Ramaswami Nadar v. Ponniah Nadar — 1953 DIGILAW 156 (KER)

Judgment :- 1. This second appeal arises out of a suit for setting aside a mortgage deed and recovering possession of the property comprised in the said deed with mesne profits. Plaintiff, whose suit was dismissed by the trial court and whose appeal to the District Court was also unsuccessful, is the appellant. He is a Hindu Nadar. He had a brother, Saminathan, who died intestate in 1108 and who was a Christian at the time of his death. The plaint property belonged to the said Saminathan. After Saminathan's death his wife, Paranchothi, mortgaged the plaint property to the defendant for 2100 Fanams on 19.1.1112 M.E. Ext. I is the mortgage deed. Subsequent to the execution of Ext. I, Paranchothi also died in 1115. In 1116, plaintiff brought the suit, which was given rise to this second appeal, for setting aside Ext. I and recovering possession of the plaint property with mesne profits at the rate of 5 kottas of paddy per year. His case was that he was Saminathan's heir and the only person entitled to the property after Saminathan's death, that Paranchothi was not Saminathan's legally wedded wife, that she had therefore no right to the plaint property and was not competent to execute the mortgage deed, and that the said deed was also not supported by consideration and necessity. The defendant contended that Paranchothi was Saminathan's lawfully wedded wife, that she was the only person entitled to his property after his death, that the plaintiff was only the son of Saminathan's mother and not the son of his father and was not entitled to succeed to the property left by Saminathan, and that the mortgage deed was also supported by consideration and necessity. By its judgment dated 24.7.1120 (7th March 1945), the trial court at first found that Paranchothi was the legally wedded wife of Saminathan, that Saminathan and the plaintiff were brothers, being the sons of the same father and mother, that under the Christian Succession Act, II of 1092, the plaintiff was Saminathan's heir and obtained absolutely one-half of his estate immediately on his death and the other half on the death of Paranchothi who had a life-estate over that half under the same Act, and that Ext. I was therefore invalid from its very inception as regards one-half of the plaint property and invalid as regards the other half from the date of Paranchothi's death, 30.11.1115. Agreeably to these findings it gave a decree to the plaintiff on 24th Kumbhom 1120 setting aside one half of the mortgage from the date of its execution and the other half from 30.11.1115 and allowing the plaintiff to recover possession of the whole property. Past mesne profits in respect of one-half of the property was allowed to be recovered only from 30.11.1115 and in respect of the other half it was allowed to be recovered for a period of three years before the date of suit. From the decree of 24.7.1120 the defendant preferred an appeal to the Nagercoil District Court. That Court confirmed the findings that the plaintiff was Saminathan's brother and Paranchothi was his legally wedded wife. But it doubted whether a Hindu could succeed under the Christian Succession Act, II of 1092, to his brother who had become a convert to Christianity and remanded the suit to the trial court for a fresh disposal after re-considering the questions whether the plaintiff, who is a Hindu, can succeed to the estate of the deceased Saminathan under the Christian Succession Act of 1092 and whether the plaint mortgage was supported by consideration and necessity. After the remand, on 21.5.1124 (4th January 1949) the trial court dismissed the suit holding that the plaintiff, being a Hindu, could not succeed to the estate of Saminathan under the Christian Succession Act and that Ext. I was supported by consideration and necessity. The appeal which the plaintiff filed against the trial court's second decree was dismissed by the lower appellate court on the 18th January 1950 on the ground that the plaintiff had no right to succeed to Saminathan's estate after the Christian Succession Act came into force. This second appeal is filed by the plaintiff against the lower appellate court's decree of 18th January 1950 confirming the dismissal of the suit by the trial court. 2. The only point taken in the second appeal is that the view of the courts below that a Hindu could not succeed to the estate of an intestate Christian under the Christian Succession Act is wrong and that the plaintiff is the heir of the deceased Saminathan under the Christian Succession Act. 2. The only point taken in the second appeal is that the view of the courts below that a Hindu could not succeed to the estate of an intestate Christian under the Christian Succession Act is wrong and that the plaintiff is the heir of the deceased Saminathan under the Christian Succession Act. The findings of the trial Court that Paranchothi was the legally wedded wife of Saminathan and that Ext. I mortgage was supported by consideration and necessity binding on his estate were not impugned by the appellant in this Court. Nor did the respondent impugn the finding that the plaintiff is the full brother of Saminathan, born of the same father and mother. 3. Reliance was placed by the lower appellate court on the Full Bench decision of the Travancore High Court in Ananchperumal Nadar v. Muthayya Nadar, 1944 TLR 595, for holding that a Hindu could not succeed to the estate of an intestate Christian. But this question did not arise for decision in that case and was not decided therein. 