Whether Hindu widow can inherit husband's property if she has not remarried on the day succession opens?

 It is very well true that if we have to deal with rights of a

particular party, we have to consider the provisions of relevant law in

its entirety. Section 14 of the Act of 1956 makes the female Hindu

being absolute owner if she possessed the property. Whereas Section 24 of the said Act disinherits the widow if she re-marries. Here this Court wants to note the difference in between the wordings of Section 2 of the Act of 1856 on one hand and the wordings of Section 24 of the Act of 1956. There is emphasis ‘on the date when succession opens’ as per Section 24 of the Act of 1956. The status of the widow being remarried continuing to be widow must be on the date when succession opens. The wordings “if on the date the succession opens” does not find place in Section 2 of the Act of 1856. So, we have to respect the intention of the legislators while incorporating these provisions in

Section 24 of the Act of 1956. {Para 14}

15] In other words, if the widow has not re-married when the

succession opens, the disqualification under Section 24 of the Act of

1956 will not be applicable. Admittedly, defendant-Sunanda re-married

in May, 1991 (i.e. after opening of succession on 19th April, 1991). For

the above discussion, contention of the appellant so as to disqualify the

defendant-Sunanda cannot be accepted.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

SECOND APPEAL NO.144 OF 2007

Smt. Jaiwantabai Shenuji Wankhade Vs  Sunanda w/o Ganesh Dode,

CORAM : S.M. MODAK, J.

PRONOUNCED ON : 23 rd AUGUST, 2021

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Whether Hindu is entitled to inherit property of christian relative as per Indian Succession Act?

 There is authority in this Court in favour of the view that a Hindu relation, if he is otherwise entitled to inherit the estate of a Christian deceased under the Indian Succession Act, which would admittedly govern cases of Christian succession, would not be disentitled to such inheritance merely because he is a Hindu (vide -- 'Neepen Bala Debi v. Siti Kanta Banerjee' 15 Cal WN 158 (A)). 

IN THE HIGH COURT OF CALCUTTA

A.F.O.D. No. 173 of 1954

Decided On: 12.01.1956

Benoy Kumar Mondal  Vs.  Panchanon Majumdar

Hon'ble Judges/Coram:

P.N. Mookerjee and Renupada Mukherjee, JJ.

Citation: AIR 1956 Calcutta 177

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Whether Child Born Out Of Marriage Between Muslim Man And Hindu Woman Entitled To get His Father's Property?

For example, if a man were to marry a nonscriptural
woman, the marriage would be only
invalid, for she might at any time adopt Islam or
any other revealed faith, and thus remove the
cause of invalidity. The children of such
marriage, therefore, would be legitimate.”
Tahrir Mahmood in his book Muslim Law in India and
Abroad, (2nd edition) at page 151 also affirms that the child of a
couple whose marriage is fasid, i.e., unlawful but not void, under
Muslim law will be legitimate. Only a child born outside of
wedlock or born of a batil marriage is not legitimate.
A.A.A. Fyzee, at page 76 of his book Outlines of
Muhammadan Law (5th edition) reiterates by citing Mulla that the
nikah of a Muslim man with an idolater or fireworshipper
is only
irregular and not void. He also refers to Ameer Ali’s proposition
that such a marriage would not affect the legitimacy of the
offspring, as the polytheistic woman may at any time adopt
Islam, which would at once remove the bar and validate the
marriage.
12. The position that a marriage between a Hindu woman and
Muslim man is merely irregular and the issue from such wedlock
is legitimate has also been affirmed by various High Courts. (See

Aisha Bi v. Saraswathi Fathima, (2012) 3 LW 937 (Mad),
Ihsan Hassan Khan v. Panna Lal, AIR 1928 Pat 19).
13. Thus, based on the above consistent view, we conclude that
the marriage of a Muslim man with an idolater or fireworshipper
is neither a valid (sahih) nor a void (batil) marriage, but is merely
an irregular (fasid) marriage. Any child born out of such wedlock
(fasid marriage) is entitled to claim a share in his father’s
property. It would not be out of place to emphasise at this
juncture that since Hindus are idol worshippers, which includes
worship of physical images/statues through offering of flowers,
adornment, etc., it is clear that the marriage of a Hindu female
with a Muslim male is not a regular or valid (sahih) marriage, but
merely an irregular (fasid) marriage.
14. In this view of the matter, the trial Court and the High
Court were justified in concluding that the plaintiff is the
legitimate son of Mohammed Ilias and Valliamma, and is entitled
to his share in the property as per law. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5158 OF 2013

MOHAMMED SALIM  Vs SHAMSUDEEN 

MOHAN M. SHANTANAGOUDAR, J.

