Prayag Gope v. Etnal Smart — 1995 DIGILAW 62 (PAT)

Judgment Bisheshwar Prasad Singh, J. 1. Since questions which appeared intricate and of public importance arose in this Second Appeal, the appeal, has been referred by a Division Bench to the Full Bench for an authoritative decision. The two questions formulated by the referring Bench are the following : (a) Whether the -property, inherited by a Christian convert daughter from her deceased Hindu father by virtue of Caste Disabilities Removal Act 1850 on her death prior to Hindu Womans Right to Property Act will pass to the reversioners of her father or to her own Christian progeny under the Indian Succession Act? (b) Whether the law laid down in the cases of Fakeer Bux V/s. Saira Bagum -- , Mathongin Gupta V/s. Ramratan Roy ILR 19 Calcutta 289 and Miter Sen Singh V/s. Maqbul Hasan Khan AIR 1930 Privy Council 251 is in conflict with the views expressed by the Privy Council in Abraham V/s. Abraham (9) Moors Indian Appeal 195; Khunni Lal V/s. Kunwar Gobind Krishna Narain Indian Appeals 875 and Karimuddin V/s. Govind Krishna 36 Indian Appeals 1881? (It appears that by inadvertands the Hindu Womens Right to Property Act has been mentioned in the question, instead of Hindu Succession Act, 1956 ). 2 The aforesaid two questions arise in the second appeal pending before this Court. The facts, so far as they are relevant for decision on the question formulated, are not in dispute, I may briefly notice the material facts. Tilak Mahto, a Hindu Governed by Mitakshara School had two daughters Parbatia and Rupia. Prabatia adopted Christianity as her religion in December 1891, and thereafter on 15th December, 1891 she married one Mr. A.R. Hills. Tilak Mahto died before survey in the years 133 B.C. (corresponding to years 1926-27). His two daughters inherited his properties. Though some of the lands were recorded exclusively in the name of Parbatia, and some were recorded jointly in their favour, Parbatia, the Christian daughter, filed title suit No. 1 of 1927 and obtained a decree for partition of the estate left behind by her father. The suit was decreed, and both the daughters were declared to be entitled to equal shares in the properties left behind by their father. The suit was decreed, and both the daughters were declared to be entitled to equal shares in the properties left behind by their father. In that suit Parbatia claimed her share basing her claim on the provisions of the Caste Disabilities Removal Act 1850 (Act XXI of 1850) Contending that her conversion of Christianity did not affect her right to inherit the property left behind by her father. Parbatia died in the year 1955 before the Hindu Succession Act 1956 came into force. 3. After the death of Parbatia a dispute arose between the children of Parbatia (Mrs. Hills) and Rupia the Hindu daughter. While the former contended that the property inherited by Parbatia (Mrs. Hills) would be governed by the provisions of the Indian Succession Act, so that after the death of Parbatia (Mrs. Hills) they were entitled to inherit the same, the latter contended that Parbatia (Mrs. Hills) had only a limited estate in the properties inherited from her Hindu Father, and therefore as a consequence, upon her death the properties must revert to the reversioners, and she being one of the heirs and reversioner was entitled to the said properties. The disputed Rupia, the Hindu daughter, to file title suit No. 58 of 1063 for declaration of title and recovery of possession of the suit properties from the Christian heirs of Parbatia (Mrs. Hills). Rupia died during the pendency of the suit, and her adopted son Murli Gope was substituted as the plaintiff. 4. The trial court decreed the suit holding that upon the death of Parbatia (Mrs. Hills) who held a limited estate, the properties would revert back to the heirs of her father namely Rupia. Consequently Rupia and after her, heirs were entitled to claim right title and interest in the suit properties. The decree of the trial court was challenged in appeal The appellate court set aside the decree holding that the property inherited by Parbatia (Mrs. Hills) from her Hindu father became her absolute property and constituted her absolute estates. The devolution of interest in those properties was therefor governed by the provisions of the Indian Succession Act. Consequently her absolute interest in those properties devolved upon her after, namely her children. 5. Hills) from her Hindu father became her absolute property and constituted her absolute estates. The devolution of interest in those properties was therefor governed by the provisions of the Indian Succession Act. Consequently her absolute interest in those properties devolved upon her after, namely her children. 