3. Reliance was placed by the lower appellate court on the Full Bench decision of the Travancore High Court in Ananchperumal Nadar v. Muthayya Nadar, 1944 TLR 595, for holding that a Hindu could not succeed to the estate of an intestate Christian. But this question did not arise for decision in that case and was not decided therein. The questions that actually arose for decision in Ananchperumal Nadar v. Muthayya Nadar were whether the usages of Hindu Law prevailing amongst Nadar part-Hindu and part-Christian families were abrogated by the Christian Succession Act, II of 1092, and whether the estate left by a deceased Hindu Nadar would be inherited by persons who were Christians and would have been the nearer heirs of the deceased according to the Hindu Law, or by his more distant heir who had remained a Hindu; and it was held in that case that the Christian Succession Act established a fresh code of rules of succession for Christian converts in substitution of Hindu Law, that under the Hindu Law proper an apostate was not entitled to succeed to the estate of a deceased Hindu, that the usage prevailing among the Nadars permitting an apostate to succeed prevailed only under conditions where the Hindu Law governed both the deceased and the heir, that, as the apostate heir would not be governed by the Hindu Law but by the Christian Succession Act after the passing of the said Act, the result of the Christian Succession Act was to abrogate in its entirety the usage of permitting an apostate to succeed to the estate of a deceased Hindu, and that the nearer heirs who were Christians would therefore be excluded by the more distant heir who had remained a Hindu. It was expressly recognised in that case that the rules of succession governing a deceased person must be determined by his personal law or by statute where there is one governing the matter. In the leading judgment written by Krishnaswamy Iyer, C.J., it was observed: "There could hardly be any doubt that the rules of succession governing a deceased person must be determined by his personal law or by statute where there is one governing the matter. In the leading judgment written by Krishnaswamy Iyer, C.J., it was observed: "There could hardly be any doubt that the rules of succession governing a deceased person must be determined by his personal law or by statute where there is one governing the matter. The Hindu Law of inheritance will certainly apply to a deceased Hindu in the matter of determining his heirs; even so the Mohommeden Law to a deceased Mohommedan and the Christian Succession Act to a deceased Christian. The question whether a particular person is an heir or not must be decided by the law of succession applicable to the deceased person to whom succession is traced. Whether a person is excluded from heirship must also be determined ordinarily by the same law and not by the personal law of the heir or the taker of the estate. Where the personal law of a deceased person makes X the heir but the personal law governing X disqualifies him from taking as heir, the question whether X is entitled to succeed in derogation of his personal law is a more difficult question which it is not necessary to consider in this case. Perhaps the personal law of the taker has to be worked alongside of the personal law of the deceased and one may have to look to the next heir." (vide page 600,1944 TLR). On the principles accepted in the above passage, when a Christian dies intestate the rules of succession to be adopted must be those under the law applicable to Christians. After the passing of the Christian Succession Act, II of 1092, the law of succession applicable to Christians in Travancore other than those governed by the Marumakkathayam Law is that contained in the Christian Succession Act, II of 1092. Krishna Pillai, J., who concurred in the decision of the learned Chief Justice in Ananchperumal Nadar v. Muthayya Nadar, has also said that the Christian Succession Act is the basic law for all matters of succession and inheritance amongst Christian Nadars. The learned District Judge who remanded this suit on the first occasion, as well as the learned judge who confirmed the dismissal of the suit by the trial court after remand, were also both of the view that succession to Saminathan's estate would be governed by the Christian Succession Act. The learned District Judge who remanded this suit on the first occasion, as well as the learned judge who confirmed the dismissal of the suit by the trial court after remand, were also both of the view that succession to Saminathan's estate would be governed by the Christian Succession Act. But both of them considered that a Hindu would not be competent to succeed to the estate of a Christian. The only authority relied upon by the latter judge is the decision in Ananchperumal Nadar v. Muthayya Nadar. That decision, as has been shown above, is not an authority for holding that a Hindu cannot succeed to an intestate Christian. So far as the present suit is concerned that decision is an authority only for holding that the rules of succession governing Saminathan's estate are those contained in the Christian Succession Act and nothing more. It is seen from Ext. II (a) produced by the defendant that Saminathan died only on 23.3.1932 (11th Kumbhom 1107), along after the passing of the Christian Succession Act of 1092. 4. Under Ss. 17, 24 and 25 of the Christian Succession Act, when a Christian dies intestate leaving a widow and a brother, his heirs are his widow who takes a life-interest in one-half of his properties and his brother who takes the remaining half of the properties immediately after the death of the intestate and after the death or remarriage of the widow the half of the property over which she has the life-interest. There is nothing in the Christian Succession Act debarring an heir on account of his religion or faith from succeeding to the estate of the intestate. If a person comes within any of the groups of heirs recognised by S. 25 of the Christian Succession Act and the particular group in which he comes in entitled, under that Act, to inherit the estate of the intestate, he cannot be debarred from taking up his inheritance on the ground that he is not a Christian and belongs to another faith. Kinship alone is recognised by S. 25 of the Christian Succession Act for bringing one in the order of succession; and religion