BALCHAND JAIRAMDAS LALWANT Vs. NAZNEEN KHALID QURESHI

JUDGEMENT

(1.) In this Appeal from Order, a question required to be addressed whether a Hindu converted into Islam is disqualified to receive a property of a father, who died intestate?

(2.) The respondent/plaintiff is a sister of the appellant/defendant. The respondent has filed Suit No. 3480 of 2010 pursuant to Notice of Motion No. 956 of 2010 in Suit No. 3480 of 2010 (H.C. Suit No. 928 of 2010 for injunction restraining the defendants from creating third party right of whatever nature in respect of the suit premises, i.e., residential flat situated at Matunga (West), Mumbai. It is the case of the respondent/plaintiff that the suit flat and one shop is a property of her deceased father, however, the appellant has sold the shop after father's death and now he wants to sell the flat also. The respondent/plaintiff has averred that she being a daughter has right in the said property. Including the respondent/plaintiff, the appellant/defendant has five sisters and so the respondent/plaintiff claims her share in the suit property and therefore sought that the flat is not to be sold and the appellant/defendant is in exclusive possession of the suit flat. The appellant/defendant while contesting the Notice of Motion has submitted that the respondent/plaintiff got married to Muslim in the year 1979 and as she has changed the religion, she lost the right in the suit property. It is also submitted that the suit flat is also purchased out of his own income. The trial Court considering the prima facie case allowed the Notice of Motion and defendant nos. 1 to 5 were restrained from creating third party right in respect of suit flat. Hence, this Appeal.

(3.) The learned counsel Mr. Jha, at the outset, has submitted that the suit is not maintainable, as the plaintiff is converted to Islam and therefore, she cannot claim any proprietary right in the father's property. He submitted that this is the main challenge in this Appeal. He submitted that under section 2(1)(a)(c) of Hindu Succession Act, 1956, this Act is not applicable to the persons who are Muslim, Christian, Parsis and Jews by religion. He submitted that Section 2(1)(a) and (b) are inclusionary by which Hindu, Jain, Buddhist, Sikh are covered under the Hindu Succession Act and Section 2(1)(c) of the Hindu Succession Act is exclusionary by which Muslim. Christian, Parsis and Jews are excluded. In support of his submissions, the learned counsel relied on the following decisions: