Gujarat High Court uses colonial law to assert converts’ right to inherit from Hindu parents

Can a Hindu who converts to another religion inherit a Hindu parent’s property? Can the convert even be considered Hindu under the Hindu Succession Act of 1956?

Ruling on a petition filed by a Muslim woman, the Gujarat High Court, drawing on the colonial-era Caste Disabilities Removal Act, has asserted that converting to another religion does not affect a person’s inheritance rights.

The judgement, delivered on September 26, thus ends the rather widespread practice of revenue officials refusing to recognise a non-Hindu as legal heir of a Hindu, citing the Hindu Succession Act, and asking them to move civil courts to establish their inheritance rights under other personal laws.

Such orders from revenue officials end up in long-drawn property disputes in civil courts, sometimes stretching to decades. In some cases, the petitioners die waiting for the case to be settled. This allows rival claimants to invoke provisions of the law that bar the children of a convert from accessing properties of their Hindu ancestors.

A complex question

Nayanaben Pathan converted to Islam in 1990, taking the Muslim name Nasibanu, and married a Muslim man the next year. Her Hindu father died in 2004. Three years later, she found that her two siblings had obtained succession records without her name. Nasibanu petitioned revenue officials, asking that she be listed as a legal heir in the succession records. Her siblings challenged the petition but the revenue department turned down their objections. They appealed to the district collector, and got a favourable order.

In his order, the collector of Vadodara ruled that Nasibanu had lost her right of succession under the Hindu Succession Act since only a Hindu could inherit the property of a Hindu parent. The order stated that Nasibanu could move a civil court for remedy.

Nasibanu’s appeal against the collector’s order was dismissed by the revenue officials. She then approached the Gujarat High Court.

The court was called upon to adjudicate a fundamental question of the inheritance law: does conversion deny a person the right of succession?

Getting their due

In his 19-page judgement, Justice JD Pardiwala argued that provisions of the Hindu Succession Act were quite clear: for the purpose of succession, the law defines a Hindu as the offspring of a Hindu. This applies to children of both legitimate and illegitimate unions.

There was one problem, though: at one place the Act defines a Hindu as someone who is not Christian, Muslim or Jew, but elsewhere it states that all children of Hindu parents should be considered Hindu. Nasibanu’s siblings relied upon the first definition to deny her inheritance.

To solve this problem, Pardiwala went back to a colonial law that is seldom invoked. While all other inheritance laws relating to Hindus were superseded and repealed after the adoption of the Hindu Succession Act, 1956, the Caste Disabilities Removal Act of 1850 is still on the books. The judge said this law made it clear that a person should not be denied inheritance rights because of change in religion or excommunication from a particular caste.

Pardiwala cited the relevant portion of the 1850 law in his judgement:

“Law or usage which inflicts forfeiture of, or affects, rights on change of religion or loss of caste to cease to be enforced; so much of any law or usage now in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair to affect any right of inheritance, by reason of his or her renouncing, or having excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law in any Court.”  

Further, Section 1 of the Hindu Succession Act states that “the expression Hindu” 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”.

When the two laws are read together, Pardiwala ruled, it becomes clear that for the purpose of inheritance, the child of a Hindu will continue to be a Hindu even after converting to another religion. This right, though, does not extend to the children of the convert. They lose succession rights if their parent dies before the grandparent since inheritance flows from the person who bequeaths the property and not the inheritor.