5. Aggrieved by the judgment and decree of the appellate court, a second appeal has been preferred before the High Court by the plaintiff, in which the two questions referred to the Full Bench have arisen for consideration, Earlier, a learned Single Judge of this Court, bearing regard to the importance of the questions involved, referred the Second Appeal to a Division Bench for hearing. 6. At the hearing of this reference, learned Counsel for the parties did not dispute the legal position that under the Hindu law, as it existed at the relevant time, upon the death of the father the daughters acquired what was known as the daughters estate, a life estate, in the properties left behind by their father, with a right of survivorship inter-se. Upon the death of the daughters, the property reverted to the reversioners, namely the heirs of the deceased father. It was also not disputed that if the holder of the limited estate continued in possession of the estate till the coming into force of the provisions of the Hindu Succession Act, 1956 , subject to the fulfillment of the conditions laid down in Sec. 14 thereof, the limited estate was enlarged into an absolute estate of the female heir. 7. It was also not disputed before us that under the Hindu law the consequence of apostasy was that the convert lost all his rights in the Hindu family, and there was severance of status as a member of the family. 8. The real dispute between the parties before us is as to the effect of the provisions of the Caste Disabilities Removal it 1850. 8. The real dispute between the parties before us is as to the effect of the provisions of the Caste Disabilities Removal it 1850. While the plaintiff/appellant contends that the aforesaid Act permitted the convert to enjoy the same rights as he would enjoyed, had he not been an apostate, the defendant respondents contend that the Act had the effect of separating the converted member for the rest of the family along with the share of properties to which he or she was entitled, which property he or she enjoyed as his or her absolute estate governed by the law to which he or she was subject after conversion, The plaintiff therefore contended that notwithstanding the provisions of the Act, Parbatia took only a life estate in the properties allotted to her share after her fathers death, and consequently upon her death the properties must revert to the reversioners. The defendants/respondents would urge that the properties inherited by Parbatia became her absolute property, and since she was convert to Christianity the properties upon her death, would devolve in accordance with the provisions of the Indian Succession Act. 9. It, therefore, becomes imperative to notice the provisions of the Caste Disabilities Removal Act 1850 (hereinafter referred to as the Act) which is in short Act containing a preamble and only two sections. The preamble states : Preamble. 9. It, therefore, becomes imperative to notice the provisions of the Caste Disabilities Removal Act 1850 (hereinafter referred to as the Act) which is in short Act containing a preamble and only two sections. The preamble states : Preamble. WHEREAS it is enacted by Sec. 9, Regulation VII, 1832 of the Bengal Code, whenever in any civil suit the parties to such suit may be of different persuasions, when one party shall be of that Hindu and the other of the Muhammadan Paranssion, or where one or more of the parties to the suit shall not be either of the Mohammadan or Hindu persuasions the laws of those religions shall not be permitted to operate to deprive hut for the operation of such laws, they would have been entitled", and whereas it will be beneficial to extent the principle of that enactment throughout (India), it is enacted as follows: Sec. 1 provides as follows: Law or usage which inflicts forfeiture of, or effect, rights on change of religion or lose of caste to cease to be enforced--So much of any law or usage now in force within India as inflicts on any person forfeiture of rights of 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 any court. 10. A bare perusal of the section leaves no room for doubt that the substantive law which applied to the convert, and which inflicted on him forfeiture of rights or property of impaired or affected any right of inheritance by reason of his or her renouncing; or having been excluded from the communion of any religion, or depriving him of caste, was not entirely abrogated. The section begins with the words "So much of any law or usage now in force", which makes it clear that only that part of the substantive law or usage by which he was governed and which inflicted upon the convert the consequence or consequences mentioned in the section, would not be enforced as law in any court. The section begins with the words "So much of any law or usage now in force", which makes it clear that only that part of the substantive law or usage by which he was governed and which inflicted upon the convert the consequence or consequences mentioned in the section, would not be enforced as law in any court. In other words, if any