Dated:January 22, 2019.

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Whether Stepson Of A Hindu Dying Intestate Can Claim Inheritance Under Hindu Succession Act?

The claim is clearly preposterous. In the first place, the Applicant must show that he is entitled to succeed to the estate of the deceased either as a relative specified in class-I and if there be no such relative, then as a relative specified in class-II, of the schedule under Hindu Succession Act read with Section 8 of that Act. It is important to note that the controversy involves a claim to the property of a male Hindu dying intestate. The schedule to the Hindu Succession Act refers to heirs in class-I and class-II within the meaning of Section 8 of that Act. A son is included in class-I of the schedule. The Applicant, as son of the wife of the deceased from her first marriage, cannot claim as a son of the deceased. The expression "son" appearing in the Hindu Succession Act does not include a step-son. The expression "son" not having been defined under the Hindu Succession Act, the definition of "son" under the General Clauses Act may be appropriately referred to. In clause (57) of Section 2 of the General Clauses Act, the expression "son" includes only an adopted son and not a step-son. Even otherwise "son" as understood in common parlance means a natural son born to a person after marriage. It is the direct blood relationship, which is the essence of the term "son" as normally understood.

Hindu Law permits adoption, the expression "son" for the proposes of the Hindu Succession Act would include even an adopted son. The word "son" appearing in class-I of the schedule to that Act would thus include an adopted son but there is clearly no warrant for including a step-son within the meaning of the expression "son" used in class-I of the schedule. The context in which the term "son" is used in the schedule does not admit of a step-son being included within it.

IN THE HIGH COURT OF BOMBAY

Chamber Summons No. 495 of 2017 in Suit No. 2219 of 2000, Suit No. 2219 of 2000 and Notice of Motion No. 381 of 2015 in Suit No. 2219 of 2000

Decided On: 12.01.2018

 Dudhnath Kallu Yadav Vs. Ramashankar Ramadhar Yadav and Ors.

Hon'ble Judges/Coram:

S.C. Gupte, J.

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How to prove that particular person was converted in to Hindu Religion?

In this regard, the learned counsel for respondent/husband placed reliance mainly upon the 3-Judges Bench expression of the Apex Court in Perianal Nadar (Dead) By Lrs. v. Ponnuswami MANU/SC/0361/1970 : AIR 1971 SC 2352, leave about the other expression of Kerala High Court in In. Re: Betsy and Sadanandan MANU/KE/1087/2009 : 2009 (4) KLT 631, in saying intention to convert is enough, in paras-6 to 9 in the controversy as to the wife converted from Christianity to Hinduism, which reads thus:

"6. It is not necessary to decide in this case whether marriage between a Hindu male and an Indian Christian female may be regarded as valid, for, in our judgment, the finding of the Courts below that Annapazham was converted to Hinduism before her marriage with Perumal is amply supported by evidence. A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion.

7. In Muthusami Mndaliar v. Masilamani alias Subramania Mudaliar I.L.R. 33 Mad. 342 the validity of a marriage according to Hindu rites between a Hindu and a Christian woman fell to be determined. It was held that the marriage contracted according to Hindu rites by a Hindu with a Christian woman, who before marriage is converted to Hinduism, is valid, though the marriage was not in strict accordance with the Hindu system of law. Such a marriage is still common among and recognised as valid by the custom of the caste to which the man belongs.

8. In Goona Durgaprasada Rao and another v. Goona Sudarasanaswami and others MANU/TN/0295/1939 : I.L.R. [1940] Mad. 653 Mockett, J., observed that no gesture or declaration may change a man's religion, but when on the facts it appears that a man did change his religion and was accepted by his co- religionists as having changed his religion and lived and died in that religion, absence of some formality cannot negative what is an actual fact.Krishnaswami Ayyangar, J., observed that a Hindu who had converted himself to the Christian faith returned to Hinduism and contracted a second marriage during the lifetime of his first wife and remained and died a Hindu having been accepted as such by the community and co-religionists without demur. Absence of evidence of rituals relating to conversion cannot justify the Court in treating him as having remained a Christian.

