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 Courts 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