law or usage inflicted on any person forfeiture of rights or property or impaired or affected any right of inheritance by reason of his renouncing any religion, the offending part of the personal law shall cease to be enforced as law. As a consequence a convert did not incur forfeiture of his rights and property by reason of conversion by operation of the aforesaid Act and he continued to enjoy the same rights in property under the personal law as he or she would have enjoyed, had he or she not converted himself or herself to any other religion. In concrete terms, applying the principles to the facts of this case, if a Hindu converted himself to Christianity and the Hindu law provided as a consequence that he shall forfeit his right to inherit the properties of His father or mother, the disabilities or forfeiture was not to be enforced, and he or she would inherit in the same manner as he or she would have under the Hindu law, had he or she not changed his or her religion. The substantive law with regard to the nature and extent of interest which would devolve upon him, or which he may inherit remained unaffected. If under the Hindu law a Hindu was entitled to an absolute estate, he would acquire an absolute estate, notwithstanding his conversion to Christianity. Similarly if the convert acquired only a limited estate under the Hindu law, he would acquire only a limited estate, and the Act would not operate to enlarge that limited estate into an absolute estate. In other words, the effect of the Act not to enlarge the converts interest in any property or to get rid of any condition of restriction to which it was originally subject. In other words, the effect of the Act not to enlarge the converts interest in any property or to get rid of any condition of restriction to which it was originally subject. The Act does not purport to effect the substantive law, but merely laid down a rule under which the court might refuse to enforce the consequences of apostasy, in so far as they related to the forfeiture of right or property, or impaired or effected any right of inheritance. 11. As to what is the effect of the said Act on the rights of the apostate came up for consideration, before the Privy Council in Khuni Lal V/s. Kunwar Gobind Krishna Narain 38 Indian Appeals 87. Their Lordships after considering the rule laid down in Sec. 9 Regulation VII of 1832 and the provisions of the Act, noticed that the Act had the effect of extending the principles of Sec. 9 of Regulation VII of 1882 and the Bengal Code throughout the territories subject to the Government of the East India Company. It was then observed: The intention in both enactments is perfectly clear, by declaring that the Hindu or Mohamedan law shall not be permitted to deprive any party not belonging to either of those persuasions of a right to property, or that any law or usage which inflicts forfeiture of rights or property by reason of any person renouncing his or her religion, shall not be enforced, the Legislature virtually set aside the provisions of the Hindu law which penalizes renunciation of religion or exclusion from caste. 12. A Full Bench of the Madras High Court in AIR 1921 Madras 224 Paru V/s. Raman Nambiar considered the authorities and held that the effect of the Act would appear to be that a converts interest in the tarwed is unaffected by his conversion, but at the same time the Act did not enlarge the converts interest in any property, or get rid of any condition or restriction to which it was originally subject. Conversion to Christianity did not give a member of a tarwad a right to a partition of tarwad property which was impartible under Marumakkathyam law. The argument that conversion severe the coparcenary and that consequently gives rise to a claim for partition and separate enjoyment, was rejected. Conversion to Christianity did not give a member of a tarwad a right to a partition of tarwad property which was impartible under Marumakkathyam law. The argument that conversion severe the coparcenary and that consequently gives rise to a claim for partition and separate enjoyment, was rejected. In this connection it was observed : Where under the law governing the parties it is open to any one member to resist a partition it is difficult to see how his rights can be taken away because another Member chooses to change his religion. The application of Act XXI of 1850 would in effect enlarge the right of the convert and out down the rights of the remaining members of the tarwad, a result which is unwarranted by the Act. 13. The provisions of the Act again came up for consideration before the Privy Council in Mitter Sen Singh V/s. Maqbul Hasan Khan AIR 1930 Privy Council 251 though in a different context. The question before their Lordships was whether the Act protected only the interest of the epostate or whether it had a wider application. Their Lordships approved of the narrower view and