9. The evidence clearly establishes that the parents of Annapazham arranged the marriage. The marriage was performed according to Hindu rites and ceremonies in the presence of relatives who were invited to attend : customary ceremonies peculiar to a marriage between Hindus were performed : no objection was raised to the marriage and after the marriage Annapazham was accepted by the local Hindu Nadar community as belonging to the Hindu faith, and the plaintiff was also treated as a Hindu. On the evidence there can be no doubt that Annapazham bona fide intended to contract marriage with Perumal. Absence of specific expiatory or purificatory ceremonies will not, in our judgment, be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed. The fact that Perumal chose to go through the marriage ceremony according to Hindu rites with Annapazham in the presence of a large number of persons clearly indicates that he accepted that Annapazham was converted to Hinduism before the marriage ceremony was performed."

19. No doubt, from the above expression, no particular ceremony is required and bona fide intention to convert is enough followed by faith and belief in Hinduism for the respondent besides being accepted by the local Hindu community and treatment of him as Hindu to say that he has converted. Here that evidence is lacking, apart from his say of not any bonafide intention to convert, but for unwillingly and only to marry the petitioner for a condition stated imposed of conversion to fulfill and not even stated lived as Hindu. 
Thus, at the cost of repetition from what was discussed earlier, when his version is he was as fell in love with her, made to convert as Hindu by adoption to a Hindu family by made to convert; there from there was no voluntary conversion apart from no adoption validly taken place and there was nothing to show any alleged conversion of him besides voluntary with any faith in Hinduism which is the religion of the petitioner, to validate any ceremonies of marriage, not even adduced any evidence of he was accepted as a Hindu by the neighbourhood and the community of Hindus nearby and observing any faith in Hinduism without which there is no valid conversion is the law laid down in Perumal Nadar (supra) and there is no valid conversion from Muslim religion to Hindu religion, the very marriage itself is void ab initio for he is not a Hindu by the time of marriage, and it is a material fact or circumstance relating to him as per Section 12(1)(c) of the H.M. Act to annul the marriage otherwise as per the expression of the Apex Court in Gullapalli Sowria Raj (supra).
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

Civil Miscellaneous Appeal No. 28 of 2014

Decided On: 29.09.2015

 Shaik Mahammad Rati

Vs.

 Grandhi Poorna Seetha Manoja

Coram:

R. Subhash Reddy and Dr. B. Siva Sankara Rao, JJ.

Citation:2017(1) ALLMR(JOURNAL)84

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When it is not necessary to obtain probate of will?

 It can clearly be seen that the present Will is executed at Yavatmal which is admittedly not covered under the territories included in Clause, (a) of Section 57. For all other territories, if the property is an immovable property, it will be governed by the general rule of Section 213 if the property is an immovable property. However, admittedly, the property in question is not an immovable property. Therefore, the Will of the nature with which we are concerned would be governed by Clause (c) of Section 57. Now referring back to Section 213, it will be clear that the general rule, wherein it has been made necessary to obtain a probate or letter of administration for raising a right as executor or legatee, by virtue of Sub-section (2) has been made applicable to wills made by any Hindu. Buddhist. Sikh or Jaina where such Wills are referable to clauses specified in Clauses (a) and (b) of Section 57. It is, therefore, clear that the Wills of the nature covered by Sub-clause (c) of Section 57 are not covered by the general rule under Section 213, which requires a probate or letter of administration to enable a person to raise a claim to a right as an executor or legatee. The Legislature by exclusion has not made the provisions of Section 213 applicable to the Wills covered under the provisions of Sub-clause (c) of Section 57.

 Citation : 2004 (4)MhLj 887 ,2004 (4)MhLj 886

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 2084 of 2002

Decided On: 29.03.2004

 Prabhakar s/o Chinappa Chavan Vs. State of Maharashtra

Hon'ble Judges/Coram:
B.R. Gavai, J.

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Whether muslim wife can inherit property of her husband who has embraced hindu religion?

