RANGANATHA MALLAN Vs. KARTHYAYANI

JUDGEMENT

(1.) THE relevant facts of the case have been set out as follows in my judgment dated the 25th October, 1963, which is now sought to be reviewed: This appeal by the plaintiffs arises out of a suit For partition of an item of property after setting aside a sale deed with respect to it, Ext. D2, of the year 1123. THE two plaintiffs and the 3rd defendant are the sons of the second defendant and defendants 4 and 5 are the brothers of the second defendant. Ext. D2 was executed by defendants 2,4 and 5 in favour of the 7th defendant, who assigned his rights under it in favour of the first defendant. It has been set aside by the lower court to the extent of the plaintiffs' share, which has been held to be 1/6th, and partition has been decreed accordingly. In this appeal, the plaintiffs challenge the correctness of the decision that their share is 1/6th and claim 1/4th share in the properly, on the ground that the 5th defendant having renounced Hinduism is not entitled to any share in the property. It was not disputed in this appeal, that such renunciation took place in the year 1104 and that according to the rule of hindu Law by which the family is governed, the 5th defendant had forfeited his right in the family property. THE sole question for decision in this appeal is whether the plaintiffs' share is 1/4th as claimed by them or 1/6th as decreed. This would depend on whether the 5th defendant is entitled to a share in the property; if he is so entitled, the plaintiffs' share can be only 1/ 6th and not 1/ 4th. While there was no dispute as to the rule of forfeiture of property upon conversion in Hindu Law, the sole controversy related to the effect of the caste Disabilities Removal Act, 1850, (Act XXI of 1850) which was extended on the 1st April 1951, to the former Travancore-Cochin State in which this case arose. S. 1 of that Act provides: "so much of any law or usage now in force within india as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of in" heritance, 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. "

(2.) BY the judgment sought to be reviewed I took the view, that notwithstanding that the conversion of the 5th defendant to Christianity took place before Act XXI of 1850 came into force in the concerned area, if he were to sue for partition of the property after the Act came into force, the rule of forfeiture on conversion cannot constitute a defence & a share would have to be decreed. I also thought, that Khunni Lal v. Gobind Krishna Narain (I. L. R. 33 Allahabad 356) decided by the Privy Council and Mitar Sen Singh v. Maqbul hasan (A. I. R. 1928 Oudh 138) decided by the the Oudh Chief Court supported the above view. After fuller argument on this review petition, I am convinced that i had misunderstood the effect of these decisions, for reasons to be stated presently. I therefore allow this review petition, reopen the appeal and under order XLVII, R. 8, C. P. C. , direct that a note be made thereof in the register. In the nature of the question involved which was fully argued, the appeal also being posted, I proceed to pass judgment in the appeal.

(3.) IN the meantime, the earlier case, Gobind Krishna narain v. Abdul Qayyum (I. L. R. 25 Allahabad 546) went up in appeal to the privy Council and was reversed on another point in Karimuddin v. Govind Krishna narain (I. L. R. 31 Allahabad 497 ). The decision in Gobind Krishna Narain v. Khunni Lal (I. L. R. 29 Allahabad 487) also was appealed against and the judgment of the Privy Council is reported in Khunni Lal v. Gobind Krishna narain (I. L. R, 33 Allahabad 356 ). Their Lordships expressed their inability to concur with the judgment of the High Court, and after noting that in the year 1845 when Ratan Singh abandoned Hinduism and adopted the Mohammadan faith, s. 9 of the Regulation VII of 1832, was in force in the Bengal Presidency and was applicable, observed: "act XXI of 1850 extended the principle of S 9, regulation VII of 1832, of the Bengal Code, throughout the territories subject to the Government of the East INdia Company. After reciting the provisions of s. 9 and stating that it would be beneficial to extend its principle to the rest of British INdia, it enacted. " Section I of Act XXI of 1850 which, as it then stood, with certain variations which are not material, corresponded to what has been extracted earlier in this judgment. Their Lordships continued, "the intention in both enactments is perfectly clear; by declaring that the Hindu or Mohammadan 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 Hindu law which penalizes renunciation of religion or exclusion from caste. " and stated the conclusion thus: "the affect of the legislation of 1812 and 1850 was that on Ratan Singh's abandonment of Hinduism, Daulat Singh did not acquire any enforcible right to his father's share in the joint family property which he could either or assert himself transmit to his heirs for enforcement in a british Court of justice. " The view of the High Court was, that S. 9 of Regulation. 7 of 1832 laid down only a rule of procedure, and did not abrogate the rule of hindu law as to the consequences of apostasy, and that on the conversion of ratan Singh, Daulat Singh became the sole owner and Act XXI of 1850 did not come into force until five years after the conversion. So even the High Court was not prepared to hold that Act XXI of 1850 had retrospective operation. The point to be borne in mind is, that the conversion of Ratan Singh took place when Regulation. 7 of 1832 was in force and this was the reason why the Privy council held that Ratan Singh did not forfeit his right on conversion.