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2000 DIGILAW 1199 (MAD)

G. JOTHIMUTHU v. S. GOPAL

2000-11-24

M.KARPAGAVINAYAGAM

body2000
Judgment :- M. KARPAGAVINAYAGAM, J. (1) THE plaintiff is the appellant herein. He filed the suit against his father and two others, the defendants for partition. This suit was dismissed holding that the appellant being a Christian could not be entitled to any share in the property of the first defendant, who is the father so long as he is alive. Hence, this first appeal. (2) THE case of the plaintiff is as follows: the suit properties are joint family properties belonged to the plaintiff and his father first defendant. The second defendant fabricated a promissory note as if, the first defendant had executed the same in favour of the second defendant and filed an insolvency petition and got the declaration that the first defendant is an insolvent. Subsequently, some of the properties were brought to sale in auction and the same had been purchased by the second defendant. These proceedings would not bind the plaintiff the son. The plaintiff did not receive any notice. Therefore, the plaintiff having 1/2 share in the suit properties filed a suit for partition. (3) THE case of the 2nd and 3rd defendant are as follows: The plaintiff is not a Hindu. The plaintiffs father, the first defendant is a Christian. baptized and married a Christian in Christian form and as such the plaintiff is also a born Christian. He has also been baptised and had married a Christian lady. Since the first defendant was found to be in the State of insolvency, the other defendants initiated the insolvency proceedings and after contest he was adjudicated as insolvent. Therefore, the same cannot be questioned now. The second defendant sold the property to 3rd defendant for proper and valid consideration. Moreover, the defendant has perfected his title by adverse possession by continuous enjoyment for over a prescribed period. Therefore the suit is liable to be dismissed. (4) ON the basis of the above pleadings necessary issues were framed. During the course of trial, P. Ws. 1 and 2 were examined on the side of the plaintiff and Exs. A-1 to A-15 were marked on his side. The first defendant did not choose to appear before the court and on the side of the Defendant D. W-1 to 4 were been examined and Exs. B-1 to B-16 were marked. During the course of trial, P. Ws. 1 and 2 were examined on the side of the plaintiff and Exs. A-1 to A-15 were marked on his side. The first defendant did not choose to appear before the court and on the side of the Defendant D. W-1 to 4 were been examined and Exs. B-1 to B-16 were marked. (5) ON consideration of the evidence oral and documentary, the trial Court found that the plaintiff was proved to be a Christian and as such he would not be entitled to any share in the properties of the father, the first defendant. Challenging this judgment and decree, the plaintiff/appellant has presented this first appeal before this Court. (6) MR. V. Vijayashankar, the learned counsel appearing for the appellant would strenuously contend that the judgment rendered by the trial court is not valid in law as it has not considered the issues in the proper perspective. The suit properties were actually purchased by the plaintiffs grandfather and there are materials to show that when the plaintiff was born, he was a Hindu and as such, the plaintiff must be held to have right to share in the suit properties. He also would point out that by virtue of Section 26 of the hindu Succession Act, the plaintiff being a hindu when he was bom i. e. , at the time when the succession opens, he would certainly be qualified to inherit the property of his father (7) THOUGH the notice was served on the respondent, nobody has entered appearance on their behalf. (8) I have carefully considered the submissions made by the counsel for the appellant and also gone through the Judgment and records. Though several grounds have been urged in order to establish that the reasonings given by the trial court are wrong, the main point that may arise for consideration before this court is whether the plaintiff can be considered to be a Christian even when there is document Ex. A-B which shows that at the time of his birth he was a Hindu and therefore whether section 26 would be applicable to this case. (9) IT is the specific case of the respondent/defendants that the first defendant and the plaint are Christians and even his grandfather chodalikannu Kangani became Christian and as such the plaintiff would not have the right to claim share under the Hindu Succession Act. (9) IT is the specific case of the respondent/defendants that the first defendant and the plaint are Christians and even his grandfather chodalikannu Kangani became Christian and as such the plaintiff would not have the right to claim share under the Hindu Succession Act. Ex. A-1 to Ex. A-7 are the sale deeds which would show that the plaintiffs grandfather chodalimuthu purchased the properties from the year 1916 to 1923 from various persons. In Ex. A-9, Ex. A-10 and Ex. A-11 the first defendants name is mentioned as Gopal alias johnson. Ex. B-2 the sale deed executed by the first defendant in