R. Subhash Reddy, C.J:— This Letters Patent Appeal under clause 15 of Letters Patent is filed by the original respondent Nos. 1 and 2 in Special Civil Application No. 15825 of 2017 aggrieved by the order dated 26.09.2017 passed by the learned Single Judge.
2. By the aforesaid order, the learned Single Judge has allowed the petition by quashing the orders passed by the SSRD as well as Collector, Vadodara and confirmed the order passed by the Deputy Collector. Learned Single Judge further held that mutation of the revenue entry No. 1668 in the record of rights is held to be just, legal and proper.
3. Facts, in brief, for disposal of this appeal are as under:—
[3.1] the 1st respondent herein is Hindu by birth. There is no dispute in this regard. One Bhikhabhai Patel was father of 1 respondent herein-original petitioner and the appellants herein-original respondent Nos. 1 and 2. Land bearing Block No. 52/8 admeasuring H-0 R-33 A-39, Block No. 54/8 admeasuring H-0 R-31 A-36, Block No. 107.B/8 admeasuring H-0 R-04 A-05 and Block No. 191/8 admeasuring H-1 R-89 A-19 situated at Village Vemali, Taluka and District Vadodara was held by late Bhikhabhai Patel. Bhikhabhai Patel passed away on 12.10.2004 On his demise, the names of the appellants herein came to be entered in the record of rights by succession vide Entry No. 1502. At that point of time, though 1 respondent-original petitioner was also one of the heirs of late Bhikhabhai Patel, her name was not entered along with brother and sister who are appellants herein. It is the case of 1 respondent-original petitioner that such entry got mutated without disclosing correct pedigree of their late father.
[3.2] 1 respondent-original petitioner having come to know about the mutation of entry No. 1502 in the record of rights, approached competent authority by filing affidavit on 13.12.2007 for the purpose of getting her name mutated in the revenue record. Such filing of affidavit and approach by the 1 respondent to the competent authority led to mutation of Entry No. 1668 dated 19.12.2007 Said entry was certified later. The appellants herein have questioned the mutation of revenue entry No. 1668 before the Deputy Collector, Vadodara by filing RTS Appeal No. 137 of 2008. Said entry is challenged by the appellants herein before the Deputy Collector, Vadodara mainly on the ground that 1 respondent herein although Hindu by birth, but later having married to Muslim and having embraced Islam, she would ceased to be Hindu and therefore, no rights can be claimed by relying on provisions of Hindu Succession Act.
[3.3] the appeal filed by the appellants herein came to be dismissed by order dated 16.09.2009 Aggrieved by the order passed by the Deputy Collector dated 16.09.2009, the appellants herein preferred Revision before the Collector. The Collector accepted the submissions of the appellants herein and allowed the Revision and ordered for cancellation of disputed entry No. 1668. 1 respondent herein carried the matter by way of Revision application before the SSRD aggrieved by the order passed by the Collector, but SSRD also rejected the Revision Application filed by the 1 respondent and confirmed the order passed by the Collector. Aggrieved by the order passed by the SSRD and the Collector, 1 respondent herein approached this Court by way of Special Civil Application.
4. The Collector, while allowing the appeal filed by the appellants has held as under:—
“On carefully examining the case-papers of the lower court and the submissions made by the parties, it appears that the lands situated at Mouje Vemali, Taluka Vadodara, bearing Survey Nos. 52/8, 54/8, 107.B/8, 191/8 are the ancestral lands owned by late Shri. Bhikhabhai Ranchhodbhai. On his demise, an entry bearing No. 1502 came to be entered on 12.4.2004, which is also certified. The present opponent-Nayanaben alias Nasimbanu has renounced the Hindu religion and on 11.7.1990 she has voluntarily and without any force embraced Islam. On 25.1.1991, she married to one Muslim boy Firozkhan as per the Muslim rites and rituals, which is also registered on 30.1.1991 as per the provisions of the Registration Act. As the opponent has embraced Islam, the provisions of the Hindu Succession Act, 1956 cannot be enforced in her case, which itself is apparently clear. Therefore, the present opponent will have to seek appropriate relief to establish her right of share from the civil court. Moreover, at the relevant point of time the succession entry No. 1502 of the deceased has also been certified, for which they have not raised any dispute. As per the provisions of the law, they should have come with a dispute with regard to the mutation entry No. 1502. As she failed to do that, her demand to consider her as the heir by reentering the succession entry of the deceased is not as per the rules. As the decision taken by the lower court is contrary to the provisions of the law, the same deserves to be rejected. Therefore, the following order is passed:
The application of the applicant is allowed and the order bearing no. RTS/Appeal/137/2008 dated 16.9.2009 passed by the Deputy Collector, Vadodara, is rejected. It is ordered to cancel The mutation entry No. 1668 dated 21.2.2008 entered in the village record.”