(ii) Whether off-springs born out of a Mohameddan marriage would
inherit property of their father on death if he became a Hindu before death?
30. So far as inheritance of the properties of a Muslim dying intestate is clear.
It has been held in the Holy Book, Al Quran itself as follows:
“Allah commands you regarding your children. For the male a share equivalent
to that of two females.” (Al Quran 4:11)
This ayat shows that the command is to a believer. What will happen if
the believer turns to be nonbeliever, is the question in the present case. An
apostate from Islam and an original non-Muslim are equally viewed from the
stand point of Islam so that if a deceased Muslim leaves behind him 3 heirs, one
of whom is a non-Muslim, the second an apostate and the third a Muslim, in that
event, according to Mohameddan Law, the first two would be excluded from
succession and the inheritance would entirely go to the Muslim heir even if he is 
the remotest in terms of the degree of proximity of the deceased. This shows
that an apostate is excluded from inheritance of properties from his Muslimancestors. Coming to the question of the converse case, Jurist Ameer Ali quoted
from Fatwa-e-Alamgiri (Vol. VI, P. 631) and commented that under Sunni Law, a
Muslim does not inherit from a non-Muslim nor does a non-Muslim inherit from a
Muslim. Similarly, Dr. Abid Hasan observed in his ‘Islamic Laws of Inheritance’ by
quoting from Sahih Al-Bukheri that according to Prophet (SAWS), a Muslim
cannot be the heir of a disbeliever, nor can a disbeliever be the heir of a Muslim.
According to him, generally speaking, this is also the majority view that a Muslim
cannot inherit from a non-Muslim.
31. Then what would happen to the properties of an apostate if his Muslim
heirs cannot inherit? It is pointed out that in a Dar-ul-Islam (that is the country
which is governed by law of Islam), such properties would vest in Bait-Ul-Mal and
it would lapse accordingly. But in a country like India which is not a Dar-ul Islam
escheat or lapse cannot take place upon apostasy. This is because the law of
escheat, lapse or Bona vacantia can take place in India only by operation of
Article 296 of the Constitution. The pre conditions of Article 296, obviously do not
include apostasy. Thus, it is clear that from the stand point of Mohamedan law, a
Muslim cannot be heir of a non-believer.
32. Looking the incident from a different perspective it would appear that
when the apostate dies after embracing Hinduism he was being governed by the
tenets of Hindu Law at the time of his death. In the case in hand, learned trial
court also followed the same principle to hold that as a Hindu, Samir Ranjan
Choudhury could not have contacted a second marriage with Krishna Das when 
he had a spouse living. Obviously, the learned court examined the incident from
the light of section 5(1) of the Hindu Marriage Act, 1955 thus applying the
doctrines of Hindu Law. Had he applied Hindu Succession Act, 1956 for the
purpose of deciding inheritance of the properties left behind by the deceased, in
that event the question would have arisen as to whether a non Hindu would be
entitled to inherit property of a Hindu. This can be tested by examining a
hypothetical case where son of a Hindu renounces Hinduism and becomes a
Muslim and thereafter his Hindu father dies. Obviously, in such case the son who
embraced Islam renouncing Hinduism, perhaps would not have been held a legal
heir of the deceased Hindu and his properties would have been shared only by
his Hindu legal heirs. Inheritance under the Dayabhaga School of Hindu Law is
governed by the principle of giving oblation. Obviously, once converted to other
religion, a son cannot give oblation following Hindu rituals and so even on such
historical view point a converted son of a Hindu looses his right to inherit
properties of his father. Same is the case in case of renunciation.
33. Secton 26 of the Hindu Succession Act, 1956 casts some light in matter
involving conversion from Hinduism to another religion. It provides that children
born to a Hindu converted to any other religion after his conversion shall be
disqualified from inheriting properties of any Hindu relative unless such childrenor descendants are Hindus at the time succession opens. The indication is clear
that to inherit properties of a Hindu, one must be a Hindu when succession
opens. The example of a Hindu son embracing Islam during life time of his father
is only taken to test as to whether a Muslim son of a Hindu on apostasy from
Islam can inherit share from his deceased Hindu father. 
34. While Hadith like Sahih Al-Bukheri as well as Fatwa-e-Alamgiri prescribes
that a Muslim cannot be heir of a disbeliever or non Muslim, even the Hindu Law
does not permit inheritance to a son who renounces Hinduism during life time of
his father. The sum total is that both from the stand point of Mohameddan Law
as well as the Hindu Law of succession, inheritance does not take place beyondthe periphery of religion. A Muslim inherits properties of his Muslim ancestor and
a Hindu can inherit properties of his Hindu ancestor. In the case in hand, the two
off-springs of Saydur Rahman Hazarika alias Samir Ranjan Choudhury from his
Muslim wife, Musstt. Parbin Rahman Hazarika admittedly continue pursuing
Islamic faith after their father renounced Islam. So, whether doctrine of
representation would apply to make them entitled to inherit properties of their
grand-father does not arise in the present case but what is clear is that the
properties apparently acquired by their father after his conversion to Hinduism
would remain beyond their reach to them as they cannot be heir of a disbeliever
(Fatwa-e-Alamgiri, Vol VI, P. 631 and Sahih Al-Bukheri). The second point for
determination accordingly stands answered holding that the respondents No. 2
and 3 being not legal heirs of Late Samir Ranjan Choudhury shall not be entitled
to succession certificate as prayed for.
IN THE GAUHATI HIGH COURT

