MITAR SEN SINGH Vs. MAQBUL HASAN KHAN

JUDGEMENT

(1.) This is a case which involves a question of the inheritance of a property in Oudh and it involves an important question as to the position of heirs of an ancestor who renounced his original religion of Hinduism and became a Mohammedan. The ancestor in question was a man named Jagardeo Singh, who was in 1843, at the date of his conversion to Mohammedanism, a member of an undivided Hindu family tracing their descent, so far as is necessary to this case, from a common ancestor, Babu Sangram Shah. Jagardeo Singh, as stated, was converted to Mohammedanism in 1843 and he died in 1844. He left two sons and two daughters, or at any rate he had two sons and two daughters, and one of the sons, who is the grandfather of the present defendants, was Agha Hasan Khan, who married and had a daughter, who married and whose children are the three defendants, 1, 2 and 3 in this case. On the death of the widow of Agha Hasan Khan the three children came into possession of the property which had belonged to Jagardeo Singh and had descended in that way to their grandfather. The property is claimed in this action by one Babu Mitar Sen Singh, who is a descendant in the sixth generation of Babu Sangram Shah and would be the proper heir and would succeed to this property in accordance with Hindu law, on the footing that a custom prevailed in the family, as is alleged, which excludes females from inheritance. That custom has not gone to proof in this particular case. Its existence has been assumed for the purpose of the case, and their Lordships will so deal with the matter.

(2.) The plaintiff founds his claim upon the Caste Disabilities Removal Act of 1850, Act 21 of 1850, which applied to Oudh at this time. It is important to bear in mind the words of the Act. It first of all recites S. 9, Regn. 7 of 1832, Bengal Code. Then it says: " 'Wherever in any civil suit the parties to such suit may be of different persuasions, when one party shall be of the Hindu and the other of the Mohammedan persuasion: or where one or more of the parties to the suit shall not be either of the Mahommedan or the Hindu persuasions; the laws of those religions shall not be permitted to operate to deprive such party or parties of any property to which, but for the operation of such laws, they would have been entitled'; and whereas it will be beneficial to extend the principle of that enactment throughout the territories subject to the Government of the East India Company, it is enacted as follows."

(3.) The enacting part is contained in one clause, Cl. 1: "So much of any law or usage now in force within the territories subject to the Government of the East India Company as inflicts on any person forfeiture of rights or property or may be held in any way to impair or affect any right of inheritance by reason of his or her renouncing or having been excluded from the communion of any religion, or being deprived of caste, shall cease to be enforced as law in the Courts of the East India Company and in the Courts established by Royal Charter within the said territories."