5. When the order of the Collector is challenged by way of further revision before the SSRD, even the Revisional authority rejected the revision application filed by the 1 respondent herein and held as under:
“Considering the revision application filed by the applicant, oral submission, written submissions made on behalf of the opponent nos. 1 and 2 as well as considering the impugned order of the Collector, it appears that the disputed lands are the ancestral properties owned by late Bhikhabhai Ranchhodbhai and on his demise, succession entry No. 1502 came to be entered. Nayanaben had voluntarily renounced the Hindu religion and embraced Islam on 11.7.1990 and married to one Firozkhan Pathan on 25.1.1991 as per the Muslim rites and rituals, which has also been registered on 30.1.1991 The applicant has also changed her name from Nayanaben to Nasimbanu. As the applicant has adopted Muslim religion, the provisions of the Hindu Succession Act, 1956, cannot be enforced in her case. Despite that, she can seek an appropriate relief with regard to her share and right from the competent civil court. That itself is a clear fact. The detailed and reasoned order passed by the Collector after examining the orders of the lower courts and considering the provisions of the Act, Rules and Circulars of the Government is a just, legal and proper order.”
6. Before the learned Single Judge, it was case of the 1 respondent herein that merely because she got married to Muslim and converted herself by embracing Islam, that itself would not dis-entitle her to claim a share in the ancestral property in accordance with the provisions of the Hindu Succession Act. On the aforesaid ground, 1 respondent herein prayed for quashing the order passed Collector and SSRD and to restore the order passed by the Deputy Collector.
7. Such plea of the 1 respondent herein was objected by the appellants before the learned Single Judge. Firstly, it was defended on behalf of the appellants that 1 respondent herein having embraced Islam by renouncing her religion as Hindu, is not entitled to inherit the property. Further it was submitted that after demise of their father, Entry No. 1502 was already recorded in the record of rights and without challenging such entry, 1 respondent herein was not entitled to get her name mutated in the revenue records vide Entry No. 1668.
8. Learned Single Judge vide impugned order dated 26.09.2017 mainly relying on Section 26 of the Hindu Succession Act and further holding that 1 respondent herein is one of the Class-I legal heir of late Bhikabhai Patel held that as such, she is entitled for entry as recorded vide Entry No. 1668. The objection raised by the appellants were not acceded and the learned Single Judge allowed the petition by quashing the orders passed by the SSRD and Collector, Vadodara and confirmed the order passed by the Deputy Collector.
9. We have heard learned Counsel Mr. Parthiv Shah, for the appellants and learned Senior Counsel Mr. Anshin Desai with learned Counsel Mr. Dave for the respondent-original petitioner.