the year 1965 also would show that the name of the first defendant is mentioned as Gopal @johnson. It is also mentioned therein that Gopal @ Johnson is a christian That apart, in the affidavit filed in the suit in O. S. No. 74 of 1967 by the first defendant as Ex B-3 also, the name was mentioned as Gopal alias Johnson, son of sudalimuthu Kangani, Christian aged 49 years. Ex. B-4 is the baptism certificate issued to the first defendant. Ex B-5 and Ex. B-6 are also baptism certificate and marriage certificates respectively. These certificates would also show that the first defendant was a Christian. Besides that, plaintiff had admitted that his marriage was performed with Jebamani in C. S. I church and that his sons name was in baraj and daughters name was Jasmine. Ex. B -6 would show that his marriage was performed in church in the year 1966. Ex. B-2 and Ex. B-8 all would show that the name of the first defendant was mentioned as Gopal alias johnson. In the light of these materials, the finding has been arrived at by the trial court holding that the plaintiff would not be entitled to have any share in the suit properties, as it was not established by him that he is a Hindu. (10) IT is vehemently contended by the learned counsel for the appellant that Ex. A-8, the Birth Certificate issued to the plaintiff would show that he was born as a Hindu. On perusal, this certificate was issued by the Sub-registrars Office to show that his birth date was registered on 1. 3. 1942. No doubt, it is mentioned in the certificate in the column nationality as "hindu". A-8, the Birth Certificate issued to the plaintiff would show that he was born as a Hindu. On perusal, this certificate was issued by the Sub-registrars Office to show that his birth date was registered on 1. 3. 1942. No doubt, it is mentioned in the certificate in the column nationality as "hindu". But, this certificate alone would not be sufficient to hold that the plaintiff was a Hindu at the time when he was born and as such he would be entitled to inherit the property of any other Hindu relatives. Admittedly, he claims share in the suit properties from his father, who is not a Hindu. (11) AS indicated above, there are several documents which have been filed by the plaintiff as well as the defendants to show that both his grandfather as well as his father, the first defendant are Christians and that his father was baptised in the year 1941 and the plaintiff was also baptised in the year 1947. Section 26 of the Hindu Succession Act reads as under.-"where, before or after the commencement of this act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their hindu relatives, unless such children or descendants are Hindus at the time when the succession opens. " (12) THE Calcutta High Court in a case reported in Asoke Naidu v. Raymond S. Mulu would interpret Section 26 that it does not disqualify a convert, it only disqualifies the descendants of the converts who are born to the convert after such conversion from inheriting the property of any of their Hindu relatives. The change of religion and loss of caste have long ceased to be grounds of forfeiture of property. The only disqualification to inheritance on the ground that a person has ceased to be a Hindu is confined to the heirs of such convert. (13) THIS observation of the Calcutta High court would squarely apply to the present case, as in the instant case, there are materials to show that both grand father as well as the father of the plaintiff are converts. As such, the disqualification for inheritance would apply to the heirs of such convert namely the plaintiff. (13) THIS observation of the Calcutta High court would squarely apply to the present case, as in the instant case, there are materials to show that both grand father as well as the father of the plaintiff are converts. As such, the disqualification for inheritance would apply to the heirs of such convert namely the plaintiff. (14) FURTHERMORE, it is noticed under Section 2 of the Hindu Succession Act 1956 that this Act would apply only to the children legitimate or illegitimate, both of whose parents are hindus and also to the person who is a convert or re-convert to the Hindu, in the light of this explanation given in Section 2 of the Hindu succession Act, 1956, it cannot be concluded that in the present case, the plaintiff has proved that he is a child of a Hindu or is the person who is a convert or re-convert to the Hindu. As noted above, it is clearly established that both the father of the plaintiff and the grandfather were Christians and the first defendant was baptised in a Church. Moreover, the plaintiff himself was baptised and continues to follow the Christianity by performing his marriage in church and participated in other functions relating to the said religion. (15) UNDER those circumstances, under the Indian Succession Act, the plaintiff would be entitled to have any share only after the death of the father, but unfortunately it is said that the father is still alive. In such a situation, it cannot be said that the finding rendered by the trial court dismissing the suit is either wrong or perverse. (16) IN consequence, the appeal is dismissed. No costs. Appeal dismissed.