SHUMMUGHATHAI AMMAL Vs. DEVASSAHAYAM NADAR

JUDGEMENT

(1.) THIS case comes before a Full Bench under the following order of reference:- ORDER OF REFERENCE "this is an appeal by the plaintiff from a decree, dismissing the suit. The plaint properties belonged to one Malayappan Maria gnanaprakasam who died in the year 1076, leaving a widow. He had no children. His widow Mathavaoiyal died in the year 1119. Gnanaprakasam and his widow were nadar Christians who were governed by principles of Hindu Mithakshara Law in the matter of succession. The widow made certain alienations in respect of the properties described in Schedule B and items 1 to 7 in Schedule A. According to the plaintiffs, 2nd plaintiff is Gnanaprakasam's father's brother's son's daughter's son and the nearest reversioner to the estate of Gnanaprakasam. The alienations made by the widow are void and inoperative after her death. The 2nd plaintiff took possession of all the properties on the death of the widow, but the defendants are obstructing his peaceful possession and enjoyment of the same. On these allegations plaintiffs 1 and 2 sued for a declaration that the 2nd plaintiff was a preferential heir of Gnanaprakasam, that the alienations made by the widow were void and that the properties described in A Schedule were in his possession. They also asked for recovery of B Schedule properties from the defendants with mesne profits and also of A Schedule properties in case any of the defendants claimed possession of the same. It was prayed that a decree granting these reliefs be given to the first defendant in whose favour the 2nd plaintiff had conveyed his rights. The suit was resisted by defendants 1 to 3, 6, 9,10 and 15. They contended inter alia that Gnanaprakasam and his wife were Christians, that succession was to be governed by the Christian succession Act, 2 of 1092 (Travancore), that the 2nd plaintiff was born a christian and that he could not rely on principles of Hindu Law to establish his claims to the properties. The trial court framed 13 issues and on the motion of the first defendant heard issues Nos. 2 and 8 to 10. Issue No. 2 viz. , " (a) Is the 2nd plaintiff the nearest heir to the properties of Gnanaprakasam or his wife Mathavadiyar? Were they not governed by the Christian Succession Act. (b) Did he succeed to the plaint properties? Was he ever in possession or enjoyment of the same at any time?" was decided against the plaintiffs and the suit was dismissed. ii. It is admitted by both sides that the original owner gnanaprakasam died in the year 1076 and his widow in the year 1119, that they were both Christians and that the 2nd plaintiff was born a Christian in 1099. It is also admitted that until the Christian Succession Act, 2 of 1092 became the law applicable to Christians in Travancore, these persons were governed in the matter of succession by principles of Hindu Mithakshara Law which was the customary law the community followed. According to this customary law conversion of a Hindu Nadar to Christianity did not affect his rights in the joint family. Similarly, Hindu members of the family could succeed to a member who had embraced Christianity. Thus, irrespective of the change of religion to Christianity, inheritance was governed by principles of Hindu Mithakshara Law. On 7. 5. 1092/21. 12. 1916 the Christian Succession Act became the law applicable to all Christians other than certain denominations who were exempted from the operation of Ss. 24, 28 and 29 of the Act. S. 3 of the Act is as follows: "the provisions of this Regulation shall not apply to intestate succession to the property of such members of the Indian Christian community as follow the Marumakkavazhi system of inheritance, nor shall they apply to any intestacy occurring before the date on which this Regulation comes into force". iii. The plaintiffs practically base their case on S. 3 and contended that in as much as Gnanaprakasam died in 1076, succession opened before the passing of the Act and that inheritance would be governed by the customary law which was then in force, under which the 2nd plaintiff became the nearest reversioner on the death of the widow. The decisions in Travancore on this point have not been uniform. The decision in Gnanamony v. Chempakakutty (2 tlt 574) supports this contention of the appellants. It was held "the question as to who should succeed to the property of the last full owner will have to be determined by the application of the principles of the Hindu Law which the parties were following at the time of intestacy and not by the christian Succession Regulation which has been expressly declared inapplicable to such cases. " In Raman Pandaram Nadan Muthiah Nadar & three Ors. v. Sivananchi Nadachi Bhagavathi Pillai Nadachi (22 TLJ 60) it was held that among shanars, conversion to Christianity did not entail forfeiture of the rights of the convert in his