DEVADAS SILAS Vs. ESAKKI DEVIANA

JUDGEMENT

(1.) This appeal arises out of a suit for redemption of a mortgage. One Sudalamuthu Sivanu mortgaged the plaint property to Ahammathu Ummal on 25.1.1089 under Ext. 4. The case in the plaint was that Sivanu had no wife or children and that his sister and her son, Defendants 1 and 2 sold the equity of redemption to the plaintiff under Ext. A dated 22.3.1123. The 3rd defendant is in possession as assignee of the mortgage right. The 3rd defendant who contested the suit denied the plaintiff's title to redeem. His contention was that Sivanu became a Mahomedan long before 1089, that he and his children were alive on the date of suit and that Defendants 1 and 2 had no right to deal with the property. The plaintiff filed a replication admitting the fact that Sivanu became a Mahomedan. The court below held that Sivanu became a Mahomedan before the year 1089, that he had children and that it could be presumed that he and his children were dead in 1122. It was also found that Defendants 1 and 2 were not the heirs of the mortgagor and the suit was dismissed. The plaintiff has preferred this appeal from the decree of the Trial Court.

(2.) The only question that arises for decision is whether Defendants 1 and 2 were competent to sell the equity of redemption to the plaintiff. On the fact admitted by the plaintiff, namely, that Sivanu died a Mahomedan, the plaintiff has to be non suited. Sivanu was originally a Hindu and Defendants 1 and 2 are still Hindus. According to the Mahomedan Law, a Hindu cannot succeed to the estate of a Mahomedan. It was admitted by the 1st defendant who was examined as PW 4 that Sivanu or Abdulla as he was known after his conversion had a child which survived him. In such circumstances, the child would be his heir and not his relatives who are still Hindus. Learned Counsel for the appellant contended that Defendants 1 and 2 were entitled to succeed to the estate, on the strength of the Proclamation issued by the Maharaja of Travancore on 29th June 1869 corresponding to 17th Mithunam 1044. His argument was that this Proclamation in effect removed the bar of succession to the estate of an apostate to whichever community he or the persons who claimed succession belonged. In our opinion, the Proclamation does not lend itself to this construction. The practice before that was for the State to assume property left by a deceased Hindu who died leaving no heirs other than those who had become converts to a different religion. By this Proclamation, the State relinquished all claims to such property so left and it was declared that the natural heirs of the deceased would inherit the estate independently of religious considerations. The Proclamation was different in scope from the Caste Disabilities Removal Act XXI of 1850. It is therefore unnecessary to consider the decisions under that Act. Even under that Act, it was held by the Privy Council in Mitar Sen Singh v. Madbul Hasan Khan and others (57 I.A. 313) that the Caste Disabilities Removal Act, 1850 applied only to protect the actual person who either renounced his religion or had been excluded from the communion of any religion or had been deprived of caste. It was therefore held that where the property of a Mahomedan converted from Hinduism had passed according to Mahomedan Law to his descendants, Hindu collaterals could not claim by virtue of the Act to succeed under Hindu Law. An Act somewhat similar in scope to Act XXI of 1850 was passed by this State as the Travancore Cochin Removal of Civil Disabilities Act (XX of 1950) only on 6th June 1950. The present case is one in which devolution to the estate of the deceased is governed by Mahomedan Law. Defendants 1 and 2 therefore had no interest in the equity of redemption and the plaintiff did not obtain any rights under the sale deed Ext. A, executed by them.

(3.) In view of the finding regarding the plaintiff's title, it is unnecessary to consider whether the 3rd defendant has obtained title to the equity of redemption.