Case No: Intest.Cas. 4/2009

 Smti Krishna Das Choudhury,V  Musstt. Parbin Rahman Hazarika,

Dated : 23.12.2015
Citation:2016 (5) ALLMR(JOURNAL) 71

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Who is Hindu as per Hindu law?

In P. Ramanatha Aiyar's The Major Law Lexicon:

4th Edition 2010 Volume 3 Page 3076; it was held that:

               "The term Hindu is defined for the application of Hindu

        Law as a person includes not only; those who are Hindu by

        religion; but also those who are commonly known as such."

       12. MULLA's Principles of Hindu Law (Fourteenth

Edition) paragraph 671 was relied on by the Supreme

Court in C.W.T. v. R.Sridharan [(1976) 4 SCC 489]; wherein

it was held in paragraph 17 that:

                  "The word 'Hindu' does not denote any

           particular religion or community.     During the last

           hundred years and more it has been a nomenclature

           used to refer comprehensively to various categories of

           people for purposes of personal law.      It has been

           applied to dissenters and non-conformists and even to

           those who have entirely repudiated Brahminism. It

           has been applied to various sects and beliefs which at

           various periods and in circumstances developed out

           of, or spit off from, the Hindu system but whose

           members have nevertheless continued to live under

           the Hindu Law and the Courts have generally put a

           liberal construction upon enactments relating to the

           personal law applicable to Hindus."

       13. Dr. Whitely Stocks has pointed out that:

              "The collocation of the words Hindu, Mahomedian, or

      Budhish makes it reasonably plain that the term Budhish

      makes it reasonably plain that the term Hindu is used as

      theological terms and denotes only persons, who profess

      any faith of the Brahminical religion or the religion of

      Puranas."

       14.       In Shastri Yagnapurushdasji v. Muldas

Bhundardas Vaishya [AIR 1996 SC 1119] it was held that:

              "The historical and etymological genesis of the word

       "Hindu" has given rise to a controversy among indologists,

       but the view generally accepted by scholars appears to be

       that the word "Hindu" is derived from the river Sindhu

       otherwise known as Indus which flows from the Punjab.

       "That part of the great Aryan race", says Monier Willaims,

       "Which immigrated from Central Asia, through the

       mountain passes into India, settled first in the district near

       the river Sindhu (now called the Indus). The Persians

       pronounced this word Hindu and named their Aryan

       brethren Hindus. The Greeks, who probably gained their

       first ideas of India from the Persians, dropped the hard

       aspirate    and  called    the Hindus      "INDOI".       The

       Encyclopedia of Religion and Ethics, Vol.VI has described

       Hinduism as the title applied to that form of religion which

       prevails among the vast majority of the present population

       of the Indian Empire."

       15.        In   Commissioner,         H.R.C.E.       Mysore    v.

Ratnavarma Heggde [(1977) 1 SC 525] in paragraph 43; it

was held that:

              "The term 'Hindu' has a fairly wide connotations. In

       origin it indicated people living in the Indus region. It is

       only by subsequent usage and extension of meaning that

       the word acquired a religious sense, therefore in this

       sense, a more limited significance.       The term 'Hindu'

       though not defined in the Act, may be presumed to stand

       for people of India with certain religious beliefs held or

       forms of religious worship practised by people of India

       originally."