observed : On the other hand, there has been another line of decisions which is exemplified by the case of Vaithiling Odayar V/s. Adyyathoral Odayar (2) which takes the narrower view, the view, which in their Lordships opinion is the correct view, namely, that the section in terms only applies to protect the actual person who either renounces his religion or has been excluded from the communion of any religion or has been deprived of caste. It is intended to protect such a person from losing any right of property or of succeeding as heir. It appears to their Lordships that when the Act is looked at that is the only reasonable construction that can be put upon it. Their Lordships therefore held that when once a person has changed his religion and changed his personal law, that law will govern the rights of succession of his children. In the instant case as well, if Parbatia the apostate, was entitled to an absolute estate Under the Hindu Law, it could not be disputed that the estate would have devolved upon her or her heirs in accordance with the law by which she was governed after conversion, namely the Indian Succession Act. In the instant case as well, if Parbatia the apostate, was entitled to an absolute estate Under the Hindu Law, it could not be disputed that the estate would have devolved upon her or her heirs in accordance with the law by which she was governed after conversion, namely the Indian Succession Act. The difficulty has arisen because she inherited only a life estate, which was never enlarged into an absolute one. Upon her death therefore, the limited estate reverted to the heir of her father, namely her sister Rupia, who also had a right to succeed by survivorship. 14. There is then the decision of Allahabad High Court in -- Fakeer Bux V/s. Smt. Saira Begum. In that case the plaintiff claimed absolute title to the property in question based on a sale deed dated 1.10.1957 executed in her favour by Shrimati Dhanki mother of the defendant. Since Smt. Dhanki renounced Hindu religion and embraced Islam, and inherited the property after her conversion, a question arose as to the nature and extent of title and right which could be, and he been. conveyed to her by Smt. Dhanki, and whether she was entitled to possession by evicting the defendant from the house. After noticing the provisions of the Act, their Lordship held : Both the parties agree, and the provisions of Act XXI of 1850 in that behalf are also clear, that Smt. Dhanki being Tirhoos daughter inherited the house in the same legal capacity and manner as she would otherwise have done had she not renounced Hindu religion. Ex hypothesi, she took only a limited estate when succeeding as Tirhoos daughter, even though she than was a Muslim. But for the statute in question, she undoubtedly would have been wholly excluded from inheritance. The Act does not make any inroad into nor has the effect of amending or altering the personal law of inheritance to which the convert was amenable prior to his or her conversion. It does not contain any provision, express or implied, enlarging or converting a limited estate inherited or inheritable under the Hindu law into full or absolute ownership as a result or in consequence of the conversion of the person concerned to another religion. It does not contain any provision, express or implied, enlarging or converting a limited estate inherited or inheritable under the Hindu law into full or absolute ownership as a result or in consequence of the conversion of the person concerned to another religion. It does no more that prevent divestment or deprivation of previously acquired or vested rights of property on account of apostasy, and secure to the convert such legal right to inheritance as he or she was possessed of prior to conversion, by a legislative mandate that no provision for confiscation or forfeiture of such rights consequent upon renunciation of religion shall be enforced in any court. Such protection and benefit extend also to outcastes and persons ex-communicated person only and not to his or her issues. An issue of such person, conceived and born subsequently, is not a convert, outcast of ex-communicated person within the meaning of the Act. Congenitelly, he or she belongs to the faith of the parent concerned and is governed by the some personal law by which such parent is then governed. 15. The aforesaid decision of the Allahabad High Court fully supports the submission that the Act does set either enlarge or convert a limited estate inherited by a convert into full or absolute ownership. It only removes the disability or forfeiture which the convert would have otherwise incurred under the Hindu Law, namely complete exclusion from inheritance. In the instant case we are not concerned with the other question decided in the aforesaid decision that in such a case the convert could not claim benefit of Sec. 14 of the Hindu Succession Act, since the same applies only to Hindus and she was a Muslim when the Act came into force. 