E. Ramesh And Anr. vs P. Rajini And 2 Ors.

on 12 October, 2001

Madras High Court Madras High Court E. Ramesh And Anr. vs P. Rajini And 2 Ors. on 12 October, 2001 Equivalent citations: (2002) 1 MLJ 216 Author: S Jagadeesan Bench: S Jagadeesan, P Thangavel ORDER S. Jagadeesan, J. 1. 1. The appeal has been filed against the judgment and preliminary decree passed by the learned single Judge dated 7.10.1999 in C.S.No. 384 of 1999. 2. Respondents 1 and 2 herein filed the said suit claiming partition and for allotment of 2/5th share on the ground that the suit property originally belonged to one Ethirajulu and Andal - the parents of the appellants and the respondents. The appellants herein -defendants 1 and 2 in the suit had no objection for the share of the first respondent herein -the first plaintiff in the suit. So far as the second respondent herein is concerned, the appellants objected on the ground that she married a Muslim by converting herself into Islam and as such, she is not entitled for the share. The other objection of the appellant's that B-Schedule property being a residential house and the appellants herein being the male members of the Hindu Joint Family, till they opt for partition, it is not open to respondents 1 and 2 herein to seek partition. 3. The learned single Judge, after considering the contentions raised by both sides, ultimately by his judgment dated 7.10.1999, granted a preliminary decree as prayed for by respondents 1 and 2 herein. The third respondent, who is the third defendant in the suit remained ex parte. As against the same, the appeal has been filed. 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. 5. Learned counsel for respondents 1 and 2 contended that the conversion to other religion will not disentitle the second respondent herein to inherit the property of her parents. The learned Single Judge rightly held so. So far as B-schedule property is concerned, apart from the residential house, the same consists of vast area of vacant site and the Commissioner had also filed a report stating that the property is divisible. When that be so, it is not open to the appellants to contend that the property is indivisible and that till they opt for partition, respondents 1 and 2 cannot seek partition in respect of the same. 6. From the above submissions, the questions arise before us for consideration are : i. Whether the Hindu, by conversion, can forego the right of inheritance? and, ii. Whether the residential house, even though divisible by metes and bounds, cannot be divided at the instance of female heirs? 7. So far as the first question is concerned, the learned single Judge referred to Section 26 of the Hindu Succession Act (hereinafter referred to as the Act) and held that the bar for inheritance is only in respect of legal heirs of the convert. The individual, who convert himself to other religion from Hinduism, will not forego the right of any inheritance. He also relied upon the judgment in the case of Asoke Naidu v. Raymond S. Mulu, .
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E. Ramesh And Anr. vs P. Rajini And 2 Ors. on 12 October, 2001

8. Section 26 of the Act, as rightly held by the learned Single Judge, prohibits the children, of the convert from inheriting the property of any of their Hindu relatives. The said provision is as follows : "Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens." 9. Barring this Section, the other disqualification for inheritance is the murderer from inheriting the property of the person murdered. So, if the murder is for the property, then, the murderer disqualified himself from succeeding to the property. A Division Bench of the Calcutta High Court in Asoke Naidu v. Raymond S. Mulu, , while dealing with' Section 26 of the Act, held as follows : "This Section therefore does not disqualify a convert. It only disqualifies the descendants of the converts 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 widows. Another disqualification stated in the Act relates to a murderer who is excluded on principles of justice and public policy (Section 25). Change of religion and loss of caste have long ceased to be grounds of forfeiture of property and the only disqualification to inheritance on the ground that a person has ceased to be a Hindu is confined to the heirs of such convert (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." 10. In order to justify the decision of the Calcutta High Court, we also looked into the provisions of the Act the term "Hindu" means the same thing as defined in Section 2 of the Act, which is as follows : "(1) This Act applies a. To any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj; b. to any person who is a Buddhist, Jaina or Sikh by religion ; and c. to any other person who is not Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed." 11. Sub clause (a) of Sub-Section (1) of Section 2 of the Act specifies that the Act applies to any person, who is a Hindu by religion in any of its forms. Explanation (a) to Section 2 of the Act makes its clear that any child, legitimate or illegitimate both of whose parents are Hindus, are Hindus by 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. 12. Section 4(1)(b) of the Act envisages that any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the
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E. Ramesh And Anr. vs P. Rajini And 2 Ors. on 12 October, 2001

Act. Following the said provision, a number of Central Acts had been repealed, which are inconsistent to the provisions of (he Act. However, the Caste Disabilities Removal Act, 1850 (Act 21 of 1850) had not been repealed so far. This Act contains only one Section, which is as follows : "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." 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. 14. So far as the next question is concerned, with regard to the division of property, the learned single Judge had taken into consideration of the report and plan of the Advocate Commissioner to come to the conclusion that the property is divisible, as there is open space around the dwelling house. Section 23 of the Act will be applicable only in the case of the dwelling house where the male heirs are residing. There is open space and the dwelling house can be taken by the male heirs and the open space can be allotted to the female heirs. There is no difficulty in dividing the property also. Only on that ground, the learned single Judge held that B-schedule property is divisible and the objections taken by the appellants were overruled. We see no ground to interfere with the same. 15. In the result, the findings of the learned single Judge are confirmed and the Original Side Appeal is dismissed. No costs. Consequently, the above C.M.P s. are also dismissed.

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