional Collector of the concerned district. Thus, the finding that the property belonged to the plaintiff's father Jhadu Ram is not perverse. (8) Once it is found that the property belongs to Jhadu Ram, the plaintiff being his son would be entitled to succeed his property and mere fact that he has embraced Islam religion afterwards would not disentitle him to succeed the property of this father. This Court may profitably quote AIR 1976 Calcutta 272 Para 8 as below: "8. Mr. Panda submits that the appellate Court was wrong to hold that a convert from Hinduism is not a disqualified heir. Mr. Panda

person who is a Buddhist, Jaina or Sikh by religion and to any other person who is not a Muslim, Christian, Parsi or Jew by religion..." Such being the provisions Mr. Panda submits that a Christian is not entitled to inherit the properties of the Hindu. We are unable to accept the contention of Mr. Panda. Section 2 simply provides the class of persons whose properties will devolve according to Hindu Succession Act. It is only the property of those persons mentioned in Section2 that will be governed according to the provisions of the Act. This Section has nothing to do with the heirs. This Section does not lay down as to who are the disqualified heirs. Sections 24, 25, 26 and 28 lay down the provisions how a person is disqualified. Section 24 provides "certain widows remarrying may not inherit as widows". Section 25 disqualifies a murderer from inheriting the property of the person murdered. Section 28 provides that no person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any other ground whatsoever. The most important

This Section therefore does not disqualify a convert. It only disqualifies the descendants of theconverts who are born to the convert after such conversion from inheriting the property of any of their Hindu relatives. Section 28 of 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 excepting those expressly recognized by any provisions of the Act. The exceptions are very few and confined to the case of remarriage of certain windows. Another disqualification stated in the Act relates to a murderer who is excluded on principles