original family. THIS decision followed Sivanaduma Nadar v. Ramaswami Pillai (22 TLR 246 ). In Narayanan Muthu v. Kutti Nadar Pandaram and five Ors. (25 TLJ 708) it was held that the widow's estate obtained before the christian Succession Act would not be enlarged into an absolute estate by the christian Succession Act and that the intestacy to be taken into consideration was that of the last full owner who died before the Act and not of the widow who died after the Act. The decision in 2 TLJ 574 was followed. A different view was held in Gnanapradesi Thankamma v. Paradesi Gnanamma (29 TLJ 372 FB)Gnanapradesi, a Christian governed by the Hindu Mithakshara Law of Succession, died in 1087 leaving 6 daughters. During the minority of three of them, the other three acting on their own behalf as well as in the capacity of guardian of the minors, assigned certain assets of the deceased. The three minor daughters sued for setting aside the assignment in their entirety. The question arose whether they could seek to set aside the entire alienation or only to the extent of the shares they would be entitled to, as Christians. Notwithstanding the fact that Gnanapradesi died in 1087 it was held that their rights became altered on the passing of the Christian Succession Act and that they were entitled to sue only in respect of their shares which had become enlarged to absolute rights as tenants-in-common. It was thus decided that the principles of Hindu Law relating to devolution of property ceased to be applicable to them. The decision Yohan v. Yacob (16 TLJ 375) that the effect of the Christian succession Act was to make the parties tenants-in-common of property which was originally ancestral, was upheld. Again in Anancha Perumal Nadar v. Muthiah nadar (1944 TLR 595 FB) the estate of a deceased Nadar who died in 1075 was claimed by his father's brother's grandsons who were Christians as against his sister's sons who were Hindus. Krishnaswami Iyer, C. J. with whom Krishna pillai, J. concurred held that the old usage ceased to be operative after the passing of the Christian Succession Act and that the effect of the Act was to abrogate the usage in its entirety as regards converts to Christianity, for whom it established a fresh code of rules of succession in substitution of Hindu law. In other words, it was held that the old usage could exist only in those cases where the persons who were to succeed had not changed their religion. iv. There is yet another aspect to be considered. THIS relates to the question as to whether succession opened on the death of gnanaprakasam or only on the death of his widow the limited owner. The decisions in Dunichand & Ors. Anarkali (ILR 1946 Allahabad 748 PC) and Lekshmi ammal & Ann v. Anantharama Iyengar & Ann (ILR 1937 Madras 948 FB) hold that succession does not open to the heirs of the deceased until the termination of the widow's estate. The question that arose for decision in these cases was whether succession to a Hindu male dying before the passing of the Hindu Law of Inheritance (Amendment) Act (2 of 1929) leaving a female heir (a limited owner) who was alive after the Act came into force, was governed by this Act. It was held that succession opened to the heirs of the last male holder only after the passing of the Act on the death of the limited owner. Whether this view can be adopted in this case in view of Ss. 3 and 24 of the christian Succession Act has also to be considered. v. The questions for decision in this case are important and would affect a large body of persons. In the absence of an authoritative decision of this court covering these questions, we refer this Appeal to a Full bench".

(2.) WITH reference to the widow under the Hindu Law, the privy Council said: "the whole estate is for the time vested in her absolutely for some purposes, though in some aspects for only a qualified interest. Her estate is an anamalous one, and has been compared to that of a tenant-in-tail. It would perhaps be more correct to say that she holds an estate of inheritance to herself and the heirs of her husband. But whatever her estate is, it is clear that until the termination of it, it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband. The succession does not open to the heirs of the husband until the termination of the widow's estate. Upon the termination of the estate, the property descends to those who would have been the heirs of the husband if he had lived up to and died at the moment of her death" (Moniram Kolita v. Kerry Kolitany) (1880) 7 IA 115. Their Lordships affirmed this view in ILR 1946 Allahabad 748 (PC) Dunichand v. Anar Kali (See Mayne's Hindu Law, 11th Edition, 1953, page 756, paragraph 638 ). This proposition is well-settled.

(3.) SECOND Part of (B) in the second issue is a matter that depends upon evidence and ahs not been considered by the court below and cannot be dealt with by us.