On the 22^nd of June, 2016, the Himachal Pradesh High Court sitting as a single judge bench considered the question of the devolution of a Kinner’s intestate[1] property when the religion of the deceased is unknown. In brief, the court decided that such property would devolve upon the guru. However, several factual considerations lay before the court making this decision. I will first summarize the decision and then ask if the court would have decided the same way had the factual matrix been different.

WAS THE DECEASED TRANSGENDER OR INTERSEX?         

Summarily, Rajia/Razia/Ratni Nani and Desh Raj were two eunuchs. The High Court has used this terminology throughout the judgment. It is unclear what it is referring to; is ‘eunuch’ being used to signify some biological characteristic (albeit derogatorily), or, is it being used to refer to the gender identity of the deceased? Eunuch is a term used to signify a castrated male. There is no evidence in the case that the deceased were castrated. It seems however, that the deceased were actually intersex people (intersex persons may or may not be transgender). It is also accepted that the deceased belong to the Kinner community. Consider the following sentence in the judgment:

“It was averred that there is a custom in the society governing the Kinners that at the time of the birth of a eunuch (kinner child), it is generally taken by the Guru kinner of that area and she/he is brought up by the said Guru.” [Paragraph 1].

Since it is impossible to tell the gender identity of a new born child and the judge relies on the abovementioned custom in this case, the best understanding is that the deceased were intersex (and their condition was externally apparent—to trigger this custom). Additionally, it is unclear whether this property was jointly held by the two deceased persons in question or whether the matter concerns the intestate property of both these persons. Since the judgment does not make it clear, for the purpose of this note, I assume that the question that concerned the court related to the independent intestate property of two deceased Kinners.

ESTABLISHED FACTS

On facts, the court was able to establish the following:

1. The deceased were eunuchs (intersex, as we have determined) and a member of the Kinner community.
2. The appellant Sweety is the guru of the deceased.
3. Her status as the guru is backed by documentary evidence. Her name appears as the guru in the deceased’s bank account, ration card etc. These are the only 2 documents mentioned by the court.
4. Sweety’s claim is uncontested by anyone although the court had sent out a notice of the case to the general public. In fact, notices were issued both by the trial court in Himachal that heard the case in the first instance and the High Court of Himachal Pradesh that presided over the present judgment.
5. The religion of the deceased is unknown.
6. The deceased died intestate.

HOLDING OF THE COURT

The lower court assumed the religion of the deceased to be Hindu and pronounced that the devolution would be governed by the Hindu Succession Act, 1956 (HSA). The court did this on the basis of a presumption that the name of the deceased sounded like a Hindu name. The Himachal High Court undid this decision and following the guru- chela parampara declared the guru Sweety to be the legal heir of her deceased chelas’ prpoperty. However, the key point of confusion is this: had the deceased been proven to be a Hindu, would her property have devolved following the laws of succession of a deceased intestate female (assuming, of course, that the deceased identified as a woman, as symbolized by her name)[2], or would her property still have devolved following the guru-chela parampara? In paragraph 5 of the case, the court notes that the guru had led evidence to show that, “in matters of succession eunuchs were governed by the guru- chela parampara” but it is not clear from this that this would have been the case even if a chela was shown to belong to a religion. This case was also relatively less complex as the court despite sending several notices was unable to locate any other relatives of the deceased. Therefore, the claim of the guru was uncontested.[3]

The closest another court has come to a similar question has been in the case of Illyas and others v. Badshah, alias Kamla (AIR 1990 MP334). Here a eunuch (again, it’s unclear what this means, the court uses this term) Munnilal died willing some property they inherited from their guru Nasiban, to one Abdul Gafoor who subsequently sold it. The buyers claimed ownership to Munnilal’s land. On the other hand, the Munnilal’s chela, Kamla claimed ownership of the property citing the guru- chela parampara and also stating that the property one obtains from the guru cannot be passed on outside the eunuch community. However, in this case, the religion of the deceased was clear: the deceased was a Muslim. The central question therefore was, how does the property of a Muslim eunuch devolve: would Munnilal’s will be carried out or will the guru- chela parampara cancel the effect of the will? In this case, the court found that Abdul Gafoor was unable to establish the authenticity of the will. However, even if he had been able to do so, the custom of the eunuch community would have regulated the testamentary power of a Muslim to will away property. In other words, a Muslim eunuch can will away property in accordance with Muslim law, but if the property is inherited from the guru, it cannot be willed outside of the community, although it may be willed to a person other than the chela. So much for community property, but would the same judgment hold for property privately acquired by a eunuch, as is the present case?

Therefore the situation seems to be that we now know that the guru- chela parampara will trump personal law in the case of community property, and govern the devolution of individual property in the absence of a known religion. However, we still don’t know what happens to a transgender[4] person’s individual property in the presence of a known religion and membership of community: still our key point of confusion.

OTHER POINTS OF CONFUSION

Is the case suggesting that one loses their religion merely by fact of becoming a member of the kinner community? It is not immediately apparent whether the court has followed the guru chela parampara because it is unable to establish the religion of the deceased or because upon membership of such a community, one servers ones tines with their religion. There have been no efforts by the High Court judge to fathom the religion of the deceased. The deceased also had no known relative which may have further compounded the religion question. However, if indeed, that is the suggestion of the case then though this case may have led to the preservation of the guru-chela parampara, its implications for the right to religion should not be neglected. The deceased, whatever her religion might have been at birth, is adjudicated as having no religion at the time of her death. No proof of out of faith conversion of any other ritual seems to have been produced as evidence of her not professing any religion. This in turn raises two future implications:

1. Does a transgender person lose their religion merely by gaining membership of a particular community (for example, Kinner, Hijra etc.)?
2. Consequently, does this result in the loss of rights associated with religion—inheritance, right to visit holy places etc.?

[1] Without a will.

[2] The High Court rubbished the conclusion of religion drawn from a mere name and accordingly, the irony of the assertion made above is not lost on me. However, the only point that I attempt to make above is that though in Shastric law given by Vishnu, Manu, and Yajnavalkya, to name a few, a eunuch (unclear what the Shastric law meant by this term, perhaps an intersex person) would be disqualified from inheriting ancestral property, the Hindu Succession Act, 1956, which now governs intestate succession for Hindus, does not place any such disqualification on ‘eunuchs.’ Moreover, even in the worst case scenario, if being born intersex is considered a defect, deformity or a disease, S. 28 of the Hindu Succession Act, 1956 clarifies that no defect, deformity, or disease shall disqualify a person’s eligibility to inherit. In so doing, the Act occupies the field and any future question on the capacity of an intersex Hindu to inherit would depend on the Hindu Succession Act, 1956 and not the Shastric Law. The question of the devolution of property of Hindu ‘eunuchs’ is untouched by Hindu Succession Act, 1956, and leads one to conclude that the rules of devolution remain the same.

[3] Incidentally, as per Hindu Law, if a deceased has no heirs, the property devolves to the State.

[4] Since the Supreme Court describes transgender person to include eunuchs, intersex etc. A limited construction of this judgment could of course suggest that it governs intersex persons in Kinner communities and without established religions, and not the entire transgender community.