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Justice Pardiwala’s path-breaking judgment is based on the Caste Disabilities Removal Act of 1850

Inheritance is a complex matter when succession has to be decided in the absence of a registered last will and testament of the deceased. And when inheritance is defined by the Hindu Succession Act of 1956, it becomes even more complex. Such an issue was handled by the Gujarat High Court’s Justice JD Pardiwala on September 26 with aplomb, the court ruling that a girl child of a Hindu family has full right to inheritance, even when she has converted to Islam.

In the case, the court dealt with an application under Article 227 of the Constitution of India. The case relates to right of inheritance of property by a Hindu child who converted to Islam.

The issue dates back to 1990, when Nayanaben Pathan, a daughter in a Hindu family, converted to Islam and took the…

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Justice Pardiwala’s path-breaking judgment is based on the Caste Disabilities Removal Act of 1850

Inheritance is a complex matter when succession has to be decided in the absence of a registered last will and testament of the deceased. And when inheritance is defined by the Hindu Succession Act of 1956, it becomes even more complex. Such an issue was handled by the Gujarat High Court’s Justice JD Pardiwala on September 26 with aplomb, the court ruling that a girl child of a Hindu family has full right to inheritance, even when she has converted to Islam.

In the case, the court dealt with an application under Article 227 of the Constitution of India. The case relates to right of inheritance of property by a Hindu child who converted to Islam.

The issue dates back to 1990, when Nayanaben Pathan, a daughter in a Hindu family, converted to Islam and took the name Nasibanu. The following year she married a Muslim man.

When her father passed away in 2004, as per law she was supposed to get equal share in property. She waited for three years, but there was no sign of any property allotment. She found out that her two siblings had obtained succession records without her name.

Irked, Nasibanu went to the revenue officials for her claim to be established as a legal heir. The revenue officials, quite rightly, accepted her claim but her siblings appealed to the district collector (Vadodara). The collector decreed in favour of her siblings, after which she moved the Gujarat High Court.

The Collector’s argument was in question. He maintained that Nasibanu was not eligible to gain benefits from Hindu Succession Act because she was no more a Hindu and that only a Hindu can inherit from a Hindu.

The complexity is within the Hindu Succession Act of 1956, which states that for succession, Hindu is defined as the offspring of a Hindu. This applies to children of both legitimate and illegitimate unions. At one point, it states that a Hindu is someone who is not Christian, Muslim or Jew, but at the same time it states elsewhere that all children of Hindu parents should be considered Hindu.

Faced with this complexity, Justice Pardiwala went back to an old law—the Caste Disabilities Removal Act of 1850, which is still in force. This law, pointed out the judge in his 19-page judgment, makes it clear that a person should not be denied inheritance rights because of change in religion or excommunication from a particular caste.

This is a path-breaking judgment in as far as succession is concerned. Succession disputes in families have carried on for decades, often outlasting the original claimants and have created super complex situations.

—India Legal Bureau

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