In India, Article 25 of the Constitution protects an individual's right to practice any religion, which among other things enables him or her to choose whichever religion they prefer. However, the freedom to choose any religion and the right to exercise individual autonomy curtail certain vested rights a person has because he was born into a family, such as the right to property he is entitled to as a member of the family, which is governed by personal law provisions. Change of religion can have various impacts on their property rights and these impacts can vary depending on the laws and customs of the country in which the person lives, as well as the particular religion involved. Some of the key ways that property rights may be affected by religious conversion include inheritance laws, property ownership and transfer, and religious restrictions on certain types of property.
In some cases, religious conversion may affect inheritance laws, particularly in countries where the laws are based on religious traditions. For example, in Islamic law, there are specific rules regarding the distribution of assets among heirs, which can vary depending on the religion of the deceased person and their heirs. Similarly, in some Hindu communities, there may be religious restrictions on inheritance that depend on the caste system. In this article, we will trace the history of this property and explain the legal position of the same.
In pre-constitution India, personal laws were largely uncodified, particularly in the realm of inheritance, unlike the present times. Personal matters were subject to governance by personal laws or customs, supplemented by some legislation applicable to marriage or divorce. The predominant religions followed in the sub-continent at that time were Hinduism and Islam, among others. Some of these religions also allowed for the denial of civil rights, particularly concerning property, for individuals who converted to a different religion. Consequently, the British colonial government passed the Caste Disabilities Removal Act, of 1850 which states that any personal law or usage taking away the rights of an individual on change of religion or caste was considered ineffective with the coming into force of the law and can’t be enforced in any court of law. This gave the power an individual to choose their religion without fear of losing their rights.
Following the enactment of the Constitution of India, Article 372 ensured the continuity of all pre-constitution laws unless expressly repealed, amended, or altered by a competent authority or the legislature. This provision effectively allowed the Caste Disability Removal Act of 1850 to remain in force as a law, preventing the enforcement of personal law or customs that adversely affected an individual's rights due to their conversion to a different religion or caste.
The Caste Disability Removal Act of 1850 was recently repealed by the 'Repealing and Amending (Second) Act, 2017', which was passed by the Indian Parliament. Section 4 of this act specifies that the repeal will not result in the restoration or revival of any jurisdiction, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure, or other matter or thing that is no longer in existence or enforceable. Thus, the repeal of the Caste Disability Removal Act of 1850 will not nullify the legal reforms brought about by the act, and its provisions will continue to be in force. This means that the act will not infringe upon the property rights of any person upon their conversion to another religion.
Under the Hindu Succession Act, of 1956
The Hindu Succession Act of 1956 codified the Hindu religious law about property matters and inheritance. The act applies to individuals who are Hindus by religion, as well as those who follow any of its forms or developments, along with individuals who are Sikhs, Jains, or Buddhists.
However, the act does not explicitly or implicitly disqualify or excommunicate Hindus who convert to another religion. Section 26 of the act states that the descendants of converts who are born after their conversion are barred from inheriting the property of any of their Hindu relatives. However, if these children become Hindus at the time when the succession opens, they are qualified to inherit the property.
Under the Muslim Personal Law
In matters of succession or inheritance, the Muslim personal law applies to followers of Islam. The Muslim Personal Law (Shariat) Application Act of 1937, a pre-constitution law that continues to be enforceable under Article 372 of the Constitution, stipulates that the Muslim Personal Law (Shariat) shall be the rule of decision in cases where the parties are Muslim, in matters of intestate succession, special property of females, and others. However, as mentioned earlier, the principles and provisions of the Caste Disability Removal Act of 1850 still apply to personal laws or customs that affect rights or entail forfeiture of rights, even after its repeal by the legislature.
Thus, although the Muslim personal law is not codified in matters of inheritance, unlike the Hindu personal law, it cannot deprive a person of their property rights that are inherent by birth.
Under the Christian Law
The Indian Succession Act of 1925 governs succession and property rights for individuals practicing Christianity. The act is applicable as long as the person whose property is to be partitioned or inherited is a Christian, and the religion of the inheritor is irrelevant when determining the matter. Hence, it can be concluded that there are no restrictions on the right of any person to inherit property if they have converted to another religion.
It has been the judiciary's practice to interpret the convert's rights in financial and inheritance matters following the legislative enactments expressed in them.
In the case of Khuni Lal v. Kunwar Gobind Krishna Narain, the Privy Council noted that the Caste Disability Removal Act, of 1850 was enacted to ensure that a person's property rights are not taken away upon conversion under Hindu and Muhammadan law. The council further observed that the legislature essentially nullified provisions of the Hindu law that punish renunciation of religion or exclusion from caste. This principle continues to apply even after the act's repeal and applies to situations where a person's rights are abrogated due to conversion.
In the case of Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan vs. Patel Shantaben Bhikhabhai & Ors., the question of the effect of conversion on a Hindu woman's right to property was raised. The Gujarat High Court ruled in favor of the convert, upholding her right to succeed in her father's property despite her conversion to Islam. Similarly, the Andhra High Court reaffirmed the same position in Shabana Khan v. D.B. Sulochana & Ors., holding that a Hindu convert is entitled to inherit her father's property.
The property rights of Hindu women who converted to Islam were upheld by the Madras High Court in the case of E. Ramesh And Anr. vs P. Rajini. The court held that Section 26 of the Hindu Succession Act, 1956, which disqualifies the descendants of a convert from inheriting the property of their Hindu relatives, does not apply to the convert herself. The court also referred to the Caste Disability Removal Act, of 1850, which removed the stigma attached to property inheritance in cases of conversion, to support its decision.
If we take the above cases into account, we can conclude that the judicial system has played an important role in interpreting provisions related to property inheritance when an individual changes their religion. In most of these cases, conversion to a religion doesn’t affect inheritance.
In cases where the convert's right to inherit the father's property is threatened, both the legislative intent and the judicial approach have been similar. Through specific enactments and judicial precedents, the courts have upheld the rights of converts, acknowledging in some way the constitutional freedom to practice any religion. In addition, the judiciary has protected and upheld the interests of the individual. So, the societal attitude toward personal matters has not influenced the legislature's policy or the judiciary's determination of the civil rights of such individuals.