or faith is not a qualification for, or bar to, succession under that section or any other section of the Christian Succession Act. S. 25 reads: "25. Kinship alone is recognised by S. 25 of the Christian Succession Act for bringing one in the order of succession; and religion or faith is not a qualification for, or bar to, succession under that section or any other section of the Christian Succession Act. S. 25 reads: "25. When a person dies intestate, his next of kin in the order set forth below shall be entitled to succeed to the residue, if any, of his property that may be left after deducting the widow's share, if he has left a widow, and also the mother's share if he has left a mother, under circumstances which will, according to Ss. 21 to 23, entitle her to any share. The next of kin mentioned in the first group shall always be preferred to those standing second, the second to the third, and so on, in succession. Group (1). Sons and daughters and the lineal descendants of such sons or daughters as shall have predeceased the intestate. Group (2). Father Group (3). Brothers and sisters (whether of the full-blood or by the same father only) and the lineal descendants of such of them as shall have predeceased the intestate. Group (4). Paternal grand father. Under a similar law, the Indian Succession Act, it has been held by the Madras High Court in Administrator-General of Madras v. Anandachari, ILR 9 Madras 466, that a Hindu father can succeed to a Christian son, and by Calcutta High Court in Nepen Bala Devi v. Siti Kanta Banerjee,15 Calcutta Weekly Notes 158, that Hindu brothers and sisters can succeed to the property of their deceased brother who had become a Christian. The respondent's counsel relied in this court upon the ruling in Esaku v. Chathen,16 TLR 16. In Seelinalidia v. Govindan Aiyappan, 4 TLR 12, it was held by the majority decision of a Full Bench of the Travancore High Court that a malayalee governed by the Marumakkathayam Law, but converted to Christianity, has no right to dispute alienations made by the Karnavan of the tarwad on any ground whatever and that he has no claim upon the tarwad for maintenance and no right to restrain possession of the property given to him for maintenance while he remained a Hindu. In Esaku v. Chathen,16 TLR 16, it was held that, as a corrollary to the dictum laid down in Seelinalidia v. Govindan Aiyappan, if a convert of a marumakkathayam tarwad has no claim to the family property his unconverted relations would not similarly be entitled to inherit the convert's property as well. This corollary cannot hold good after the enactment of the Christian Succession Act of 1092 wherein the brother has been expressly recognised as an heir without any reservation or qualification of religion. The Christian Succession Act of 1092 was passed long after the decision in Esaku v. Chathen. That case was decided in Mithunam 1075. For the reasons stated above, I hold that the view of the courts below, that the plaintiff being a Hindu was not competent to succeed to the estate of Saminathan, is wrong and cannot be maintained. 5. At the time of Saminathan's death, his heirs, under the Christian Succession Act, where his widow, Paranchothi, who took a life-estate in one-half of his estate and his brother (the plaintiff) who took absolutely the other half of his estate immediately on his death and was also entitled to take on the death of Paranchothi the half of the estate over which she had obtained a life-estate. It is admitted, and also seen from Ext. II(a), that Paranchothi died on the 13th July 1940 (30th Mithunam 1115). So, on the date of the suit, the plaintiff had become entitled to the whole of the estate left by his brother, Saminathan. As the plaintiff had not joined in the execution of Ext. I, the mortgage deed is not binding on him and has to be set aside. But the finding of the trial court that the mortgage deed was executed by Paranchothi for consideration and necessity binding on the estate of Saminathan has not been objected to by the plaintiff and has become final. Therefore, the defendant is entitled to get a charge on the plaint property for the amount he has paid for taking Ext. I and he is entitled to remain in possession of the property till that amount is repaid to him. Therefore, the defendant is entitled to get a charge on the plaint property for the amount he has paid for taking Ext. I and he is entitled to remain in possession of the property till that amount is repaid to him. In the circumstances, the proper course to be adopted in this case would be to give a decree to the plaintiff allowing him to recover possession of the plaint property from the defendant on payment of the mortgage amount of 2100 Fanams paid by the latter to Paranchothi for taking Ext. I. 6. Plaintiff will be entitled to mesne profits only from the date on which he deposits in court the amount of 2100 Fanams due to the defendant. In the judgment of 24.7.1120, the trial court had found that the mesne profits of the property would be 3 kottas of paddy per year. No objection was taken to that finding by the defendant, and it was not also disturbed by the remand order of the lower appellate court. The plaintiff will, therefore, be entitled to get 3 kottas of paddy per year as mesne profits from the date he deposits the mortgage amount in court and gives notice of the deposit to the defendant. 7. In the result, the second appeal is allowed; the decrees of the courts below are set aside; and the decree is given to the plaintiff setting aside Ext. I and allowing him to recover possession of the plaint property from the defendant on depositing in court for payment to the defendant the mortgage amount of 2100 Fanams (Two thousand one hundred only). Plaintiff is also allowed to recover mesne profits from the defendant at the rate of 3 (three) kottas of paddy per year from the date he gives notice of the deposit to the defendant. Parties will bear their costs in all the courts. Allowed.