       16. In Bail Patil v. Union of India [AIR 2005 SC

3172]; it was held that:

             "The word 'Hindu' conveys the image of diverse

     groups of communities living in India. A 'Hindu' can be

     identified only on the basis of his caste as an upper caste,

     Brahmin, Kshatriya or Vaish or of lower caste described in

     ancient India as shudras. The aboriginals who have no

     caste were considered as distinct from four castes or

     varnas of Hindu society and they have been treated in the

     constitution as scheduled Tribes and the Shudras are

     included in the Constitution as Scheduled Castes with

     special privileges and treatment for their upliftment."

       17. In M.P.Gopalkrishnan Nair v. State of Kerala,

[AIR 2005 SC 3053]; it was held that:

              "A 'Hindu' may or may not be a person professing

       Hindu religion or a believer in temple worship. A Hindu has

       a right to choose his own method of worship. The term

       'Hindu' is a comprehensive expression giving the widest

       freedom to people of all hues, opinions, philosophies and

       beliefs to come within its fold."

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      

                FRIDAY, THE 10TH DAYOF JULY 2015

                                  OP(C).No. 1103 of 2014 (O)

                                   

           V.M. SASI, S/O.VELUTHEDATHU MANI,

          

         KISHORE, S/O.KURUPPALATH GANGADEVI,

          

                   B.KEMAL PASHA, J.

                 

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Probate for will made outside specific territory by Hindus is not required

 The effect of Section 213(2) of the Act is that the requirement of probate or other representation mentioned in sub-section (1) for the purpose of establishing the right as an executor or legatee in a court is made inapplicable in case of a will made by Muhammadans and in the case of wills coming under Section 57(c) of the Act. Section 57(c) of the Act applies to all wills and codicils made by any Hindu, Buddhist, Sikh or Jain, on or after the first day of January, 1927 which does not relate to immovable property situate within the territory formerly subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay, or in respect of property within those territories. No probate is necessary in the case of wills by Muhammadans.

IN THE SUPREME COURT OF INDIA

Decided On: 22.02.2001

Appellants:Clarence Pais & Ors. etc.
vs.
Respondent:Union of India

Hon'ble Judges/Coram:
S. Rajendra Babu and R.C. Lahoti, JJ.

Citation:AIR 2001 SC 1151

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Whether child born from void marriage between Hindu father and christian mother will be christian?

The Apex Court in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. (AIR 1988 SC 644) pointed out that S.5 of the Hindu Marriage Act specifically says that marriage can be solemnised only between two Hindus. Admittedly in this case Adichan Nadar is a Christian. Therefore, the finding of the learned Single Judge that the marriage is valid cannot be sustained. We hold that the marriage in question is not a valid one under the Hindu Marriage Act. We are therefore inclined to set aside the judgment of the learned Single Judge that the marriage between the fourth defendant with Mariya Augustine is valid.

7. The next question to be considered is whether children born in that marriage could form members of the joint family as per the Hindu Law and whether the children have to be treated by the religion of the father or mother. N.R. Raghavachary's Hindu Law at page 21 states as follows:

"Illegitimacy is no bar to the applicability of the Hindu Law, but in that case either both the parents must be Hindus, or at least the mother must be a Hindu and the child brought up as a Hindu, though the father is a Christian. If the mother is a non-Hindu, for instance, a Christian, or a Mohammedan, Hindu Law has no application to the illegitimate child, the reason being that the religion of such children is to be fixed by the religion to which the mother belongs."

Marriage between Christian lady and Hindu: childre{,born outof that marriage are

Christian : Hindu law has no application to illegitimate child : religion of such children

to be fixed by religion to which mother belongs.

Kerala High Court

Vijayakumari vs Devabalan on 17 July, 2003

Equivalent citations: AIR 2003 Ker 363, I (2004) DMC 667, 2003 (3) KLT 695

Bench: K Radhakrishnan, P C Kuriakose

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How change of religion can be made to known to public?