10. Learned Counsel for the appellants has fairly accepted to the proposition of law that 1 respondent by virtue of her marriage to Muslim and embracing Islam cannot lose her right for succession as per provisions of Hindu Succession Act. In view of settled legal position, learned Counsel has fairly admitted that respondent No. 1 is one of the Class-I legal heir of deceased Bhikhabhai Patel, as such, she is entitled for her rights. However, it is mainly argued by learned Counsel for the appellants that though respondent No. 1 herein has changed her name to Nasimbanu Firozkhan Pathan even before approaching the authorities, but she has chosen to file affidavit as Naynaben and not as Nasimbanu. It is submitted that by filing such affidavit, she has committed fraud. It is submitted that she may not be extended benefit basing on such affidavit. It was further argued that after demise of their father viz. Bhikhabhai Patel, entry was already made in favour of the appellants vide Entry No. 1502. It is submitted that without questioning such entry, 1 respondent herein was not entitled to get her name mutated in the revenue records vide Entry No. 1668 dated 19.12.2007, which was later certified. Learned Counsel for the appellants in support of his arguments, has relied on the judgment in the case of Rajeshwar Baburao Bone v. State of Maharashtra reported in (2015) 14 SCC 497.
11. On the other hand, learned Senior Counsel Mr. Anshin Desai, appearing for the respondent-original petitioner has submitted that after demise of their father, the appellants herein by producing false pedigree got mutated Entry No. 1502 and such entry which was obtained by suppression of facts, cannot come in the way of 1 respondent-original petitioner to deny her succession rights, which she is entitled to, as one of the Class-I legal heir of deceased Bhikhabhai Patel. Learned Senior Counsel placing reliance on Section 26 of the Hindu Succession Act, submitted that it is settled legal position that when Hindu by birth embraces Islam or any other religion, will not lose his/her right of succession. It is submitted that children of 1 respondent may not get rights, but so far as 1 respondent-original petitioner is concerned, she acquired her rights by birth, as such, she is entitled for her succession rights as Class-I legal heir of deceased Bhikhabhai Patel. It is submitted that as much as there is no dispute with regard to relationship, learned Single Judge has not committed any error in allowing the petition.
[11.1] Learned Senior Counsel Mr. Desai has relied on the judgment of the Madras High Court in the case of E. Ramesh v. P. Rajini reported in (2002) 1 MLJ 216; judgment of the High Court of Chattisgarh in the case of Suresh Darvade v. Arjun Ram Pandey reported in AIR 2010 Chh 40 and judgment of the Andra Pradesh High Court in the case of Shabana Khan v. D. B. Sulochanna reported in 2008 (2) ALD 818.
12. As learned Counsel for the appellants has accepted the proposition of law that 1 respondent-original petitioner by virtue of her marriage to Muslim and embracing Islam cannot lose her right for succession as per proisions of Hindu Succession Act, 1956, it is not necessary to further delve in detail said issue. It is clear from various provisions of the Hindu Succession Act, 1956, more particularly, under Section 8 of the said Act, that the property of a male Hindu dying intestate shall devolve according to provisions of said Chapter, firstly, upon the heirs, being the relatives specified in Class-I of the Schedule and further it is not in dispute that 1 respondent-original petitioner is also daughter of late Bhikhabhai Patel. Succession opens on the death of original owner-Bhikhabhai Patel under Section 8(a) of the Hindu Succession Act. Further, it is clear from Section 8 of the Hindu Succession Act, that daughter being Class-I heir is entitled to succession of property left by male Hindu dying intestate.
13. Other submission of learned Counsel for the appellants is that after the death of Bhikhabhai Patel, Entry No. 1502 was already made in favour of the appellants and such entry is not questioned, as such, 1 respondent-original petitioner is not entitled to seek mutation of Entry No. 1668 dated 19.12.2007 It is specific allegation of 1 respondent-original petitioner that after demise of original owner-Bhikhabhai Patel, the appellants herein have suppressed claim of 1 respondent and by producing false pedigree, such entry was secured. Same is not controverted by the appellants. If that be so, merely because the appellants have secured entry No. 1502 without disclosing factum of existence of 1 respondent-original petitioner, who is Class-I heir like appellants, that will not deprive 1 respondent-original petitioner to seek mutation entry by approaching competent authority. If the entry which is secured by suppression, same shall not come in the way of 1 respondent-original petitioner to seek succession as Class-I heir of deceased Bhikhabhai Patel.