16. Counsel for the respondent submitted that after the death of their father Parbatia filed a partition suit to get the estate partitioned. The suit was decreed and a partition was affected. According to him by reason of the partition, the limited estate got enlarged into an absolute estate. The submission must be stated to be rejected. The decree passed by a Civil Court partitioning the estate and demarcating the shares of the two daughters for their separate and convenient enjoyment of the estate, could not and did not change the nature of the estate inherited by them. The submission must be stated to be rejected. The decree passed by a Civil Court partitioning the estate and demarcating the shares of the two daughters for their separate and convenient enjoyment of the estate, could not and did not change the nature of the estate inherited by them. If the estate was a limited estate, it continued to be so even after partition. Counsel for the respondents referred to the decisions reported in AIR 1930, Privy Council, 40; AIR 1934 Madras 327; AIR 1932 Oudh, 85; AIR 1930 Allahabad, 341. I have carefully considered those decisions but I find nothing in those decisions which may support the plea of the respondents. If at all the observations in the Allahabad decision support the case of the appellant. 17. Having regard to the provisions of the Act and the decisions on the subject, I am of the view that the first question must be answered in favour of the appellant, and it must be held that after the death of the Christian convert daughter the property inherited by her will pass to the reversioners of her father. 18. The second question referred for the opinion of this Bench proceeds on the assumption that all the decision referred to therein decide the same question of law and there is conflict between the two sets of decisions. Obviously the question of conflict or inconsistency will arise only if the decisions relate to the same question of law. If they do not, the question of conflict does not arise at all. 19. I have earlier referred to the law as laid down, in Fakeer Bux V/s. Saira Begum -- . That was indeed a decision interpreting the provisions of the Act, and I have respectfully agreed with the law laid down by their Lordships of the Allahabad High Court. The decision of the Calcutta High Court in Matungini Gupta Ramratan Roy (ILR 19 Calcutta, 289) dealt with a question arising under the Hindu Widows Marriage Act 1856. That was indeed a decision interpreting the provisions of the Act, and I have respectfully agreed with the law laid down by their Lordships of the Allahabad High Court. The decision of the Calcutta High Court in Matungini Gupta Ramratan Roy (ILR 19 Calcutta, 289) dealt with a question arising under the Hindu Widows Marriage Act 1856. It does appear from the report that their Lordships approached of the law as stated by Wilson J. in his referring order that the Caste Disabilities Removal Act 1850 did not affect that case, and that by virtue of that Act a change of religion does not cause any forfeiture of property and therefore the widows adjuration of Hinduism did not deprive her of her estate but neither could it enlarge it or get rid of any condition or restriction to which it was originally subject. 20. It is, therefore., apparent that the observations in the judgment are consistant with the view that has been subsequently reiterated, in the Allahabad decision as to the consequence that followed by operation of the provisions of Caste Disabilities Removal Act. 21. The decision of the privy Council in Mitar Sen Singh V/s. Maqbul Hasan Khan and Ors. AIR 1930 Privy Council 251 did consider the provisions of the Act and held that they only apply to protect the actual person who either recounced his religion or had been excluded from the communion of any religion, he had been deprived of his caste. But once a person had changed his religion and changed his personal law, that law will govern the rights of succession of his children. This view is also consistant with the view taken in the Allahabad decision. 22. The first decision in the other set of cases referred to in the order of reference is Abraham V/s. Abraham 19 Moors Indian Appeal 195. That decision does not at all deal with the provisions of the Caste Disabilities Removal Act. The dispute in that case was between the heirs of a deceased Christian and his brother. Their Lord ships clearly held that the parties were not governed by the Hindu law and therefore it was unnecessary to go into that question. The parties in that case descended from a family of Hindus, but their ancestors for several generations had embraced Christianity. Their Lord ships clearly held that the parties were not governed by the Hindu law and therefore it was unnecessary to go into that question. The parties in that case descended from