This Court finds itself in respectful agreement with the above pronouncement. Being of a religious persuasion or belief in a particular religion and continuance thereof is an existential choice. Manifestations of religious practices of a particular religion could lead to the inference of the person's adherence to that religion. However, faith itself cannot be seen unless the person chooses to make it obviouse. A clear and direct way of making known one's religion would be by way of a public statement or deposition through an affidavit in a Court. In the instant case the respondent made such public declaration - that she had re-embraced Hinduism and produced a certificate from the organisation which facilitated it. She reiterated this factum in the Plaint and then deposed so in an affidavit in the Petition. No further proof could be required, nor indeed could be led in evidence, to prove or disprove her apostasy. It is inconceivable how any trial could even be conducted in this regard. The best that the appellant would be able to achieve would be that upon the respondent deposing as to her apostasy in the witness box, the appellant would suggest vehemently to the respondent that she had not apostatized and the respondent would deny 

the same with vehemence. Faith cannot be determined simply by the vehemence of the suggestion or its denial in a trial in Court.

Delhi High Court

Munavvar-Ul-Islam vs Rishu Arora @ Rukhsar on 9 May, 2014

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

Citation; 2015(2) ALLMR(JOURNAL)72

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When probate is not required to be obtained by Hindu in respect of Will regarding immovable properties?

This apart, probate of a Will is not necessary outside the presidency towns of Bengal, Bombay and Madras as has been held in Bhaiya Ji v. Jageshwar Dayal Bajpai, MANU/UP/0066/1978 : AIR 1978 All 268 and Smt. Pitmo v. Shyam Singh, MANU/UP/0077/1978: AIR 1978 All 301, by their Lordships of this Court. The said decisions hold that a probate is not required to be obtained by a Hindu in respect of a Will regarding immovable properties situate in territories other than Bengal, Bombay and Madras. Thus, probate of Will is not mandatory in respect of Will concerning properties situate in the State of U.P.

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Writ Petition No. 28378 of 2014

Decided On: 21.05.2014

Appellants: Ramjas
Vs.
Respondent: Sunder Devi

Hon'ble Judges/Coram:Pankaj Mithal, J.

Citation: 2014(7)ADJ317, 2014 (106) ALR 9, 2014 5 AWC4774All, 2014 125 RD376

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When it is not necessary to obtain probate of will for execution of decree?

Having considered the rival submissions, the only question which falls for consideration is whether it was imperative for the Petitioner to obtain probate so as to be entitled to purse execution proceedings to its logical end? This question can be answered with reference to Section 213 read with Section 57 of the Act. Section 213 reads thus:

"Right as executor or legatee when established -(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in (India) has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.

(2) This section shall not apply in the case of wills made by Muhammadans and shall only apply -

(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of Section 57; and

(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such wills are made within the local limits of the (ordinary original civil jurisdiction) of the High Courts at Calcutta, Madras and Bombay and where such wills are made outside those limits, in so far as they relate to Immovable property situated within those limits."

Section 57 reads thus :

"Application of certain provisions of Part to a class of wills made by Hindus etc. - The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-

(a) to all wills and codicils made by any hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at madras and Bombay; and

(b) to all such wills and codicils made outside those territories and limits so far as relates to Immovable property situate within those territories or limits, and

(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clause (a) and (b).

provided that marriage shall not revoke any such will or codicil."

8. On conjoint reading of the above provisions, it would appear that only Wills specified in Clause (a) and (b) of Section 57 of the Act would require the executor or legatee to obtain probate/letters of Administration from the court of competent jurisdiction so as to pursue the right arising under the will to its logical end. This legal position is reinforced from the exposition of our High Court in Ahmed's case (supra) as well as Jyoti's case (supra). Therefore, the first question that needs to be considered is; whether the subject will is covered by Section 57, Clause (a) and (b) of the Act? As mentioned earlier, it is not in dispute that the suit property is situated at Pune and the will was also executed at Pune. If that is so, it is not possible to countenance the submission that Section 57(a) and (b) of the Act would apply. Understood thus, it was not necessary for the Petitioner to obtain probate so as to proceed with the execution proceedings.

Bombay High Court

Shri Bhagwanji Karsanbhai Rathod vs Shri Surajmal Anandraj Mehta on 8 July, 2003

Equivalent citations: AIR 2003 Bom 387, 2003 (5) BomCR 228, 2004 (1) MhLj 62, 2003(4)ALLMR85

Bench: A Khanwilkar

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