14. Equally, the plea of the appellants that false affidavit is filed in the name of Naynaben instead of filing affidavit in the name of Nasimbanu, also cannot be accepted. Naynaben is original name of 1 respondent and after marrying with Mulsim, name is changed to Naynaben @ Nasimbanu. In absence of any declaration for change of name in accordance with methods known to law, she continued her original name as Naynaben. It may be that she has also included name Nasimbanu as alias, but at the same time, original name cannot be said to be changed to Nasimbanu in absence of any declaration by the competent authority. In that view of the matter, plea of the appellants that 1 respondent has secured disputed entry by filing false affidavit also cannot be accepted.
15. We have carefully perused the judgment relied by the learned Counsel for the appellants in the case of Rajeshwar Baburao Bone v. State of Maharashtra reported in (2015) 14 SCC 497. In the aforesaid case, before the Hon'ble Supreme Court, the appellant therein has claimed to have belonging to Koli Mahadev, a schedule tribe community and based on caste certificate, he secured employment in the year 1991. After 18 years of his employment, matter was referred to Scrutiny Committee for verification. Scrutiny Committee after conducting inquiry by the Vigilance Cell, a validity certificate was issued by the Scrutiny Committee. However, the matter was reconsidered by the Scrutiny Committee on the ground that caste certificate issued in favour of his brother was invalidated by the Committee in the year 2004. In view of such development, Scrutiny Committee after giving opportunity recalled earlier order, whereby, validity certificate was issued in favour of the appellant therein. While dismissing the appeal of the appellant therein, the Hon'ble Supreme Court has observed benefit of the certificate issued already availed by the appellant shall not be disturbed making it clear that the appellant shall not be entitled to take any further benefit of reservation in future including the benefit of continuing in service. Having regard to facts of present case on hand, such judgment would not render any assistance in any manner to the appellant.
16. Further in the case of E. Ramesh v. P. Rajini reported in (2002) 1 MLJ 216, The Division Bench of Madras High Court has considered whether the Hindu, by conversion, can forgo the right of inheritance. In the said judgment, it is held that the individual, who convert himself to other religion, will not forgo the right of inheritance.
17. In the case of Suresh Darvade v. Arjun Ram Pandey reported in AIR 2010 CHH 40, The learned Single Judge of Chattisgardh High Court has held that provision contained in Section 26 of the Hindu Succession Act was the only provision dealing with the right of succession of children born to convert after the conversion. It is further held in the said judgment, that such provision does not disqualify the convert himself from succeeding to the property of Hindu father.
18. Both the above judgments are in accordance with mandate under Section 26 of the Hindu Succession Act. Section 26 of the said Act reads as under:—
“26. Convert's descendants disqualified-Where, before of after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born 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.”
19. From the bare reading of the provision referred above, it is clear that a individual who converts from Hindu to any other religion, does not disqualify from succeeding to the property of Hindu father, only children of such convertee will not get succession as per provisions of the Hindu Succession Act.
20. In view of above clear provision referred above, we are of the view that 1 respondent-original petitioner being Class-I heir of late Bhikhabhai Patel and as she herself claims to be converted to Muslim religion, will not deprive succession right, which is otherwise contemplated for devolving property under Section 8(a) of the Hindu Succession Act.
21. The judgment relied by the learned Senior Counsel Mr. Anshin Desai for the respondent No. 1-original petitioner are in tune with Section 26 of the Hindu Succession Act and supports the case of the respondent No. 1-original petitioner.
22. In view of aforesaid reasons and the reasons recorded by the learned Single Judge, we are of the view that no error is committed by the learned Single Judge which warrants interference in this appeal.
23. Further, learned Counsel for the appellants has pleaded that they intend to file suit for partition and made a request to observe that findings recorded in this judgment, by this Court, may not come in the way of the Civil Court for adjudication of suit. Even according to the plea of the appellants, the suit is yet to be filed. Having regard to legal contentions referred above, we are not inclined to accept such request.
24. In view of above, the appeal is dismissed being devoid of merits. Consequently, Civil Application stands disposed of. No order as to costs.