a family of Hindus, but their ancestors for several generations had embraced Christianity. At the time the dispute arose, the contestants were Christians and it was found that Hindu law did not apply to them, and all the properties in dispute were acquired after conversion. The decision is an authority for the proposition that the profession of Christianity releases the convert from the trammels of the Hindu law, but it does not necessarily involve any change of the rights or relations of the convert in matters with which Christianity has no concern, such as his rights and interest in, and his powers over, property. The convert, though not bound as to such matters, either by the Hindu law or by any other positive law, may be his course of conduct after his conversion have shown by what law he intended to be governed as to these matters. Their Lordships found that the parties in that case were not governed by the Hindu law and that the case fell to be decided according to Regulation which prescribed that the decision shall be according to equity and good conscience. 23. In Krimuddin V/s. Gobind Krishna Narain Indian Appeal 138 the Privy Council was not called upon to consider the provisions of the Act, and therefore, there is no discussion whatsoever in the judgment touching upon the questions arising in the instant second appeal. The question that arose in that case was whether Rani Mewa Kuer (mother of the plaintiffs) had conveyed in absolute title to Jain Chand Rai who had got the property sold in satisfaction of a decree obtained by him against Rani Mewa Kuer, for money advanced by him to her mother for family purposes. The defendants in the suit were the purchasers of the property from Jai Chand Rai, who claimed an absolute interest in the property purchased. Their Lordships held that though Mewa Kuer had succeeded only to a fathers estate, which was a limited estate, the alienation by her to Jai Chand Rai was justified in the facts of the case, since the debt had been incurred for the presentation of the estate, and the cost litigation for that purpose. Their Lordships held that though Mewa Kuer had succeeded only to a fathers estate, which was a limited estate, the alienation by her to Jai Chand Rai was justified in the facts of the case, since the debt had been incurred for the presentation of the estate, and the cost litigation for that purpose. The objects justified the incurring of debt by a Hindu widow and alienating a sufficient amount of the property to discharge it. It will thus appear that the decision of the Privy Council did not at all deal with the provisions of the Act, and therefore no question of conflict of opinion arises. 24. So far as the judgment of the privy Council in Khunni Lal V/s. Gobind Krishna Narain 38 I.A. 87 is concerned, I have earlier in the judgment quoted the observations of the Privy Council in so far as they relates to the provisions of the Act. The view which found favour with the Privy Council is perfectly consistant with the view expressed by the Allahabad High Court in Fakeer Bux (supra) and not inconsistent with the decision of the Privy Council in Miter Sen Singh (supra). 25. Having considered the provisions of the Act and the authorities on the subject, I would answer the two questions in the following terms : (a) The property inherited by a Christian convert daughter as a daughter estate, which is a life estate, from her deceased Hindu father by virtue of Caste Disabilities Removal Act 1850, on her death prior to Hindu Succession Act 1956, will pass to the reversioners of her father and not to her own Christian progany under the Indian Succession Act. (b) The view expressed in Khunni Lal V/s. Gobind Krishna Narain 38 I.A. 87 is not in conflict with the decisions in Fakeer Bux V/s. Saria Begum -- Matingin Gupta V/s. Ramaratan Roy ILR 19 Calcutta 209 and Miter Sen Singh V/s. Maqbul Hasan Khan AIR 1930 P.C. 251. The other decisions referred to in the question, do not deal with the same question and therefore no question, of conflict arises. However, some general observations made in those decisions are not inconsistent with the decisions above referred. In the view I have taken, this appeal must be allowed, accordingly the judgment and decree passed by the 5th Addll. The other decisions referred to in the question, do not deal with the same question and therefore no question, of conflict arises. However, some general observations made in those decisions are not inconsistent with the decisions above referred. In the view I have taken, this appeal must be allowed, accordingly the judgment and decree passed by the 5th Addll. District Judge, Santhal Pargana Dumka in title Appeal No. 38 of 1976 is set aside, and the judgment and decree of the court of Subordinate Judge, Deoghar (camp Jamtara) in Title Suit No. 58 of 1963, is restored. The parties shall bear their respective costs in this appeal. 26 S.N. Jha, J. I agree.