RAMASWAMI NADAR Vs. PONNIAH NADAR

JUDGEMENT

(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. 1 is the mortgage deed. Subsequent to the execution of Ext. 1, 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. 1 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 reconsidering 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. The findings of the Trial Court that Paranchothi was the legally wedded wife of Saminathan and that Ext. 1 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. 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: